The U.S. Equal Employment Opportunity Commission

1. SUBJECT: Policy Statement on Ansonia Board of Education v. Philbrook and religious accommodation.
2. PURPOSE: This policy statement discusses the effect of the Supreme Court’s decision in Ansonia Board of Education v. Philbrook on the theory of religious accommodation with comments on the Commission’s guidelines on religious accommodation and Compliance Manual § 628, Volume II.
3. EFFECTIVE DATE: May 9, 1988
4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix V. Attachment 4, § a(5), this Notice will remain in effect until rescinded or superseded.
5. ORIGINATOR: Title VII/EPA Division, Office of Legal Counsel
6. INSTRUCTIONS: File behind page 628-12 of § 628 of Volume II of the Compliance Manual.
7. SUBJECT MATTER:

The Supreme Court, in Ansonia Board of Education v. Philbrook, 479 U.S. 60, 41 EPD ¶ 36,565 (1986), examined an employer’s duty under § 701(j)⁽¹⁾ of Title VII of the Civil Rights Act of 1964, as amended (Title VII), to accommodate an employee’s religious beliefs or practices. The issue before the Court was whether an employer who has already provided a means of reasonably accommodating an employee’s religious needs must provide an employee’s preferred means of accommodation where it would not cause undue hardship on the conduct of the employer’s business. Ansonia, 41 EPD at 44,500. The Supreme Court held “that an employer has met its obligation under § 701(j) when it demonstrates that it has offered a reasonable accommodation to the employee.” Id. at 44,501.

In Ansonia a school teacher’s religious beliefs required that he refrain from secular employment on six occasions during the school year in order to observe holy days. Ansonia, 41 EPD at 44,499. The Ansonia Board of Education’s collective bargaining agreement with the Ansonia Federation of Teachers provided three days of leave for mandatory religious observance; these were not charged against an employee’s annual leave or accumulated sick leave. Id. The collective bargaining agreement also provided for the use of up to three days of accumulated sick leave for “necessary personal business” but limited the personal business reasons to those not otherwise specified in the contract. Id. Use of the personal business leave for religious observance was specifically excluded. Id.

Philbrook sought to be allowed to use the three days of personal business leave for religious observance rather than having to take unpaid leave for the three additional days of religious observance. Id. Alternatively, Philbrook requested that he be allowed to pay the cost of hiring a substitute which was significantly less than the amount deducted from his salary for each unauthorized absence. Id. Because the school board consistently rejected Philbrook’s proposals he filed a complaint with the Connecticut Commission on Human Rights and Opportunities, with the EEOC, and eventually in federal district court alleging that the prohibition on the use of the necessary personal business leave for religious observance violated § 703(a)(l) & (2). Id.

After the district court concluded that Philbrook had failed to prove a case of religious discrimination, the Court of Appeals reversed the lower court and held that “[w]here the employer and the employee each propose a reasonable accommodation, Title VII requires the employer to accept the proposal the employee prefers unless that accommodation causes undue hardship on the employer’s conduct of his business.” Id. at 44,500, citing 757 F.2d 476, 484 (2nd Cir. 1985).

The Supreme Court rejected the Court of Appeals’ conclusion, finding no basis in the language or the legislative history of Title VII for requiring an employer to choose any particular means of accommodation as long as the accommodation offered is reasonable. Id. at 44,501. The Court concluded that where an employer has reasonably accommodated an employee’s religious needs the employer need not show that each of the employee’s alternative accommodations would result in undue hardship. Id. “[T]he extent of undue hardship on the employer’s business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship.” Id.

The Court of Appeals had found support for its position in the Commission’s guidelines on religious discrimination. The Commission’s guidelines provide that “when there is more than one means of accommodation which would not cause undue hardship, the employer or labor organization must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.”⁽²⁾ The Supreme Court noted that the guideline, “[t]hough superficially consistent with the burden imposed by the Court of Appeals, . . . by requiring the employer to choose the option that least disadvantages an individual’s employment opportunities, contains a significant limitation not found in the court’s standard.” Id. at 44,501 (emphasis in original). The Court added that it would find the guideline inconsistent with Title VII “[t]o the extent that [it], like the Court of Appeals, requires [an] employer to accept any alternative favored by the employee short of undue hardship . . . .” Id. It is the Commission’s position that the guideline does not require an employer to provide any alternative favored by the employee and is, therefore, consistent with the Supreme Court’s holding in Ansonia.

The Commission, in its amicus brief filed in Ansonia, took the position that the Court of Appeals had overstated the extent of an employer’s accommodation obligations under Title VII. Brief for the United States and the Equal Employment Opportunity Commissionas Amici Curiae at 15, Ansonia, 479 U.S. 60 (1986). “[The court’s] conclusion that an employer must, absent a showing of undue hardship, accept the particular accommodation preferred by the employee is inconsistent with the clear import of the statutory language.” Id. “The sole judicial inquiry is whether the employer’s proposed accommodation is reasonable.” Id. at 16.

The Commission explained in its brief what reasonable accommodation involves. “An employer’s duty of reasonable accommodation includes efforts both to eliminate any conflicts between an employee’s religious beliefs and employment requirements and to preserve the employee’s employment status. Id. (citation omitted). “Neither the employee’s subjective assessment of the accommodation nor his secular, non-employment related needs are relevant” to the determination of reasonableness. Id. at 17 (emphasis in original). The Commission noted in its brief that this position was not inconsistent with the EEOC guidelines since they “confirm that only impacts on the employee’s employment status are relevant.” Id. at 17 n.16. The Commission further reasoned that where the burden on an employee’s employment status is more than de minimus or inconsequential, the employer’s attempt to accommodate is unreasonable. Id.

Although the Supreme Court did not make a determination that the school board’s accommodation was in fact reasonable, it found that requiring an employee to take unpaid leave for religious observance that exceeded the amount allowed by a collective bargaining agreement would generally be reasonable. Id. Unpaid leave would not constitute a reasonable accommodation, however, if paid leave were provided for all purposes except religious ones. Id. The case was remanded to determine whether the three days of leave designated for “necessary personal business” was limited to personal business not already provided for in the collective bargaining agreement or whether it was generally used for increasing the amount of leave for secular purposes while leave used for religious purposes was restricted.

In conclusion, the holding in Ansonia does not invalidate the Commission’s guidelines on religious accommodation. The guidelines should be consulted when determining the reasonableness of an accommodation offered by an employer. Whether a particular religious accommodation is reasonable must be determined on a case by case basis. Where leave of absence for secular purposes is granted more liberally than for religious purposes the accommodation is not reasonable. Where the burden on an employee’s employment status is more than de minimis or inconsequential an accommodation is unreasonable.

The Compliance Manual will be revised in light of the Supreme Court’s decision in Ansonia. The following should be regarded as in conflict with Ansonia:

§ 628.5(a) - “The employer satisfies its duty to an employee or prospective employee once it offers all reasonable means of accommodation without undue hardship.”⁽³⁾ (p. 628-15); “[O]nce a union offers all reasonable means of accommodation to a member or prospective member which would not result in undue hardship, it will have satisfied its obligations under Title VII.” (p. 628-17).

§ 628.10(c) Procedures

(12) If respondent attempted to accommodate the religious needs of the charging party, it must be determined that all reasonable means of accommodating charging party were actually offered and that undue hardship would in fact have resulted from each available alternative that was offered.

____5/9/88____       Approved: __________________________________
Date                           Clarence Thomas
                               Chairman

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