Opinion
Docket No. 64141.
Argued November 14, 1980 (Calendar No. 7).
Decided March 1, 1982.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Michael A. Lockman, Assistant in Charge, Civil Rights Civil Liberties Division, for Department of Civil Rights.
Michael J. Connolly for defendant.
Judge ALLEN'S opinion for the Court of Appeals, 93 Mich. App. 366; 287 N.W.2d 240 (1979), fully and accurately analyzes the Michigan statute and case law and recounts the pertinent history of federal cases applying the comparable federal law.
For the reasons set forth in that opinion we affirm.
COLEMAN, C.J., and RYAN, J., concurred with KAVANAGH, J.
The Civil Rights Commission found that General Motors had discriminated against Mary Parks because of religion. That finding was based on stipulated facts that Parks, an observant Seventh-day Adventist, when hired on September 18, 1972, at the Fisher Body plant in Pontiac, was placed on a shift that included hours of her Sabbath (Friday evening and Saturday), that she was discharged from employment when she failed to report for work on three successive Fridays (September 22, September 29, and October 6, 1972), and that General Motors, "upon being confronted with the conflict between the working hours of the second shift and claimant's observance of her Sabbath, considered no alternative other than claimant's discharge and took no action whatsoever other than discharge of claimant".
The circuit court reversed the decision of the CRC. The Court of Appeals affirmed; it concluded "that the FEPA did not impose an obligation on the employer to make affirmative accommodations to conform to the employee's religious needs", and directed that "[a]ll charges brought against the respondent herein [General Motors] are dismissed".
I agree that the Fair Employment Practices Act does not impose a separate obligation to accommodate the religious needs of employees. An employer may nevertheless be required to act affirmatively to avoid discriminating against an employee because of religion.
MCL 423.303; MSA 17.458(3).
I
The FEPA and constitution proscribe "discrimination against any person because of religion". It is the duty of the CRC, under the constitution, to investigate allegations of such discrimination "in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination".
Id.
Const 1963, art 5, § 29. See also Const 1963, art 1, § 2.
Const 1963, art 5, § 29.
The right to an opportunity to be employed — although not absolute and subject to numerous limitations — is a civil right so guaranteed by law.
See fn 1. See also Const 1963, art 1, § 2, Convention Comment, 2 Official Record, Constitutional Convention 1961, p 3363.
The term "discrimination" includes, I agree with Justices WILLIAMS and MOODY, "not only overt discrimination, but also practices that are fair in form, but discriminatory in operation". An employer may be obliged to act affirmatively to avoid a discriminatory effect.
The stipulation of facts does not advert to whether General Motors, in particular cases or as a matter of policy or practice, made changes in the work schedule, at this or other locations, so that employees can refrain from work during their days of religious observance. Nor does it appear whether GM's refusal to accommodate Mary Parks' religious needs was inconsistent with past conduct, policy or practice respecting the religious needs of General Motors employees or otherwise might have discriminated against Mary Parks on the basis of religion.
The CRC's authority concerns allegations of discrimination against a person because of religion. General Motors' concession that it refused to consider an alternative other than discharge does not, standing alone, establish a policy or practice "discriminatory in operation" or that General Motors discriminated against her because of religion.
II
In September 1972, after Parks had been hired but before she was discharged, the CRC adopted an EEOC religious discrimination guideline which stated that it concerns "the question whether it is discrimination on account of religion to discharge or refuse to hire employees who regularly observe Friday evening and Saturday, or some other day of the week, as the Sabbath or who observe certain special religious holidays during the year and, as a consequence, do not work on such days". The guideline states that the EEOC "believes" that the duty not to discriminate on religious grounds:
"[I]ncludes an obligation on the part of the 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 substantially similar qualifications during the period of absence of the Sabbath observer.
"Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable."
The CRC concluded that General Motors made no effort to accommodate Parks' religious needs, in violation of the guideline, on the basis of General Motors' concession that, when confronted with the conflict between the working hours of the second shift and Parks' observance of her Sabbath, it considered no alternative other than her discharge and took no action whatsoever other than to discharge her.
The CRC further found that General Motors was precluded from asserting undue hardship because of its failure to make any effort to accommodate Parks' religious needs, and that it could have reasonably accommodated her religious needs within the terms of the collective-bargaining agreement with the United Auto Workers without undue hardship on the conduct of its business, and failed to do so.
Neither the FEPA nor the Michigan Constitution requires the assimilation into Michigan law of whatever the Congress enacts, federal agencies promulgate or the federal courts decide. The question whether a particular policy or rule of federal law should be incorporated into Michigan law should be decided as the particular issue arises.
If this Court were to adopt the EEOC guideline as a proper or the correct construction of the FEPA, the likelihood is that the argument would be made — and would prevail — that we had also adopted the federal case law construing and applying the guideline, and that the terms "reasonable accommodation" and "undue hardship" have the meaning which has been or will be ascribed to them by the EEOC or the federal courts. Some of the federal case law is conflicting. This Court has not examined that body of law, and it would be neither appropriate nor meaningful for it to attempt to do so in the instant case.
I appreciate that, whether the EEOC guideline is adopted or not, the federal precedents are likely to be considered by the CRC in determining whether there has been discrimination as a result of a failure to act affirmatively. But then the persuasiveness of the federal precedents would depend on whether, in the case relied on, there was a factual showing of discrimination — the CRC inquiry could not be confined to whether there was "reasonable accommodation" or "undue hardship". The focus would be on whether there was discrimination, and not on the terminology of the guideline.
The EEOC guideline may reflect a perception that large employers or employers operating large plants generally make an effort to reasonably accommodate the religious needs of employees where this can be done without undue hardship on the conduct of the employer's business and may further reflect the view that it is therefore appropriate to presume discrimination because of religion from a failure to so accommodate the religious needs of an employee and to cast the burden of justifying the failure to accommodate upon the employer. It has not, however, been shown that such a perception or view has a factual basis in the experience of the EEOC or of the CRC in the administration of their responsibilities. We are asked to adopt the guideline as the proper construction of the statute, applicable to all employers and all businesses, although there may be no basis in fact or experience for creation of such a presumption or allocation of the burden of proof.
The guideline is, we all agree, merely an expression of agency policy. It was not adopted as a rule and does not have the force of law. See Dep't of Civil Rights ex rel Parks v General Motors Corp, 93 Mich. App. 366, 373 (1979), adopted in Justice KAVANAGH'S opinion and Justice WILLIAMS' opinion in this Court.
General Motors is a large employer, but the rule which the CRC asks this Court to enunciate in the construction of the FEPA would tend to impose the same burden of proof on all employers without regard to their size or the nature of their businesses and in situations distinct from those which engendered the concepts set forth in the guideline.
Courts ordinarily refrain from stating rules of general application until their experience in the decision of a large number of cases in varying factual situations justifies a generalization. This is the first case to reach the appellate courts of this state alleging discrimination because of religion based on asserted failure to engage in affirmative conduct to accommodate an employee's religious needs. This Court has no basis in its experience, nor has it been shown the CRC has any basis in its experience to justify the adoption of the generalizations set forth in the guideline.
Both the Michigan Department of Civil Rights and General Motors apparently desire an answer to the abstract question whether the FEPA should be read as imposing a duty of reasonable accommodation to the religious needs of employees and prospective employees where such accommodation can be made without undue hardship on the conduct of the employer's business.
I would, for reasons set forth in Judge ALLEN'S opinion in the Court of Appeals, answer the question posed by this test case in the negative; the Court has no present basis for reading the FEPA, enacted in 1955, as imposing the duty first enunciated in 1967 by the EEOC, subsequently enacted in 1972 into Title VII of the Civil Rights Act, and thereafter, in 1977, applied retroactively by the United States Supreme Court.
Section 701(j), 42 U.S.C. § 2000e(j).
Trans World Airlines, Inc v Hardison, 432 U.S. 63; 97 S Ct 2264; 53 L.Ed.2d 113 (1977).
III
It is my understanding of the lead opinion that it does not preclude a finding of discrimination based on evidence that an employer failed to act affirmatively to avoid the discriminatory effect of a facially neutral practice, and that it leaves open the questions whether the failure of an employer to accommodate the religious needs of its employees or prospective employees may constitute discrimination, what would be a fair allocation of the burden of proof and what should constitute valid defenses to evidence of discrimination.
While Judge ALLEN states (Dep't of Civil Rights v General Motors Corp, supra, p 379) that the Court of Appeals and the United States Court of Appeals for the Sixth Circuit have had a "long-standing reluctance" "to find affirmative duties in a general ban on discrimination" and adverts to two decisions in which the Court of Appeals "declined to find affirmative duties mandated within a statute which forbids `discrimination'", his opinion does not state, let alone hold, that in no circumstances is there an obligation to act affirmatively to avoid discrimination.
Accommodation of an employee's Sabbath observance may involve more than a request that an employer accommodate, without undue hardship to itself, the religious needs of an employee. Accommodation of one employee's religious practice may necessitate the transfer of another employee to a less desirable shift; solely because of their religions, one employee would be moved to a more desirable shift, and another employee would be moved to a less desirable shift. Such a reallocation of benefits because of religion may go beyond what is required by the FEPA and may indeed be inconsistent with its mandate barring discrimination because of religion. Alternatively, accommodation of an employee's religious practice may not burden another employee or may not cause undue hardship to the employer if such accommodation could be accomplished through voluntary shift swaps or voluntary substitutions of other personnel already on board.
I would remand the cause to the circuit court for further proceedings consistent with this opinion.
The central issue in this case is not difficult of statement: does the duty to refrain from religious discrimination in employment impose an obligation on the employer to reasonably accommodate an employee's religious needs? Put within the general factual context of this case, we are required to determine whether an employee who refuses to work a scheduled shift because it conflicts with her religion's Sabbath observance may be summarily discharged or whether the employer must first attempt some accommodation between the work schedule and its employee's religious practices.
This conflict between employees' religious practices and employers' neutral work schedules and policies, however simple of statement, presents this Court with what Justice Marshall, in the federal context, has termed "[o]ne of the most intractable problems" arising under civil rights legislation. Trans World Airlines, Inc v Hardison, 432 U.S. 63, 85; 97 S.Ct. 2264; 53 L Ed 2d 113 (1977) (Marshall, J., dissenting). On the one hand, this state's Legislature has simply prohibited an employer "to discriminate" because of religion. MCL 423.303; MSA 17.458(3). It has not attempted to outline what "discriminate" means in respect to religious practices. On the other hand, the Michigan Civil Rights Commission, established by the Constitution of 1963 and given the task of securing the equal protection of civil rights guaranteed by law, has interpreted the legislative prohibition of religious discrimination as requiring an employer to make reasonable accommodations to an employee's religious practices.
This statute, the Michigan State Fair Employment Practices Act (FEPA) was repealed by passage of the Elliott-Larsen Civil Rights Act, 1976 PA 453, effective March 31, 1977, MCL 37.2101 et seq.; MSA 3.548(101) et seq. The claimant in this case, Mary Parks, was discharged while the FEPA was in effect and therefore it is that statute and not the Elliott-Larsen act which governs this case.
The difficulty of this issue is compounded by the fact that imposition of a duty of reasonable accommodation raises constitutional questions respecting an establishment of religion. Courts in both the federal and state forums have grappled with both of these issues under analogous circumstances with divergent results.
US Const, Am I provides:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (Emphasis supplied.)
Const 1963, art 1, § 4 provides:
"Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief." (Emphasis supplied.)
After a careful review of the conflicting considerations in this sensitive area, we find that the statutory duty to refrain from religious discrimination in employment imposes a duty on the employer to reasonably accommodate an employee's religious needs unless an undue hardship would be occasioned thereby. Such a duty, moreover, does not violate either the Establishment Clause of the First Amendment to the United States Constitution or art 1, § 4 of the Michigan Constitution. Therefore we would reverse the Court of Appeals and the circuit court and remand to the Michigan Civil Rights Commission [MCRC] for further proceedings consistent with the above analysis. However, in light of the split in this Court and since we agree with Part III of Justice LEVIN'S opinion as far as it goes, we remand to the circuit court for evidentiary proceedings. See our conclusion infra.
I. FACTS
The factual background to this case is quite simple and is drawn from the stipulation of facts entered into by the parties below, on which the case has been tried by the lower courts.
Claimant Mary Parks was hired by respondent General Motors Corporation, Fisher Body Division (GM), on September 18, 1972, as an hourly employee at its Pontiac, Michigan, Fisher Body plant and placed on the second shift as an assembler in the Trim and Final Department. This shift runs from 4:00 p.m. until 12:30 a.m.
At the time of her hire claimant was a practicing Seventh-day Adventist. This religion forbids performance of work by its members between sundown Friday and sundown Saturday, which is their Sabbath. Thus on the first three Thursdays after Ms. Parks was hired she informed her foreman that she would be unable to work her following day's shift due to her religious beliefs. Accordingly, claimant failed to report to work on the three consecutive Fridays falling on September 22, September 29, and October 6, 1972. As a result of these Friday absences, Ms. Parks' employment with GM was terminated on October 9, 1972, for the stated reason that she was "unable to meet conditions of employment". GM has stipulated that upon being confronted with the conflict between the working hours of claimant's assigned second shift and her Sabbath observance, it considered and took no action other than discharge.
Shortly after her discharge claimant filed an administrative complaint on October 19, 1972, with the Michigan Civil Rights Commission charging GM with religious discrimination. On September 8, 1975, almost three years later, the MCRC issued a formal charge of religious discrimination against GM, stating that GM had a duty to accommodate claimant in the observance of her Sabbath and that it did not do so. In an opinion and order of September 23, 1975, the MCRC found, among other things, that § 3 of Michigan's State Fair Employment Practices Act (FEPA), MCL 423.303; MSA 17.458(3), which by its terms forbids "any employer, because of the * * * religion * * * of any individual, to refuse to hire or otherwise to discriminate against him with respect to hire, tenure, conditions or privileges of employment", may be construed to require an employer to make reasonable accommodations for an employee's religious needs. The MCRC further found that GM could have reasonably accommodated Ms. Parks' religious needs in this case without undue hardship on the conduct of its business but that it made no effort to do so, thus discriminating against claimant on account of religion. The MCRC also concluded that its reasonable accommodation requirement did not violate the Establishment Clause of either the First Amendment to the United States Constitution or art 1, § 4 of the Michigan Constitution. The MCRC ordered GM to cease and desist from unlawfully discriminating against Ms. Parks on account of religion and to reinstate her with back pay and other benefits.
On September 26, 1972, eight days after Ms. Parks was hired, the MCRC adopted interpretive guidelines on the subject of religious discrimination which construed the duty not to discriminate on the basis of religion, including an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees. These guidelines approved and adopted by reference, pursuant to MCL 24.232(4); MSA 3.560(132)(4), are similar to guidelines issued by the United States Equal Employment Opportunity Commission (EEOC) on July 13, 1967. 3 CCH Employment Practices Guide, ¶ 24,235, pp 8635-5 — 8635-7; BNA, Fair Employment Practice Manual 455:1091. The EEOC guidelines provide as follows:
"PART 1605 — GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION
"§ 1605.1 Observation of the Sabbath and other religious holidays.
"(a) Several complaints filed with the Commission have raised the question whether it is discrimination on account of religion to discharge or refuse to hire employees who regularly observe Friday evening and Saturday, or some other day of the week, as the Sabbath or who observe certain special religious holidays during the year and, as a consequence, do not work on such days.
"(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 the 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 substantially similar qualifications during the period of absence of the Sabbath observer.
"(c) Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable.
"(d) The Commission will review each case on an individual basis in an effort to seek an equitable application of these guidelines to the variety of situations which arise due to the varied religious practices of the American people." 29 C.F.R. § 1605.1, as amended July 13, 1967.
See fn 2, supra.
GM appealed the MCRC's order to the Oakland County Circuit Court. The circuit court, trying the appeal de novo pursuant to Const 1963, art 5, § 29 and MCL 37.4; MSA 3.548(4), now MCL 37.2606; MSA 3.548(606), perceived an "obvious and significant difference between a prohibition of religious discrimination [found in the FEPA] and a requirement of accommodation to religious beliefs [found in the interpretive guidelines]". On March 21, 1978, the circuit court reversed the order of the MCRC and held the action of the MCRC in adopting and enforcing religious accommodation guidelines to go well beyond its constitutionally and legislatively delegated authority.
On appeal to the Court of Appeals, the decision of the circuit court was affirmed. 93 Mich. App. 366; 287 N.W.2d 240 (1979). The Court of Appeals held that the FEPA did not impose an obligation on an employer to make affirmative accommodations to an employee's religious needs since the interpretive guidelines of the MCRC construing that act to require such reasonable accommodation had no legal effect in and of themselves, and since such a construction, in light of certain interpretive aids, went beyond the legislative mandate set forth in § 3(a) of the FEPA.
We granted leave to appeal and directed the parties to include among the issues to be briefed whether, under the FEPA, the duty to refrain from religious discrimination in employment imposed an obligation on the employer to reasonably accommodate an employee's religious needs. 408 Mich. 929 (1980).
II. DISCUSSION
The proscription against religious discrimination in § 3 of the FEPA states simply:
"It shall be an unfair employment practice:
"(a) For any employer, because of the race, color, religion, national origin or ancestry of any individual, to refuse to hire or otherwise to discriminate against him with respect to hire, tenure, terms, conditions or privileges of employment, or any matter, directly or indirectly related to employment, except where based on a bona fide occupational qualification." MCL 423.303; MSA 17.458(3).
The act does not attempt anywhere to define the term "religion". Thus, it is unclear at the start from a simple reading of the language of the statute whether the Legislature intended to impose upon an employer an obligation to make reasonable accommodations to the religious needs of employees. While courts will view an administrative "guideline" or interpretation in any number of ways, such as giving it deference, great weight, most respectful consideration, or merely looking to it for guidance, they generally do not consider it controlling. See, generally, Davis, Administrative Law of the Seventies (Supplementing Administrative Law Treatise, June, 1976), § 5.05, p 161. From the other point of view it is axiomatic that an administrative agency may not exceed the power given to it by statute or constitution, and that the "ambit of the power of the commission is in a field, meted and bound by the express provisions of the law". McKibbin v Corporation Securities Comm, 369 Mich. 69, 83; 119 N.W.2d 557 (1963), quoting from G F Redmond Co v Michigan Securities Comm, 222 Mich. 1, 4; 192 N.W. 688 (1923). Moreover, such "guidelines", under the Administrative Procedures Act, do not have the force or effect of law, but are merely explanatory. MCL 24.207(h); MSA 3.560(107)(h). Our task, then, is to construe the legislative will as we find it. McKibbin, supra, 81.
This issue, although one of first impression in our state, has caused no little amount of difficulty both in the federal courts and in the courts of several of our sister states. Thus before we wrestle with this difficult problem, it will be of some benefit to examine how these other courts have dealt with this same problem of legislative silence respecting religious accommodation in the face of similarly phrased general prohibitions of religious discrimination. Consideration of the case law of other jurisdictions is also warranted since both lower courts grounded their decisions, in part, on such case law.
A. The Federal Courts
The federal courts have had frequent opportunities to review questions dealing with religious discrimination in employment. Section 703(a)(1) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1), makes it unlawful for an employer
"to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin".
The Equal Employment Opportunity Commission (EEOC), in 1967, issued guidelines interpreting the above provision so as to oblige 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". See fn 3, supra. The substance of this guideline was later incorporated into a 1972 amendment of Title VII, § 701(j), 42 U.S.C. § 2000e(j), in its definition of religion.
"(j) The term `religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business."
What is relevant, for purposes of analogy, to this Court's present deliberations is the response of the federal courts to the EEOC guidelines interpreting Title VII's general ban of religious discrimination before those guidelines were incorporated by the 1972 Congressional amendment.
The first major case to face this issue was Dewey v Reynolds Metals Co, 429 F.2d 324 (CA 6, 1970), aff'd by an equally divided court 402 U.S. 689; 91 S.Ct. 2186; 29 L.Ed.2d 267 (1971). While the original opinion of the Sixth Circuit panel is of doubtful precedential value due, in part, to its variety of rationales reversing the district court's ruling for the plaintiff employee who had absented himself from work due to his religious beliefs, see Trans World Airlines, Inc v Hardison, 432 U.S. 63, 73, fn 8; 97 S.Ct. 2264; 53 L.Ed.2d 113 (1977), on rehearing the majority of the panel pointedly expressed its viewpoint on the validity of the EEOC regulations.
"Nowhere in the legislative history of the Act do we find any congressional intent to coerce or compel one person to accede to or accommodate the religious beliefs of another. The requirement of accommodation to religious beliefs is contained only in the EEOC Regulations, which in our judgment are not consistent with the [Civil Rights] Act.
* * *
"The fundamental error of Dewey and the Amici Curiae is that they equate religious discrim[i]nation with failure to accommodate. We submit these two concepts are entirely different." Dewey, supra, 334-335. Dewey, it must be observed, was decided before the 1972 amendment to Title VII defined "religion" to include religious observances and practices and imposed a reasonable accommodation duty on the employer. Dewey also preceded the United States Supreme Court decision in Griggs v Duke Power Co, 401 U.S. 424, 431; 91 S.Ct. 849; 28 L.Ed.2d 158 (1971), which spoke of Title VII as proscribing "not only overt discrimination, but also practices that are fair in form, but discriminatory in operation". Further, the affirmance by an equally divided Supreme Court entitles Dewey to no precedential weight and its several alternative rationales, according to the Supreme Court, make its impact "inconclusive". Trans World Airlines, supra, 73, fn 8.
After the 1972 amendment to Title VII and the Griggs case later federal decisions dealing with pre-1972 employee discharges or refusals to hire started finding the 1967 EEOC guidelines on religious accommodation valid. The Courts of Appeals in the Fifth Circuit, Riley v Bendix Corp, 464 F.2d 1113, 1116-1117 (CA 5, 1972), the Ninth Circuit, Yott v North American Rockwell Corp, 501 F.2d 398, 402-403 (CA 9, 1974), cert den 445 U.S. 928 (1980) (hereinafter cited as Yott I) (for subsequent case history see footnote 12, infra), and even in the Sixth Circuit in which Dewey, supra, had been decided, Reid v Memphis Publishing Co, 468 F.2d 346, 350-351 (CA 6, 1972) (hereinafter cited as Reid I) (for subsequent case history see footnote 5, infra), all held the 1967 EEOC guideline requiring reasonable accommodation a valid interpretation of Title VII's then-applicable proscription against religious discrimination in cases involving religious objection to working on the Sabbath or to union membership and dues payment. The basis for this result was primarily: (1) the unanimous Supreme Court decision in Griggs, supra, 432, which, although dealing with racial discrimination, interpreted the thrust of Title VII to be directed at the consequences of employment practices, not simply the motivation, Reid I, supra, 350; Yott I, supra, 402; and (2) the legislative history of the 1972 amendment (the amendment's sponsor, Senator Randolph of West Virginia, stated that the amendment was in response to the Supreme Court's equally divided affirmance of the Dewey case: "`This amendment is intended, in good purpose, to resolve by legislation — and in a way I think was originally intended by the Civil Rights Act — that which the courts apparently have not resolved.'"), Riley, supra, 1116; Reid I, supra, 350-351, as well as the passage of the amendment which was hailed by these courts as having laid to rest any doubts as to the effect of the EEOC guidelines, Riley, supra, 1116. Indeed, the 1972 amendment was characterized as having validated or affirmed the guideline's interpretation of Title VII's ban on religious discrimination. Riley, supra, 1117; Reid I, supra, 351; Yott I, supra, 402-403.
Not all panels of the federal Court of Appeals upheld the validity of the EEOC guidelines for pre-1972 discharges decided by the appellate court after the 1972 amendment became effective. There was an apparent intra-circuit conflict in the Sixth Circuit. In the Reid I case the district court had entered judgment for the employer relying on Dewey, supra, for the proposition that the employer had no duty to a potential employee's religious belief contrary to the employer's established work schedule. The Court of Appeals panel, however, vacated this judgment, since it held the EEOC guidelines requiring such accommodation valid. That panel then remanded the case to the district court for a determination whether the employer, under the circumstances, could make reasonable accommodations to the employee's religious practices without undue hardship. Reid I, supra, 351.
On remand the district court this time entered judgment for the employee. On appeal a partially different Sixth Circuit panel held the district court's finding that an accommodation to the employee's religious practices would not impose an undue hardship on the employer unsupported by substantial evidence and clearly erroneous. Reid v Memphis Publishing Co (After Remand), 521 F.2d 512, 517 (CA 6, 1975), cert den 429 U.S. 964 (1976) (hereinafter cited as Reid II). The panel in Reid II then reverted to its Dewey reasoning.
"Title VII, in proscribing discriminatory practices in employment, served a legitimate and laudable legislative purpose; the 1967 EEOC Guideline 1605.1 does not. By this Guideline EEOC has injected something new and entirely different from discrimination. It has required employers not only to tolerate the religious beliefs but also all of the religious practices of their employees, no matter what they are, even though a hardship is inflicted on the employer, so long as it is not an undue hardship. The legislative history of the Act does not show anything that employers have done to warrant such treatment." Reid II, supra, 519.
As to the 1972 amendment to Title VII, the Reid II panel said simply:
"The subsequent enactment of § 2000e(j) in 1972 cannot be relied on to establish a congressional intent with respect to the 1964 statute, which was not expressed in that statute." Reid II, supra, 520.
The Sixth Circuit, over a dissent by Judge Edwards, who sat on the panel in both Reid opinions, voted against an en banc hearing. See Reid v Memphis Publishing Co, 525 F.2d 986 (CA 6, 1975) (Reid III).
The United States Supreme Court pronounced the final — if not unequivocal — word on the effect of the 1967 EEOC guidelines in Trans World Airlines, supra. That case involved a pre-1972 dismissal of an employee due to work-schedule problems arising from the employee's observance of his religion's (Worldwide Church of God) prohibition of work during its sundown Friday to sundown Saturday Sabbath. The Supreme Court, in light of Congress' ratification of the EEOC guidelines by positive legislation, accepted the guidelines as a "defensible construction of the pre-1972 statute". Trans World Airlines, supra, 76, fn 11.
The full text of this footnote reads as follows:
"Ordinarily, an EEOC guideline is not entitled to great weight where, as here, it varies from prior EEOC policy and no new legislative history has been introduced in support of the change. General Electric Co v Gilbert, 429 U.S. 125, 140-145 [ 97 S Ct 401; 50 L.Ed.2d 343] (1976). But where `Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation,' Red Lion Broadcasting Co v FCC, 395 U.S. 367, 381-382 [ 89 S Ct 1794; 23 L.Ed.2d 371] (1969) (footnote omitted), the guideline is entitled to some deference, at least sufficient in this case to warrant our accepting the guideline as a defensible construction of the pre-1972 statute, i.e., as imposing on TWA the duty of `reasonable accommodation' in the absence of `undue hardship.' We thus need not consider whether § 701(j) must be applied retroactively to the facts of this litigation."
B. The State Courts
The controversy surrounding the issue of whether a duty of reasonable accommodation is properly derivable from a general prohibition of discrimination has not been confined to the federal forum. Many states, like Michigan, have legislation analogous to Title VII — prior to its 1972 amendment defining "religion" — in its general prohibition of religious discrimination and have therefore been confronted with the same issue. Maine Human Rights Comm v Local 1361, United Paper-workers International Union, AFL-CIO, 383 A.2d 369 (Me, 1978), involved a Seventh-day Adventist's refusal, for religious reasons, to pay required union dues. That state's Supreme Court, after noting that its employment discrimination statute was intended to be the state counterpart of the federal act, relied on the just-discussed federal case law in upholding that state's Human Rights Commission guideline, which mirrored the EEOC's, as a "reasonable construction of the Maine act". Local 1361, supra, 378.
A similar problem was before the Alaska Supreme Court in Wondzell v Alaska Wood Products, Inc, 583 P.2d 860 (Alas, 1978) (hereinafter cited as Wondzell I), modified on other grounds on rehearing 601 P.2d 584 (Alas, 1979) (hereinafter cited as Wondzell II) (see footnote 7, infra). There a Seventh-day Adventist refused to join the union or pay union dues required by an applicable union security agreement. The Alaska Supreme Court, likewise, was "persuaded that a duty of reasonable accommodation should be read into the Alaska statute" which forbids discrimination on the basis of religion. Wondzell I, supra, 864. As in the Maine case, the Alaska court took cognizance of the fact that the state anti-discrimination statute was modeled on the original 1964 federal act. However, even though the Alaska statute did not itself originally contain a reasonable accommodation requirement and even though it was never amended in line with the 1972 federal amendment, the court still found a duty of reasonable accommodation to exist. Wondzell I, supra, 863-864 and fn 4; accord, Wondzell II, supra, 585. Rankins v Comm on Professional Competence of the Ducor Union School Dist, 24 Cal.3d 167; 154 Cal.Rptr. 907; 593 P.2d 852 (1979), app dis 444 U.S. 986 (1979), dealt with a 1974 California constitutional provision proscribing a person from being disqualified from employment because of creed. In this case an elementary school teacher had been notified of the school district's intent to dismiss him for his unexcused absences taken to observe various holy days recognized by his religious sect, the Worldwide Church of God. The California Supreme Court, after looking to federal and foreign states' case law, found the duty of reasonable accommodation implied by California's constitutional prohibition of religious disqualification from employment.
On rehearing the Alaska Supreme Court held that 1) the union's offered accommodation of dues payment without membership was unreasonable where the worker had offered a plan of substitute payment to charity, and 2) the hardship to the union in being precluded from receiving dues could not be regarded as undue where the amount was only $6.75 per month and where there was not a widespread refusal to pay dues based on religious beliefs. Wondzell II, supra, 586.
Although there is case law contrary to the imposition of a reasonable accommodation requirement, for various reasons we believe such case law to be of minimal assistance to GM's position. The decision in Corey v Avco-Lycoming Division, Avco Corp, 163 Conn. 309; 307 A.2d 155 (1972), cert den 409 U.S. 1116 (1973), which upheld the discharge of a Seventh-day Adventist because of time conflicts between her Sabbath and her work shift, was based primarily on the res judicata effect the Connecticut Supreme Court gave to a prior board of arbitration's denial of the employee's grievance charging her employer with religious discrimination. While that court also went on to observe that religious discrimination was entirely different from a failure to accommodate, support for this observation, as well as for its ruling on res judicata, was provided exclusively by Dewey, supra. Corey, supra, 322-323. Dewey was affirmed by an equally divided Supreme Court, thus entitling it to no precedential weight, and its impact the Supreme Court termed "inconclusive".
Olin Corp v Illinois Fair Employment Practices Comm, 34 Ill. App.3d 868, 883; 341 N.E.2d 459 (1976), also involved a Seventh-day Adventist who due to his Sabbath observance could not work his assigned shift. The Illinois Fair Employment Practices Commission, at that time, had in effect religious discrimination guidelines taken directly from those of the EEOC requiring reasonable accommodation unless an undue hardship to the employer's business would be caused thereby. The Illinois Court of Appeals, however, refused to read an Illinois statute's general prohibition of discrimination due to religion as requiring the employer to accommodate the employee's religious practice.
"We find the reasoning of the majority in Reid II persuasive and refuse to engraft the standards embodied in the commission's guidelines onto our statute. We note that our State act has not been amended to reflect the 1972 amendment to the Civil Rights Act of 1964 regarding the definition of `religion'." See also fn 5 supra, discussing Reid II.
On appeal to the Illinois Supreme Court the issue of whether in the absence of an explicit statutory provision employers were obligated to reasonably accommodate the religious needs of employees was avoided by that court in affirming the Court of Appeals. Olin Corp v Fair Employment Practices Comm, 67 Ill.2d 466, 475; 367 N.E.2d 1267 (1977). The Illinois Supreme Court found that even if it was assumed that the Illinois anti-discrimination law required reasonable accommodation to the religious needs of employees where it could be done without undue hardship on the employer's business, the employer in Olin had proved that "undue hardship rendered the requested accommodations unreasonable".
In a case dealing with a statute prohibiting discrimination based on, inter alia, creed, the Wisconsin Supreme Court held that the discharge of an employee who had requested time off for an eight-day religious convocation occurring in the middle of a six-month management training program was not discriminatory. American Motors Corp v Dep't of Industry, Labor Human Relations, 101 Wis.2d 337; 305 N.W.2d 62 (1981). The court similarly rejected arguments that the Wisconsin statute required accommodation. Perceiving the central issue to be one of legislative intent, the court noted: "We do not in any way intimate that accommodation should not appropriately, or could not constitutionally, be adopted by legislative enactment. All we conclude is that the legislature in the State of Wisconsin has not yet seen fit to establish such public policy * * *." Id., 351. The court went on to note that a proposed amendment to the Wisconsin Fair Employment Act would specifically provide for accommodation. "The introduction of this bill and its language is significant in the context of the present case, because it contemplates that the failure to accommodate is an additional type of employment discrimination not covered in the original statute. Thus, insofar as legislative intent is concerned, the framers of this bill are of the opinion that the question of the duty to accommodate is being submitted to the legislature for consideration for the first time." Id., 352. Similarly, the court repeatedly noted that the Department of Industry, Labor and Human Relations had not passed any administrative rules regarding accommodation despite its power to do so. Id., 354-355, 364, and 367. Thus the primary consideration in American Motors was the legislative and administrative void concerning accommodation and not interfering with the legislative process. In the case at bar, however, the MCRC has spoken, albeit through interpretive guidelines rather than rules. The Michigan Legislature has had the opportunity to set aside these guidelines but has chosen not to.
The Court of Appeals correctly distinguishes between interpreting guidelines and administrative rules. See 93 Mich. App. 372 -374; 287 N.W.2d 242-243. Although interpretive guidelines may not have the same force as administrative rules, MCL 24.207(h); MSA 3.560(107)(h), both give notice to the Legislature of the policy considerations of the MCRC. Thus failure to suspend or set aside such guidelines may be considered as legislative acquiescence.
GM cites in its brief another case which it feels favors its position. In International Harvester Co Parts Depot v Lamb (Ct of Appeals, Franklin County, Ohio), Civil Action No 76AP-598 (1977), the Ohio Civil Rights Commission had promulgated guidelines interpreting its generally phrased anti-discrimination law to require an employer to accommodate an employee's religion in a manner least burdensome to that employee unless such accommodation is excused due to business necessity. That court, relying on Reid II, fn 5 supra, found the guidelines invalid because they expanded or modified the underlying statute. This finding, however, was not necessary to the court's decision since it seems the employer did make efforts to accommodate the employee but could not do so successfully within the confines of the applicable collective-bargaining agreement without serious business hardships. Further, the court found that even if the guidelines were valid they were not applicable to the case since they had been passed more than nine months after the alleged act of discrimination. In addition, this is an unreported case and, therefore, may only be used as precedent in Ohio Tenth District Court of Appeals. See State v George, 50 Ohio App.2d 297; 4 Ohio Op 3d 259; 362 N.E.2d 1223 (1975). See also Keener v Ridenour, 594 F.2d 581 (CA 6, 1979).
C. A Duty of Reasonable Accommodation in Michigan?
We think it obvious that none of the federal and state case law just reviewed provides an honest, on-all-fours answer to the question presently before us. While the federal precedents are helpful to a general understanding of the problems inherent in this general area of civil rights law, the 1972 amendment to Title VII incorporating the EEOC's guideline on reasonable accommodation has rendered the federal body of case law unsuited to Michigan's particular situation where no comparable legislative affirmation has taken place. We cannot just ignore the fact that most of the federal case law in this area was developed after the 1972 amendment and in upholding the pre-1972 validity of the reasonable accommodation guidelines those courts had the luxury of the safety net that that amendment provided. Also, the Supreme Court's equivocal language in footnote 11 of Trans World Airlines, supra, counsels against an exclusive and unfettered reliance on the federal case law.
Such a recognition serves to render futile much of the legal thrust and parry of the parties concerning the effect various federal and state legislative actions and inactions should have on the correct construction of the FEPA. For example, appellant Michigan Department of Civil Rights thrusts by asserting that the 1972 Congressional amendment of Title VII which defined "religion" in terms of a reasonable accommodation requirement essentially validated the existence of the duty to accommodate imposed by Title VII itself prior to its amendment. Appellant thus asserts that Trans World Airlines, supra, stands for the proposition that the duty to accommodate arose by virtue of the prohibition against discrimination, and not because of the amendatory legislation, and this Court should therefore render a similar construction of the FEPA.
Appellee GM parries by stating that the 1972 Congressional amendment to Title VII is compelling evidence that Congress did not intend an accommodation requirement in the original 1964 act. The amendment validated the EEOC guidelines and not, per the appellant, any ab initio Title VII duty to accommodate. Further, Trans World Airlines did not decide that a duty of accommodation existed under Title VII prior to the 1972 amendment. Rather, the Supreme Court merely gave the guidelines "some deference" due to Congress' affirmation of them via the 1972 amendment.
GM then counter-thrusts by arguing the inapplicability of Trans World Airlines in regard to giving effect to the MCRC's own guidelines requiring reasonable accommodation since the Michigan Legislature, unlike Congress, has not ratified the guidelines by positive legislation. Appellant in turn counters this by observing that the Michigan Legislature, unlike Congress, had no need to do so since it was not faced with a state court's interpretation of the FEPA which, like Dewey, implied that no duty to accommodate existed. GM, again taking the offensive, notes that Michigan's Legislature has apparently responded to restrictive federal decisions dealing with civil rights in the past by broadening them, as when it amended the Elliott-Larsen Civil Rights Act so as to broaden "sex" to include pregnancy and child-birth, MCL 37.2201(d); MSA 3.548(201)(d), apparently in response to General Electric Co v Gilbert, 429 U.S. 125; 97 S Ct 401; 50 L.Ed.2d 343 (1976). Thus its failure to amend the FEPA in light of Dewey supports the inference that an accommodation duty was not intended.
The same general caution exists with respect to any reliance on other states' interpretation of their own statutes or constitutions. Each state's ban on religious discrimination, while in form much like that of Michigan's FEPA, was adopted under different circumstances and exists within a different system. For example, Maine's and Alaska's statutes were adopted after Title VII's enactment and thus those states' supreme courts have expressly placed heavy reliance in matters of statutory construction on their statutes' federal counterparts. California's applicable prohibition is not statutory, but rather is part of its constitution and was also adopted after Title VII. On the other hand Wisconsin's statute prohibiting religious discrimination is like Michigan's in its predating of Title VII. Further, some states such as Maine and Wisconsin have administrative agencies akin to the MCRC, but whereas Maine's, like Michigan's, has promulgated guidelines reflecting those of the EEOC, Wisconsin's has not.
However, while we are certainly not controlled by such case law from other jurisdictions, we can be guided by it when it is determined to be appropriate and sound. In this regard we cannot ignore the fact that despite the dissimilar circumstances under which the cases just reviewed were decided, a common thread can be found running through those cases which have upheld the requirement of reasonable accommodation to the religious needs of employees. That thread is the concern of the courts that discriminatory consequences of employment practices facially neutral or fair in form be eliminated unless an undue hardship would thereby be placed on the employer's business. This interpretation of "discrimination" to include not only overt discrimination but also practices that are fair in form, but discriminatory in operation, was first advanced by the United States Supreme Court in Griggs, supra, 431, a case dealing with racial discrimination. The applicability of such an interpretation to religious discrimination has been grounded — at least in the federal forum — on the fact that the Equal Employment statute treats racial and religious discrimination similarly. As the Reid court noted:
"The prohibitions against both forms of discrimination (and the exceptions thereto) are usually contained in the same sentences in the statute." 468 F.2d 350. See also Yott I, supra, 402-403.
State courts have likewise looked to Griggs in interpreting their general prohibitions of religious discrimination to include a duty of reasonable accommodation. In Local 1361, supra, 373, the Maine Supreme Court looked explicitly to Griggs in rejecting the union's argument that it had requested the dismissal of an employee because she did not pay her union dues, and not because of her religion. The court observed, after noting the broad terms in which "discrimination" was used in its act, that
"we find nothing in the Maine act which suggests that the Legislature intended it to apply to the limited situation, typically devoid of proof, that an employer or labor organization intends to discriminate. As in Griggs v Duke Power Co, supra, the touchstone of our statutory prohibition is whether in fact the disputed practice results in unlawful employment discrimination." Local 1361, supra, 375.
Likewise, the Supreme Court of California, in reliance on Griggs, interpreted the constitutional provision at issue in Rankins, supra, 172, to forbid "not only overt religious discrimination but also qualifications for employment that are discriminatory in effect". Further, although Griggs spoke in terms of "business necessity" as validating a practice fair in form but discriminatory in effect, Griggs, supra, 431, the Alaska Supreme Court, in reading a duty of reasonable accommodation into its statute prohibiting religious discrimination, opined that the touchstones of such a duty — "reasonable accommodation" and "undue hardship" — are in fact derivable from the Griggs "business necessity" test and are "really exemplary of the statute's general purpose of preventing unreasonable discrimination in employment". Wondzell I, supra, 864, fn 4.
We find persuasive the reasoning of the above courts in their refusal to ignore the discriminatory effects of employer practices or policies that are overtly neutral. Such a decision, however, is best tempered by the recognition, by the reasoning in Griggs, supra, that certain circumstances should excuse the imposition of truly facially neutral rules. We find sound the reasoning of those federal and state courts which have upheld the EEOC guidelines or the guidelines or interpretations of appropriate state commissions modeled after those of the EEOC that require a duty of reasonable accommodation and allow undue hardship as a defense to such a duty as a valid and reasonable construction of a general prohibition of religious discrimination in employment. See Reid I, supra, 350-351; Wondzell I, supra, 864, fn 4; Local 1361, supra, 378.
While we have reached our conclusion by endeavoring to deduce the legislative intent, we are not unmindful that our conclusion is given additional strength by a different analysis. It can be not unreasonably argued, while we did not do so in our own analysis heretofore, that because the Civil Rights Commission has a particular constitutional genesis, its actions have more than the usual statutory authority and that the regulation in question is due some particular deference.
Article 5, § 29 of the 1963 Michigan Constitution states:
"There is hereby established a civil rights commission * * *. It shall be the duty of the commission in a manner which may be prescribed by law to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination." (Emphasis added.)
In Beech Grove Investment Co v Civil Rights Comm, 380 Mich. 405; 157 N.W.2d 213 (1968), a majority of this Court agreed that
"the duty of the commission to investigate alleged discrimination and to secure the equal protection of civil rights without such discrimination was created by the constitutional provision itself. The manner may be prescribed by law but the authority to act lies with the commission whether the manner is or is not so prescribed." (Emphasis added.) 380 Mich. 419 (plurality opinion by ADAMS, J.). See 380 Mich. 442 (SOURIS, J., concurring).
Therefore, the Michigan Civil Rights Commission, deriving its power in part from the state constitution as well as from the Legislature and empowered to investigate discrimination and secure the equal protection of civil rights, should be given deference in the performance of its duties. We therefore hold that the FEPA's proscription of religious discrimination entails the obligation, on the part of the employer, to make reasonable accommodation to the religious needs of employees or prospective employees where such can be done without undue hardship on the conduct of the employer's business. The burden of proving that a reasonable accommodation cannot be made without such undue hardship is on the employer.
Such a construction of FEPA's prohibition against religious discrimination also accords more fully, we think, with the purpose of the FEPA to "promote and protect the welfare of the people of this state by prevention and elimination of discriminatory employment practices and policies based upon * * * religion". 1955 PA 251. To require an employer to attempt reasonable accommodation to an employee's religious needs absent undue hardship both encourages and fosters to the full extent practicable the employment of all properly qualified persons regardless of their religion and to that extent certainly promotes the common weal. This reading of FEPA is also consonant with our policy of liberally construing remedial legislation. See In re School Dist No 6, 284 Mich. 132, 144; 278 N.W. 792 (1938). See also White v Motor Wheel Corp, 64 Mich. App. 225, 230-231; 236 N.W.2d 709 (1975).
It is fundamental to recognize that the prohibition against religious discrimination in employment embraces not only the concept of religious belief but that of religious practice as well. Religion not only encompasses a belief but also a practice of the faith in which one believes. To afford protection only to the right of religious belief ignores the basic right of religious conduct. In Cantwell v Connecticut, 310 U.S. 296, 303; 60 S.Ct. 900; 84 L.Ed. 1213 (1940), it was recognized that the First Amendment "embraces two concepts, — freedom to believe and freedom to act".
While one has an absolute and inalienable right to freedom of belief, freedom to act, by the necessity of social living, must be tempered. As the United States Supreme Court noted: "Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Cantwell, supra, 304. This principle has been expressed in the area of freedom of religious activity in such cases as State ex rel Swann v Pack, 527 S.W.2d 99 (Tenn, 1975), cert den 424 U.S. 954 (1976) (perpetually enjoining and restraining the handling of venomous snakes or drinking poison even as part of a religious ceremony); State v Massey, 229 N.C. 734; 51 S.E.2d 179 (1949), appeal dismissed for want of substantial federal question sub nom Bunn v North Carolina, 336 U.S. 942 (1949) (city ordinance prohibiting the handling of poisonous reptiles does not violate freedom of religious worship). Cf. People v Woody, 61 Cal.2d 716; 394 P.2d 813 (1964) (statute proscribing use of peyote could not constitutionally be applied to prevent Indian tribe from using peyote in religious ceremony); Wisconsin v Yoder, 406 U.S. 205; 92 S.Ct. 1526; 32 L.Ed.2d 15 (1972) (mandatory education laws held inapplicable past eighth grade to members of the Amish faith).
Neither concept can be ignored. Freedom to act is an integral part of the right of religious freedom. Accordingly, when the Michigan Legislature enacted the FEPA proscribing discrimination against religion, it necessarily included both concepts. Without this realization, the thrust of the statute loses half of its meaning. It follows, therefore, that in order to fully achieve the prohibition against religious discrimination in employment, as mandated by the FEPA, a duty to make reasonable efforts to accommodate religious practices arose with the enactment of the law. Finally, the failure of the Legislature to specifically amend the statute, as the Congress did, to incorporate the substance of the guideline does not raise the contrary inference that the Legislature intended to disapprove that construction. See Wondzell I, supra, 863-864.
III. ESTABLISHMENT CLAUSE CONSIDERATIONS
Appellee GM contends that a construction of the FEPA that finds an affirmative duty on the part of the employer to reasonably accommodate an employee's religious needs unless undue hardship can be shown would violate the Establishment Clause of the First Amendment to the United States Constitution and art 1, § 4 of the Michigan Constitution by obliging it to treat its employees disparately based solely on religious considerations.
The First Amendment of the federal constitution is made applicable to the states through the Fourteenth Amendment. Cantwell v Connecticut, 310 U.S. 296, 303; 60 S.Ct. 900; 84 L Ed 1213 (1940).
This constitutional issue is both complex and difficult, and like the previous issue, has caused the courts of both the state and federal forums which have considered it no small amount of difficulty, attested to, in part, by the differing results reached by those courts. Indeed, appellate courts have not been loath to avoid reaching the issue whenever possible. Despite the difficulty of the issue, however, we feel we cannot properly avoid it. In its answer to the MCRC's charge, GM asserted as its fourth affirmative defense the unconstitutionality of any reasonable accommodation requirement. The opinion of the MCRC held such an assertion to be without merit; the trial court, on the other hand, found the MCRC's reasonable accommodation guideline to contain substantial constitutional implications.
See, e.g., Gavin v Peoples Natural Gas Co, 613 F.2d 482, 484-485 (CA 3, 1980) (the court remanded for a determination of whether reasonable accommodation had, in fact, been made by the employer); Yott v North American Rockwell Corp, 602 F.2d 904, 906 (CA 9, 1979), cert den 445 U.S. 928 (1980) (hereinafter cited as Yott II) (the court found not clearly erroneous the trial court's alternate holding, offered in a supplementary opinion, that reasonable accommodation was not possible); Anderson v General Dynamics Convair Aerospace Division, 589 F.2d 397, 402, fn 5 (CA 9, 1978), cert den sub nom International Ass'n of Machinists Aerospace Workers, AFL-CIO, Silvergate Dist Lodge 50 v Anderson, 442 U.S. 921 (1979) (hereinafter cited as Anderson I) (the district court had not reached the constitutional issue); Redmond v GAF Corp, 574 F.2d 897, 904, fn 17 (CA 7, 1978) (the constitutional issue was not raised below).
Further, the factual posture of the case makes the issue unavoidable. For GM this is admittedly a test case. It has not attempted in any way whatsoever to accommodate Ms. Parks' religious needs, nor has it attempted to prove with record support that it can do nothing to help claimant because of a resulting undue hardship to its business. Thus these alternate, factual avenues of resolution are at this point foreclosed to us.
Finally, and most importantly, the parties have had a chance to fully express their viewpoints on this issue — GM in its brief to this Court and the MCRC in its oral argument before us. Thus, although the Court of Appeals did not need to reach the constitutional issue due to its interpretation of the FEPA, we feel that issue is properly before us.
A look at the results of the other courts which have preceded us in deciding this difficult and sensitive issue serves to perplex as much as to inform. Each court to consider the issue has approached it more or less through the now well-known three-part test that the United States Supreme Court has established over the years in dealing with Establishment Clause issues. See Committee for Public Education Religious Liberty v Nyquist, 413 U.S. 756, 772; 93 S.Ct. 2955; 37 L.Ed.2d 948 (1973). To pass constitutional muster under the Establishment Clause the law in question first, must reflect a clearly secular legislative purpose, second, must have a primary effect that neither advances nor inhibits religion, and third, must avoid excessive government entanglement with religion. Id., 773. In a word, neutrality is what is required of the state. Roemer v Board of Public Works of Maryland, 426 U.S. 736, 747; 96 S.Ct. 2337; 49 L.Ed.2d 179 (1976). Yet despite the same approach to the issue, the results of the courts have been anything but uniform. In the federal forum where the discussion centers on the constitutionality of the 1972 amendment to Title VII, the district courts have split on the issue, while all three federal courts of appeals to confront it on the merits have come out in favor of its constitutionality, although accompanied by dissents. Of the state courts mentioned as requiring reasonable accommodation, only the California Supreme Court in Rankins, supra, has passed on the issue, finding the requirement not violative of the Establishment Clause. The United States Supreme Court, as will be discussed infra, has yet to make an explicit pronouncement on the matter.
The 1972 amendment (§ 701[j] of Title VII) has been held constitutional in North Carolina, Jordan v North Carolina National Bank, 399 F. Supp. 172, 179 (WD NC, 1975), rev'd on other grounds 565 F.2d 72 (CA 4, 1977), and Missouri, Brown v General Motors Corp, 20 FEP Cases (BNA) 88 (WD Mo, 1978), rev'd on other grounds 601 F.2d 956 (CA 8, 1979). Findings of unconstitutionality have come from the Pennsylvania district court. Gavin v Peoples Natural Gas Co, 464 F. Supp. 622, 632 (WD Pa, 1979), vacated and remanded on other grounds 613 F.2d 482 (CA 3, 1980).
Tooley v Martin-Marietta Corp, 648 F.2d 1239 (CA 9, 1981), cert den sub nom United Steel Workers of America v Tooley, 454 U.S. 1098 (1981); Anderson v General Dynamics Convair Aerospace Division, 648 F.2d 1247 (CA 9, 1981) (hereinafter cited as Anderson II). Cummins v Parker Seal Co, 516 F.2d 544 (CA 6, 1975), vacated on other grounds 561 F.2d 658 (CA 6, 1977), Nottelson v Smith Steel Workers DALU 19806, 643 F.2d 445 (CA 7, 1981), cert den 454 U.S. 1046 (1981).
Although we do not have the comfort of a clear and convincing majority rule on this issue which by its persuasiveness as well as its force of numbers would ease the decisional process, we are confident, after considerable research and contemplation, that a reading of the FEPA's general prohibition of religious discrimination to require reasonable accommodation by the employer to the employee's religious needs does not violate either the federal or this state's constitution.
In reaching this decision we have looked for guidance, like the courts which have preceded us in similar cases, to the substantial body of United States Supreme Court case law on the Establishment Clause. We think such a course appropriate since this Court has previously acknowledged the similarities between the federal constitution's Free Exercise and Establishment Clauses and art 1, § 4 of this state's constitution, with the consequence that they are subject to similar interpretation.
"Taken together, these sentences [art 1, § 4] are an expanded and more explicit statement of the establishment and free exercise clauses of the First Amendment to the United States Constitution, the first and fourth sentences constituting the free exercise clause, and the second and third sentences constituting the establishment clause. They are, accordingly, subject to similar interpretation." Advisory Opinion re Constitutionality of PA 1970, No 100, 384 Mich. 82, 105; 180 N.W.2d 265 (1970).
We think the fourth sentence of this section might be more properly construed as containing both a free exercise (one's rights cannot be diminished on account of religious belief) and an establishment (one's rights cannot be enlarged on account of religious belief) component.
We are also aware that the United States Supreme Court itself has noted that the tripartite test which it has developed for Establishment Clause issues is only intended to serve as a guideline with which to identify instances in which the objectives of the Establishment Clause have been impaired, and "must not be viewed as setting the precise limits to the necessary constitutional inquiry". Meek v Pittenger, 421 U.S. 349, 359; 95 S.Ct. 1753; 44 L.Ed.2d 217 (1975). See also Tilton v Richardson, 403 U.S. 672, 678; 91 S.Ct. 2091; 29 L Ed 2d 790 (1971). In using this test then as our Baedeker to this area, we must not forget the general lay of the land in which we are traveling. As was noted in Walz v Tax Comm of New York City, 397 U.S. 664, 668-669; 90 S.Ct. 1409; 25 L.Ed.2d 697 (1970),
Apparently, this three-part test now only receives the express endorsement of a plurality of the United States Supreme Court. See Wolman v Walter, 433 U.S. 229; 97 S.Ct. 2593; 53 L Ed 2d 714 (1977). Nonetheless, we believe it remains a useful guideline in this complex area.
"The sweep of the absolute prohibitions in the Religion Clauses may have been calculated; but the purpose was to state an objective, not to write a statute. * * * The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other. * * * The course of constitutional neutrality in this area cannot be an absolutely straight line."
That this constitutionally required "neutrality" does not demand an unyielding and absolute rigidity, the slightest deviation from which is proscribed, was made clear in Walz, supra:
"The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference." Id., 669 (emphasis supplied).
See also Sherbert v Verner, 374 U.S. 398, 415-416, 422-423; 83 S Ct 1790; 10 L.Ed.2d 965 (1963) (Stewart, J., concurring in result, Harlan, J., dissenting). In short, total separation between church and state is not called for, nor is it possible in an absolute sense; some relationship between government and religious organizations is inevitable. Lemon v Kurtzman, 403 U.S. 602, 614; 91 S.Ct. 2105; 29 L.Ed.2d 745 (1971). Incidental, indirect, or remote benefits to religion do not alone render a particular law constitutionally invalid. Nyquist, supra, 771.
"[T]he line between state neutrality to religion and state support of religion is not easy to locate. "The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree.'" Board of Education of Central School Dist No 1 v Allen, 392 U.S. 236, 242; 88 S.Ct. 1923; 20 L.Ed.2d 1060 (1968), quoting from Zorach v Clauson, 343 U.S. 306, 314; 72 S.Ct. 679; 96 L.Ed. 954 (1952).
With these thoughts in mind, we turn to a consideration of the Supreme Court's three-part test relating to the Establishment Clause.
A. Secular Purpose
The purpose of the FEPA's prohibition of religious discrimination and the reasonable accommodation requirement we have inferred in such a prohibition is to prevent discrimination in employment based on the legally irrelevant factor of religion. In other words, the purpose is to promote equal employment opportunities for members of all religious faiths, Rankins, supra, 178, and not to advance one religion over another or religion in general over non-religion. By requiring an employer to attempt reasonable accommodation of an employee's religious needs unless undue hardship would result to the employer's business, those who might have been unable to find or retain suitable employment due to an otherwise facially neutral work policy which conflicted with their religious tenets may now be able to join or stay in the work force without doing violence to their religious convictions. As the Court of Appeals for the Seventh Circuit noted under the federal act, a secular purpose inheres in the law's intent to "relieve individuals of the burden of choosing between their jobs and their religious convictions where such relief will not unduly burden others". Nottelson v Smith Steel Workers DALU 19806, 643 F.2d 445, 454 (CA 7, 1981), cert den 454 U.S. 1046 (1981). As we noted earlier, the reasonable accommodation requirement fosters the employment of all properly qualified persons. We conclude therefore that the purpose of such a requirement is truly a secular one.
B. Primary Effect
This prong of the three-part test requires us to determine whether in the present situation the primary effect of the reasonable accommodation requirement is to advance religion. This question is not easy to resolve since there is a good deal of logic to the position that since reasonable accommodation is based solely on religion, the requirement favors religion over non-religion, and favors some religions over others since only those religions which manifest their beliefs in acts requiring modification of an employer's work rules are benefited. See Cummins v Parker Seal Co, 516 F.2d 544, 558 (CA 6, 1975) (Celebrezze, J., dissenting); Gavin v Peoples Natural Gas Co, 464 F. Supp. 622, 629 (WD Pa, 1979).
Were we to interpret the requirement of reasonable accommodation as obliging the employer to treat employees unequally solely on the basis of their religions so as to require an employer to discriminate against some employees in order to accommodate or prefer the religious needs of others or to bear additional costs for an employee's religious needs when no such costs are incurred for other employees' religious needs, we might well run afoul of the Establishment Clause. However, we feel that Trans World Airlines, supra, obviates these anticipated problems. See Wheeler, Establishment Clause Neutrality and the Reasonable Accommodation Requirement, 4 Hastings Constitutional L Q 901, 903 (1977).
We believe that an interpretation of the reasonable accommodation requirement that disallows treating employees unequally on the basis of religion can hardly be said to have the primary effect of advancing religion to any significant extent. The effect, rather, would be to restrain employers from enforcing uniform, facially neutral work rules that have a discriminatory effect on certain employees due to their religious beliefs and practices, thus guaranteeing job security except when accommodation of an employee's religious needs would impose an undue hardship (as that term has been interpreted in Trans World Airlines) upon the employer's business. "It [the reasonable accommodation requirement of Title VII] does not confer a benefit on those accommodated, but rather relieves those individuals of a special burden that others do not suffer by permitting them to fulfill their societal obligations in a different manner * * *." Nottelson, supra, 454. While it may be argued that the reasonable accommodation requirement may benefit some religions as, for example, through a larger attendance at scheduled religious services which might otherwise be missed due to work schedules and therefore the receipt by those churches of "a correspondingly fuller collection plate", Cummins, supra, 516 F.2d 553, we believe such benefit to be incidental to the requirement's primary effect of preventing religious discrimination and guaranteeing equal employment opportunities to members of minority religions.
C. Excessive Entanglement
The third prong of the test requires the avoidance of excessive governmental entanglement with religion. The danger here is that an employee's expressed desire to have his or her employer accommodate his or her religious needs will eventually involve the government, via the MCRC and the courts, in determining the validity of the religious nature of the employee's claims, as well as the sincerity of the religious beliefs claimed to be held by the employee. It was just such a concern that formed the explicit basis for one federal district court's determination that § 701(j) of Title VII was unconstitutional. Gavin, supra, 464 F. Supp. 632. In that case there existed a controversy as to whether an employee could be required to raise and lower the American flag as part of his job. The employee, a Jehovah's Witness, claimed such a task was in violation of his religious belief against worshipping false idols. The trial court believed that a determination of whether the employee's belief could in fact be characterized as a "religious" one, and whether such a belief, which may be outside the standardized creed of his faith, was still protected under Title VII, would necessarily lead the court into an excessive entanglement with religion.
Although this concern is certainly legitimate, to find the law unconstitutional on this basis would be imprudent. First of all, the religious validity of claimant's beliefs, as well as the sincerity in which they are held, are not questioned in this case. Secondly, a quick review of the decided case law relevant to this issue will disclose that the Gavin situation is quite unusual. Most of the cases involving a conflict between an employee's religious beliefs or practices and a work requirement usually concern the necessity to be absent from work in order to observe a Saturday Sabbath, a holy day, or to attend a compulsory religious meeting, or an inability to join a union or pay union dues pursuant to a union security clause. See, e.g., Cummins (Saturday Sabbath); the Reid cases (Saturday Sabbath); Rankins (absences for holy days); the Yott cases (union security clause); the Anderson cases (union security clause); Local 1361 (union security clause); the Wondzell cases (union security clause). Most often in these types of cases, as in the present one, neither the sincerity of the employee's beliefs nor the religious validity of the belief or practice will be contested. We agree with the observation made in this regard in the context of Title VII in Cummins, supra, 516 F.2d 554:
A 1980 National Labor Relations Act amendment, PL 96-593, exempts employees belonging to a "bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations" from paying union dues, while allowing bargaining agreements to require that such employees contribute a sum equal to union dues to a nonreligious charity.
"Appellee suggests, however, that EEOC investigators will be forced to study and to evaluate the dogma of the many religious sects in order to ascertain whether employees' practices and observances are genuinely religious and therefore protected under Title VII. In most cases, this issue probably will not be disputed seriously. To the extent that the question does arise, however, we think that it will require no more government involvement in religion than the concededly nonexcessive entanglement that occurs when a state must determine whether a purported church qualifies for a property tax exemption. See Walz v Tax Comm, 397 U.S. 664, 674-676 * * *; id., 698-699 (opinion of Harlan, J.)." Cf. Nottelson, supra, 455 (conscientious objector exemption of selective service statutes involves a similar type of determination).
Further, in cases such as Wisconsin v Yoder, 406 U.S. 205, 216, 235; 92 S.Ct. 1526; 32 L.Ed.2d 15 (1972), the Supreme Court has recognized the necessity of examining religious beliefs and the sincerity with which they are held in order to accord certain individuals free exercise rights over otherwise contrary state law. Without some recognition of the religious nature of the asserted conflict with public school education past the eighth grade in Yoder, the Supreme Court there could not have excused the Amish in that case from the state-imposed requirement of compulsory school attendance until the age of 16. See Note, Is Title VII's Reasonable Accommodations Requirement a Law "Respecting an Establishment of Religion"?, 51 Notre Dame Lawyer 481, 483-484 (1976). We therefore conclude that the reasonable accommodation requirement that we have read into the FEPA does not produce an excessive entanglement between government and religion.
D. Overall Neutrality
In sum, we think a reading of the FEPA's prohibition of religious discrimination that requires an employer to make reasonable accommodation to the religious needs of his employees unless undue hardship would result is entirely consistent with the necessity of government neutrality respecting matters of religion. Such a requirement is the type of "play in the joints productive of a benevolent neutrality" that the Supreme Court spoke of in Walz, supra, 669. As Justice Douglas wrote in Zorach v Clauson, 343 U.S. 306, 313-314; 72 S.Ct. 679; 96 L.Ed. 954 (1952):
"We are a religious people * * *. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. * * * [A state acts properly when it] respects the religious nature of our people and accommodates the public service to their spiritual needs."
The indirect benefit which certain religions may receive under our reading of the FEPA is qualitatively and quantitatively different from that most often found objectionable in Establishment Clause cases. First, we think it constitutionally significant that the reasonable accommodation requirement here at issue primarily benefits individuals, not institutions. See Nyquist, supra, 801 (Burger, C.J., concurring in part, dissenting in part). See also Jordan v North Carolina National Bank, 399 F. Supp. 172, 180 (WD NC, 1975), rev'd on other grounds 565 F.2d 72 (CA 4, 1977). The minimal assistance given to individuals in securing or retaining employment, through the enhancement of their right of free exercise by the reasonable accommodation requirement, is far from the type of individual aid which the Supreme Court has proscribed as having the primary effect of advancing religion. We are not dealing with aid that in its effect is analogous to a state's attempt to directly alleviate a parent's burden in sending his or her child to parochial school through the use of tuition grants or tax benefits. In such a case the religious mission of the parochial school is so intertwined with the secular education it provides, that aid to the parent which better enables him or her to send the child there has the unmistakable effect of providing financial support to the sectarian institution which the child attends. Nyquist, supra, 783, 791. The primary and direct effect in this case, in contradistinction, is simply to provide individuals with a greater opportunity to secure or to remain employed in jobs where their religion is not a bona fide occupational qualification for the job, but rather presents a hindrance to the securing or maintaining of it because of a conflict between required practices of the religion and the neutral work schedule or policies of the employer. The thrust of the requirement is directed at the employment of individuals and not at the survival of institutions charged with a religious mission. Any aid filtering to a particular religion or to religion in general from the imposition of the reasonable accommodation requirement is too indirect and remote to be constitutionally significant.
Second, the type of aid given to the employee is also significant. Here there is no direct financial support given to an individual on account of his religious beliefs or to a religious institution. Nothing as tangible as instructional materials and equipment, Meek, supra, 366, textbooks, Wolman v Walter, 433 U.S. 229, 258-259; 97 S.Ct. 2593; 53 L.Ed.2d 714 (1977) (Marshall, J., dissenting), or standardized tests, Wolman, supra, 240-241 (plurality opinion) is provided. Rather the employer must merely seek to reasonably accommodate an employee's religious needs unless an undue hardship would be occasioned thereby on his business.
Although this case does not present us with the issue of whether the Free Exercise Clause compels the reasonable accommodation requirement, we believe that the Establishment Clause certainly does not prohibit such a requirement. As the United States Supreme Court stated in the context of passing on the conscientious objector provision of the Military Selective Service Act of 1967: "Quite apart from the question whether the Free Exercise Clause might require some sort of exemption, it is hardly impermissible for Congress to attempt to accommodate free exercise values, in line with `our happy tradition' of `avoiding unnecessary clashes with the dictates of conscience.'" Gillette v United States, 401 U.S. 437, 453; 91 S.Ct. 828; 28 L.Ed.2d 168 (1971) (footnote omitted). See also Trans World Airlines, supra, 90-91 (Marshall, J., dissenting); Nottelson, supra, 454. This is consonant with the Supreme Court's earlier statement in Zorach, supra, 314, to the effect that
"we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."
Indeed, we feel this case somewhat analogous to that of Zorach, supra. In Zorach the United States Supreme Court upheld the "released time" program of New York City as a constitutional effort of the public schools to "accommodate their schedules to a program of outside religious instruction", Zorach, supra, 315. Under this program a publicschool student, on written request of his or her parents, could be released from school for one hour a week to attend religious instruction or devotional exercises off the school grounds. We feel, similarly, that requiring employers to attempt a reasonable accommodation of their business to the religious needs of their employees does not breach the required wall of separation between church and state. To hold such a required attempt to accommodation unconstitutional "would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe". Zorach, supra, 314. In short, we do not find the reasonable accommodation requirement impermissibly tainted by the evils of "`sponsorship, financial support, and active involvement of the sovereign in religious activity'" against which the Establishment Clause was intended to afford protection. Lemon, supra, 612.
We close by making clear that this Court does not intend to impart any definitive opinion on the degree of accommodation that may be required of an employer in a particular case. As one federal court of appeals has noted:
"The term `reasonable accommodation' is a relative term and cannot be given a hard and fast meaning. Each case involving such a determination necessarily depends upon its own facts and circumstances, and comes down to a determination of `reasonableness' under the unique circumstances of the individual employer-employee relationship. The trier of fact is in the best position to weigh these considerations." Redmond v GAF Corp, 574 F.2d 897, 902-903 (CA 7, 1978).
For our present purposes, however, it seems clear that an employer, in response to the communicated religious needs of its employee, must at least make some good-faith effort at accommodation and, if those efforts are unsuccessful, demonstrate that it was unable reasonably to accommodate the employee's religious needs without undue hardship, or, failing the employer's taking of active steps toward accommodation, the employer must prove that any proposed or possible accommodation would have created an undue hardship on its business. See Edwards v School Board of the City of Norton, 483 F. Supp. 620, 625 (WD Va, 1980). In this case claimant has made a prima facie showing of religious discrimination by her employer against her religious needs and the need for accommodation. See Brown v General Motors Corp, 601 F.2d 956, 959 (CA 8, 1979). In response, however, GM has stipulated to its failure to consider any alternative to Ms. Parks' religious needs other than dismissal, thus taking a position from the beginning that it had no duty to reasonably accommodate. GM has therefore clearly failed to prove that it has made good-faith efforts to accommodate claimant's religious beliefs. Likewise, GM has also failed to press on this Court any claim that it would have suffered an undue hardship on the conduct of its business were it to accommodate claimant's religious needs. See Mitcham v Detroit, 355 Mich. 182, 203; 94 N.W.2d 388 (1959). Accordingly, we would reverse the judgments of both the circuit court and the Court of Appeals.
CONCLUSION
Our decision recognizes that an employer has both a duty to refrain from religious discrimination in employment and a duty to reasonably accommodate an employee's religious needs unless an undue hardship would be occasioned thereby. The opinions of our brothers KAVANAGH and LEVIN find that there is no duty to reasonably accommodate. On that we are in disagreement. The opinion of our brother LEVIN, however, finds that there is nothing in this matter to "preclude a finding of discrimination based on evidence that an employer failed to act affirmatively to avoid the discriminatory effect of a facially neutral practice". With that we are in agreement.
Were we to base an order on our opinion as to the duty to accommodate alone, we would reverse the Court of Appeals and the circuit court and remand to the Michigan Civil Rights Commission for further proceedings not inconsistent therewith. However, inasmuch as the majority of this Court holds otherwise with respect to that part of our opinion, we base our order on that part of our opinion in which we are in agreement with our brother LEVIN where our opinion is a part of the majority, namely that the commission may, if the facts warrant, make "a finding of discrimination based on evidence that an employer failed to act affirmatively to avoid the discriminatory effect of a facially neutral practice". Therefore, we reverse the Court of Appeals and remand to the circuit court to take such further proceedings that are not inconsistent with the opinion that there may be a factual basis for "a finding of discrimination based on evidence that an employer failed to act affirmatively to avoid the discriminatory effect of a facially neutral practice". No costs, a public question.
FITZGERALD and BLAIR MOODY, JR., JJ., concurred with WILLIAMS, J.