American Motors Corp. v. Department of Industry, Labor and Human Relations, 77-703

• Decision Date: 02 November 1979
• Docket Number: No. 77-703,77-703
• Citation: 93 Wis.2d 14,286 N.W.2d 847
• Parties: , 21 Fair Empl.Prac.Cas. (BNA) 654, 21 Empl. Prac. Dec. P 30,408 AMERICAN MOTORS CORPORATION, Petitioner-Appellant, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, Respondent. *
• Court: Wisconsin Court of Appeals

Page 847

286 N.W.2d 847

93 Wis.2d 14, 21 Fair Empl.Prac.Cas. (BNA) 654,

21 Empl. Prac. Dec. P 30,408

AMERICAN MOTORS CORPORATION, Petitioner-Appellant, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS Respondent. ^*

No. 77-703.

Court of Appeals of Wisconsin.

Argued Oct. 25, 1978.

Opinion Released Nov. 2, 1979.

Opinion Filed Nov. 2, 1979.

Herbert P. Wiedemann, Michael I. Paulson (argued) and Foley & Lardner, Milwaukee, on brief, for petitioner-appellant.

Bronson C. La Follette, Atty. Gen., and David C. Rice, Asst. Atty. Gen., (argued), on brief, for respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

BABLITCH, Judge.

This is an appeal from a judgment of the circuit court for Dane County affirming the findings of the Department of Industry, Labor and Human Relations (department) that the American Motors Corporation (AMC) had violated the Wisconsin Fair Employment Act (WFEA) by discharging one Thomas L. Bartell from its employ. The case presents an issue never before considered by an appellate court in Wisconsin, namely whether the Act requires Wisconsin employers to accommodate the religious needs of their employees.

AMC hired Bartell, who is an engineer, for a management position at its Milwaukee plant in 1972. He and two other new employees were required to participate in a six-month training program beginning on July 7, 1972. As a part of that program, each of the three was assigned separately, on a rotating basis, to various departments within the plant to learn their operations. A personnel manager who coordinated the training program testified that it was somewhat disruptive for each of the departments involved, and that therefore the schedule was rigidly planned to avoid having more than one trainee in any department at the same time.

At an orientation meeting prior to the start of the training program, the personnel manager explained the program and distributed the schedule of assignments to the three trainees. He also explained various company policies, including those regarding holidays, vacations and leaves of absence. Though the trainees were encouraged to ask questions, Bartell did not at that time volunteer that there would be a conflict between the schedule and any of his religious practices.

Bartell had been baptized as a member of the Worldwide Church of God on January 8, 1972, having studied its precepts and counseled with its ministers since 1968. This church, which was founded in 1934, observes the weekly Sabbath from sundown Friday to sundown Saturday. During that time, and during certain other holy days each year, members are forbidden to engage in secular work. In 1972 one such holy day, the Day of Atonement, fell on Monday, September 18. The eight-day Feast of Tabernacles commenced on September 22 and ended Friday, September 29. Church members were required to refrain from secular work on the first and last day of the Feast of Tabernacles and to attend a regional convention in Wisconsin Dells during the intervening week.

On August 7, 1972 Bartell asked the personnel manager if he could be excused from work on September 18, 22 and 25 through 29 so that he could attend "a religious convention."

At that time he did not explain that his attendance was considered mandatory by his church. After conferring with company officials, the personnel manager told Bartell on August 10, 1972 that his request was denied. Bartell then explained that his attendance was compulsory. The personnel manager had further discussions with his superiors, and on August 17 told Bartell that he would have to work the days in question or be terminated. He suggested that Bartell think the matter over and communicate his decision on the following day. On August 18 Bartell told the personnel manager that he could not change his request for the days off. He was told in return that he was terminated from employment effective that date.

On August 24, 1972 Bartell filed a complaint with the federal Equal Employment Opportunity Commission (EEOC), alleging that the termination was based upon religious discrimination. The complaint was deferred to the department, which found probable cause to believe that a violation of the Wisconsin Fair Employment Act had occurred. Conciliation efforts were unsuccessful. The complaint was certified to hearing on July 9, 1973.

The department issued its final decision and order on January 13, 1977, determining that AMC had violated the Act in discharging Bartell. AMC was ordered to cease and desist from discriminating against him and to pay back pay from August 19, 1972 through February 4, 1973, when Bartell found other employment. AMC appeals from a circuit court judgment entered May 2, 1978 affirming the findings and order of the department but modifying the order to exclude back pay. The department appeals from that part of the judgment excluding back pay.

The issues on appeal are:

1. Whether AMC had a duty to accommodate Bartell's religious needs under WFEA.

2. If so, whether that requirement of the Act is in violation of the establishment clause of the first amendment to the United States Constitution or of article I, section 18 of the Wisconsin Constitution.

3. Whether the evidence is sufficient to support the department's findings that AMC failed to afford a reasonable accommodation to Bartell.

4. Whether the department had authority to award back pay to Bartell.

I. Duty To Accommodate.

The Wisconsin Fair Employment Act is set forth in secs. 111.31 through 111.37, Stats. The Act prohibits discrimination in employment based upon a variety of factors which the legislature has determined are irrelevant to an individual employee's qualifications for work. The declaration of policy set forth in sec. 111.31 states that employment discrimination based on such factors will adversely affect the general welfare of the state and of individuals by fomenting "domestic strife and unrest," by depriving the state of "the fullest utilization of its capacities for production," and by depriving the victims of such discrimination "of the earnings which are necessary to maintain a just and decent standard of living." ¹ Section 111.31(3) dictates that the When the original Act was enacted in 1945, ² the disapproved factors for discrimination in employment were five: race, creed, color, national origin and ancestry. These factors were not then, and are not now, separately defined by statute. "Creed" has been defined by the Wisconsin Supreme Court to be synonymous with religion in Augustine v. Anti-Defamation League B'nai B'rith, 75 Wis.2d 207, 214-15, 249 N.W.2d 547, 550-51 (1977). Section 111.32(5)(a), Stats., presently provides:

Act shall [93 Wis.2d 22] be liberally construed to accomplish the purpose of the Act to "encourage and foster to the fullest extent practicable the employment of all properly qualified persons regardless of" the prohibited factors.

"Discrimination" means discrimination because of age, race, color, handicap, sex, creed, national origin or ancestry, arrest record or conviction record by an employer . . . against any employe or any applicant for employment . . . in regard to hire, tenure or term, condition or privilege of employment or licensing . . . .

Amendments to the Act after 1945 added sex, handicap, and arrest and conviction records as prohibited factors of discrimination in employment. With each of these additions, the legislature enacted separate definitional subsections detailing the kinds of employment decisions which were, and were not, considered to be discriminatory and prohibited under the Act. Under these definitions, employment decisions based upon (or taking into consideration) the enumerated factors are not prohibited if such factors have a reasonable relationship to the specific requirements of the job or employment decision in question. ³

At no time, however, has the legislature acted to define discrimination based upon the original five factors, including creed. Consequently, the legislature's intention to require, or not to require, that employers make reasonable accommodations for the religious needs of their employees is not clear from the Act.

Other courts, faced with the same problem of legislative silence in this area, have reached conflicting results in interpreting similar statutes. Title VII of the Federal Civil Rights Act of 1964 which prohibits discrimination in employment on the basis of race, color, sex, religion or national origin is similar to the WFEA. 42 U.S.C. sec. 2000e-2(a)(1). Congress amended the Act in 1972 to impose an express duty on employers "to reasonably accommodate to an employee's or prospective employee's religious observance or practice." ⁴ Prior to that time the validity of EEOC regulations to that effect were in doubt under conflicting decisions of federal circuit courts of appeals. In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 76 n. 11, 97 S.Ct. 2264, 2273 n. 11, 53 L.Ed.2d 113 (1977), however, the United States Supreme Court The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. 401 U.S. at 431, 91 S.Ct. at 853.

accepted the EEOC interpretation of the federal Act as "a defensible construction of the pre-1972 statute," in part because Congress had ratified that construction in the amendment. The court's conclusion was consistent with its holding in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), which construed the Civil Rights [93 Wis.2d 24] Act to prohibit employment practices which were facially neutral, but which had a discriminatory effect, even where the employer had no intention or motive to discriminate. The court stated in Griggs :

The supreme courts of several states have construed their...