Perry JORDAN, Appellee, v. NORTH CAROLINA NATIONAL BANK, Appellant ( 1977 )

, ALBERT V. BRYAN, Senior Circuit Judge:

Perry Jordan complained in the District Court that the North Carolina National Bank practiced an employment discrimination against her because of her religion, in violation of the Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. Before voluntarily terminating her previous employment with the bank in 1969, she had become a Seventh Day Adventist, and in May 1970 she unsuccessfully sought reemployment with NCNB. Her failure, she charged, was the result of the bank’s refusal to allow her to observe the tenet of her sect forbidding work on Saturday, its Sabbath, that is, from sundown on Friday to sundown on Saturday.

Upon trial in March 1975 Jordan prevailed. The Court ordered the bank to offer Jordan the next vacancy in its Charlotte office, awarding her at the same time back-pay, attorney’s fees, expenses and costs. Decision rested on the finding that NCNB had made insufficient efforts to accommodate Jordan’s creed and so had deprived her of rights accorded by Title VII.^*

Appealing, the bank contends that her application stipulated that her employment must be accompanied by a “guarantee” that she would never be called upon to work on Saturday, and since the bank could not “make reasonable accommodations”-to this demand, NCNB was not in violation of the Act. We agree.

The District Judge failed to recognize the stipulation. This omission amounts to a “clearly erroneous” finding or an erroneous conclusion of law, for copious evidence established the proviso. It precludes a determination of fault on the bank’s part for, in our view, this demand of Perry Jordan could not be “reasonably” accommodated by her prospective employer at all and certainly not “without undue hardship”. Cf. Trans World Airlines v. Hardison, 432 U.S. at 72, 97 S.Ct. 2264.

The record fully discloses that this condition was repeatedly pressed by Jordan. On cross-examination she was asked and answered as follows (71 et seq.):

“Q. Well, did the bank offer you work?

A. If I would work on Saturday sometime. (Accent added.)

Q. And you wouldn’t do that?

A. No, sir, I would not work on Saturdays.

Q.....Is there any circumstance whatever under which you would work between sundown Friday afternoon and sundown Saturday?

A. No, sir.

Q. And you made that clear to Mr. Rainey [the employment manager]?

A. I did.

Q. And to Mrs. Bradshaw [personnel interviewer]?

A. I did.

Q. And further you told them that you had to have a guarantee in advance before you undertook a job that you would never be asked to work during that period of time?

A. That’s not quite right.

Q. Well, you testified in a deposition here sometime ago in this case, didn’t you?

A. Uh, huh.

Q. And I’ll hand you a transcript of that deposition and ask you to look at page 17, lines 14 through 17.

A. Okay.

Q. Have you read that?

A. Yes.

Q. In that you were asked this question, were you not? ‘Do you insist that an employer guarantee you in advance that you will never have to work on Saturdays under any circumstances whatsoever?’

A. Okay, I’m sorry, yes, I do insist that.

Q. And you said yes, that you do re- „ quire such a guarantee in advance.

A. Yes, sir.

Q. And that has been your position all along since you came there to reapply?

A. Yes.

Q. You weren’t willing to accept work and wait until a later day to see if arrangements could be made to relief you, or the nature of the case, or anything. You wanted this guarantee in advance.

A. Well, sir, nobody said they would later on excuse me from working on Saturdays.

Q. But I don’t think that’s exactly the question I had for you. My question was that no matter what circumstances arose you wanted them to guarantee you at that time without waiting for future events, guarantee you at that time that you would never be asked to work between sundown Friday, and sundown Saturday?

A. I think so.”

Later she re-emphasized her insistence upon a guarantee:

“Q. And here today, February of 1975, your position is the same, you would not take any job with this bank unless you had a blanket guarantee in advance that under no circumstance would you ever be called upon to work for this bank from Friday sundown to Saturday sundown?

A. Would you please tell me what you mean about a blanket guarantee?

Q. Just what I said, an overall, unrestricted guarantee that you would— there would be no circumstance under which you would ever be asked to work between sundown Friday and sundown Saturday.

A. I would not accept a job unless I was told that.

Q. Unless you had that guarantee?

A. That’s true, sir.

Q. And you want that guarantee in writing, really, don’t you?

A. No, I do not.

Q. But you want a solid guarantee?

A. I would like, yes, sir, to be told that I wouldn’t have to work on Saturday.

Q. A guarantee, not just told. The word had been guarantee. You want to be guaranteed that you will never be asked to work under any circumstance whatever. Those are the exact words of the deposition.

A. That’s true, sir.”

On recross-examination, she acknowledges that her exaction was the reason she was not employed:

“Q. Mrs. Jordan, Mr. Rainey told you that he could not guarantee that you may not be called on to work on some day under some circumstance on Saturday, isn’t that right?

A. He told me that he couldn’t — yes, that’s right.

Q. Couldn’t guarantee that you wouldn’t be called on under some circumstance on some Saturday to work?

A. Uh, huh.”

When Jordan sought a position in 1970, she was interviewed by Harris Rainey, then employment manager for the bank, and he testifies to what was said by each of them:

“Q. Would you tell us what transpired between you and the plaintiff on that occasion?

A. As I recall Mrs. Jordan requested a full-time position with the bank and at that time she asked that she be guaranteed that she would not be able to work on Friday after sundown until Saturday sundown.

Q. What was your response to that?

A. My response to that was that we would certainly try to accommodate her, we had never had a problem with that but we couldn’t give her a formal binding guarantee.

Q. And what was her response?

A. Her response was that she couldn’t accept the position on that basis.”

Subsequently this exchange between them was related by Rainey:

“Q. Did you ever deny her employment?

A. No, sir. As a matter of fact, we were — it was, as I recall — you didn’t ask this, but as I recall it was rather frustrating. We wanted to give her a job and we wanted to accommodate her and the reason we did is because she was a previous employee who had a good record, but because she wanted this absolute guarantee it was frustrating, we just couldn’t give her a position.”

Of his interview with Jordan, Rainey further stated:

“Q. Was there one or more than one thing that stood between her and employment or the lack of employment at your bank?

A. The only thing that stood between her lack of employment with the bank was the fact that she required an absolute guarantee and our feeling at that point was that we just couldn’t give anybody an absolute guarantee because of emergency situations that might come up and the fact that other people don’t have that same guarantee.”

Of particular importance is the query of the District Judge, during the examination of Perry Jordan, as to whether “there ever had been any serious conversation about employment on the basis that apparently you [attorney for the bank] have suggested at one time, that is, on the theory that we’ll [sic] everybody reserve his own principle and cross that bridge when we come to where the two principles absolutely conflict at a specific fact situation”. Counsel replied, without refutation by Jordan’s lawyer, that he had suggested that her employment be put on a trial basis, to ascertain if actually there was a problem of work on her Sabbath. The idea was not accepted.

During this colloquy the Court cryptically posed the controversy in this way:

“. . . . I suppose what you are talking about is that there was no refusal to hire but there was a refusal to guarantee, as your witness has described it .

MR. ALEXANDER [attorney for the bank]: That is exactly the case.

COURT: ... a refusal to guarantee that there never would be an issue arise about Saturday work.”

Jordan’s pre-requirement on its face was so unlimited and absolute in scope — never to work on Saturday — that it speaks its own unreasonableness and thus beyond accommodation. This is nonetheless true even though she might have been willing to accept a part-time job, for there emergencies are not inconceivable necessitating work on Saturday. Nor was she content simply to ask that in emergencies her religious preference be weighed and accorded, if possible. But the bank was unwilling to make a covenant that it could not perform and so create potential liability.

Moreover, the grant of this guarantee to Jordan would obligate the bank to provide it for all of its employees and entail extra expense. This would constitute an “undue hardship”, as the Court noted in Trans World Airlines, Inc. v. Hardison, 432 U.S. at 84, fn. 15, 97 S.Ct. 2264. As showing bad faith and discrimination by NCNB, Jordan alludes to its employment full-time of one, Elizabeth Woods, also a Seventh Day Adventist, with the promise to accommodate her belief if the need for work on Saturday arose. There is evidence that the same assurances were obtainable by Perry Jordan but she demanded far more. In reiterating her reply to her attorney’s question whether Rainey had offered her a job she testified, “Well if I would agree to work on Saturday sometimes there was a possibility that he could give me a job.” Again she told him, “. . .if there was any chance of working on Saturday I couldn’t take it.” As we have seen, “the only thing that stood between her and employment” was the absolute guarantee — an unjustifiable specification.

On the foregoing grounds we reverse the judgment now on review and enter final judgment for the appellant.

REVERSED WITH FINAL JUDGMENT.

* At the time of these 1970 occurrences Title VII, 42 U.S.C. § 2000e-2(a)(l) read as follows:

“(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; ”

Then coexistent, Regulation 1605.1(b), 29 CFR 1605 of the Equal Employment Opportunity Commission, as relevant, declared:

“(b) The Commission believes that the duty not to discriminate on religious grounds, . includes an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business. Such undue hardship, for example, may exist where the employee’s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer.”

This regulation was, in effect, approved and paralleled .by Congress in 1972 when to the same end it enacted 42 U.S.C. § 2000e(j) prescribing that:

“(j) 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.”

See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (June 1977).