PEOPLE OF THE STATE
OF NEW YORK
PEOPLE OF THE STATE OF NEW YORK v. SEARS, ROEBUCK AND CO
SUPREME COURT OF THE STATE OF NEW YORK
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:
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).
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
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.
The provisions of this Agreed Final Judgment apply to Sears, its
successors and assigns, and its subsidiaries, divisions and affiliates.
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
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
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
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
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
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.
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.
During the term of this Agreed Final Judgment, Sears is further
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
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.
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.
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.
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
SEARS, ROEBUCK AND CO.
3333 Beverly Road Hoffman Estates, Illinois 60179