Ansonia Board of Education v. Philbrook

PETITIONER:Ansonia Board of Education
RESPONDENT:Philbrook
LOCATION:Craig, Colorado

DOCKET NO.: 85-495
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 479 US 60 (1986)
ARGUED: Oct 14, 1986
DECIDED: Nov 17, 1986

ADVOCATES:
Charles Fried – for the United States and EEOC, as amici curiae, in support of respondents
David N. Rosen – for the respondents
Robert F. McWeeny – for respondent Ansonia Federation of Teachers in support of petitioners
Thomas N. Sullivan – for the petitioners

Facts of the case

Question

Audio Transcription for Oral Argument – October 14, 1986 in Ansonia Board of Education v. Philbrook

William H. Rehnquist:

We will hear arguments next in Ansonia Board of Education against Ronald Philbrook.

You may proceed when you’re ready, Mr. Sullivan.

Thomas N. Sullivan:

Thank you, Mr. Chief Justice.

Mr. Chief Justice, and may it please the Court:

This case raises two issues with regard to the provisions of Title VII of the Civil Rights Act of 1964, which prohibit discrimination by an employer against an employee because of his religion.

The first issue is whether an employee who needs to be absent from work to observe his religion, and who is provided a combination of paid leave and unpaid leave for that purpose, proves a prima facie case of discrimination under Title VII, based upon the employer’s refusal to compensate him for all of his absence for religious observance.

The second question posed is whether an employer who has implemented a reasonable accommodation of an employee’s religion, is nevertheless required to accept the accommodation the employee prefers, absent the showing of undue hardship and the conduct of the employer’s business.

Now, the essential facts in this case are as follows:

The respondent, Ronald Philbrook, is a public high school teacher, employed by the petitioner, Ansonia School Board, as a business teacher.

Since 1968, Philbrook has been a member of the Worldwide Church of God, and as such, he is required by his faith to absent himself for approximately six days a year from his employment to observe religious holy days.

Under the governing collective bargaining agreement, all of the school board’s teachers, including Philbrook, are provided three days annual paid leave for religious observance.

Teachers are also provided under the agreement with 18 days of annual leave for other reasons, such as illness.

And these are confined to specific numbers of days per occurrence per reason.

Teachers are also provided, in addition to the three days for religious observance and the 18 days of annual leave, with three days of annual leave for necessary personal business.

Under the specific provisions of the bargaining agreement, these days may not be used for any reason for which leave is otherwise provided under the bargaining agreement.

And they may be used only for reasons which require a teacher’s absence from work.

Antonin Scalia:

Is that so during the entire period here?

Thomas N. Sullivan:

No, it wasn’t.

Your Honor, early on in the bargaining relationship between the union and the school board, the leave provisions were more lenient in that respect.

Antonin Scalia:

Between, what was it–

Thomas N. Sullivan:

’67 and ’68.

Antonin Scalia:

–’67 and ’69, they could use those three days, as far as we know, for anything they wanted?

Thomas N. Sullivan:

That’s correct.

Antonin Scalia:

But nonetheless, Philbrook was not allowed to use it for religious reasons.

Thomas N. Sullivan:

The record is not clear on that.

The evidence in terms of Philbrook’s absences for religion relate back to the 1970-71 school year, which you can see set forth in the appendix to our brief.

The record is not clear in this case as to how he was treated prior to that time.

It’s our understanding that he was allowed, up until the 1970-71 school year, all of the leave he needed, with pay, for religious observance.

So that the change came when the parties to the bargaining agreement negotiated specific restrictions on the use of personal leave.

Now, because the bargaining agreement–

Sandra Day O’Connor:

Counsel, is it possible, since the court below didn’t really decide these factual questions on how the three-day personal leave provision was in fact administered, or how Mr. Philbrook was treated with regard to it, that some remand might be necessary on the 703 issue?

Thomas N. Sullivan:

–Your Honor, we don’t think so, and for this reason: We feel that the record in this case permits no other conclusion than that the leave provisions of the contract have been consistently interpreted in accordance with the explicit provisions of the contract so as to preclude the use of necessary personal business leave.

And that’s the leave we’re really talking about here, those three days which Philbrook claims ought to be allowed for religious observance.

Those three days, under the contract, cannot be used for any reason for which leave is otherwise provided.

And the administration of the school system has determined–

Sandra Day O’Connor:

Even under the terms of the contract, it looks like the one day which can be granted on the request of the teacher alone without any inquiry at all would lend itself to use for any purpose whatever, in practice.

Thomas N. Sullivan:

–We don’t agree with that, Your Honor.

The one day that the teacher can use by only stating the reason is a personal reason still can only be used under the contract for reasons which require the teacher’s absence from work.

And that one day, even though discretionary in the sense that the teacher need only state, it’s for a personal reason, cannot be used for one of the reasons for which leave is otherwise provided.

We feel the contract is clear on that.

And the record shows that the superintendant of schools strictly enforced these leave provisions.

There’s no evidence to the contrary.

Antonin Scalia:

You’re just saying that this… as to this one day, it’s not practically enforceable, and it’s left up to the conscience and responsibility of the teacher.

Thomas N. Sullivan:

That’s correct.

A teacher can be disciplined after the fact, if it’s found out that the day was improperly used.

Antonin Scalia:

What’s the purpose of the provision, that one day provision?

That it may be something so confidential that the teacher wouldn’t want to spread it on the record, or something of that sort?

Thomas N. Sullivan:

We don’t have any bargaining history on that, so it’s simply a matter of conjecture.

But I would say yes.

In collective bargaining agreements, personal day leave provisions, it’s not unusual to give a teacher a discretionary day, because the reason may be so personal as to cause embarrassment if it’s shared with anyone else.

But it still must be a day that requires the teacher’s absence from work.

What does that mean?

Thomas N. Sullivan:

It means that the business–

Byron R. White:

It means that you can’t be in school and some place else at the same time.

Thomas N. Sullivan:

–No, Your Honor, it means, I think, that the particular reason–

Byron R. White:

Well, what if you want to go to a wedding, like yours, I mean, like the teacher’s.

You know, they could have put it on a Sunday or a Saturday.

Thomas N. Sullivan:

–The leave provisions do provide leave for weddings already.

Byron R. White:

Well, what does it mean, require to be away from work?

Thomas N. Sullivan:

The interpretation of the contract, as indicated by the superintendant of schools in his testimony, is that the reason for the leave must concern a matter than cannot be handled outside the workday.

Thomas N. Sullivan:

So in that sense, it’s necessary personal business.

In other words, arrangements cannot be made outside of work to conduct that particular business.

Byron R. White:

So I have to meet my mother-in-law at the airport.

That qualifies?

Thomas N. Sullivan:

It might depend on the consequences of not meeting your mother-in-law.

I don’t know, Your Honor.

Byron R. White:

What about yours?

Thomas N. Sullivan:

Those are the kind of judgment calls, obviously, that have to be made in administering these kinds of provisions.

And I don’t think you can make a conclusive list, in this area.

Byron R. White:

I’m buying a house and I want to be present when the engineer looks at it to give me an estimate on what repairs are necessary.

Thomas N. Sullivan:

If the arrangements cannot be made on another day, then that might very well constitute necessary personal business.

Now, because the bargaining agreement limits paid leave for religious observance to three days per year, and Philbrook generally needs more, the school board has allowed Philbrook the additional time off without pay.

Dissatisfied with this arrangement, and having satisfied the jurisdictional requirements, Philbrook brought suit in District Court, claiming a violation of Title VII, as well as the First Amendment, based on the school board’s failure to compensate him in some way for all of his days of leave caused for religious observance.

The District Court found no discrimination, and dismissed the complaint.

The Court of Appeals reversed, deciding only the statutory issue, and remanded for a determination as to whether any of the accommodations proposed by Philbrook could be implemented without undue hardships.

And those proposed accommodations essentially involved the use of those three necessary personal leave days for religious observance, or the payment of the cost of a substitute teacher, which would have lessened the economic impact on Philbrook for having to take that time off without pay.

Philbrook had also proposed that he be allowed to do some other meaningful work in conjunction with one of those accommodations.

In reversing the District Court and remanding the case, the Court of Appeals held that Title VII requires an employer to accept an employee’s proposed accommodation, where the employer and the employee each propose a reasonable accommodation to the employee’s religious beliefs.

William H. Rehnquist:

Didn’t they say, unless there was undue hardship, or something like that?

Thomas N. Sullivan:

Yes, the Court of Appeals viewed the reasonable accommodation provisions as necessarily having to involve a determination of undue hardship on the employer, the theory apparently being that unless there is some hardship, short of undue hardship on an employer, the employer has to go beyond the reason accommodation it has made, and consider the proposal of the employee.

Antonin Scalia:

Isn’t that what the EEOC regulations seem to require?

Thomas N. Sullivan:

Yes, I think so.

And because the EEOC regulations guidelines… not regulations… do indicate that the employer has to attempt to implement the accommodation which least disadvantages the employee in terms of, in this case, compensation.

This Court has, of course, stated on several occasions that the EEOC guidelines do not have the force of law.

And we feel that the guidelines, in that particular respect, are in conflict with the plain language of the statute.

Title VII makes it an unlawful employment practice for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, or conditions, or privileges of employment, because of such individual’s religion.

The statute defines religion to include 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 observance or practice without undue hardship on the conduct of the employer’s business.

Sandra Day O’Connor:

Mr. Sullivan, how would you define what is a reasonable accommodation under Title VII?

Thomas N. Sullivan:

Your Honor, I would define a reasonable accommodation as one that resolves the conflict between the employee’s religious needs, in this case in terms of religious observance, and his job requirements.

And that is, I think, the crucial factor in this case.

Thomas N. Sullivan:

Because the employer has implemented an accommodation, which resolves the conflict between Philbrook’s need to be on the job and his need for religious observance, a reasonable accommodation has been made.

And the statute has been satisfied as a result.

Consequently, we feel that the District Court was correct in determining that Philbrook had not established a prima facie case of discrimination.

Now, the Court in doing that implemented a three-pronged test to determine whether or not there was a prima facie case of discrimination in this case.

First of all, the Court said: Is there a conflict between the employee’s religious needs and the job requirements?

Secondly, has the employer informed the employee of his conflict?

And thirdly, has the employee been disciplined as a result of a failure to comply with the job requirements.

In this case, we feel there’s no conflict, as I’ve indicated in response to Justice O’Connor’s question.

And thirdly, there’s been no discipline in any sense.

Certainly Philbrook’s not been discharged from his employment.

He’s not been deprived of any benefit to which he would otherwise have been entitled except for his religion.

He’s not been disciplined in any way.

Sandra Day O’Connor:

Would you take the position, Mr. Sullivan, that an employer who’s told employees they could have no time off for any personal reason or any religious purpose whatever, except to the extent they want to take time without pay… you won’t lose you job, but you can take the time off; you just won’t be paid for it.

Is that a reasonable accommodation, in your view?

Thomas N. Sullivan:

Well, I’m not sure I understand your question.

If the employer is saying… if the employer provides some kind of paid leave, but no leave for religious observance, I would view that as clearly discriminatory.

Sandra Day O’Connor:

No paid leave for any purpose, but you can take time off for personal or religious reasons, without pay.

Is that, in your view, a reasonable accommodation?

Thomas N. Sullivan:

Yes.

Because the three-prong test of religious… to determine a prima facie case of discrimination was not met in this case–

Antonin Scalia:

Excuse me, because this ties in with what Justice O’Connor just asked.

You answered the way you did, I presume, because the employer in that hypothetical is being… is treating both religious and nonreligious leave equivalently?

Thomas N. Sullivan:

–That’s correct, Your Honor.

Antonin Scalia:

Now, is he doing the same here?

How do we know that three days of leave for days of rest, religiously required, how do we know that that’s enough, that that’s equivalent to 18 days for nonreligious reasons?

How do we know that that’s an equivalent treatment of religion?

Thomas N. Sullivan:

Well, we don’t.

I’m not sure that the mere fact that the leave provisions are under-inclusive, in the sense that they do not provide Philbrook all the leave he needs for religious observance, is determinative of the issue.

Antonin Scalia:

Oh, it isn’t that they don’t provide him all that he needs.

The issue is whether, without the use of those three other days, the employer is treating religious leave and leave for other than religious purposes equally.

Antonin Scalia:

And I look at it.

And gee, there are only three days for religion, and there are 18 days for other than religion.

So we really don’t have the kind of hypothetical that Justice O’Connor gave you, where you get no leave for any reason; no paid leave for either religion or nonreligion.

Thomas N. Sullivan:

Well, Your Honor, I don’t believe that Title VII requires an employer to provide that kind of equal treatment.

What Title VII indicates is that employees shall not be discriminated against on the basis of their religion.

And if, in fact, there is some evidence of discrimination, then that triggers the duty to accommodate.

Antonin Scalia:

So you can give… suppose it said 18 days for any reason except religious; that’s all right?

Thomas N. Sullivan:

I think that would be perfectly all right, absent a showing of discriminatory intent or motive.

Antonin Scalia:

What do you mean, discriminatory?

I don’t understand.

Isn’t that discriminatory on its face?

Any reason will suffice except a religious reason?

Thomas N. Sullivan:

Well, that’s not what the leave provisions say, though.

Antonin Scalia:

No, I understand that.

Suppose he just gave them, you know, 18 days for other than religious reasons; two hours for religious reasons.

At what point does it become nondiscriminatory?

How do you know that three days is enough to make it nondiscriminatory?

Thomas N. Sullivan:

I would agree that there would be some point where, on the face of the bargaining agreement, so much accommodation has been made to secular needs, and so little accommodation made to religious needs, that on the face of the provisions, the leave provisions are discriminatory.

I do not believe that this is a case like that.

Antonin Scalia:

Maybe not.

I just don’t know what the test is.

Is the test, perhaps, that there was some estimate by those who bargained in the collective bargaining agreement as to how much time off the average employee needs for all these other purposes.

And when they figured it all out, the average employees needs 18 days for nonreligious, and three days for religious?

Thomas N. Sullivan:

Your Honor, I’ll confess I have no idea where these leave provisions came from.

There’s no bargaining history to indicate why the parties through the years structured this kind of a leave provision.

John Paul Stevens:

Well, Mr. Sullivan, it isn’t quite right, is it, that the normal employee would get all 18 days?

For example, it’s not every year that you have a death in the immediate family, a family funeral to… all those, I assume, happen infrequently rather than regularly.

Thomas N. Sullivan:

Your Honor, I think that’s correct, and I think that’s important in determining the reasonableness of the leave provisions in this particular case.

John Paul Stevens:

And isn’t it true that except for the three days of personal leave, each of the other 15 days is earmarked for a specific, narrow purpose?

Thomas N. Sullivan:

That’s correct, Your Honor.

John Paul Stevens:

And so the question is whether you can impose the limit on the three days for personal leave provision.

Thomas N. Sullivan:

And of course that limit is no different from the limit imposed on the other reasons for which leave is provided.

I would also say this, and the record indicates, that for teachers such as Philbrook, who needs the three days leave with pay every year, those are guaranteed to occur in terms of the cost impact on the employer.

The other leaves may or may not occur.

Certainly the necessary personal business leave may never occur for any teacher, hypothetically speaking.

Sandra Day O’Connor:

Mr. Sullivan, would an employer’s policy that just says, across the board, no personal leave for anyone for any purpose, meet the requirements of Title VII for religious accommodation?

Thomas N. Sullivan:

No leave for any purpose or for any reason?

Sandra Day O’Connor:

Right.

Thomas N. Sullivan:

I would say that in that case there would still be a duty on the part of the employer to attempt to accommodate the employee’s religious beliefs.

John Paul Stevens:

May I ask one other question?

Does the record tell us how frequently, for the work force in general, the personal leave privilege was exercised?

I noticed for eight years in a row, the respondent didn’t take any personal leave.

Do most employees take some?

Thomas N. Sullivan:

The evidence indicates, Your Honor, that for the last year, the most recent year for which we have any information, in 1983-84, which is the year that impacted the time of trial, two teachers, out of a total of 150, had used all of their necessary personal business leave days.

So the record indicates that these days are not frequently used.

Byron R. White:

And what would you say if the employer gave paid leave only to people who wanted off for religious purposes?

No paid leave for anybody else for any other reason.

Now, is that… could you do that?

Thomas N. Sullivan:

No paid leave for any reason, but paid leave only for religion?

Well, I feel that–

Byron R. White:

That certainly is an accommodation.

Thomas N. Sullivan:

–That would be an accommodation, certainly, and I think the private employer could do that.

I think–

Byron R. White:

Well, isn’t the person who wants personal leave off for some other… for some secular purpose, says, Mr. Employer, you give this fellow time off for going to church; I want to go attend a class at the university.

And you’re discriminating against me.

Thomas N. Sullivan:

–If Title VII is interpreted to require that kind of result–

Byron R. White:

No, not Title VII; this is a preference for religion.

Thomas N. Sullivan:

–It could constitute a preference for religion.

If a school board did that–

Byron R. White:

But an employer could do that, but a school board couldn’t?

Thomas N. Sullivan:

–I don’t think a school board could do that, Your Honor.

William H. Rehnquist:

Mr. Sullivan, your time has expired.

We’ll hear now from Mr. McWeeny.

Robert F. McWeeny:

Mr. Chief Justice, and if it pleases the Court:

I represent the union, party to this collective bargaining agreement.

And I speak in support of the school board and the petition.

I’d like to address some of the factual concerns about the leave policy.

In addition to the record showing that only two of the 150 teachers use three days, plaintiff’s Exhibit 18 shows that most teachers took no personal… necessary personal business days during the year.

And I think also we have the superintendant of schools’ testimony about the professional nature of the employees, and that they abide by those restrictions that it be necessary business, and also that it be business that cannot… despite all reasonable efforts… be planned and conducted outside of a time which conflicts with a 180-day work year for employees.

I’d also like to point out that the 18 days of leave… I think the record shows in Connecticut by state statute 15 days has to be afforded teachers for sick leave, so that’s the major portion of that 18 days… I’d also point out that one of the uses of the 18 days of annual leave is for immediate family religious ceremony.

So there is, I think, no bias toward religious practices.

In addition to the three days of religious observances, religious ceremony, immediate family religious ceremony–

William H. Rehnquist:

Well, what’s the differences between those two, Mr. McWeeny?

The immediate family religious ceremony, and the religious activity.

Robert F. McWeeny:

–Well, I would just offer that to… the religious ceremony would be similar to the other types of activity.

And I think it shows that the leave policy does not discriminate against religion in the overall leave policy, as well as affording a specific leave for religious practice, or religious observance.

William H. Rehnquist:

But as I understand it, you couldn’t use any of… if you’ve used the three days you want for religious observances, under the contract, you could not then use some of the 18 days for other religious observances like the ones the three days are devoted to.

Robert F. McWeeny:

That’s correct; you could not.

And I would also submit that the–

Antonin Scalia:

I don’t understand that at all.

I understood you could not use any of the three days for that, but–

Robert F. McWeeny:

–Well, you could not claim it was a sick day.

Sick days, or for leave… the general leave provision, that annual leave provision, sets for specific reasons for which it can be availed.

It is not vacation.

It is sick days.

It is other specific types of personal necessities.

Antonin Scalia:

–The three religious days off are day-of-rest provisions, right?

Robert F. McWeeny:

That’s correct, religious practice.

Antonin Scalia:

For days when you religion doesn’t allow you to work.

And as I understand the scheme, if you wanted off for another religious reason, not because it’s a day of rest, because you want to make a religious retreat or something like that, as far as we know, after 1969, at least, that could have been… that could have come within the three day “other” provision, right?

Robert F. McWeeny:

That’s true.

That could have, in the sense that there is no evidence in the record that Mr. Philbrook or anyone else asked for, was denied, a personal leave day for counselling with a religious official, or a request of that nature.

I’d like to also address the statutory construction issue, which I think is at the heart of this case.

The Second Circuit stated that the interpretation of Title VII with respect to reasonable accommodation and undue hardship was crucial to the resolution of the case.

I agree.

I submit that they erred on that construction.

I think the language clearly indicates that reasonable accommodation is the obligation of the employer and the union; and that once that is met, there’s no reason to go beyond that determination that there’s been a reasonable accommodation of the employee’s religious practices.

Undue hardship really, in effect, creates a defense to a failure to reasonable accommodate.

And in terms of allowing a person to resolve that conflict between their religious practices and their employment obligations in a manner which allows them to continue the employment.

I think that the cases the Second Circuit talks about, or those termination cases, where clearly there was no reasonable accommodation or there’s a reason to inquire whether there was a reasonable accommodation, or whether something could have been to allow a reasonable accommodation, in the sense of allowing an employee to continue in his employment and observe his religious obligations.

I’d also like to speak to a claim that Mr. Philbrook makes that he is really in a situation of substantial pay, no work.

I submit that the only evidence referred to by Mr. Philbrook is three pages of the transcript which have nothing to do with that which merely state that there was education going on because he had a plan for the students to follow during the course of the year.

And that in that… in those three pages of transcript, evidence designed to deal with the question of whether there was a problem with the educational experience caused by the use of substitute teachers.

And I think there’s nothing in there that talks about the amount of time that would be spent, or that in effect there is no work without pay.

I would think that at this time I would like to leave the few minutes that are remaining to me for rebuttal.

William H. Rehnquist:

Very well.

We will hear now from you, Mr. Rosen.

David N. Rosen:

Mr. Chief Justice, and may it please the Court:

Ansonia has drawn an explicitly religious line through its personal leave rule, disfavoring religious exercise, prohibiting religious exercise.

This explicitly religious line is presumptively unlawful, and there were no findings addressing or supporting the claims of lawfulness of this explicitly religious line that were made by the District Court.

Antonin Scalia:

Why is it an explicitly religious line?

As I understand their scheme, you can use these three days for anything, religious or nonreligious, so long as it’s not one of the things for which days are specifically provided for.

Now, there are some things for which days have been specifically provided for that are secular, and there are other things that are religious, it seems to me.

David N. Rosen:

Your understanding… I have to disagree with the understanding you were given a couple of minutes ago.

The contracts, all of the contracts, say that personal leave may not be used not only for mandatory religious observance, which is specifically provided for in the religious leave, but also may not be used for quote any religious observance unquote.

Those are the more recent contracts.

The earlier contracts used similar language, saying that personal leave cannot be used for, quote, any religious activity.

So what I would call the claim of neutrality between religious and secular uses, that is, that a neutral reason has been chosen for excluding religion from the ambit of personal leave, is in fact nonexistent.

In this contract, these contracts, because the provisions aren’t parallel–

Antonin Scalia:

We just have a dispute as to the contractual interpretation, then.

Antonin Scalia:

Never mind the statutory issue.

David N. Rosen:

–Yes, that’s right.

Except that my statutory interpretation does have going for it the statutory language.

For example, on page 92 of the joint appendix, personal business shall not include, without limitation, colon, f, any religious activity.

So–

Antonin Scalia:

But if the board is telling us that it interprets the contract the other way, why do we have to get in a fight over what the contract means?

Can’t we decide the case on the assumption that the board will apply the contract the way it represents it now interprets it?

I mean, I didn’t realize that this was going to be a contracts case.

I thought it was Title VII.

David N. Rosen:

–The representation… I should say the representation was made by the union, not the board.

I don’t know what the board’s position is.

Antonin Scalia:

Oh, I think the board’s position is the same, as I understand it.

That those three days can be used for anything not specifically covered by other days off, religious or nonreligious.

David N. Rosen:

That understanding has been communicated for the first time here today.

And I think that if we take that to be the understanding, an unfairness remains, which is… can be seen by taking the example of Mr. Philbrook and a colleague, each of whom uses the three days for religious holidays to satisfy religious needs.

The hypothetical colleague then uses the fourth day to fulfill, let us say, a deeply held but nonreligious ethical commitment to aid the poor by working in a soup kitchen.

This would be permissible use of personal business leave.

The teacher would simply note the use of personal business leave.

Mr. Philbrook could not work beside his colleague in the soup kitchen if that work in the soup kitchen were part of a religious holy day obligation of his church, if the soup kitchen were sponsored by his church.

So the line is an explicit religious line.

There are no findings in the District Court to uphold that line.

William H. Rehnquist:

Is it as clear as you suggest that this personal religious thing that is embraced within the 18 days might not be extended to the soup kitchen example, if Mr. Philbrook felt a religious desire to do that?

David N. Rosen:

The… what is embraced within the 18 days is religious ceremonies, which says… in the contract after it, there’s a parenthetical description saying, Bar Mitzvah, ordination, first vows, and the like.

There was in fact, and there is in the record, evidence of an arbitration proceeding on behalf of Mr. Philbrook in which it was argued that he would like to apply that leave category to his own religious observance, and as a matter of contractual interpretation, it was held that that applied only to this… things like Bar Mitzvahs and so forth.

John Paul Stevens:

Mr. Rosen, can I ask you a question about your facial reading of the contract?

I happen to have the contract in the cert petition at page 4A and 5A before me; I guess that’s the most recent one.

If you eliminated the provision for mandated religious observance in paragraph 10, and also eliminated subparagraph 4 of the exclusion for any religious observance, but retained the exclusion for all other purposes set forth in the agreement, would that contract then avoid violating Title VII?

David N. Rosen:

Yes, yes.

There is a… that is–

John Paul Stevens:

Let me follow up with another question.

John Paul Stevens:

Would that contract be more or less favorable to your client?

David N. Rosen:

–It would less favorable.

And our claim is not that Mr. Philbrook is entitled to some particular measure of favorable treatment.

It is that in the according of whatever treatment he is given, whatever accommodation is made for his needs, that it be on a nondiscriminatory basis.

John Paul Stevens:

Then let me ask you an intermediate question.

Suppose you take the contract as it is and merely delete the words, excluding for any religious observance, but retain the words, purposes set forth under any other leave provision, which would of course have the same effect.

Would that be facially bad, or would that be permissible?

David N. Rosen:

No, it would still be discriminatory.

Because although it–

John Paul Stevens:

It would treat the religious leave just like all other kinds of leave.

Put that would be explicitly anti-religious.

David N. Rosen:

–Well, let me give an example that I hope will explain why that would be unfair.

Let’s assume that an employer, perhaps a private employer, sets aside space for its employees for religious observance; a chapel, if you will.

And the employer also has a lounge.

The employer, we suggest, could not put a sign up in the lounge,

“No reading the Bible in the lounge. “

Or to be more exact:

“No reading the Bible in the lounge for religious purposes. “

Even though space had been set aside specifically an exclusively for religious reasons.

Now, perhaps to take your example–

John Paul Stevens:

No, but it would have to be changed to say,

“You don’t get paid for time reading the Bible in the lounge. “

Because there’s no specific prohibition against it.

It’s only that you don’t get paid for those days.

David N. Rosen:

–Well, except that my analogy is, I’m using… I’m using available space instead of money paid.

But as far… but the thing… we make no general claim to paid leave.

We are entitled to paid leave here only because paid leave is accorded for personal business, which is, except for the specifically religious exclusion, something that would cover the religious exercise for which Mr. Philbrook needs the leave.

Now, Justice Stevens, to follow up, and also Justice Scalia, the point you were making about what I’ve termed neutrality, the claim of neutrality, it’s true that the definition, the contract, if it were changed, would be framed in terms of, any leave otherwise provided for in the contract.

But with our hypothetical employer, let’s assume that there was also a periodical room made available to the employees.

The employer, we suggest, still could not say,

David N. Rosen:

“No reading the Bible for religious purposes, or reading periodicals, or performing any activity for which space is otherwise provided in the lounge. “

We think that would still be a line that was drawn on an explicitly religious basis and we–

Sandra Day O’Connor:

Mr. Rosen.

David N. Rosen:

–Yes, sir.

Yes, ma’am.

Sandra Day O’Connor:

Is there any reason under Title VII why the accommodation made by the employer cannot be broken down to provide so many days a year sick leave, so many days a year for business necessity, and so many days a year for religious observance?

David N. Rosen:

There is none.

Our claim is–

Sandra Day O’Connor:

You wouldn’t claim that that kind of a breakdown is inherently discriminatory under Title VII?

David N. Rosen:

–We would not.

We claim no entitlement to use the days which are set aside for illness for religious observance.

The difference we see, the fundamental difference, between illness and personal business leave is like in kind and character to the kind of conduct… in my soup kitchen example, it could be the identical conduct… to what is permitted.

And the difference is the difference only made by drawing an explicit religious line by the employer across that leave.

Now–

Sandra Day O’Connor:

Well, is it invalid for the employer to say, so many days a year sick leave, so many days a year secular-purpose leave, of any kind, and so many days a year for religious observance?

David N. Rosen:

–Yes.

That we think would be invalid.

We think that the line that is drawn–

Sandra Day O’Connor:

Even if the fact-finder determines that the amount given for religious accommodation is in fact reasonable?

David N. Rosen:

–Yes, because the claim is one not of accommodation but of discrimination.

We think that it does not make a difference if the employer gives no days for religion, or gives several days for religion.

And I recur to the chapel example.

Even if the chapel is a large and beautiful structure, much grander, let us say, than the lounge, what is obnoxious under Title VII is the drawing of explicit religious lines which disfavor religion.

That, at minimum, is presumptively unlawful, and–

Sandra Day O’Connor:

That’s your claim under Section 703a-1, or whatever it is?

David N. Rosen:

–Yes.

The anti… that is the anti-discrimination right.

Byron R. White:

Well, I suppose, if the employer just cut out the three days for religion and said, three days for personal leave of any kind, including religion; that would satisfy you?

David N. Rosen:

That would be nondiscriminatory.

It would be, in a sense, less favorable than what is now provided.

David N. Rosen:

But if there is a nondiscriminatory provision… it could be three days, it could be six days, it could be some number of days in between–

William H. Rehnquist:

Your client would be no better off?

David N. Rosen:

–Our client would be no better… he would be free of the discrimination, but he would be no better off.

Our claim is not that he’s entitled… it’s not essentially that he’s entitled to any fixed amount of leave.

It is that in the provision of leave, he is entitled to be free from discrimination.

Byron R. White:

Well, then, if the employer said, we don’t have any leave around here on pay; no paid leave whatsoever.

But there’s unpaid leave up to 18 days a year for anything.

David N. Rosen:

That would probably… probably still be all right under Title VII.

You see our… my client is put, as anyone else is, into the collective bargaining process.

And if what comes out of that process is three days, or six days, of general purpose personal leave–

Byron R. White:

Well, is the school board in any trouble if it says, no paid leave for anything except religion?

That’s not a Title VII problem, probably, but how about a constitutional problem?

David N. Rosen:

–We think that it depends how much paid leave they give for religion.

We think there’s room–

Byron R. White:

Well, they give three days paid leave for religion, but no paid leave for anything else.

David N. Rosen:

–We think that the free exercise clause of the Constitution provides enough free play… and Title VII certainly does provide enough free play to make that kind; three days a year would be all right.

Byron R. White:

But would you think that Title VII would require that?

David N. Rosen:

No, no.

No.

We think that just as Title VII would not require this accommodation, an explicitly religious accommodation by the employer, as a general rule, so such an accommodation does not justify, cannot justify an explicitly religious line disfavoring religion with regard to personal leave provisions.

Byron R. White:

So you think you know enough about what personal leave is allowed for in this specific instance to say that it discriminates against religion?

David N. Rosen:

We have not cross-petitioned.

We are here supporting a judgment which remanded this case for further findings about the scope of personal leave.

In that sense, I can’t tell you that I think that you should know.

I think that what the record will show–

Byron R. White:

You don’t object to the remand?

David N. Rosen:

–We don’t object to the remand.

We did not cross-petition.

Antonin Scalia:

I’m not clear about your position.

Suppose there were 18 days for a listed number of nonreligious reasons.

Antonin Scalia:

No days of paid leave for any religious reason whatever.

That would be all right in your view?

David N. Rosen:

As the government points out in its brief, that would be a somewhat different and a more difficult case.

Because then there would be questions of comparability of treating specific secular reasons different from a specific religious reason.

So that might be–

Antonin Scalia:

You’re undecided on that?

David N. Rosen:

–I’m undecided on that.

Antonin Scalia:

What about if the 18 days were… in this case were expanded to 21 days; 21 days for explicit secular reasons, and 3 days for religious observance; that would be all right?

David N. Rosen:

For example, if on remand it were demonstrated, contrary to my expectation, that personal–

Antonin Scalia:

No, it’s a new contract.

It’s a new contract.

David N. Rosen:

–All right.

Antonin Scalia:

The three-day wildcard is gone.

David N. Rosen:

That would be all right.

Antonin Scalia:

And you get 21 days for explicit nonreligious reasons, and three days for religious reasons.

That’s all right?

David N. Rosen:

That would be all right.

Antonin Scalia:

How about one day for religious reasons?

David N. Rosen:

Even that is probably all right.

Antonin Scalia:

Half a day?

David N. Rosen:

I think perhaps no days are all right.

But that’s the question on which I’m undecided.

And a question which I think is really not presented on our view of this case, because whatever the employer may be required to do to accommodate religion does not defend an employer’s subsequent or additional action, as here with regard to the personal leave days, discriminating against religious exercises.

John Paul Stevens:

Mr. Rosen, would you tell me again, because I’m not really sure I followed your argument, whether or not, and if not, why not, just striking the words, any religious observance, from that fourth exclusion would satisfy the facial attack, even though it would leave in effect the general exclusion of all other provisions covered by leave.

Tell me again what your view on that is–

David N. Rosen:

My view on that is as with the chapel example that I used, it would still be an explicitly religious line.

It would be that religion is not permitted… because it is religion not because–

John Paul Stevens:

Because it is one of the 16 exclusions.

David N. Rosen:

–That is–

John Paul Stevens:

But that’s still a specific religious line?

David N. Rosen:

–That, I suggest, Justice Stevens, is presented as what is claimed to be a good reason to discriminate against religion, if you will.

A good reason being, well, that religion is being limited–

John Paul Stevens:

Religion is like other things for which leave has already been provided; and that’s discriminating against religion.

David N. Rosen:

–Religion is–

John Paul Stevens:

You see, it seems to me possibly you could win the case and have that provision stricken, and you’d be right back where you started from.

The contract would have precisely the same meaning, but would have deleted some language that you find offensive.

I just don’t see how the general exclusion of all other leave already specifically provided for can be said to be a religiously… facially discriminatory against religion.

That’s what I hang on.

David N. Rosen:

–All right.

The difference, as I see it, is that it’s legitimate of the state or the employer to make any limits it wants on all these other categories without running afoul of religious discrimination provisions in Title VII.

With regard to the religious discrimination provisions, however, the employer is limited even if… even if it has drawn the line which also applies to the other categories, it is still going along saying, no religion allowed.

This creates the same problems of excluding religion because it is religious; excluding activities which are identical because of their motivation; excluding Mr. Philbrook from using a religious holy day to observe or commemorate the death of a loved one, although his co-employee could take such a similar commemoration by going to a gravesite, so long as the form of commemoration was a nonreligious one.

So it still draws a line–

Antonin Scalia:

But it’s acceptable to you so long… or you think it may be acceptable to you, so long as they list all of the conceivable nonreligious purposes, and fail to list any religious purposes?

That’s all right.

The only thing that sticks in your craw is if they say, provided no religious observance.

As long as they just list nothing but secular observances, that’s okay, or may be okay.

David N. Rosen:

–The line I suggest would not be particularity, but comparability, Justice Scalia; that if commemoration of the death of loved ones is permissible, and that commemoration takes the form of observance of a religious holy day, I would say that exclusion of the religious holy day is discriminatory.

Antonin Scalia:

I see.

David N. Rosen:

In sum, our view is that the line here is–

Byron R. White:

Of course you’d say–

David N. Rosen:

–Yes, Justice White.

Byron R. White:

–anytime you permitted paid leave for a wedding, which is a church ceremony, in the sense that you aren’t considered married unless you get married in the church, according to church ritual, if you allow that, you’re really allowing… shouldn’t you also allow other leave for religious purposes?

David N. Rosen:

We think that the right line is all weddings… if weddings are allowed, then you can’t discriminate between secular weddings and religious weddings.

Byron R. White:

Yes, but how about other religious activities?

David N. Rosen:

I think it’s all right for an employer to identify a specific purpose like a wedding.

William H. Rehnquist:

Your time has expired, Mr. Rosen.

We’ll hear next from you, General Fried.

David N. Rosen:

Thank you.

Charles Fried:

Thank you, Mr. Chief Justice, and may it please the Court:

Charles Fried:

The United States appears here in a dual role.

We are the principal enforcer of Title VII, and we are also the nation’s largest employer subject to the strictures of Title VII.

So it’s important for us to get it right, and to situate Title VII within the constitutional landscape of the two religion clauses.

The free exercise clause sets the floor on the matter.

It’s addressed to prohibitions, prohibitions on belief and exercise, and by extension, to discriminatory treatment… discriminatory treatment of religion and religious exercise.

After that, we believe there is wide room for accommodation by government, as for instance, 5 U.S.C. 550a, which deals with religious observance by federal employees.

And also there’s wide room for government to mandate accommodation by private parties before there is a bumping up against the ceiling of the establishment clause.

The establishment clause involves entanglement, preference and the imposing of religion on the citizen by support.

But as Justice Marshall said in the Hardison case, accommodation is not establishment, even though the accommodation is not required by the free exercise clause.

Title VII, in our view, operates largely in that space between the floor and the ceiling.

It repeats the floor obligation, government may not prohibit, government may not discriminate, in its treatment of religion.

But it extends it.

It extends it to private employers; that already goes beyond the free exercise clause.

And it extends it in another very important way, which may be implicated in this case, that is, where there is a disparate impact… not disparate treatment but a disparate impact… on religious observance, there is a duty to accommodate.

Now, we stay clear of the ceiling set by the Thorton case, because that duty is only a duty to accommodate reasonably, and it’s limited in any event by undue hardship.

In this case, we have possibly a case of straightforward discriminatory treatment because, and I think we need a remand to the District Court, and we support the judgment of the Court of Appeals for that reason, we need to know about this personal business leave, because if these personal days are in fact an almost wide open, take the time off if you like, or at least one day of it is, we consider, as does Mr. Rosen, that it would be offensive, that it would be discriminatory treatment for an employer to say, take the day off, do whatever you want, just don’t pray; just don’t go to church.

Do anything else.

Just don’t go to church.

That is discriminatory treatment, and would, for that reason alone, violate Title VII.

Antonin Scalia:

What if it said… what if it meant, do anything you want.

Just don’t use it as a day of observance for which we’ve given you three days under another provision?

Charles Fried:

That would be another, more difficult case.

But we do have… we do have the specific language which says you got three days for mandated religious observance.

And then they go into a good bit of detail.

And then it’s excluded, however, for any religious activity.

So the exclusion is much wider.

Antonin Scalia:

Well, it isn’t.

Because the category from which you’re excluding is necessary personal business.

When you exclude religious observance as a subcategory of necessary personal business, you’re excluding necessary religious observance.

Which seems to me to be the same thing as mandated religious observance.

Charles Fried:

I think with respect, Justice Scalia, that they do talk, at least in some versions of the collective bargaining agreement, and all versions are relevant, because we’ve got a back pay claim here, too, in some versions they spell out what they mean by mandated religious observance, and it talks about days required by the rules of the church.

Religious activity is not spelled out in that way, and might involve other activities other than the observance of a particular holy day–

In any event–

Antonin Scalia:

Well, might that be another issue that it would be well to have clarified, if there is a remand?

Charles Fried:

–Oh, no doubt.

No doubt.

And that is why we support a remand.

Since there’s an alternative reading of that provision, which would be quite unexceptionable in terms of discriminatory treatment.

It may be that those three days are intended for quite narrow and nonrecurring events, things that don’t come around every year, regular as clockwork, or regular as the calendar, and also which are not… which are compelled by external compulsion.

In that event, if that is what we find on remand, then in our view there is no discriminatory treatment.

There may however be discriminatory impact.

That is to say, as Philbrook has been claiming, that because of his particular religious needs, this provision bears on him in a more burdensome way than on other persons; those without those religious needs, or those with only three required religious holidays.

Now, as to discriminatory impact, it is our view that it is only there that the duty of reasonable accommodation comes in, and as to that duty, that is where we part company with the Court of Appeals, and in fact, join company with all the other Courts of Appeals which have considered this matter.

And in our view, once we’re talking about reasonable accommodation, the only obligation that the employer has is to offer a reasonable accommodation.

If it has done that, he has satisfied his literal obligation under the statute.

Nothing else is required.

And it seems to us that in a general way what we’re talking about a few days a year, offering unpaid leave is a reasonable accommodation.

It may not be the reasonable accommodation which an employee prefers.

But it is nevertheless a reasonable accommodation, and discharges the obligation under the law.

I’m quick to say that if you have an employee for whom the problem arises not three times a year, but once a week, to say, well once a week you can take off without pay, that might become another matter.

Because at that point you are talking about an imposition on employment status.

You are saying that this man has got to be paid 80 percent of his salary, rather than just missing a few days’ pay.

And at that point, it may be that leave without pay is not a reasonable accommodation.

But in the context of this case, it is our view that leave without pay is a reasonable accommodation, and discharges the employer’s obligation.

Antonin Scalia:

It may also be that there’s no possible accommodation without an undue burden.

I mean, if you’re suggesting leave with pay, 52 days a year–

Charles Fried:

When an employer can show that every reasonable accommodation nevertheless entails an undue burden, then this Court has held in the Hardison case, that’s too bad, we regret it, but that’s the end of the story.

And the employee is not accommodated.

But this is all in disparate impact rather than in disparate treatment cases.

If there are no further questions, I thank the Court for its attention.

William H. Rehnquist:

Thank you, General Fried.

Mr. McWeeny, you have three minutes left… you have two minutes left.

Robert F. McWeeny:

I would just like to emphasize that the necessary personal business leave I think is well documented in the record as to the limited use of it by the professional staff in Ansonia.

Also, there is absolutely no evidence that there has ever been a denial of necessary personal leave… necessary personal business leave for anything other than religious observance.

If there’s nothing that… these hypothetical claims about work in the soup kitchen have not been presented.

And I think the evidence is that the policy is being interpreted and applied in a way that would not lead to that result.

And I think that’s clear both on the… it is not a general leave provision.

It is personal business leave that cannot be scheduled at any other time.

And there is just no record of any evidence of a denial for any purpose other than for what leave is provided for, religious observance.

And Mr. Philbrook is being allowed all the days that he finds necessary to observe his religion, some with pay, and some without pay.

And I submit that perhaps there are lines, as the Solicitor General indicated, that have to be drawn in some of these situations.

William H. Rehnquist:

Thank you, Mr. McWeeny.

The case is submitted.