Riley v. Bendix Corporation

• Decision Date: 12 September 1972
• Docket Number: No. 71-3112.,71-3112.
• Citation: 464 F.2d 1113
• Parties: Charles B. RILEY, Plaintiff-Appellant-Cross Appellee, v. The BENDIX CORPORATION, Defendant-Appellee-Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 1113 (1972)

Charles B. RILEY, Plaintiff-Appellant-Cross Appellee, v. The BENDIX CORPORATION, Defendant-Appellee-Cross Appellant.

No. 71-3112.

United States Court of Appeals, Fifth Circuit.

July 14, 1972.

Rehearing and Rehearing Denied September 12, 1972.

William E. Kreuter, Frank McMillan, of Lovett, Kreuter & Holmes, Orlando, Fla., for appellant.

Julia P. Cooper, Chief, Appellate Section, E.E.O.C., G. Maxine Bethel, John de J. Pemberton, Jr., Acting Gen. Counsel, Washington, D. C., amicus curiae.

Stuart A. Smith, Washington, D. C., for National Jewish Commission on Law and Public Affairs, amicus curiae; Howard I. Rhine, New York City, Nathan Lewin, Washington, D. C., Sidney Kwestel, New York City, National Jewish Commission on Law and Public Affairs, of counsel.

Norman F. Burke, Orlando, Fla., for defendant-appellee, cross-appellant; Van Den Berg, Gay, Burke & Dyer, Orlando, Fla., of counsel.

Before TUTTLE, MORGAN and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied September 12, 1972.

TUTTLE, Circuit Judge:

The principal issue raised in this case is the meaning of the prohibition in Section 703(a)(1) of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e-2(a)(1), against discrimination "because of religion."

The issue that is drawn may be posed by stating the positions taken by the respective parties. The employer, The Bendix Corporation, contends that when it employs a salaried employee to work a scheduled number of hours per week, and company policy provides that such employee be occasionally shifted to a different shift, which impinges upon a time of the week, in this instance after sundown on Fridays, during which the religious principles of the employee forbid him to work, his refusal to work in accord with such religious principles but contrary to the rules of the employer, provide an ample basis for the termination of his employment. On the other side, the employee contends that where the general rules applicable to all employees may require such working requirements as outlined above, the employee is entitled to pursue his religious requirements if this may be accomplished by virtue of the employer's making "reasonable accommodations to the religious needs of employees and prospective employees where such accommodations may be made without undue hardship on the conduct of the employer's business." Further, the employee contends that the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable.

The facts necessary to an understanding of this issue may be briefly stated: Riley was employed in January, 1967, by The Bendix Corporation as a salaried foreman. He was initially assigned to a day shift, which terminated at approximately 4:00 P.M. daily. He had been an active member of the Seventh Day Adventist faith for some fifteen years prior to this employment. There is no dispute as to the sincerity with which he held to the tenets of his church, which included a provision that no work for compensation be carried on between sundown Friday and sundown Saturday. After working some six months, he was notified that he would have to go on a night shift, which commenced at 3:30 P.M. and ran until 12:00 midnight. It is not exactly clear when he first protested his inability to work after sundown on Fridays. However, it is undisputed that he did not work at least three Friday nights between July 27th and the date of his termination on August 18, 1967. It is clear that on at least three occasions during that time he expressly notified his supervisor that he could not, on account of his religious beliefs, work on Friday evenings.

Although witnesses for The Bendix Corporation testified that his work was important, it was also conceded by these witnesses that no "accommodation" of any kind was made to permit Riley to be absent on Friday evenings. The company merely took the position that since the requirements of employment operated uniformly, it was under no obligations to make a concession to Mr. Riley to permit him to be absent from work on Friday evenings because of his religious convictions. Nor was there any effort made to re-transfer him to a day shift, or to arrange for another person to substitute for him during these hours. In fact it appears that no substitute was necessary to perform the duties which Riley would ordinarily have performed during the part of the Friday night shift which he missed on these occasions. The record is silent as to whether efforts were made even to cause Riley to compensate the company by a deduction of a part of his salary by reason of the hours missed. It was only testified to that his salary was not docked for the four Friday nights which he failed to work. The technical reason for his discharge was "insubordination" —that is for failing to work as ordered.

Relying principally on Griggs v. Duke Power Company, 401 U.S. 424, 430, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), the appellant criticizes the findings of the trial court, 330 F.Supp. 583, to the effect that since Bendix's rules and working conditions applied uniformly with respect to all of its employees, and never at any time discriminate against any person because of race, creed or color, the fact that it did put an end to Riley's employment because his religious convictions prevented his carrying out a uniformly applied rule of the company, there was no violation of this statute. Appellant contends that it is not a matter of intent or apparent neutral action that controls, but that "under the Civil Rights Act, practices, procedures, or tests, neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to `freeze' the status quo of prior discriminatory employment practices."

"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. 424, 431, 91 S.Ct. 849, 853.

We need not consider this case by a bare construction of the language of the statute, in undertaking to decide whether what has happened to Mr. Riley falls within the prohibition of discrimination on account of "religion." This is true that because at the time of the actions here complained of there was an existing Equal Employment Opportunity Commission guideline 29 CFR, Sec. 1605.1, which provided as follows:

"(b) The Commission believes that the duty not to discriminate on religious grounds, required by Section 703(a)(1) of the Civil Rights Act of 1964, includes an obligation on the part of an employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer\'s business. Such undue hardship, for example, may exist where the employee\'s needed work cannot be performed by another employee of substantial similar qualifications during the period of absence of the sabbath observer."

And sub-paragraph (c) provides:

"Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious belief, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable."

This guideline was issued by authority of the Act itself. 2000e-12 provides as follows:

"Section 713(a). The Commission shall have authority from time to time to issue, amend, or rescind the suitable procedural regulations to carry out the provisions of this title. Regulations issued under this section shall be in conformity with the standards and limitations of the Administrative Procedure Act."

The appellee attacks the validity of the guidelines here invoked on behalf of Riley, but it is interesting to note that the Supreme Court, in Griggs, supra, spoke with approval of such guidelines, as follows:

The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines for interpreting § 703(h) to permit only the use of job-related tests (footnote omitted). The administrative interpretation of the Act by the enforcing agency is entitled to great deference. See, e. g., United States v. City of Chicago, 400 U.S. 8 91 S.Ct. 18, 27 L.Ed.2d 9 (1970); Udall v.

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