Sheila W. worked for a large chain food store in Virginia as a secretary in the regional office. When she first went to work, some of the secretaries were required to work on Saturdays, but other

secretaries were always willing to work in her place. Shortly thereafter, a supervisor told the secretaries that, if they would oppose a union organizing attempt, they would no longer be required to work on Saturdays. The union organizing attempt was defeated.

Not long afterward, the supervisor came through and said that in accordance with their long standing policy, all the secretaries would be expected to work on Saturday. He specifically said that this included Sheila. Sheila reminded him that when she was hired, she stated she could not work on Saturday because of religious beliefs. She was told that she would not be excused from the policy. She was

thereafter terminated.

Loyd B. was hired as a welder at a plant in Wyoming which was

a subsidiary of a large international corporation. At the time he was hired, the foreman who hired him called the head office in San Francisco to work out an approval for altering Loyd's shift on Fridays so that he would not have to work on his Sabbath.

Recently, Loyd's foreman retired. A new foreman was brought in who noticed the different shift that Loyd was working from the normal shift. Upon Loyd's talking to the personnel manager, the personnel manager granted permission for him to continue working his present shift until they complete the project they are presently working on. But then he will be required to work the same shift as the other men, or be terminated.

It has been our experience that accommodation or non-accommodation

depends to a large extent on the attitude of the employer. If the employer has an attitude of willingness to make an effort to accommodate, the large majority of problems stemming from religious observance and practice can be worked out. We will have the oral and written statements of a number of employees who have obtained accommodation in various types of jobs. The written statements are attached hereto and the

oral statements will be given at the hearing.

V.

INFORMATION FROM CHURCHWIDE SURVEY

The information obtained from the Church's survey of its

membership regarding religious discrimination in employment has been computerized and a summary of this information made. The summary is attached hereto as Exhibit A.

(In

In order to fully appreciate the meaning of the recommendation and the need therefore, it is necessary to first be aware of the problems that are attempting to be obviated thereby. order to promote clarity, the employee seeking accommodation is referred to as "complainant" throughout the following.)

A. Problem to be alleviated by the recommendations.

1. A complainant is accommodated for a period of years. Then, with no other change of circumstances, other than a new superior, all of a sudden accommodating the complainant becomes an undue hardship.

2. A Complainant is accommodated for a period of years. A specific problem arises. The complainant is discharged with no evidence being presented by the employer that there would be a reasonable probability that the same type of problem would reoccur with sufficient regularity in the future so as to constitute an undue hardship.

4. The unwillingness of an employer to permit a fellow employee to substitute for the complainant when the fellow employee is willing to do so at no substantial detriment to the employer.

5. The unwillingness or inability of an employer to permit a complainant to waive certain benefits that might accrue to the complainant under what would otherwise be an acceptable plan of accommodation.

6. The unwillingness or inability of an employer to permit a fellow employee to waive certain benefits that the fellow employee might be entitled to, either by law or contract, in order to substitute for a complainant under an otherwise acceptable plan of accommodation.

7. The EEO procedure takes an unreasonable length of time in which to act upon a complaint, and when it does it is virtually without benefit because without adequate enforcement power the attorneys for employers recognize the procedure as a toothless tiger. Therefore, the ostensible purported remedy does harm in that it gives a complainant false hopp for years that his rights are going to be adjudicated administratively. The second wrong is that it deludes the public into believing that an adequate procedure is

in existence and, hence, no attention be given to the subject.

Further, after the undue length of time the claim for loss of wages has accumulated to such proportions that it prevents any reasonable compromise between the parties.

8. That a discharged compainant is usually without other means of income and therefore unable to retain knowledgeable counsel to represent him. Since the Hardison decision attorneys are extremely reluctant to accept EEO religious cases on a contingency fee basis. In fact, since Hardison attorneys who were previously working under such arrangements have requested to be dismissed from the case. Basically speaking the courts have refused to appoint attorneys by finding that the complainant was disqualified for financial reasons, i.e. he owned a home or was engaged in part-time work or work at a much lower pay scale.

9. The courts interpretation of "undue hardship" being satisfied by mere de minimus detriment and the seniority holding has had the effect of emasculating the statute.

10. The employer and unions are many times unwilling to aid the complainant in finding a fellow employee who would be willing to substitute for the complainant.

B. Substantative Law Recommendations

1. That the statute be amended to define the term "undue hardship" to mean something more than a mere de minimus detriment. Soemthing similar to the following is suggested:

"Undue hardship" shall mean something more than incurring a de minimus detriment or inconvenience and shall mean at least a burdensome detriment. In determining whether or not an accommodation shall constitute a "burdensome detriment" all the facts and circumstances shall be taken into consideration including, but not limited to, the annual income of the company; the total assets of the company; the number of other employees working for the company; the actual loss to be incurred by the accommodation; the type of business the employer is engaged in; the particular job performed by the employee, etc.

2. That the statute designate a determination by an EEOC investigative officer as being final, subject only to an administrative appeal and court appeal thereafter directly to the court of appeal. Further, that the determination shall be subject to reversal only if the same is clearly erroneous. Not having a de nova review will aid in clearing the congested district court dockets and in expediting the docket in the court of appeals.

3. That in the event an employer is unwilling to comply with such a determination either after having exhausted his appeals, or upon failure to do so, EEOC has the right to file its determination with the court for enforcement with only the question of jurisdiction of the subject matter being available as a defense to such filing and enforcement. (This is a spur of the moment analysis and research time would have to be available in order to determine the legality of the same.)

4.

That the accompanying regulations provide:

a.

That if an employee has been accommodated, then the employer, in order to carry his burden of proving that accommodation would be an undue hardship, must first prove the specific facts that changed, since the last accommodation, which facts are now alleged to create such undue hardship.

b. That an employer will not be deemed to have carried his burden of proving that accommodation would constitute an undue hardship unless he proves that there would be a reasonable probability that the same type of problem would reoccur with sufficient regularity in the future to constitute an undue hardship.

c.

That inflexible shift patterns shall not, in and of themselves, constitute an undue hardship.

d. That an employer shall be deemed not to have carried his burden of proving an undue hardship if a fellow employee is willing to substitute for the complainant unless the substitution by the fellow employee would result itself in an undue hardship to the employer.

e. That an employer shall have the right and duty to permit a complainant to forego certain benefits that might otherwise accrue to the complainant under what would otherwise be an acceptable plan of accommodation. Th at any such waiver or forebearance of said benefits by the complainant shall only exist while the need of said accommodation exists.