Opinion
No. 89-666-Civ-J-12.
November 8, 1989
Segismundo A. Pares, Regional Atty., Stanley Kiszkiel, Supervisory Trial Atty., Angelo Filippi, Sr. Trial Atty., Patrick A. Kokenge, Miami, Fla., for plaintiff.
Al J. Pranaitis, Alton, Ill., Victor M. Halbach, Jr., Jacksonville, Fla., for defendant.
ORDER
This cause is before the Court upon Plaintiff's Motion for Partial Summary Judgment, filed herein on October 2, 1989. Defendant filed a response in opposition thereto on October 12, 1989. Plaintiff's motion has been construed by the Court as a motion for summary adjudication of the issue set forth in defendant's First Defense, filed herein on September 20, 1989. Plaintiff requests the Court to adjudicate that defendant's First Defense, which attacks the constitutionality of sections of Title VII, is meritless. For the reasons set forth below, plaintiff's motion will be granted.
This action was brought seeking a permanent injunction and other relief, based on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., as a result of defendant's alleged failure "to reasonably accommodate the religious belief of Cecil Williams." Complaint at 3, ¶ 7. The alleged failure "resulted in several disciplinary layoffs of Mr. Williams and ultimately in his dismissal." Id. In the Answer and Defenses filed herein on September 20, 1989, defendant states as its First Defense, at 3:
That the Statute upon which the Plaintiff's claim is allegedly based, namely, Section 703(a)(1) of Title VII . . . ( 42 U.S.C., Sec. 2000e-2(a)(1) and (2)) and the definition of the term "religion" incorporated in said Sections and appearing in Section 701(j) . . . ( 42 U.S.C., Sec. 2000e(j)) are unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution. . . .
In the instant motion plaintiff argues that as a matter of law, defendant's First Defense is without merit and should be dismissed.
The first statute at issue in the present motion, 42 U.S.C. § 2000e-2, states the following:
(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 race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
As the parties have pointed out in their memoranda, "religion" is defined in 42 U.S.C. § 2000e(j) as follows:
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.
Defendant argues that Section 701(j) of Title VII is unconstitutional because it fails the three-prong test, established in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), to determine whether a particular government action offends the Establishment Clause.
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. . . . First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, . . . finally, the statute must not foster "an excessive government entanglement with religion."Id. at 612-613, 91 S.Ct. at 2111 (citations omitted). Defendant noted that neither the Supreme Court, the Eleventh Circuit, nor this Court have addressed the constitutionality of Section 701(j).
In Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985), a Connecticut statute that provided employees with the absolute right not to work on their chosen Sabbath was analyzed. The Supreme Court determined that the statute, "which provides Sabbath observers with an absolute and unqualified right not to work on their Sabbath, violates the Establishment Clause of the First Amendment." Id. at 710-711, 105 S.Ct. at 2918-2919 (emphasis added). In a concur ring opinion, Justice O'Connor stated:
I do not read the Court's opinion as suggesting that the religious accommodation provisions of Title VII of the Civil Rights Act of 1964 are similarly invalid. These provisions preclude employment discrimination based on a person's religion and require private employers to reasonably accommodate the religious practices of employees unless to do so would cause undue hardship to employer's business. . . . Title VII attempts to lift a burden on religious practice that is imposed by private employers, and hence it is not the sort of accommodation statute specifically contemplated by the Free Exercise Clause. . . . In my view, a statute outlawing employment discrimination based on race, color, religion, sex, or national origin has the valid secular purpose of assuring employment opportunity to all groups in our pluralistic society. Since Title VII calls for reasonable rather than absolute accommodation and extends that requirement to all religious beliefs and practices rather than protecting only the Sabbath observance, I believe an objective observer would perceive it as an anti-discrimination law rather than an endorsement of religion or a particular religious practice.Id. at 711-712, 105 S.Ct. at 2918-2919 (O'Connor, J. concurring) (citations omitted).
Defendant argues that Section 701(j) has a primary effect of advancing a particular religious practice. "The only effect of the reasonable accommodation proposal in Section 701(j) is to advance a particular religious practice with regard to certain private employers, while not advancing a particular religious practice with regard to other private employers whose business needs prevent such accommodation." Opposition to Motion at 3-4. The Court finds no merit to such an argument and finds that the reasoning and conclusions set forth in Justice O'Connor's concurring opinion are persuasive. As Justice O'Connor pointed out, Section 701(j) clearly applies to "all aspects of religious observance and practice, as well as belief." See 42 U.S.C. § 2000e(j). No one type of religious practice is "advanced" or protected by the government under Section 701(j).
In determining whether Section 701(j) is constitutional, this Court has reviewed the cases cited by the parties and noted the overwhelming weight of authority in favor of the constitutionality of the statute. Defendant stated that all of the district court cases cited in support of its position, except one, were overruled by subsequent decisions of circuit courts. In the one case that has not been reversed on appeal, Isaac v. Butler's Shoe Corp., 511 F.Supp. 108 (N.D. Ga. 1980), the Court found "the reasoning and conclusion set forth in Anderson [v. General Dynamics Convair Aerospace Div., 489 F.Supp. 782 (S.D.Cal. 1980)] to be persuasive." 511 F.Supp. at 112. Anderson, however, was reversed by the Ninth Circuit. 648 F.2d 1247 (9th Cir.), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982). Plaintiff pointed out that of the six Circuit Courts of Appeal that have considered this issue, all have concluded that Section 701(j) is constitutional. See EEOC v. Ithaca Industries, Inc., 849 F.2d 116, 119 (4th Cir.) (en banc), cert. denied ___ U.S. ___, 109 S.Ct. 306, 102 L.Ed.2d 325 (1988); Protos v. Volkswagen of America, Inc., 797 F.2d 129, 137 (3d Cir.), cert. denied, 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986); McDaniel v. Essex Int'l, Inc., 696 F.2d 34, 37 (6th Cir. 1982); Tooley v. Martin Marietta Corp., 648 F.2d 1239, 1244-1246 (9th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981); Nottelson v. Smith Steel Workers D.A.L.U. 19806, AFL-CIO, 643 F.2d 445, 453-455 (7th Cir.), cert. denied, 454 U.S. 1046, 102 S.Ct. 587, 70 L.Ed.2d 488 (1981); Hardison v. Trans World Airlines, Inc., 527 F.2d 33, 43-44 (8th Cir. 1975), rev'd on other grounds, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (holding that the employer made reasonable efforts to accommodate).
Based on the language of the statute, arguments of counsel, and applicable law, this Court finds that Section 701(j) passes the three-prong test of Lemon, supra. First, the statute is clearly aimed at preventing discrimination, a secular purpose. Second, the statute's principal or primary effect does not advance nor inhibit religion. On the contrary, the statute has had a notable effect on reducing discrimination in employment with little, if any, effect on religion. Finally, if an employer's business is capable of reasonably accommodating an employee's religion without undue hardship to the business, then the failure to accommodate may be the result of discrimination based on religion. The enforcement of Section 701(j) would not result in even minimal "government entanglement with religion" if an employer is alleged to have discriminated on the basis of religion. Therefore, this Court finds that Section 701(j) is constitutional and defendant's First Defense should be removed from this case.
Upon consideration of the motion, response, entire file, and relevant law, and the Court being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED:
1. That Plaintiff's Motion for Partial Summary Judgment, filed herein on October 2, 1989, which motion has been construed as a motion for summary adjudication of the issue set forth in defendant's First Defense, is hereby granted; and
2. That the issue of the constitutionality of Section 703(a)(1) and (2) of Title VII of the 1964 Civil Rights Act ( 42 U.S.C. §§ 2000e- 2(a)(1) and (2)) and the definition of the term "religion" incorporated in said sections and appearing in Section 701(j) of Title VII ( 42 U.S.C. § 2000e(j)) [defendant's First Defense] is hereby removed as an issue in this case.
DONE AND ORDERED.