E.E.O.C. v. Townley Engineering & Mfg. Co.

• Citation: 859 F.2d 610
• Decision Date: 19 September 1988
• Docket Number: No. 87-2272,87-2272
• Parties: 47 Fair Empl.Prac.Cas. 1601, 47 Empl. Prac. Dec. P 38,249, 57 USLW 2185 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. TOWNLEY ENGINEERING & MANUFACTURING COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 610

859 F.2d 610

47 Fair Empl.Prac.Cas. 1601,

47 Empl. Prac. Dec. P 38,249, 57 USLW 2185

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. TOWNLEY ENGINEERING & MANUFACTURING COMPANY, Defendant-Appellant.

No. 87-2272.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 18, 1988.

Decided Sept. 19, 1988.

H. Edward Dean, Ocala, Florida, for defendant-appellant.

Lorraine C. Davis, Asst. Gen. Counsel, E.E.O.C., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before SNEED, HALL and NOONAN, Circuit Judges.

SNEED, Circuit Judge:

Townley Manufacturing Company appeals the district court's injunction halting its mandatory devotional services at its Eloy, Arizona plant. We substantially affirm the district court, but remand to permit the framing of its injunction more narrowly.

I. FACTS AND PROCEEDINGS BELOW

Townley Manufacturing Company (Townley) is a closely held corporation organized under the laws of Florida. It manufactures mining equipment. It was founded in 1963 by J.O. (Jake) and Helen Townley, who still own about 94% of the stock. When they founded the company, Jake and Townley reflects its founders' covenant with God in several ways. For example, the company encloses a Gospel tract in every piece of outgoing mail; it prints Biblical verses on all company invoices, purchase orders, and other commercial documents; it gives financial support to various churches and missionaries; and, of particular importance to this case, it holds a devotional service once a week during work hours.

                Helen Townley made a covenant with God that their business "would be a Christian, faith-operated business."    The Townleys were and are "born again believers in the Lord Jesus Christ" who "are unable to separate God from any portion of their daily lives, including their activities at the Townley company."    Appellant's Brief at 6.  Townley opened its first plant in Florida;  it has since opened other plants, including one in Eloy, Arizona in 1973
                

Townley's Florida plant has had weekly devotional services since its inception. They typically last from thirty to forty-five minutes, and may include prayer, thanksgiving to God, singing, testimony, and scripture reading, as well as discussion of business related matters. Townley required all employees to attend the weekly services; failure to attend was regarded as equivalent to not attending work.

In November 1979, Townley hired Louis Pelvas as a machinist in its Eloy plant. At that time there were no devotional services conducted at the Eloy plant. In December 1982, Townley gave its employees an employee handbook, which stated the company's policies and rules. Under the heading of company rules, the handbook stated: "All employees are required to attend the non-denominational devotional services each Tuesday. Employees are paid for their time while attending these services." Pelvas read the handbook and signed a statement agreeing, inter alia, "to abide by all the requirements and policies stated within that handbook, as a condition of my continued employment with Townley.... I recognize that failure on my part to keep this agreement may result in my dismissal from the company." Excerpt of Record, tab 49.

Townley did not institute devotional services at its Eloy plant until April 1984. Pelvas attended the services without complaint only until June 1984, when he asked to be excused from the services because he was an atheist. His supervisor told him that attendance was mandatory. The supervisor also stated that Pelvas could sleep or read the newspaper during the services. Pelvas continued to attend the services, but in October 1984 he filed a religious discrimination charge with the Equal Employment Opportunity Commission. In December 1984, Pelvas left the company. Pelvas states that he was constructively discharged; Townley says that Pelvas refused to accept an offer of transfer to another plant.

In July 1986, the EEOC filed this action against Townley. The EEOC charged that Townley violated section 703(a) of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a), (1) by requiring its employees to attend devotional services, (2) by failing to accommodate Pelvas' objection to attending the services, and (3) by constructively discharging Pelvas. In May 1987, the district court granted the EEOC's motion for summary judgment on the first two issues, and issued a permanent injunction prohibiting Townley from continuing the mandatory devotional services at its Eloy plant. The court denied summary judgment on the constructive discharge issue. EEOC v. Townley Eng'g & Mfg. Co., 675 F.Supp. 566 (D.Ariz.1987). Townley appealed the grant of summary judgment to this court. ¹

II. JURISDICTION

The district court had jurisdiction under 42 U.S.C. Sec. 2000e-5(f)(1) and 28 U.S.C. Secs. 1331 and 1343. Since the order appealed is an interlocutory order granting an

injunction, our jurisdiction rests upon 28 U.S.C. Sec. 1292(a)(1).

III. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. We affirm if the record, read in the light most favorable to the nonmoving party, reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. International Ass'n of Machinists v. Aloha Airlines, Inc., 790 F.2d 727, 730 (9th Cir.), cert. denied, 479 U.S. 931, 107 S.Ct. 400, 93 L.Ed.2d 354 (1986).

IV. THE REACH OF TITLE VII

Townley argues both that Title VII was not intended to apply to this employment policy, and that the proposed application of Title VII would violate the Free Exercise Clause of the First Amendment. It is clear that applying Title VII to the devotional services "would give rise to serious constitutional questions." See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501, 99 S.Ct. 1313, 1319, 59 L.Ed.2d 533 (1979). Therefore, we may not find it applicable unless there is an "affirmative intention of Congress clearly expressed" that it should be so applied. Id.; see EEOC v. Fremont Christian School, 781 F.2d 1362, 1365 (9th Cir.1986); EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1276 (9th Cir.1982).

We hold that Congress did clearly intend for Title VII to cover Townley's mandatory devotional services. Sections 701(j) and 703(a) of Title VII make clear that requiring employees over their objections to attend devotional services cannot be reconciled with Title VII's prohibition against religious discrimination. Furthermore, we hold that Congress did not intend section 702's exemption for religious corporations to shield corporations such as Townley. ² We do hold, however, that Jake and Helen Townley have certain rights under the Free Exercise Clause that Title VII cannot infringe.

A. Sections 701(j) and 703 of Title VII

1. Discrimination on the Basis of Religion in General

As originally enacted, Title VII of the Civil Rights Act of 1964 simply prohibited employment discrimination on the basis of religion. ³ This prohibition clearly covered discrimination on the basis of religious belief; whether it protected employees' religious practices was less clear. To clarify the point, Congress amended Title VII in 1972 by adding a definition of religion. ⁴ The definition, contained in section 701(j), states:

The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

42 U.S.C. Sec. 2000e(j). "The intent and effect of this definition was to make it an unlawful employment practice under Sec. 703(a)(1) for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 97 S.Ct. 2264, 2272, 53 L.Ed.2d 113 (1977). Accommodation by the employer to the employee's religious practices was made a statutory obligation.

2. Order of Proof

We have read sections 703(a) and 701(j) as creating a two-part framework in religious practice cases. First, the plaintiff must establish a prima facie case of religious discrimination. We have elaborated on the requirements of the plaintiff's burden in other opinions. We need not review the requirements in detail here, because Townley does not contest that the EEOC has met them. ⁵ Suffice it to say that after the plaintiff has made out a prima facie case, the burden shifts to the employer "to prove that [it] made good faith efforts to accommodate [the employee's] religious beliefs and, if those efforts were unsuccessful, to demonstrate that [it was] unable reasonably to accommodate his beliefs without undue hardship." Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397, 401 (9th Cir.1978).

3. Accommodation

Townley admits that it has made no effort to accommodate Pelvas' objections to the services. It argues that Title VII does not require accommodation because (1) any attempt at accommodation would have caused it "undue hardship," and (2) Pelvas "waived the accommodation requirement when he voluntarily consented to attending the devotional services at the time he executed the signature page of the Employee Handbook agreeing to comply with all the policies of Townley," Appellant's Reply Brief at 8-9. ⁶

The language from Anderson quoted above might be read to imply that an employer cannot bring up "undue hardship" unless it first proves that it made good faith efforts to accommodate the employee's practice. See also American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (9th Cir.1986) ("it is incumbent upon the employer to undertake some initial steps to reach a reasonable accommodation of the particular religious belief at issue"); Burns v....