PEOPLE OF THE STATE OF NEW YORK v. SEARS, ROEBUCK AND CO

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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PEOPLE OF THE STATE OF NEW YORK, by :
ELIOT SPITZER, the Attorney General of
the State of New York, :

Plaintiffs, : Agreed Final Judgment

-against- :

SEARS, ROEBUCK AND CO., :

Defendant :

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WHEREAS, plaintiffs the People of the State of New York, by Eliot Spitzer, Attorney General, and defendant Sears, Roebuck and Co. ("Sears"), by their respective attorneys, having consented to the entry of this Agreed Final Judgment without trial or adjudication of any issue of fact or law herein, and without this Agreed Final Judgment constituting any evidence against, or an admission by, any party with respect to any issue of law or fact herein; and that this Agreed Final Judgment shall settle all claims made by Plaintiffs in their Complaint filed on April 4, 2000 (the "Complaint");

WHEREAS, the essence of this Agreed Final Judgment is the accommodation of the sincerely held religious beliefs of certain Sabbath observant applicants seeking, and employees holding, in-home product repair technician positions with Sears Product Repair Service business in New York State;

WHEREAS, Sears has represented to the plaintiffs that the accommodations ordered herein will be made and that Sears, subject to the terms of this Agreed Final Judgment, will not later raise a claim of hardship or difficulty as grounds for asking the Court to modify any of the provisions contained below;

NOW, THEREFORE, without trial or adjudication of any issue of fact or law herein, and upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:

I.
JURISDICTION

This Court has jurisdiction over each of the parties hereto and over the subject matter of this action pursuant to Executive Law §§ 63(12) and 296(10).

II.
DEFINITIONS

A. "Sears" means defendant Sears, Roebuck and Co., a New York corporation with its headquarters in Hoffman Estates, Illinois, and includes its successors and assigns, and its subsidiaries, divisions and affiliates.

B. "Covered Job Categories" means the various job categories generically entitled In-Home Product Repair Technician in Sears Product Repair Services Business, and any subsequently created job categories of a similar nature.

C. "Covered Establishments" means all units of Sears Product Repair Services Business in New York State.

D. "Sabbath observer" or "Sabbath observant" means one whose sincerely held religious beliefs preclude him or her from working on a particular day observed as his or her Sabbath.

E. "Initial Complainants" means Kalman Katz, Marc Fuchs, Jack Gertz, Meir Singer and Lazar Blumenfeld.

F. "Additional Complainant" means any individual other than an Initial Complainant who seeks to take advantage of the remedies contained in Article VI of this Agreed Final Judgment.

G. "Effective Date" means the date this Agreed Final Judgment is entered by the Clerk of the Court.

III.
APPLICABILITY

The provisions of this Agreed Final Judgment apply to Sears, its successors and assigns, and its subsidiaries, divisions and affiliates.

IV.
ACCOMMODATION

At the Covered Establishments:

A. Sears is hereby enjoined to abide by Executive Law § 296(10).

B. Sears is enjoined to create and maintain a full-time, five day per week work schedule including Sundays but not Saturdays (the "Sunday Schedule") for each of the Covered Job Categories within fourteen days of the Effective Date of this Agreed Final Judgment.

C. Up to one half of the positions within each of the Covered Job Categories, as hiring opportunities arise, will be made available to applicants and employees who wish to work on the Sunday Schedule. In the event that the Sunday Schedule for a particular Covered Job Category is full when a qualified Sabbath observant applicant applies for a position (because half of all technicians in that Covered Job Category are already working on the Sunday Schedule), but there are available positions in the same Covered Job Category on a non-Sunday Schedule, Sears will transfer a non-Sabbath observer to the non-Sunday Schedule and offer the Sunday Schedule to the Sabbath observer. In order to promote the economic viability of the Sunday Schedule, upon the hiring of an individual or individuals to work on the Sunday Schedule in a Covered Job Category at a Covered Establishment, Sears will offer its customers Sunday repair service in such Covered Job Category at that Covered Establishment.

D. For each hiring opportunity in each of the Covered Job Categories, Sabbath observers will be selected for hire on the same basis as all other applicants. All Sabbath observer employees in each of the Covered Job Categories are subject to reduction of hours during off- peak periods, lay-offs, termination and other work policies, consequences and actions on the same basis as non-Sabbath observer technician employees, provided that no action by Sears pursuant to this paragraph "D" shall be implemented in a manner that violates Executive Law § 296(10).

E. The accommodations set forth in paragraphs "B" and "C" of this Article IV will be made for a period of eighteen months from the Effective Date of this Agreed Final Judgment. At the conclusion of the eighteen months, Sears may choose to evaluate the feasibility of continuing to provide such accommodations.

F. If, after the eighteen month period set forth in paragraph "E" of this Article IV, Sears decides to (a) assert that the Sunday Schedule for accommodating Sabbath observant applicants and/or employees would pose an "undue economic hardship" and (b) return to a six day per week schedule, then Sears shall be required to comply with the accommodation requirements pertaining to its Sabbath observant applicants and employees contained in Executive Law § 296(10) and shall (i) bear the burden of persuasion in this Court to establish that such accommodations would in fact cause an "undue economic hardship" and (ii) be required to submit to this Court a plan detailing how it will accommodate its Sabbath observant applicants and employees pursuant to its obligation under Executive Law § 296(10) or demonstrate to this Court that any such plan would impose an "undue economic hardship."

G. Sears will advertise the availability of positions in the Covered Job Categories, as such positions arise, in publications calculated to reach potential Sabbath observant applicants, and such ads will note the availability of the Sunday Schedule.

H. Compliance with paragraphs "B" and "C" of this Article IV shall constitute full compliance by Sears with respect to the issues raised in the Complaint.

V.
Training

Sears is enjoined to:

A. Implement regularly scheduled training and retraining programs pertaining to the accommodation requirements of Executive Law § 296(10) and the requirements of this Agreed Final Judgment for all personnel involved in the recruitment and hiring process at the Covered Establishments. Additionally, all Sears personnel in New York State involved in the recruitment and hiring process shall be provided training with respect to the accommodation requirements of Executive Law § 296(10) at least once during the pendency of this Agreed Final Judgment.

B. Develop and distribute written materials that will serve as a resource and guide to human resources professionals at the Covered Establishments. These materials will delineate the specific steps that Sears must follow in providing the accommodation requirements of Executive Law § 296(10) and the requirements of this Agreed Final Judgment.

C. Include the materials developed in accordance with paragraph "B" of this Article V as part of those Sears Human Resources Guides used by Managers at the Covered Establishments and distributed to all persons at the Covered Establishments involved in the recruitment and hiring process.

D. Submit the training program and materials referenced in paragraphs "A" through "C" of this Article V for the prior approval of the Attorney General, who will not unreasonably withhold such approval.

VI.
Make Whole Remedy

A. Sears is hereby enjoined to offer a full-time position on the Sunday Schedule to each of the Initial Complainants in the Covered Job Category for which such individual previously applied, at the Covered Establishment at which he applied for employment, provided that such individual meets or has met the Sears hiring selection criteria for the position he seeks, including the achievement of satisfactory scores on Sears existing or then existing skills test. To obtain a full-time position pursuant to this paragraph "A," an Initial Complainant must also meet Sears current qualifications regarding drug testing, criminal background check, driving record and physical condition standards.

B. Sears is enjoined to pay to each of the Initial Complainants an amount equal to that which would have been paid to a new hire in the Covered Job Category for which that Initial Complainant applied with similar relevant training and/or experience at the time he applied, including benefits ("back pay"), less actual amounts earned by such Initial Complainant from other employment, including benefits, in mitigation of damages ("mitigation amount"). Back pay and the mitigation amount will be computed from the date the Initial Complainant applied for a job in one of the Covered Job Categories through and including the Effective Date of this Agreed Final Judgment, but shall not exceed a period of two years from the date of such application (the "back pay period"). The mitigation amount for each Initial Complainant shall be determined on the basis of an affidavit signed by the respective Initial Complainant setting forth his total earnings during the back pay period from other employment, supported by W-2 and/or 1099 Forms, or pay stubs or other similar documents. Sears will pay the reasonable attorneys' fees actually incurred by the Initial Complainants, in an amount not to exceed $30,000 in the aggregate for all Initial Complainants. If an Initial Complainant submits an affidavit stating that he took and passed Sears skills test at the time of his application, then he need not satisfy the provisions of paragraph "A" of this Article VI to obtain the benefit of this paragraph "B."

C. For any Additional Complainant who comes forward to Sears or to the Office of the Attorney General within 90 days of the Effective Date of this Agreed Final Judgment and alleges that within the past three years he or she applied for and was denied a job in one of the Covered Job Categories at a Covered Establishment due to his or her inability to work on Saturday and that such inability was due to his or her Sabbath observance, Sears will offer to implement a Dispute Resolution Process (the "DRP") to resolve such claims. If an Additional Complainant covered by this paragraph "C" chooses to pursue the DRP, he or she must submit an affidavit, which Sears may dispute or challenge in the DRP, setting forth (i) when he or she applied for a job; (ii) the mitigation amount; and (iii) that he or she was qualified for the job. The potential recovery of an Additional Complainant who chooses to enter the DRP pursuant to this paragraph "C" shall be limited to back pay less the mitigation amount for the back pay period, as these terms are defined in paragraph "B" of this Article VI.

D. For any Additional Complainant who, prior to the date of filing of this Agreed Final Judgment, came forward to the Office of the Attorney General and alleged that, in the year prior to the Effective Date of this Agreed Final Judgment, he or she would have applied to Sears for a job in one of the Covered Job Categories at a Covered Establishment but for his or her belief, based upon a specific prior notice, whether written or otherwise, that Sears would not hire an applicant who was unable to work on Saturdays because of sincerely held religious beliefs, Sears will offer the DRP to resolve his or her claim. The DRP shall be implemented and conducted under the same terms and conditions contained in paragraph "C" of this Article VI, except that (i) he or she must set forth in the affidavit when he or she would have applied for a job rather than when such application was made; and (ii) potential recovery thereunder shall be limited to back pay from the date the particular Additional Complainant would have applied for a job in one of the Covered Job Categories, less the mitigation amount, for a period not to exceed one year. The Office of the Attorney General will furnish Sears with a list of all such Additional Complainants pursuant to this paragraph "D" on the filing date of this Agreed Final Judgment.

E. The DRP described in paragraphs "C" and "D" of this Article VI will be administered by a neutral entity agreed upon by Sears and the Attorney General. Sears will bear the cost of the DRP, but will not be responsible for the attorneys' fees or costs incurred by any Additional Complainant. The Office of the Attorney General will not advertise to find any Additional Complainants. Nothing in this paragraph shall preclude the Office of the Attorney General from engaging in its regular, lawful investigatory functions.

F. Receipt of any payments under this Agreed Final Judgment by any Initial Complainant or any Additional Complainant shall be expressly conditioned on the execution of a general release fully resolving any and all claims, charges or causes of action against Sears by such Initial Complainant or Additional Complainant.

VII.
Monitoring and Reporting

During the term of this Agreed Final Judgment, Sears is further enjoined to:

A. Maintain records of all training policies and materials required by this Agreed Final Judgment and document the names and positions of all current and future employees trained, and the dates thereof.

B. Maintain records of all applications and requests for accommodation by Sabbath observers at the Covered Establishments, and document in writing the disposition of all such applications and requests.

C. Report the results of its accommodation efforts pursuant to this Agreed Final Judgment on a quarterly basis to the New York State Attorney General (c/o the Civil Rights Bureau, 120 Broadway, New York New York 10271), and upon reasonable notice make all records kept in connection with this Agreed Final Judgment similarly available for inspection by the New York Attorney General during normal business hours.

VIII.
Costs

A. Within thirty days of the Effective Date of this Agreed Final Judgment Sears shall pay $100,000.00 to the Office of the Attorney General for the cost of this investigation.

IX.
Programs

A. Within thirty days of the Effective Date of this Agreed Final Judgment, Sears shall pay an additional $225,000 to the Office of the Attorney General for the benefit of the American Law Institute, a Washington D.C. not-for-profit corporation. The $225,000 will be paid to the American Law Institute to fund its preparation, distribution and sponsorship of (i) written materials and guidelines regarding religious accommodation for use in corporate legal and human resources offices; (ii) a training video to be made broadly available, especially to corporate human resource departments; and (iii) a conference for human resource and legal department personnel dealing with employers' legal obligations to provide religious accommodation.

B. Sears will provide full scholarships for ten Sabbath observers to attend New York technical training schools, similar to the schools listed in Sears Home Services' "A Practical Guide to Recruiting & Sourcing," teaching the skills required to work in one of the Covered Job Categories. The scholarships will be provided over a two-year period, beginning from the Effective Date of this Agreed Final Judgment, and the administration of the scholarship program will be jointly conducted by the Office of the Attorney General and Sears.

X.
Retention of Jurisdiction

A. Jurisdiction is retained by this Court for three years for the purpose of enabling either of the parties to this Agreed Final Judgment to apply to this Court at any time for such further orders and directions as may be necessary or appropriate for the construction or carrying out of this Agreed Final Judgment and for the enforcement of compliance herewith. This Court shall possess and retain all equitable powers to enforce the terms of this Agreed Final Judgment.

B. The parties hereby waive their right to appeal, or in any other way challenge, in any forum, the terms of this Agreed Final Judgment. The parties retain the right to challenge any subsequent order to the extent permitted by New York State law.

XI.
Termination

This Agreed Final Judgment will expire upon the third anniversary of the Effective Date.

Dated: April 4, 2000

PEOPLE OF THE STATE OF NEW YORK
Eliot Spitzer
Attorney General of the
State of New York
120 Broadway
New York, New York
10271

By:______________________

SEARS, ROEBUCK AND CO. 3333 Beverly Road Hoffman Estates, Illinois 60179 By:______________________
Pamela R. Schneider, Esq. Vice President Law -- Home Services

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