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Ward v. Allegheny Ludlum Steel Corp.


filed: August 3, 1977.



Adams, Gibbons and Hunter, Circuit Judges.

Author: Per Curiam

Per Curiam

This appeal poses a difficult question concerning the degree to which Title VII of the Civil Rights Act of 1964, as amended, requires an employer to accommodate the religious beliefs of its employees.*fn1 Inasmuch as the Supreme Court in Trans World Airlines, Inc. v. Hardison*fn2 has provided new guidelines for such inquiry, we vacate the judgment of the district court and remand for reconsideration in light of that case.


Although the fact pattern of this litigation presents many tangles, it is susceptible to a succinct description. Thomas Ward has been an employee of Allegheny Ludlum Steel Corporation, a manufacturer of specialty steel, since 1965. In 1968, he commenced an apprenticeship in the hydraulic and engine repair gang and by 1972 had attained the rank of Class "A" journeyman.*fn3 After achieving this latter position, Ward was assigned to the "twenty-week schedule" at Allegheny's Tandem Mill.

The Tandem Mill is a critical link in Allegheny's operations and must function twenty-four hours a day, seven days a week. Four Class "A" hydraulic and engine repair journeymen are assigned to the Mill and a journeyman must be on duty at all times. Thus, if a worker who is assigned to the Tandem Mill is absent from a designated shift, Allegheny must procure a substitute journeyman. A twenty-week rotation schedule has been fashioned in order to insure that one person will be present at each shift and that the four journeymen will have two days off each week.*fn4

Allegheny's collective bargaining agreement with the United Steelworkers of America provides the method for filling the four Class "A" journeymen slots at the Tandem Mill. First, volunteers are sought. Then, if they are insufficient volunteers, those journeymen with the least seniority are assigned to the Mill.*fn5

In 1970, Ward began to study the beliefs of the Worldwide Church of God and was ultimately baptized into that faith. One of the principles of the religion is that the Sabbath, which is celebrated from sundown Friday to sundown Saturday, is a day of rest on which no work may be done.

When Ward was transferred to the Tandem Mill in July, 1972, a conflict between his religious beliefs and his work schedule arose. This was so since the rotation would often require him to work shifts that coincided, in whole or in part, with his Sabbath. Consequently, Ward refused to work these shifts. At first, and on his own motion, Ward procured substitutes for himself.*fn6 Allegheny, however, instructed him to cease this practice.

Ward's record of absenteeism led to an escalating sequence of disciplinary measures which culminated in a suspension in December, 1972. At the hearing which followed the suspension, Ward was told that Allegheny would not permit him to design a special schedule for working at the Tandem Mill, since such a plan would constitute "reverse discrimination." Allegheny did renew an offer to Ward of a job in the Plant Protection Department as a janitor.*fn7 Under such an arrangement, Ward would not have to work on his Sabbath, although he would be on duty on Sundays. It was made clear to Ward that if he did not accept this offer he would be discharged. Ward took the janitorial position, but simultaneously wrote a letter of protest to the company.

With these events forming the backdrop, Ward filed with the Equal Employment Opportunities Commission a complaint against Allegheny and the United Steelworkers.*fn8 The EEOC issued a right-to-sue letter and Ward commenced an action in the district court alleging violations of Title VII.

After a non-jury trial, Judge Gourley entered judgment for Ward against Allegheny, but rejected the claim against the Union.*fn9 The district court ruled that Allegheny had failed reasonably to accommodate Ward's religious beliefs,*fn10 and that it had not demonstrated that such accommodation would subject it to undue hardship.*fn11 Judge Gourley also decided that Title VII, as he construed it, did not transgress the establishment clause of the First Amendment. This appeal followed.*fn12 It has been held under advisement pending the decision of the Supreme Court first in Parker Seal Co. v. Cummins*fn13 and then in Trans World Airlines Co. v. Hardison.*fn14


The recent opinion of the Supreme Court in Trans World Airlines, Inc. v. Hardison*fn15 supplies, for the first time, a definitive interpretation of the requirement of Title VII that employers accommodate the religious beliefs of employees. The facts of that case may be stated briefly.

Hardison was a clerk in the Stores Department at the TWA maintenance and overhaul base in Kansas City, Missouri. The Stores Department, because of its important position in the functioning of the Kansas City base, must be open and manned twenty-four hours a day, every day of the year. Consequently, whenever a vacancy arises in the department, it is necessary to shift another employee in order to fill the gap.

Work assignments at the Kansas City base were governed by a collective bargaining agreement. The key variable in the arrangement was seniority. As a result, the most junior employees were compelled to work at jobs and shifts for which there had been no volunteers.

Subsequent to the time he commenced work with TWA, Hardison converted to the faith of the Worldwide Church of God. As previously indicated, the tenets of this religion forbid the performance of any work from sundown Friday to sundown Saturday.

Hardison immediately informed a TWA official of the problem posed by his religious beliefs. The official stated that he would discuss this matter with the Union and attempt to arrange a job swap which would permit Hardison to observe his Sabbath. The job swap was worked out and Hardison was given a new assignment that was comparable to his former position.

The solution, however, soon unraveled when Hardison obtained a transfer to a new unit, where he was the second most junior employee. When the junior worker went on vacation, Hardison was asked to work on Saturdays. He refused. TWA then attempted to obtain the Union's approval for a change of work assignment but the Union was unwilling to countenance a breach of the seniority provisions of the collective bargaining agreement. All other compromise suggestions proved to be unacceptable to TWA and Hardison was ultimately discharged.

He then brought suit against TWA and the Union, alleging violations of Title VII.*fn16 The district court ruled for the defendants,*fn17 but the Eighth Circuit reversed the judgment in favor of TWA.*fn18 The decision of the Eighth Circuit was grounded on the conclusion that TWA had not reasonably accommodated Hardison's beliefs and that it had failed to make out a case of undue hardship.*fn19

In an opinion by Mr. Justice White, the Supreme Court reversed. It initially stated that TWA had made substantial efforts to accommodate Hardison.*fn20 Justice White, in particular, noted that the company originally had obtained a new position for him in order to permit him to observe his Sabbath and had later endeavored to work out a further job swap. The union, however, proved to be unwilling to cut across the seniority rights of other employees.

Justice White then turned to the task of assessing the content of the reasonable accommodation and undue hardship provisions of Title VII. First, he declared that Title VII did not require an employer to undertake activity which would violate a bona fide seniority system in the name of accommodation.*fn21 The Court also stated that an employer was not obligated to take accommodation steps which would require it to bear costs, such as overtime pay for replacements, if such costs are more than de minimus.*fn22


Since the Hardison Court has enunciated legal standards that diverge from those utilized by Judge Gourley,*fn23 the judgment of the district court in this case must be vacated.

Several factors indicate that the proceeding should be remanded for reconsideration by the trier of fact. The most compelling reason for such a disposition is the paucity of the district court's findings of fact, particularly as they pertain to several matters crucial to the application of the teachings of Hardison to this case.

It appears to us that the need for clarification of the factual record is most pressing with regard to the two factors that the Hardison Court identified as pivotal to the existence, vel non, of undue hardship for the purpose of Title VII. As to the ramifications of the seniority provisions of the collective bargaining agreement, although much testimony touching on this issue was adduced, the district court did not make any relevant findings of fact. And with regard to the cost of overtime wages for workers who might stand in for Ward at the Tandem Mill on shifts that conflicted with his Sabbath, the district court entered no findings, even though Ward's counsel presented testimony that the total cost of such an arrangement would be $850.*fn24 Without a resolution of the possible cost of obtaining replacements for Ward, it is inappropriate to determine whether the burden of such a course of action is de minimus for purposes of the Hardison test.

Accordingly, the judgment of the district court will be vacated and the cause remanded for proceedings consistent with this opinion.*fn25

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