Working on the Sabbath

The federal law banning job discrimination on grounds of race, religion or sex has a nice ring of fairness. But in practice, an employee's religious beliefs may conflict with the wishes of other workers, and how is an employer to resolve a dispute of this sort? Although the amended Civil Rights Act of 1964 orders employers to make "reasonable accommodations" to an employee's religious needs, it carefully avoids being specific about what would be reasonable. And for good reason. Some legal experts believe that any detailed blueprint on how to avoid religious discrimination would put the law in violation of the First Amendment's ban on Government establishment of an official religion--or even in violation of a citizen's right to have no religion at all. Twice before, in 1971 and 1976, the U.S. Supreme Court addressed this potential conflict, and both times it deadlocked 4 to 4.

At issue in a decision last week was the case of Larry G. Hardison, who became a member of the Worldwide Church of God while he was employed as a clerk at a Trans World Airways maintenance base in Kansas City, Mo. The Worldwide Church, founded in 1934 by Herbert W. Armstrong, now has some 50,000 U.S. members, who are adjured to follow kosher laws, celebrate Passover (but not Christmas), and strictly observe the Sabbath on Saturdays rather than Sunday* TWA tried to accommodate Hardison by changing his schedule, but that eventually brought him into conflict with the seniority system worked out in conjunction with his union, the International Association of Machinists--/.-L-., employees who had been there longer got first choice on weekend days off. Hardison then asked for a four-day week, which would have obliged the company to pay a replacement at overtime rates for weekend work. Instead, in 1969 it fired Hardison, and Hardison sued.

Last week, in a 7 to 2 decision, the Supreme Court sidestepped the constitutional problems in the case, but it dealt what dissenting Justice Thurgood Marshall called "a fatal blow" to most of the means of enforcing the Civil Rights Act in religious cases. The majority decision, written by Byron White, said that many employees had "strong but perhaps nonreligious reasons for not working on weekends," and that the law cannot be construed to "require an employer to discriminate against some employees in order to enable others to observe their Sabbath." White said there was no objection to employers and employees working out accommodations in such cases (for Sundays as well as Saturdays), but he added that there was no need for the employer to suffer "undue hardship" or to spend more than minimal money and effort in the process.

In dissent, Justice Marshall argued that the decision "seriously eroded" the nation's "hospitality to religious dissent." Said he: "A society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job." In recent years, however, the court has consistently leaned toward separation of church and state. On one hand, it forbade civil authorities to require Amish children to attend public schools until the age of 16; on the other, it has knocked down all new attempts to finance parochial schools with public funds. Says Virginia Law Professor A.E. Howard: "The Burger court has virtually written the book on religious freedom. This court has shown no reluctance to tackle these First Amendment problems with a constitutional theory firmly in mind."

* Among the U.S. denominations that observe a Saturday Sabbath: Jews, Seventh-day Adventists and Seventh-day Baptists.

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