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

• Decision Date: 29 April 1981
• Docket Number: No. 77-703,77-703
• Court: Wisconsin Supreme Court
• Parties: , 35 Fair Empl.Prac.Cas. (BNA) 1019, 26 Empl. Prac. Dec. P 31,803 AMERICAN MOTORS CORPORATION, Petitioner-Appellant-Petitioner, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, Respondent.

Page 62

305 N.W.2d 62

101 Wis.2d 337, 35 Fair Empl.Prac.Cas. (BNA) 1019,

26 Empl. Prac. Dec. P 31,803

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

No. 77-703.

Supreme Court of Wisconsin.

Argued Nov. 24, 1980.

Decided April 29, 1981.

Michael I. Paulson argued, Milwaukee, for petitioner-appellant-petitioner; Herbert P. Wiedemann, Thomas L. Shriner, Jr., and Foley & Lardner, Milwaukee, on brief.

David C. Rice, Asst. Atty. Gen., argued, with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

LeRoy D. Clark, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Lutz Alexander Prager, W. Sherman Rogers, Attys., E. E. O. C., Washington, D. C., and Kathleen Mulligan, Milwaukee, E. E. O. C., filed amicus curiae brief.

HEFFERNAN, Justice.

This is a review of a decision ¹ of the court of appeals which affirmed a judgment of the circuit court for Dane county sustaining an order of the Department of Industry, Labor and Human Relations (hereinafter DILHR). DILHR's order directed that the respondent, American Motors Corporation, cease and desist from discharging employees on the basis of religion. The order also provided that American Motors pay the complainant, Thomas L. Bartell, back wages for the period he was unemployed following his discharge by American Motors. The validity of the portion of the order concerned with back wages is not at issue on this review. ²

The basic question on this review is whether the Wisconsin Fair Employment Act, secs. 111.31 to 111.37, Stats., requires an employer to accommodate an employee's work absences which are occasioned by the employee's observance of religious holidays or days of religious obligation. DILHR, the circuit court, and the court of appeals held that accommodation was required. This court concludes that the Wisconsin Fair Employment Act does not impose that duty upon an employer, and we therefore reverse.

The undisputed facts show that Bartell applied for employment with American Motors in May of 1972. Although he stated on his employment application that he had received a bachelor's degree in engineering, his degree requirements were not fully completed even at the time of his discharge from the company. Nevertheless, he was hired as an engineer for a management position which required him to participate in a six-month training program commencing on July 7, 1972. The training program consisted of a rotating schedule by which each management trainee was assigned to various departments within the American Motors plant, so he could observe and understand the manufacturing operations. Because this entailed some reallocation and disruption of the work in the operating departments of the American Motors plant, 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 management training program, American Motors' personnel manager explained the program and distributed the scheduled assignments to each of the trainees. He explained the company's policies, including those concerning holidays, vacations, and leaves of absence. Although trainees were encouraged to ask any questions, Bartell did not, at that time, point out the conflict between his assigned training schedule and his religious commitments. Bartell acknowledged that he did not inform American Motors of possible religious conflicts with his work schedule, because he thought he would not be hired if he mentioned it.

Bartell had been baptized as a member of the Worldwide Church of God on January 8, 1972. He acknowledged that, at the time he was hired, he knew that members of that faith were required to abstain from secular work from sundown Friday to sundown Saturday of each week and on certain days, which were determined on the basis of biblical texts and were fixed in accordance with the Jewish calendar. In 1972, one such holy day, the Day of Atonement, fell on September 18, a Monday. Another, the Feast of Tabernacles, consisted of an obligatory eight-day religious convocation lasting from Friday, September 22, to Friday, September 29. During the Feast of Tabernacles, members of the Worldwide Church of God were required to abstain from secular work on the first and last days and to attend a regional church convocation for the entire week.

Bartell said he did not raise any question about days off for religious observances at the time of the orientation briefing, when vacations and leaves of absence were discussed, because he considered it a personal matter he did not want to discuss in the presence of other employees. He testified that he intended to speak to the personnel manager in private, but no opportunities for private conversation arose until August 7. On that date, he asked the personnel manager whether he could be excused from work on the Day of Atonement, Monday, September 18, and on the week days during the Feast of Tabernacles. The personnel manager said that he would confer with whomever was necessary in respect to this request, although he did not think American Motors could give Bartell the time off for this purpose. At the original conference with the personnel manager, Bartell did not explain that his religious observances were mandatory; and it was only at a later date, apparently on August 10, that he told the personnel manager that his religion obligated him not to work on the holy days. After further conferring with company officials, the personnel manager told Bartell on August 17 that his request was denied and that he would either have to work on the days he requested to have off or to be terminated from employment. The personnel manager suggested that Bartell think the matter over and make his decision the following day. On August 18, Bartell told the personnel manager that he could not change his request. He was then informed that he was terminated from employment with American Motors on that date.

Initially, on August 24, 1972, Bartell filed a complaint with the Federal Equal Employment Opportunity Commission (hereinafter EEOC), alleging that his discharge was based upon religious discrimination. The federal complaint was referred to the Wisconsin department of industry, labor and human relations. In the letter of referral to the Wisconsin department, the regional director of EEOC stated:

"Pursuant to Section 706(c) of the Act (Civil Rights Act of 1964) no charge may be filed with this Commission under Section 706(b) until the expiration of 60 days after proceedings have been commenced under the fair employment practice law of your State ...." ³

Although Bartell on March 1, 1973, requested DILHR to withdraw his complaint, nevertheless DILHR, proceeding under the provisions of sec. 111.36, Stats., made a finding of probable cause that discrimination had occurred, and attempted conciliation, which was unsuccessful. A hearing on the complaint was held. DILHR issued its final decision and order on January 13, 1977, determining that American Motors had violated the Wisconsin Fair Employment Act in discharging Bartell. American Motors was ordered to cease and desist from religious discrimination against its employees and to pay back wages from the date of discharge until Bartell found other employment.

American Motors commenced an action under ch. 227, Stats., to review these administrative findings. The circuit court undertook an extensive review of DILHR's findings of fact and conclusions of law. The circuit court's opinion discussed American Motor's contention that the claimant Bartell was not terminated for his insistence on observing the holy days, but for his deception in failing to disclose the conflict between the work schedule and his religious obligations at an earlier time.

Judge Bardwell, the circuit judge, pointed out that the record indeed contained evidence to support American Motor's contention that Bartell's deception, and not his adherence to religious practices, was the reason for the firing. Nevertheless, there was also evidence that submitted by Bartell that he was terminated for his insistence on observing his religious holy days. In sustaining the findings of fact of DILHR, Judge Bardwell pointed out that each contention was worthy of belief, but the factual determination under those circumstances was for DILHR to make and would not be disturbed by the court. There is also evidence in the record that it was the policy and the usual practice for American Motors to permit sincere believers to abstain from work on obligatory holy days. Accordingly, Judge Bardwell sustained the findings of fact and conclusions of law, but modified the judgment to provide that DILHR's order be limited in its applicability to only the complainant, Thomas Bartell. The record in this case clearly would not warrant a conclusion that American Motors, as a matter of policy, disregarded the religious needs of its employees. The order of DILHR that American Motors "cease and desist from discharging employees on the basis of religion" was unjustified and unsupported by the record. The circuit court also eliminated the award of back pay. The judgment of the circuit court was appealed to the court of appeals. The circuit court judgment was affirmed, but the order for back pay was reinstated.

The court of appeals concluded that American Motors had a duty under the Wisconsin Fair Employment Act to accommodate Bartell's religious needs and that the evidence was sufficient to support DILHR's finding that American Motors failed to afford a reasonable accommodation to Bartell. The court of appeals further concluded that the duty of reasonable accommodation under the Wisconsin Fair Employment Act did not violate the establishment clause of the First Amendment to the United States Constitution or Art. I, sec. 18, of the Wisconsin Constitution.

On petition to this court to review the...