On Appeal From the United States District Court For the Eastern District of Pennsylvania; D.C. Civil Action No. 87-2842.
Stapleton and Mansmann, Circuit Judges, and Ackerman, District Judge.*fn* Harold A. Ackerman, District Judge, concurring in judgment. Mansmann, Circuit Judge, concurring.
STAPLETON, Circuit Judge.
In this case the United States uses Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to advance what would more commonly be a free exercise clause challenge (1) to refusal of the defendant Board of Education for the School District of Philadelphia ("Board") to allow a public school teacher to wear religious attire in the course of her duties, and (2) to the Commonwealth of Pennsylvania's "Garb Statute," 24 Pa. Cons. St. Ann. § 11-1112, which compelled the Board's action. We conclude that the United States Supreme Court's summary disposition of an appeal from a decision of the Oregon Supreme Court in a case presenting such a free exercise challenge, Cooper v. Eugene School District No. 4J, 301 Or. 358, 723 P.2d 298 (1986), appeal dismissed, 480 U.S. 942, 107 S. Ct. 1597, 94 L. Ed. 2d 784 (1987), ultimately compels us to reject the Title VII claim currently before us, although moving from Cooper's free exercise holding to the Title VII claim requires some analysis.
Alima Delores Reardon is a devout Muslim with a religiously held conviction that Muslim women should, when in public, cover their entire body save face and hands. Since 1970, Reardon had from time to time worked as a substitute and full time teacher in the Philadelphia School District, positions for which she held the necessary certificate and other qualifications. Reardon first embraced her religious conviction regarding dress in 1982, and pursuant to her belief "she wore while teaching . . . a head scarf which covered her head, neck, and bosom leaving her face visible and a long loose dress which covered her arms to her wrists." District Court Finding of Fact para. 5. Apparently Reardon taught in this attire without incident until 1984.
Towards the end of 1984, on three separate occasions Reardon reported to various schools for duty as a substitute teacher and was informed by the principals of those schools that, pursuant to state law, she could not teach in her religious clothing. These actions were taken in compliance with what is commonly referred to as Pennsylvania's Garb Statute, enacted in 1895 as Public Law No. 282:
(a) That no teacher in any public school shall wear in said school or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.
(b) Any teacher . . . who violated the provisions of this section, shall be suspended from employment in such school for the term of one year, and in case of a second offense by the same teacher he shall be permanently disqualified from teaching in said school. Any public school director who after notice of any such violation fails to comply with the provisions of this section shall be guilty of a misdemeanor, and upon conviction of the first offense, shall be sentenced to pay a fine not exceeding one hundred dollars ($100), and on conviction of a second offense, the offending school director shall be sentenced to pay a fine not exceeding one hundred dollars and shall be deprived of his office as a public school director. A person twice convicted shall not be eligible to appointment or election as a director of any public school in this Commonwealth within a period of five (5) years from the date of his second conviction.
24 Pa. Cons. St. Ann. § 11-1112. On each occasion Reardon was given a chance to go home and change; on each occasion she refused to do so and was not allowed to teach. After exhausting her remedies within the school system, Reardon filed charges of discrimination with the district office of the Equal Employment Opportunity Commission ("EEOC").
Upon receiving Reardon's complaint, the EEOC District Office conducted an investigation. During that investigation, the Commonwealth, through its Attorney General, took the position that the Garb Statute was constitutionally valid and enforceable. The EEOC ultimately concluded there was reasonable cause to believe that both the School Board and the Commonwealth had violated Title VII. After pursuing all prescribed conciliation without success, the EEOC transmitted Reardon's charge to the Department of Justice, pursuant to 42 U.S.C. § 2000e-5(f)(1), which requires such referral when the respondent to a charge filed under Title VII is a "government, governmental agency, or political subdivision." The Justice Department then filed a complaint in district court, naming both the Commonwealth and the Board as defendants.
The complaint asserted two theories of liability against the Board: (1) "Failing or refusing to employ as public school teachers individuals who wear or who seek to wear garb or dress that is an aspect of their religious observance," and (2) "failing or refusing reasonably to accommodate individuals who wear or who seek to wear garb or dress . . . that is an aspect of their religious observance and practice." The complaint also asserted that the Commonwealth violates Title VII by "continuing to give force and effect to Section 11-1112." In addition, the complaint charged that both defendants engaged in a "pattern of practice of resistance to the full enjoyment by public school teachers or would be public school teachers . . . of their right of equal employment opportunities without discrimination based on religion." As discussed below, such an allegation is a necessary condition to obtaining prospective injunctive relief against a discriminatory practice. The United States sought a declaration that the Garb Statute is in conflict with Title VII and therefore unenforceable, as well as injunctive relief and damages.
After a bench trial, the district court entered judgment in favor of the United States and against the School Board, ordering the Board to make Reardon whole and enjoining it from giving any further effect to the Garb Statute. However, concluding that the Commonwealth was not an "employer" of Reardon within the meaning of Title VII, and that in light of evidence that the Garb Statute was sporadically enforced there was no "pattern or practice" of discrimination, judgment was entered in favor of the Commonwealth. The United States appeals from that judgment; the Board cross-appeals the judgment against it.
Title VII directly protects employees from adverse employment actions on the basis of religion:
(a) It shall be an unlawful employment practice for an employer --
(1) 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. . . religion. . . .
42 U.S.C. § 2000e-2(a). The only explicit exception to this prohibition is the narrow exception for "bona fide occupational qualifications." ("BFOQs"). 42 U.S.C. § 2000e-2(e)(1). However, Title VII's definition of religion also contains what may be characterized as an exception:
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.
42 U.S.C. § 2000e(j) (emphasis added). Thus, perhaps counterintuitively, if an employer cannot accommodate a religious practice without undue hardship, the practice is not "religion" within the meaning of Title VII.
In light of this exception, most Title VII religion cases have turned on the question of whether the employer can demonstrate that it could not accommodate a religious practice without "undue hardship." E.g., Trans World Airlines v. Hardison, 432 U.S. 63, 53 L. Ed. 2d 113, 97 S. Ct. 2264 (1977); Protos v. Volkswagen, 797 F.2d 129 (3d Cir.), cert. denied 479 U.S. 972, 93 L. Ed. 2d 418, 107 S. Ct. 474 (1986); Bhatia v. Chevron U.S.A. Inc., 734 F.2d 1382 (9th Cir. 1984); EEOC v. Sambo's, 530 F. Supp. 86, 90 (N.D. Ga. 1984). Consistent with this analysis, the United States in its complaint alleged that the defendant School Board had failed "reasonably to accommodate individuals who wear or who seek to wear garb or dress that is an aspect of religious observance." But on appeal, the United States argues this analysis is actually too kind to the defendants because the "reasonable accommodation" requirement has only been applied where an employee's religious practice runs afoul of an otherwise religiously neutral requirement, while the Garb Statute at issue here explicitly discriminates against certain practices because they are religious. In such a situation, plaintiff argues that only the much narrower BFOQ exception should apply.*fn1
This argument runs counter to a straightforward reading of the statute. Since the reasonable accommodation/undue hardship exception is contained within the definition of religion, it must be applied at the threshold of the court's analysis. The import of the statute is clear: if public schools cannot accommodate the wearing of religious garb without undue burden, then the wearing of such garb is not "religion" within the meaning of Title VII. Thus, the district court correctly concluded that a determination of the undue hardship question was required.
Once a plaintiff-employee has demonstrated that a religiously motivated practice conflicts with an employment requirement, the employer may defend in one of two ways. First, the employer may demonstrate that it has offered a "reasonable accommodation." In Ansonia Board of Educ. v. Philbrook, 479 U.S. 60, 93 L. Ed. 2d 305, 107 S. Ct. 367 (1986), the Supreme Court held that the employer need only demonstrate that the proffered accommodation is reasonable, not that it is the most reasonable or the employee's preferred accommodation. "Thus, where the employer has already reasonably accommodated the employee's religious needs, the statutory inquiry is at an end. The employerneed not further show that each of the employee's alternative accommodations would result in undue hardship." Id. at 68.
In this case, however, the defendants proffered no accommodation. Instead, they have pursued the second potential line of defense: they have argued that the accommodation Reardon sought -- allowing her to teach in religious garb -- could not be accomplished without undue hardship.*fn2 The plaintiff has not argued that alternative means of accommodation are available. Thus, the issue has been joined on the question of whether the School Board could have allowed Reardon to teach in religious garb without suffering undue hardship.
In Trans World Airlines v. Hardison, 432 U.S. 63, 53 L. Ed. 2d 113, 97 S. Ct. 2264 (1977), the Supreme Court held that "to require [the employer] to bear more than a de minimis cost in order to [accommodate the employee's religious practice] is an undue hardship." Id. at 84; see also Ansonia Board of Education, 479 U.S. at 67; Protos, 797 F.2d at 133. The sort of "de minimis cost" addressed in previous cases has usually been economic in nature. In Hardison, for example, where an employee refused to work on Saturdays for religious reasons, the Court agreed that the employer should not be required to pay premium overtime pay to other workers to induce them to replace the plaintiff on a Saturday shift. 432 U.S. at 63. In Protos, also involving a worker who observed Saturday Sabbath, in finding that accommodation would not work an undue hardship, this Court deferred to the district court's weighing of evidence as to whether accommodation would result in diminished efficiency on the assembly line. 797 F.2d at 134-35.
Hardison did, however, recognize an arguably non-economic burden when it held that the employer could not be required to violate the seniority provisions of a collective bargaining agreement in order to ensure that plaintiff would not have to work on Saturdays. 432 U.S. at 79-83. See also EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988) ("Townley is, of course, right when it says, 'Cost cannot always be measured in terms of dollars.'"), cert. denied 489 U.S. 1077, 109 S. Ct. 1527, 103 L. Ed. 2d 832 (1989). While one could probably articulate an economic burden suffered by an employer forced to violate a collective bargaining agreement, the Court did not attempt to do so; rather, the opinion stressed the strong national labor policy favoring enforcement of collective bargaining agreements, id. at 79, and the unfairness that would result from requiring employees who have obtained seniority to work on Saturdays when they had "strong, but perhaps nonreligious, reasons for not working on weekends." Id. at 81.
III. Cooper v. Eugene School District
Before turning to our legal analysis of the facts of this case, we must take note of Cooper, a case factually indistinguishable from ours that found its way to the Supreme Court of the United States. Cooper upheld the validity of a pair of Oregon statutes whose cumulative import is nearly identical to the Pennsylvania Garb Statute.*fn3
In accordance with her religious beliefs, Janet Cooper, a Sikh, wore white clothes and a white turban while teaching, even after being warned about the Oregon statutes. As a result she was suspended and her teaching certificate was revoked; in response she filed suit in state court arguing that the statute and the actions taken pursuant to it violated her right to free exercise of her religion. She achieved a short-lived victory in the Oregon Court of Appeals, but the Oregon Supreme Court reversed, reasoning that while the Oregon statutes did constitute a burden on Cooper's free exercise rights, when properly construed the statutes were narrowly tailored to the compelling state interest in preserving the appearance of religious neutrality in public schools. In so holding, the Cooper court did not conclude that tolerating religious garb in the classroom would violate the establishment clause, but rather that "a rule against such religious dress is permissible to avoid the appearance of sectarian influence, favoritism, or official approval in the public school. The policy choice must be made in the first instance by those with lawmaking or delegated authority to make rules for the schools." 723 P.2d at 308.
At the time Cooper was decided, such cases were appealable as of right to the United States Supreme Court, and Cooper elected to take such an appeal. Her ...