No. 06-2203 ___________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ___________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and DAVID WISE, Plaintiff-Intervenor-Appellant, v. FIRESTONE FIBERS & TEXTILES COMPANY, a division of BFS Diversified Products, Inc., BFS DIVERSIFIED PRODUCTS, INC., and BRIDGESTONE AMERICAS HOLDING, INC. Defendants-Appellees. ______________________________________________________ On Appeal from the United States District Court for the Western District of North Carolina, Hon. Robert J. Conrad, Jr., Chief District Judge ______________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S PETITION FOR PANEL REHEARING OR REHEARING EN BANC ______________________________________________________ RONALD S. COOPER U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7024 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 LORRAINE C. DAVIS James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . .ii Statement of Purpose . . . . . . . . . . . . . . . . . . 1 Statement of the Issues . . . . . . . . . . . . . . . . 2 Background . . . . . . . . . . . . . . . . . . . . . . . 2 Panel Decision . . . . . . . . . . . . . . . . . . . . . 3 Argument . . . . . . . . . . . . . . . . . . . . . . . . 5 I. The panel's conclusion that an employer may meet its reasonable accommodation obligation under Title VII by providing measures that do not eliminate the conflict between the employee's religious practices and work obligations conflicts with the statute and controlling precedent . . . . . . . . . . . . . . . . . . . . . . . . . . .5 II. By adopting an incorrect standard for determining when a proposed accommodation is reasonable, the panel improperly conflated the concepts of reasonableness and undue hardship, effectively reading undue hardship out of the statute . . . . . . . . . . 11 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Attachment EEOC & Wise v. Firestone Fibers & Textiles, Inc., et al., No. 06-2203, Opinion (4th Cir. Feb. 11, 2008) Certificate of Service TABLE OF AUTHORITIES Cases page(s) Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986) . . . . . . . . . . . . . . . 1, 4, 5, 6, 7, 13 Baker v. Home Depot, 445 F.3d 541 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . 9 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000) . . . . . . . . . . . . . . . . . 12 Benton v. Carded Graphics, Inc., No. 93-1675, 1994 WL 249221 (4th Cir. June 9, 1994) . . . . . . 9, 14 Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (4th Cir. 1996) . . . . . . . . . . . . . . . 13, 14 Cooper v. Oak Rubber Co., 15 F.3d 1375 (6th Cir. 1994) . . . . . . . . . . . . . . . . . . . . 10 EEOC v. Ilona of Hung., Inc., 108 F.3d 1569 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . 7, 10 EEOC v. Ithaca Industries, Inc., 849 F.2d 116 (4th Cir. 1988) . . . . . . . . . . . . . . . . . .1, 8, 9 EEOC v. Universal Mfg. Corp., 914 F.2d 71 (5th Cir. 1990) . . . . . . . . . . . . . . . . . . . . .10 Opuku-Boateng v. California, 95 F.3d 1461 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 10 Sturgill v. United Parcel Serv., Inc., Nos. 06-4042, 07-1127, 2008 WL 123945 (8th Cir. Jan. 15, 2008) . . . 10 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 1 U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) . . . . . . . . . . . . . . . . . .1, 8, 11, 12, 13 Statutes 42 U.S.C. § 2000e(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. § 12112(5)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 11 Other Authorities American Heritage Dictionary 4th ed. (2006) . . . . . . . . . . . . . . . 6 Webster's Third New International Dictionary (1976) . . . . . . . . . . . .6 STATEMENT OF PURPOSE In the professional judgment of the undersigned, panel rehearing or rehearing en banc is warranted in this case. This case presents an issue of exceptional importance, and the panel decision is in direct conflict with this Court's en banc decision in EEOC v. Ithaca Industries, Inc., 849 F.2d 116 (4th Cir. 1988), and other decisions by this Court, and is inconsistent with the standards applied by the Supreme Court in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), and U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). The rationale adopted by the panel undermines Title VII of the Civil Rights Act of 1964's requirement that employers provide reasonable accommodations for the religious beliefs and practices of their employees unless the employer can prove that it cannot do so without suffering undue hardship. The panel decision sets forth an unprecedented, unworkable standard for assessing an employer's obligation to provide reasonable accommodation, and contravenes the statute's plain purpose of eliminating conflicts between religious and work requirements when the employer can do so without suffering an undue hardship. The panel decision further undermines the statute by permitting employers to refuse to provide successful accommodation measures simply on the basis of speculation that such measures might become problematic at some future, indeterminate time despite evidence that such measures do not cause an undue hardship. For these reasons, we respectfully request that the Court rehear the case, en banc if necessary, to restore the pragmatic approach already adopted by this Court to assess when an employer has satisfied its statutory duty to reasonably accommodate the religious needs of its employees. STATEMENT OF THE ISSUES 1. Whether the panel erred in holding that Title VII's reasonable accommodation provision does not contemplate that the employer's proffered accommodation actually eliminate the conflict between its work rule and the employee's religious belief or practice. 2. Whether the panel's decision erroneously conflates the reasonable accommodation and undue hardship inquiries. BACKGROUND<1> In February 2002, David Wise informed his employer, Firestone, that his new job assignment created a conflict with his religion's requirement that he not work on the Sabbath (Friday evening to Saturday evening). Although Firestone understood Wise to be requesting an exemption from the company's sixty-hour cap on unpaid leave, it did not consider whether such an exception was possible. Instead, it determined that because Wise lacked the seniority to bid for a position with a schedule that would not conflict with his religious practice, Firestone could not accommodate him. For over seven months Wise avoided working the Sabbath by using his paid leave, occasionally working a different shift when his supervisor compressed the work schedule, and accruing unpaid leave. When Wise exhausted all of his paid leave and was near the sixty-hour cap on unpaid leave, he requested an unpaid leave of absence for two religious holidays, requiring a total of ten days' absence from work. Firestone denied Wise's request, noting that the company "do[es]n't grant leaves for religious purposes." Wise was subsequently terminated for exceeding the cap on unpaid leave. PANEL DECISION In reviewing the district court's grant of summary judgment to Firestone, the panel concluded that an employer's obligation under Title VII to provide reasonable accommodation does not require that the offered accommodation actually eliminate the conflict between the employee's religious observance or practice and the employer's work rules. Decision at 9-12. This, the panel observed, is because Congress' use of the word "reasonable" qualified the obligation to accommodate in a manner that is "reasonable" rather than "complete." Id. at 9-10. The panel further observed that this was consistent with Congress' intent "not [to] impose a duty on the employer to accommodate at all costs." Id. at 10 (quoting Philbrook, 479 U.S. at 70) (alteration added). The panel further stated that in Hardison the Supreme Court "recognized that the line [demarcating the degree of accommodation required] was one of reasonable, not total, accommodation." Id. The panel stated that the statute's use of the word "reasonable" does not create an "invariable duty to eliminate the conflict between workplace rules and religious practice," but acknowledged that other courts of appeals have disagreed, concluding that the employer fails to meet its burden to provide reasonable accommodation if the offered accommodation does not eliminate the conflict. Id. at 10-11. The panel further opined that its interpretation of Congress' use of the term "reasonable" was supported by Barnett, a decision interpreting the Americans with Disabilities Act's ("ADA") requirement that employers provide reasonable accommodations to individuals with disabilities, because in Barnett the Supreme Court recognized that "the word 'reasonable' does not mean 'effective'" but instead "incorporates considerations other than those involving the effectiveness of the accommodation as it relates to the employee's needs." Id. at 11. From this, the panel concluded that Firestone had provided Wise with a reasonable accommodation. Id. at 15. Without conducting an undue hardship analysis, the panel further concluded that Firestone's "failure to achieve a total accommodation" resulted because Wise's need for accommodation "exceeded what could reasonably be accommodated under the circumstances." Id. at 19. ARGUMENT I. The panel's conclusion that an employer may meet its reasonable accommodation obligation under Title VII by providing measures that do not eliminate the conflict between the employee's religious practices and work obligations conflicts with the statute and controlling precedent. According to the panel, the statute's use of the term "reasonably" as a modifier for the term "accommodate" means that an employer does not need to eliminate the conflict between an individual's religious observance or practice and his work requirements, but need only take "reasonable" measures, regardless of their success at eliminating the conflict giving rise to the need for accommodation. Id. The panel's premise is a faulty one and the legal standard it derives therefrom conflicts with Supreme Court precedent, this Court's precedent, and the decisions of nearly every other court of appeals to have addressed this issue. Under Title VII, an employer is required to "reasonably accommodate an employee's . . . religious observance or practice" unless to do so would cause "undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j); see also Philbrook, 479 U.S. at 68 (same). Contrary to the panel's analysis, the caselaw makes clear that the statute directs that an employer provide an employee with measures that serve to resolve his religious conflict and that this direction emanates from the statute's use of the term "accommodate." It is elementary that the plain, ordinary meaning of "accommodate"-"to allow for" or "to settle, reconcile," American Heritage Dictionary 4th ed. (2006)-and "accommodation"- "something that is supplied . . . to satisfy a need," Webster's Third New International Dictionary (1976)-suggest that in the context of the statute, this language means that in order to accommodate an individual's religious observance or practice that conflicts with a work requirement, an employer's offered measure(s) must serve to eliminate the conflict. Philbrook strongly supports this understanding of the employer's responsibility. Contrary to the panel's implication, the Supreme Court in Philbrook did not suggest that "the duty of 'reasonableness' cannot be read as an invariable duty to eliminate the conflict." Decision at 10. In fact, Philbrook did not address that issue. What the Supreme Court did do in that decision was recognize that offering an employee unpaid leave sufficed as a reasonable accommodation because "[t]he provision of unpaid leave eliminate[d] the conflict between employment requirements and religious practices." 479 U.S. at 70 (emphasis added). While the justices differed as to whether the accommodation offered by the employer-unpaid leave- was itself satisfactory under the statute because it was not the employee's preferred accommodation, they clearly were in agreement that the accommodation provision required employers to eliminate the conflict. Even Justice Marshall's partial dissent voiced his belief that the accommodation at issue was not legally adequate because it "does not eliminate the conflict," 479 U.S. at 74 (Marshall, J. concurring in part and dissenting in part), and Justice Stevens observed that "the employer has no statutory duty to do anything more than strictly necessary to resolve the conflict," 479 U.S. at 76-77 (Stevens, J. concurring in part and dissenting in part). See also EEOC v. Ilona of Hung., Inc., 108 F.3d 1569, 1576 (7th Cir. 1997) (recognizing Philbrook requires the employer to "eliminate the conflict between the employment requirement and the religious practice"). Accordingly, Philbrook simply provides no support for the standard applied in the panel decision. The Supreme Court similarly recognized in Barnett, albeit under a different statute, the ADA, that the use of the term "accommodate" implies that the employer is required to eliminate the conflict. In this analogous accommodation context, the Supreme Court stated that Congress' use of "the word 'accommodation' . . . conveys the need for effectiveness" in the employer's resolution of the conflict. Barnett, 535 U.S. at 400. Barnett also recognized that requiring employers to provide reasonable accommodations that "'enable' a person . . . to perform" his job is the "basic objective" behind the reasonable accommodation provision. Id. at 401. Title VII's religious accommodation provision serves a similar purpose-to ensure that an employee is free to observe his religious beliefs without having to risk losing his job. Both Philbrook and Barnett strongly indicate that a measure that leaves in place some level of conflict-as the panel decision permits- does not, in the absence of a showing of undue hardship, satisfy the employer's obligation under the statute to reasonably accommodate the employee's religious practice. The panel decision also conflicts with this Court's controlling precedent. In EEOC v. Ithaca Industries, Inc., 849 F.2d 116 (1988) (en banc), this Court recognized that Title VII's reasonable accommodation provision "was enacted with the stated purpose to protect Sabbath observers whose employers fail to adjust work schedules to fit their needs." 849 F.2d at 118. Consistent with that purpose, this Court ruled that an employer cannot meet its burden under the statute by requiring a Sabbatarian to compromise his religious beliefs by agreeing to work the Sabbath on "some occasions"-in essence, an incomplete accommodation effort-as to do so "improperly places the burden on the employee to be reasonable rather than the employer to attempt accommodation." Id. The plain import of Ithaca is that Sabbatarians (as well as other individuals) are entitled under the statute to reasonable accommodation that eliminates the conflict between their religious beliefs and work requirements, and they do not need to compromise their religious beliefs in order to keep their jobs, unless the employer can demonstrate it would suffer an undue hardship on its business operations to provide reasonable accommodation. This understanding of Ithaca is strongly supported by this Court's subsequent reliance on Ithaca for the proposition that "offers to reduce the number of working Saturdays to as few as possible would not accommodate an employee whose religion prohibits working on any Saturday." Benton v. Carded Graphics, Inc., No. 93-1675, 1994 WL 249221 (4th Cir. June 9, 1994) (unpub.) (emphasis added). In addition, the vast majority of courts of appeals to have addressed this question have agreed that to meet its obligation under the statute to reasonably accommodate, the employer must offer an accommodation that eliminates the conflict. See Baker v. Home Depot, 445 F.3d 541, 548 (2d Cir. 2006) (offered accommodation insufficient "'because it does not eliminate the conflict between the employment requirement and the religious practice'" (citation omitted)); Ilona of Hung., 108 F.3d at 1576 (same); Opuku-Boateng v. California, 95 F.3d 1461, 1467 (9th Cir. 1996) (employer must either "eliminate the religious conflict" or show undue hardship); Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378-79 (6th Cir. 1994) (employer must establish undue hardship if its efforts at accommodation "fail to eliminate the employee's religious conflict"); EEOC v. Universal Mfg. Corp., 914 F.2d 71, 73 (5th Cir. 1990) (where two of the employee's religious practices conflicted with her work duties, employer's accommodation of only one practice failed to meet its burden, as "selective 'accommodation'" is "patently unreasonable"). Cf. Sturgill v. United Parcel Serv., Inc., Nos. 06-4042, 07-1127, 2008 WL 123945 (8th Cir. Jan. 15, 2008) (declining to follow circuits holding that reasonable accommodation must eliminate the conflict). II. By adopting an incorrect standard for determining when a proposed accommodation is reasonable, the panel improperly conflated the concepts of reasonableness and undue hardship, effectively reading undue hardship out of the statute. The panel decision relies primarily on what it asserts as the "plain text of the statute" to conclude that Title VII does not place on an employer the burden to eliminate the conflict. According to the panel, Congress' use of the term "reasonably accommodate" means that all the employer has to do is to "'reasonably accommodate' absent undue hardship-not to totally do so." Decision at 10. The panel also relies on the Supreme Court's statement in Barnett that "the word 'reasonable' does not mean 'effective,'" and concludes that as in the disability context "'reasonably accommodate' in the religious context incorporates more than just whether the conflict between the employee's beliefs and the employer's work requirement have been eliminated." Decision at 11. There are several problems with the panel's analysis. First, as previously discussed, it ignores that even if the term reasonable does not connote "effective," the term "accommodate" certainly does, as explicitly recognized by Barnett. See 535 U.S. at 400. The panel's failure to acknowledge this essentially reads the requirement to accommodate out of the statute. Furthermore, and maybe most importantly, the panel misreads the Supreme Court's interpretation of reasonable accommodation. In Barnett the Court analyzed the ADA's requirement that an employer "make reasonable accommodations" absent a "demonstrat[ion] that the accommodation would pose an undue hardship on the operation of the business," 42 U.S.C. § 12112(5)(A).<2> 535 U.S. at 396. The Court recognized that the statute's attention to undue hardship on the "operation of the business" does not address the impact a particular accommodation may have on indirect interests, such as on other employees, to which an employer, "looking at the matter from the perspective of the business itself, may be relatively indifferent." Id. at 400-01. The Court concluded that these other types of impacts could make a particular accommodation an "unreasonable" option, thus excusing the employer from taking that particular measure. 535 U.S. at 403. Barnett stands for the proposition that an employer does not have to offer a particular measure as an accommodation if that measure would prove to be "unreasonable" because of the burden it would impose on non-operational aspects of the employer's business. In reconciling the reasonable accommodation and undue hardship language under the ADA in Barnett, the Supreme Court held that an accommodation is reasonable, however, if it "seems reasonable on its face, i.e., ordinarily or in the run of cases." Id. at 402. In Barnett, the Court determined that because the proposed accommodation at issue would have required a violation of the seniority system it was not a reasonable one. In the Court's words, "it would not be reasonable in the run of cases that the assignment in question trump the rules of a seniority system." Id. at 403. The proposed accommodation in this case, in contrast, represents no similar threat to a seniority system. Indeed, the type of accommodation at issue here-unpaid leave-is clearly of the sort contemplated by Congress and recognized by numerous cases to be squarely "in the run of cases." See Philbrook, 479 U.S. at 70 (unpaid leave is generally a reasonable accommodation). As such it is presumptively reasonable and Firestone should be required to provide it in the absence of a showing that it would incur undue hardship to do so. Had the panel properly recognized that the type of accommodation at issue here was a facially reasonable one, surely it would have understood that the only justification for not providing it would have been a showing by Firestone of undue hardship. Instead, the panel improperly addressed, as reasonableness concerns, considerations more properly addressed as undue hardship. This Court's opinion in Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (4th Cir. 1996) is instructive on this point. In Chalmers this Court recognized the analytical approach of Hardison and Philbrook, and described the proper standard, via citation to Ithaca, as follows: "If the employee has notified the employer of his religious needs to take Sundays off, the burden rests on the employer to show that it could not accommodate the employee's religious practice without undue hardship." 101 F.3d at 1018. As such, Chalmers plainly recognizes that the same type of accommodation need that the panel described here as "excessive" and "unreasonable" must be assessed for undue hardship, not "reasonableness."<3> Assessed under the proper standard of undue hardship, the record was simply inadequate to conclude that Firestone established as a matter of law that allowing Wise additional days to observe his Sabbath and religious holidays would cause Firestone undue hardship. A finding of undue hardship must be a "fact-based" determination of "predictably certain" consequences, not based in speculation. See Benton, 1994 WL 249221 at *2. The considerations relied on by the district court and the panel to determine that accommodating Wise would have unduly burdened Firestone were based on speculation and disputed by evidence produced by the Commission. For example, the panel speculated that other employees "may" eventually come to resent Wise's accommodation, and then further speculated that employees who are "forced" to cover for Wise "could" develop counterproductive feelings. Decision at 18. In addition, there was no evidence that anyone was, or needed to be, forced to cover for Wise. To the contrary, the only evidence in the record about coworkers was that several were willing to volunteer to cover during Wise's Sabbath observances.<4> For the aforementioned reasons, the Commission respectfully requests that the panel rehear the case, or that the Court rehear the case en banc. Respectfully submitted, RONALD S. COOPER _________________________ General Counsel JAMES M. TUCKER Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION 1801 L St. NW LORRAINE C. DAVIS Washington, D.C. 20507 Assistant General Counsel (202) 663-4870 James.Tucker@EEOC.gov CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing petition were sent this 26th Day of March, 2008, by FedEx Next Day Air delivery, postage prepaid, to counsel of record for Plaintiff-Intervenor-Appellant and Defendants- Appellees, respectively, at the addresses below: Vicki B. Rowan, Esq. 1515 Mockingbird Lane, Suite 400 Charlotte, NC 28209 H. Bernard Tisdale, III, Esq. Ogletree, Deakins, Nash, Smoak, & Stewart, P.C. 201 South College Street, Suite 2300 Charlotte, NC 28244 _____________________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L St. NW, Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov *********************************************************************** <> <1> A more detailed discussion of the record evidence may be found at pages 3-13 of the Commission's opening brief. <2> While Title VII and the ADA contain similar language regarding the provision of reasonable accommodation, the statutes vary significantly in the responsibilities placed on employers. See, e.g., Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1120 n.10 (9th Cir. 2000) (ADA standard for undue hardship "substantially more demanding" than Title VII standard), overruled sub nom on other grounds, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). However, to the extent the ADA and the Supreme Court's interpretation of it are deemed useful in the Title VII context, they support the Commission's position and undermine the rationale utilized by the panel in this case. <3> Moreover, the panel's conclusion that Wise's request for unpaid leave during his Sabbath observances "exceeded what could be reasonably accommodated under the circumstances," Decision at 19, endorses the result expressly rejected by this Court, sitting en banc, in Ithaca-that "an absolute refusal to work on Sunday was so unreasonable on its face that no reasonable accommodation was possible," 849 F.2d at 118. <4> This approach certainly does not in any way jeopardize an employer's ability to demonstrate that it has met its statutory obligations where it has legitimate reasons for denying a particular accommodation, since all an employer need do to establish it has complied with the statute is show that it would incur more than a "de minimis cost" to eliminate the conflict. Hardison, 432 U.S. at 84.