The National Jewish Commission on Law and Public Affairs ("COLPA") is a voluntary association of attorneys and social scientists organized to combat all forms of religious prejudice and discrimination and to represent the position of the Orthodox Jewish community on matters of public concern. COLPA is fully committed to the preservation of constitutional and statutory rights for all citizens in order that citizens of minority religious faiths, in common with all other citizens, may enjoy the blessings of liberty.

of religious, social, and educational questions affecting Orthodox Jews. The Union of Orthodox Jewish Congregations of America is a central coordinating body for approximately 3000 Orthodox Jewish congregations in the United States. All of these organizations have a vital concern for the protection of religious liberty, particularly the right of the observant and devout to be gainfully employed and to earn an honest living.

The civil-rights law at issue in this case -- 42 U.S.C. § 2000e(j) -- opened doors which had previously been closed to adherents of minority faiths. For example, Orthodox Jews who are enjoined by Biblical command to "observe the Sabbath day and keep it holy" and "not [to] do any manner of work" on that day (Deuteronomy V, 2, 14) for years did not enjoy equal employment opportunities and were barred by various employment policies from positions open to other individuals in our society. They were turned away from job after job and suffered great economic hardship only because they steadfastly refused to violate the Biblical injunction against work on the Sabbath.

rather than become demoralized and a burden on society, thanks to these laws. Congress' determination to protect religious practice, cast in terms of moderation, reasonableness, and deference to actual proof of legitimate employer hardship, was a sound and sensible means of prohibiting thoughtless discrimination while acknowledging those instances where real hardship to employers exists.

STATEMENT OF THE FACTS

In Balint v. Carson City, Nevada, 144 F.3d 1225, 1229 (9th Cir. 1998), a panel of this Court held that an employer who uses an "existing, bona fide seniority-based shift-bidding system" is never required to accommodate an employee's religious needs, no matter how great the burden that system imposes on an employee's faith or how slight the burden an accommodation would impose on the employer. This ruling, if sustained, would insulate the basest and most blatant religious discrimination from the protections of Title VII of the Civil Rights Act. 42 U.S.C. § 2000e et. seq.

seniority systems are used to allocate work-shift assignments.

In reaching its conclusion, the panel in Balint relied on the Supreme Court's decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) ("TWA"). In that case, the Supreme Court explained the duty imposed by the Civil Rights Act on employers to accommodate the religious practices of their employees. The Court held that when work shifts are allocated on the basis of a seniority system, Title VII does not require an employer to accommodate religion if the accommodation would impose more than de minimis cost. See 432 U.S. at 84.

protections conferred by the landmark Civil Rights Act of 1964 and we are submitting this short brief to explain how totally repugnant such a legal principle would be to the premises and purposes of that historic federal legislation.

A. The Purpose of Title VII of the Civil Rights Act Was To Eradicate Arbitrary Racial and Religious Discrimination in Private Employment.

The TWA Court stated that the purpose of Title VII was "the elimination of discrimination in employment." 432 U.S. at 85; see also Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971) (Title VII's purpose was to "achieve equality of employment opportunities"). Before the enactment of the Civil Rights Act, private employers could and did refuse employment, promotions, equal pay, and equal working conditions on the basis of skin color and religious belief. African Americans and Hispanics could be and were rejected for jobs solely because of their race. Jews and Catholics could be and were denied promotions and advancement opportunities solely because of their faiths. The Civil Rights Act outlawed such discrimination, which is unconstitutional if engaged in by government, in private employment as well.

The Balint panel's decision, by authorizing naked religious discrimination by a particular class of employers -- those who use seniority-based work-shift-assignment systems -- fails this test.

B. The Supreme Court Divided Evenly on the Question Whether Discrimination on the Basis of Religious Observance Amounted to Discrimination on the Basis of Religion.

In Dewey v. Reynolds Metals Co., 402 U.S. 689 (1971) (per curiam), the Supreme Court split evenly on this question. The Sixth Circuit had rejected the civil-rights claim of an employee who was fired because of his religious beliefs. Specifically, the employee observed strictly his Sabbath and had contended that the employer's "replacement system" was insufficient to accommodate his religious beliefs, because it required him to induce other workers to work on his Sabbath. Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970). The Supreme Court affirmed the Sixth Circuit's decision by an "equally divided Court." 424 U.S. at 689.

Wonderland world where words have no meaning." 516 F.2d at 550 (internal quotations and citations omitted). Again, an equally divided Supreme Court affirmed without opinion.

In these cases, the employer could argue -- and this argument was apparently persuasive to four Justices -- that the refusal to accommodate or hire an employee whose personal convictions would cause serious disruption to the employer’s business was not a manifestation of discrimination or bias of the type that the Civil Rights Act was meant to cure. On the other hand, such an argument, if carried too far, could allow employers to hide religious discrimination behind the façade of workplace necessity. Cf. Griggs, 401 U.S. at 436 (Civil Rights Act does not permit employers to use "tests" that have the effect of discriminating on the basis of race unless those tests are "demonstrably" a "reasonable measure of job performance"). The Supreme Court's inability to resolve this question clearly cried out for legislative action.

C. Congress Enacted the 1972 Amendments to the Civil Rights Act of 1964 To Distinguish Between Arbitrary Religious Discrimination and Reasonable Employer Prerogatives.

to be added to proposed amendments to the Civil Rights Act of 1964. The purpose of these amendments was to distinguish between those situations in which employers were reasonably concerned about the effect of a religious employee’s ritual observance on the everyday operation of their businesses and those instances in which denial of a job or was truly discriminatory, and the refusal to accommodate merely a pretext for such discrimination. As Senator Randolph stated, the Act was amended "to assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law." TWA, 432 U.S. at 75 (citing 118 Cong. Rec. 705 (1972)). The 1972 amendments made clear "the employer's statutory obligation to make reasonable accommodations for the religious observances of its employees, short of incurring an undue hardship." Ibid.

D. By Including the Protection for Religious Observers in the Definitional Section of the Civil Rights Act, the 1972 Amendments Implemented the Act's Original Intent and Respected its Original Purposes.

It was no accident that the clear protection for religious observance provided by the 1972 amendments was included in Title VII's definitional provisions. "Religion" was and still is defined as including "all aspects of religious observance and practice." 42 U.S.C. § 2000e(j). The amendment codified the basic truth that one's "religion" is more than a label. It is also a way of life, a set of practices, and a source of duties. Today, under the Civil Rights Act, an employer who refuses to hire or promote an employee who observes the Sabbath, wears a yarmulke, maintains a strict religious diet, or wears a beard for religious reasons is engaging in arbitrary employment discrimination just as surely as an employer who refuses to hire a Jew solely because he is a Jew, or a black or Hispanic job applicant solely because of the applicant’s skin-color. Such a refusal is illegal discrimination unless the employer has a valid non-discriminatory reason not to hire the applicant.

had any real practical impact on the routine of its Sheriff’s Department's seniority system, such discrimination is as arbitrary, unjustified, and illegal as it would be if she was rejected because of the color of her skin. The 1972 amendments to the Civil Rights Act were enacted into law precisely to protect plaintiffs like Ms. Balint from such discrimination. "Religion" includes religious practice. Therefore, just as Carson City may not legally post a notice declaring that no Catholic or Jew will be accepted for employment in its Sheriff’s Department, it also may not exclude members of the Worldwide Church by enforcing rigidly and absolutely a shift-allocation rule that that so seriously burdens an employee’s "religious observance and practice." 42 U.S.C. § 2000e(j).

E. The Mere Existence of a Seniority System Does Not Preclude a Finding of Illegal Job Discrimination.

The Balint panel held that "[b]ecause the Department had in place a nondiscriminatory seniority-based system for assigning shifts, it had no duty to accommodate Balint, even if such accommodation would have no more than a de minimis impact." 144 F.3d at 1228. But the question of "accommodation" is built into the very definition of "religion" in Title VII. 42 U.S.C. § 2000e(j). The 1972 amendments to the Act require accommodation for religious practice so long as the practice can be accommodated without "undue hardship" to the employer. See TWA, 432 U.S. at 74. The question under Title VII, therefore, is not whether an employer has in place some facially neutral system or practice -- this will often be true in discrimination cases -- but whether a religious employee's obligations can be accommodated within that system without imposing "undue hardship."

repeatedly by the courts. See, e.g., Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 427 (8th Cir. 1970); Domingo v. New England Fish Co., 727 F.2d 1429, 1436 (9th Cir. 1982); Local 53 v. Vogler, et al., 407 F.2d 1047, 1054-1055 (5th Cir. 1969). Such "systems" have been recognized for what they often are -- efforts to continue biased employment policies that excluded minorities.

CONCLUSION

For the foregoing reasons and those stated in the amicus curiae brief of The American Jewish Congress et al., the opinion of the panel below should be vacated and the judgment of the District Court reversed.