63 MARSHALL, J., dissenting To begin with, the record simply does not support the Court's assertion, made without accompanying citations, that "[t]here were no volunteers to relieve Hardison on Saturdays," ante, at 81. Everett Kussman, the manager of the department in which respondent worked, testified that he had made no effort to find volunteers, App. 136, and the union stipulated that its steward had not done so either, id., at 158.8 Thus, contrary to the Court's assumption, there may have been one or more employees who, for reasons of either sympathy or personal convenience, willingly would have substidays or Sundays," ante at 84 n. 15, is not only contrary to the record, which indicates that only one other case involving a conflict between work schedules and Sabbath observance had arisen at TWA since 1945, Tr. 312-314, but also irrelevant, since the real question is not whether such employees exist but whether they could be accommodated without significant expense. Indeed, to the extent that TWA employed Sunday as well as Saturday Sabbatarians, the likelihood of accommodation being costly would diminish, since trades would be more feasible. As a matter of law, I seriously question whether simple English usage permits "undue hardship" to be interpreted to mean "more than de minimis cost," especially when the examples the guidelines give of possible undue hardship is the absence of a qualified substitute, supra, at 85-86. I therefore believe that in the appropriate case we would be compelled to confront the constitutionality of requiring employers to bear more than de minimis costs. The issue need not be faced here, however, since an almost cost-free accommodation was possible. 7 Wilbur Stone, Director of Industrial Relations, Technical Service, at TWA confirmed Kussman's testimony. App. 157-158. In its Response to Plaintiff's Suggested Findings of Fact, TWA conceded that it "did not attempt to find a replacement for plaintiff." App. in No. 74-1424 (CA6), p. 191, 3 (1). 8 The Court relies, ante, at 78, on the District Court's conclusory assertion that "[a]ny shift or change was impossible within the seniority framework." 375 F. Supp., at 889. But the District Court also found that "TWA did not take part in the search for employees willing to swap shifts. . . and it was admitted at trial that the Union made no real effort." Id., at 888. Thus, the District Court's statement concerning the impact of "the seniority framework" lends no support to the Court's assertion that there were no volunteers. See also n. 10, infra. MARSHALL, J., dissenting 432 U.S. tuted for respondent on Saturdays until respondent could either regain the non-Saturday shift he had held for the three preceding months or transfer back to his old department where he had sufficient seniority to avoid Saturday work. Alternatively, there may have been an employee who preferred respondent's Thursday-Monday daytime shift to his own; in fact, respondent testified that he had informed Kussman and the union steward that the clerk on the Sunday-Thursday night shift (the "graveyard" shift) was dissatisfied with his hours. Id., at 70. Thus, respondent's religious observance might have been accommodated by a simple trade of days or shifts without necessarily depriving any employee of his or her contractual rights 10 and without Respondent lost the non-Sabbath shift when an employee junior to him went on vacation. The vacation was to last only two weeks, however, and the record does not explain why respondent did not regain his shift at the end of that time. 10 If, as appears likely, no one senior to the substitute employee desired respondent's Sabbath assignment or his Thursday-Monday shift, then the substitute could have transferred to respondent's position without depriving anyone of his or her seniority expectations. Similarly, if, as also appears probable, no one senior to respondent desired the substitute's spot, respondent could have assumed it. Such a trade would not have deprived any employee of seniority expectations. The trade apparently still would have violated the collective-bargaining agreement, however, since the agreement authorized transfers only to vacant jobs. This is undoubtedly what the District Court meant when it found that "the seniority framework" precluded shift changes. See n. 8, supra. Indeed, the first time in the District Court's opinion that such a finding appears, it is preceded by the finding that "there were no jobs open for bid." 375 F. Supp., at 884. Even if a trade could not have been arranged without disrupting seniority expectations TWA could have requested the Union Relief Committee to approve an exemption. The record reveals that the Committee's function was to ameliorate the rigidity of the system, App. 130, and that on at least one occasion it had approved a permanent transfer apparently outside the seniority system, id., at 144. 63 MARSHALL, J., dissenting imposing significant costs on TWA. Of course, it is also possible that no trade or none consistent with the seniority system-could have been arranged. But the burden under the EEOC regulation is on TWA to establish that a reasonable accommodation was not possible. 29 CFR § 1605.1 (c) (1976). Because it failed either to explore the possibility of a voluntary trade or to assure that its delegate, the union steward, did so, TWA was unable to meet its burden. Nor was a voluntary trade the only option open to TWA that the Court ignores; to the contrary, at least two other options are apparent from the record. First, TWA could have paid overtime to a voluntary replacement for respondent-assuming that someone would have been willing to work Saturdays for premium pay-and passed on the cost to respondent. In fact, one accommodation Hardison suggested would have done just that by requiring Hardison to work overtime when needed at regular pay. Under this plan, the total overtime cost to the employer-and the total number of overtime hours available for other employees-would not have reflected Hardison's Sabbath absences. Alternatively, TWA could have transferred respondent back to his previous department where he had accumulated substantial seniority, as respondent also suggested." Admittedly, both options would have violated the collective-bargaining agreement; the former because the agreement required that employees working over 40 hours per week receive premium pay, and the latter because the agreement prohibited employees from trans 11 The Court states, ante, at 83 n. 14, that because of TWA's departmental seniority system, such a transfer "would not have solved Hardison's problems." But respondent testified without contradiction that had he returned to his previous department he would have regained his seniority in that department, and thereby could have avoided work on his Sabbath. App. 70-71. According to respondent, the only objection that was raised to this solution was that it violated the rule prohibiting transfers twice within six months. Ibid. 12 MARSHALL, J., dissenting 432 U.S. ferring departments more than once every six months. But neither accommodation would have deprived any other employee of rights under the contract or violated the seniority system in any way. Plainly an employer cannot avoid his duty to accommodate by signing a contract that precludes all reasonable accommodations; even the Court appears to concede as much, ante, at 79. Thus I do not believe it can be even seriously argued that TWA would have suffered "undue hardship" to its business had it required respondent to pay the extra costs of his replacement, or had it transferred respondent to his former department." 13 What makes today's decision most tragic, however, is not that respondent Hardison has been needlessly deprived of his livelihood simply because he chose to follow the dictates of his conscience. Nor is the tragedy exhausted by the impact it will have on thousands of Americans like Hardison who could be forced to live on welfare as the price they must pay for 12 The accommodations would have disadvantaged respondent to some extent, but since he suggested both options I do not consider whether an employer would satisfy his duty to accommodate by offering these choices to an unwilling employee. Cf. Draper v. United States Pipe & Foundry Co., 527 F. 2d 515 (CA6 1975) (employer does not discharge his duty to accommodate by offering to transfer an electrician to an unskilled position). 13 Of course, the accommodations discussed in the text would have imposed some administrative inconvenience on TWA. Petitioners do not seriously argue, however, that this consequence of accommodation makes the statute violative of the Establishment Clause. Were such an argument to be made, our prior decision upholding exemptions from state-created duties, see supra, at 90, would provide a complete answer, since the exemptions we have sustained have placed not inconsiderable burdens on private parties. For example, the effect of excusing conscientious objectors from military conscription is to require a nonobjector to serve instead, yet we have repeatedly upheld this exemption. E. g., Selective Draft Law Cases, 245 U. S. 366, 389-390 (1918). See also Gallagher v. Crown Kosher Market, 366 U. S. 617, 627 (1961) (upholding law prohibiting private citizens from engaging in specified activities within a fixed distance from places of public worship). 63 MARSHALL, J., dissenting worshiping their God." The ultimate tragedy is that despite Congress' best efforts, one of this Nation's pillars of strength— our hospitality to religious diversity-has been seriously eroded. All Americans will be a little poorer until today's decision is erased. I respectfully dissent. 14 Ironically, the fiscal costs to society of today's decision may exceed the costs that would accrue if employers were required to make all accommodations without regard to hardship, since it is clear that persons on welfare cannot be denied benefits because they refuse to take jobs that would prevent them from observing religious holy days, see Sherbert v. Verner, 374 U. S. 398 (1963). |