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New York City Transit Auth. v. New York, Executive Dep't, Div. of Human Rights and Mary Myers, 89 N.Y.2d 79 (October 22, 1996).

CONSTITUTIONAL LAW - HUMAN RIGHTS LAW - LABOR LAW - COLLECTIVE BARGAINING AGREEMENT

AN EMPLOYER MUST DEMONSTRATE THAT A REASONABLE, GOOD FAITH EFFORT WAS TAKEN TO ACCOMMODATE AN EMPLOYEE'S SABBATH OBSERVANCES DESPITE CONFLICTING PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

The New York City Transit Authority ("Transit Authority") operates a bus service seven days per week. A collective bargaining agreement between the Transit Authority and the Transport Workers Union allocates the privilege of selecting weekend days off based on a strict seniority system. Employees need as much as five years seniority to exercise this privilege. Mary Myers was a new full-time bus operator and practicing Seventh Day Adventist. The Transit Authority scheduled her to work regularly on her Sabbath (Saturday), and Myers requested scheduling changes to accommodate her religious observance of the Sabbath. The Transit Authority refused Myers' request to split her days off because she lacked the seniority the collective bargaining agreement required. After other scheduling accommodations failed, the Transit Authority suggested that Myers find a fellow employee who was willing to trade shifts. Myers was unable to locate a co-worker willing to "swap" schedules, so she took unauthorized absences on her Sabbath.

The Transit Authority terminated Myers as a result of her unexcused absences. Myers subsequently filed a complaint with the State Division of Human Rights ("SDHR"). She claimed that both the Transit Authority and the Transport Workers Union violated Executive Law §296 (10)(a), which prohibits employers from discriminating against employees based on religious observances of the Sabbath. The SDHR found probable cause of a possible violation and ordered a hearing.

Testimony at the hearing revealed that 1) the Transit Authority's policy included accommodating Sabbath observers only if there was no extra cost, schedule disruption, or risk of labor strife, and 2) the Transport Workers Union would not waive any seniority rights to accommodate Sabbath observers nor would it recognize any voluntary schedule "swaps" the Transit Authority arranged. The SDHR held that both the Transit Authority and the union violated Executive Law §296 (10)(a) by failing to make a good faith effort to accommodate Myers. The SDHR further found that the Transit Authority and the union failed to make any arrangements for a voluntary exchange of shifts, that their collective bargaining agreement did not preclude these "swaps," and that the Transit Authority failed to prove that accommodating Myers' request would produce economic hardship or critical labor problems.

The Transit Authority then challenged the SDHR's findings in a CPLR Article 78 proceeding. The case was transferred from the Supreme Court, and the Appellate Division annulled the SDHR's decision. The Appellate Division found that the seniority provisions of the collective bargaining agreement precluded any realistic possibility of accommodating Myers and determined that the SDHR erroneously failed to acknowledge the seniority provisions.

ISSUE & DISPOSITION

Issues

1. Whether N.Y. Executive Law §296 (10)(a) applies to labor organizations.

2. Whether a collective bargaining agreement's seniority provision forecloses any realistic possibility of an employer accommodating an employee's Sabbath observance requirements.

Dispositions

1. No. New York Executive Law §296(10)(a) encompasses only employers' conduct because "labor organizations" and "employers" are defined separately in the Human Rights Law and only the term "employer" is used in §296(10)(a). Accordingly, the Court of Appeals determined that Myers' discrimination charges against the union should have been dismissed.

2. No. An employer must prove that it made a good faith effort to accommodate an employee's Sabbath observance requirements despite any provisions contained in a collective bargaining agreement. Accordingly, the Court of Appeals upheld the finding of the SDHR regarding the Transit Authority with costs to Myers against the Transit Authority.

AUTHORITIES CITED

Cases Cited by the Court

Other Sources Cited by the Court

Cases Relied on by the Dissent

Related Sources

  • Hiatt v. Walker Chevrolet Co., 837 P.2d 618 (Wash. 1992).
  • New York and Mass. Motor Serv. v. Massachusetts Comm'n Against Discrimination, 517 N.E.2d 1270 (Mass. 1988).
  • Pennsylvania State Univ. v. Pennsylvania Human Relations Comm'n, 505 A.2d 1052 (Pa. 1986).
  • Evans v. General Tire & Rubber Co., 662 S.W.2d 843 (Ky. Ct. App. 1983).
  • King v. Iowa Civil Rights Comm'n, 334 N.W.2d 598 (Iowa 1983).
  • Michigan Dep't of Civil Rights v. General Motors, Fisher Body Div., 317 N.W.2d 16 (Mich. 1980).
  • American Motors Corp. v. Department of Indus., 305 N.W.2d 62 (Wis. 1980).
  • Rankins v. Commission on Professional Competence of Ducor Union Sch. Dist., 593 P.2d 852 (Cal. 1979).
  • Olin Corp. v. The Fair Employment Practices Comm'n, 367 N.E.2d 1267 (Ill. 1977).
  • Henry Earl & James R. McPherson, Religious Discrimination in Employment: Employer's Duty to Accommodate Employee's Refusal to Work Scheduled Hours, 1987 Det. C.L. Rev. 765.

COMMENTARY

State of the Law Before New York City Transit Auth.

Under New York State's Human Rights Law, an employer may not "prohibit, prevent or disqualify any person from, or otherwise . . . discriminate against any person in, obtaining or holding employment, because of his observance of any particular day or days . . . as a sabbath . . . in accordance with the requirements of his religion." N.Y. Exec. Law §296(10)(a) (McKinney 1993).

In State Division of Human Rights v. Carnation Co., an employer took steps to accommodate a Seventh Day Adventist employee by switching the employee's days off. 42 N.Y.2d 873 (N.Y. 1977). The employer's action was contrary to the normal, established plant procedures. Consequently, the local union informed the employer that the two employees who had been replacing the complainant on Saturdays would no longer do so. The employer responded by transferring the complainant to a new job that did not require working on Saturday but paid less than his previous position. The Court of Appeals held that although Executive Law §296 (10)(a) requires employers to make reasonable accommodations to meet the religious needs of its employees, the accommodations should not be an undue hardship or jeopardize the employer financially. The court concluded that undue economic hardship does not require any threat or undermining of the economic stability of an enterprise; it is enough that palpable increase in costs or risk to industrial peace would result from accommodating the employee.

In Schweizer Aircraft Corp. v. State Division of Human Rights, complainant, a Sabbath-observing Seventh Day Adventist, was offered a position on the night shift. 48 N.Y.2d 294 (N.Y. 1979). He was not hired after he revealed that his religious beliefs prevented him from working sundown Friday until sundown Saturday. The foreman concluded that arranging a voluntary transfer of another employee from the day shift on Friday to the night shift on Friday was unworkable and decided not to hire the complainant. The foreman made this decision without attempting to contact an employee about transferring or determining whether the union would consent to such an accommodation. The court held that an employer's decision not to hire a candidate based solely on an officer's conclusion that accommodation is not possible is not a good faith effort. According to the court, an employer's good faith inquiry involves negotiating with the union or inquiring among employees. An employer is exempted from Executive Law §296 (10)(a) only when clearly prohibited from negotiating with the union or inquiring among employees by provisions of its collective bargaining agreement or unless it has unsuccessfully made inquiry so recently that it is clear that further inquiry would be fruitless. Schweizer, 48 N.Y.2d at 299.

Effect of New York City Transit Auth. on Current Law

The court first limits the scope of Executive Law §296 (10)(a) to "employers" only, concluding that it does not include "labor organizations" such as the Transport Workers Union. The court concludes that inclusion of unions within §296(10)(a) is a policy consideration which should be left to the legislature. Myers' claims against the union should have been dismissed because the statute only refers to "employers."

The Transit Authority argued that the provisions of the collective bargaining agreement excused it from the duty to accommodate Myers' special Sabbath needs. Myers contended that Executive Law §296 (10)(a) required the Transit Authority to actively dispute the union's position or even to seek arbitration on the effect of the seniority clause. The court finds both positions unconvincing, adopting instead a middle approach.

The court interprets the statute's use of the word "accommodate" to mean that the Transit Authority must give consideration to Myers' special needs regarding the Sabbath. However, the court also finds that accommodation does not necessarily require the Transit Authority to become Myers' advocate before the union. According to the court, requiring the Transit Authority to initiate adversarial proceedings against the union would be unduly burdensome since the court finds the collective bargaining agreement's seniority provision to be a neutral and fair method for allocating scarce benefits and privileges among employees. Consequently, requiring the Transit Authority to challenge the union's rational interpretation of the agreement would be unreasonable.

Nevertheless, the court declined to render Executive Law §296 (10)(a) toothless and holds that the Transit Authority did have a duty to take active and reasonable steps to accommodate Myers. The court finds that the Transit Authority had taken no such steps and listed possible steps the Transit Authority could have taken. These steps include attempting to negotiate an overall accommodation plan with the union for Sabbath observers, seeking to obtain a waiver from the union for Myers, or finding Myers another position that would not require her to work during the Sabbath. The Transit Authority failed to satisfy its burden to show that requiring Myers to work on the Sabbath was essential to prevent undue economic hardship because it could not demonstrate any action as evidence of a good faith attempt at accommodation.

Finally, the court declines to remand the matter for further consideration before the SDHR and holds that the Transit Authority should have come forward with all the proof that it had; it should not have relied solely upon the existence of the collective bargaining agreement to exonerate it of its duty under Executive Law §296 (10)(a). Allowing the Transit Authority to present new facts on remand would constitute a "second bite at the apple." New York City Transit Auth., 1996 N.Y. Int. 198 at para. 22.

Dissent

The dissent objects to the court's decision not to remand the matter. It points to the facts that the court removed the Transport Workers Union as a party and that the current record was insufficient to determine whether undue economic hardship would have occurred by accommodating Myers' beliefs.

According to the dissent, the majority overemphasizes the "accommodation" prong of the statute. The dissent characterizes the majority's list of possible steps that the Transit Authority could have undertaken as "retrospective judicial hypotheses." Id. at para. 28 (Bellacosa, J., dissenting). Rather than relying on those hypotheses, the court should have remanded the case to more fully develop the record as to whether those avenues, if undertaken, would have resulted in undue economic hardship. The dissent characterizes a remand as a "fair shake" rather than a "second bite." Id. at para. 30 (Bellacosa, J., dissenting).

Unanswered Questions

The court reasons that an employer must genuinely search for reasonable alternatives to discharge its duty to accommodate a Sabbath observing employee. However, the court does not clearly define the boundaries of a genuine search. Although an employer must take some type of positive action in order to conduct a genuine search, this decision does not substantially illuminate just how proactive an employer must be. For instance, it remains unclear whether it is sufficient for a supervisor to ask other employees if they would be willing to switch shifts or if merely posting a notice in a factory stating that an employee wants to trade shifts is enough. The court gives little guidance beyond listing specific examples of possible evidence that an employer could use to demonstrate a good faith search for reasonable alternatives.

Stating that an employer must explore reasonable alternatives implies that the employer must explore more than one form of accommodation. How many possible alternatives need to be explored? The court provides examples of the employer's possible alternatives; however, it remains unclear whether the employer should have examined all, some, or perhaps merely one of these alternatives when attempting to discharge its duty to accommodate a Sabbath observing employee. Furthermore, the court does not contemplate at what point, if any, the examination of further alternatives itself would rise to the level of undue economic hardship to the employer.

Survey of the Law in Other Jurisdictions

The Civil Rights Act of 1964 states that an employer may not discriminate against an employee due to the employee's religious beliefs. In 1972, Congress amended Title VII of the 1964 Act to allow an employer to demonstrate that accommodating an employee's religious practice will result in undue hardship to the employer. See Henry Earl & James R. McPherson, Religious Discrimination in Employment: Employer's Duty to Accommodate Employee's Refusal to Work Scheduled Hours, 1987 Det. C.L. Rev. 765. A number of states, including New York, have since passed statutes echoing the Civil Rights Act of 1964 and the 1972 amendments.

The "good faith" standard New York requires differs from the standards adopted by most states. Most states focus on the language of "reasonable accommodation." While some state courts have construed statutes as requiring "reasonable accommodation," none have defined a set standard for the term, relying instead upon a case by case analysis. See generally King v. Iowa Civil Rights Comm'n, 334 N.W.2d 598 (Iowa 1983) (stating that the employer must make affirmative efforts to accommodate an employee's religious beliefs and show that further requests for accommodation would create undue hardship). At least one state court without a statute to rely on read their state constitution as implicitly requiring reasonable accommodation by the employer. See Rankins v. Commission on Professional Competence of the Ducor Union Sch. Dist., 593 P.2d 852 (Cal. 1979) (holding that a school district acted in a discriminatory manner by firing a school teacher who was absent from work due to the observance of her religious beliefs).

Other state courts have refused to read a reasonable accommodation standard into their state statutes. See American Motors Corp. v. Department of Indus., 305 N.W.2d 62 (Wis. 1980) (holding that the Wisconsin statute does not require reasonable accommodation of an employee's absence from work for religious reasons); Michigan Dep't of Civil Rights v. General Motors, Fisher Body Div., 317 N.W.2d 16 (Mich. 1980) (determining that the state statute does not require reasonable accommodation by an employer for an employee's absence from work due to religious observances or practices). At least one state court has specifically refused to determine whether their state statute requires reasonable accommodation by an employer. See Hiatt v. Walker Chevrolet Co., 837 P.2d 618 (Wash. 1992).

A number of courts presented with cases similar to Myers' have held that an employer does not owe the employee accommodations other than those found in a collective bargaining agreement. Both Pennsylvania and Kentucky's highest courts have refused to require an employer to accommodate an employee who refused to work on the Sabbath when there was a controlling collective bargaining agreement. See Pennsylvania State Univ. v. Pennsylvania Human Relations Comm'n, 505 A.2d 1053 (Pa. 1986). (reasoning that reasonable accommodation was not possible where a collective bargaining agreement existed and the employee's refusal would create an undue hardship on other employees); Evans v. General Tire & Rubber Co., 662 S.W.2d 843 (Ky. Ct. App. 1983) (holding that the refusal of an employee's co-workers to substitute for him and the morale problems arising from attempts to accommodate employee's religious practices constituted undue hardship); Olin Corp. v. The Fair Employment Practices Comm'n, 367 N.E.2d 1267 (Ill. 1977) (finding that the existence of a collective bargaining agreement and a seniority system limited the employer's ability to make reasonable accommodations). The Massachusetts Supreme Court held that an employer owes more accommodations in a non-unionized situation than in a union situation. See New York and Mass. Motor Serv. v. Massachusetts Comm'n Against Discrimination, 517 N.E.2d 1270 (Mass. 1988) (ruling that a non-unionized employer has greater flexibility in reassigning employees for accommodation purposes than an unionized employer).

Prepared By:

  • Scott M. Davies, '97
  • John A. Jeziorski, '98
  • Anita J. Lee, '98
  • Marc E. Mangum, '97
  • Reese E. Solberg, '97
  • Joymarie Torres, '98