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