Failure to Accommodate Cases

Massachusetts Bay Transportation Authority vs. Massachusetts Commission Against Discrimination & another. Suffolk. October 4, 2007. January 4, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ. Massachusetts Bay Transportation Authority. Anti-Discrimination Law, Employment, Religious beliefs. Religion. Employment, Discrimination. A judge in the Superior Court correctly affirmed a determination of the Massachusetts Commission Against Discrimination that the plaintiff employer had discriminated against a prospective employee in violation of G. L. c. 151B, § 4 (1A), where the employer failed to demonstrate that any possible accommodation of the prospective employee’s religious obligations would have constituted an undue hardship in the context of its operations, in that the employer failed to investigate the possibility of voluntary shift swaps to cover the prospective employee’s weekly absences due to his need for time off to observe his Sabbath. [334-341] Statement that requiring an employer to conduct an investigative or interactive process to determine whether accommodation of a prospective employee’s religious obligations would be an undue hardship on the employer was not itself an undue hardship, but an employer’s failure to engage in such an interactive process is not, in and of itself, a violation of G. L. c. 151B, § 4 (1A). [341-343] After determining that an employer had discriminated against a prospective employee in violation of G. L. c. 151B, § 4 (1A), by failing reasonably to accommodate the prospective employee’s religious obligations, the Massachusetts Commission Against Discrimination (commission) did not exceed its authority in ordering the employer to hire the prospective employee to the position for which he was qualified, where the commission reasonably could have concluded that the five-year litigation process sufficiently had investigated the extent of the prospective employee’s religious obligations and the possible avenues of accommodation. [343-344] Civil action commenced in the Superior Court Department on January 20, 2004. The case was heard by Geraldine S. Hines, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Mark W. Batten for the plaintiff. Gerald E. Katz for David Marquez. Beverly I. Ward for Massachusetts Commission Against Discrimination. The following submitted briefs for amici curiae: Todd R. McFarland, of Maryland, Charles M. Kester, of Arkansas, & Charles J. Eusey for General Conference of Seventh-Day Adventists. Rebecca Pontikes & Patricia A. Washienko for Jewish Alliance for Law and Social Action & others. Douglas Taylor, of Virginia, & John F. McMahon for Local 589 of the Amalgamated Transit Union. Mary T. Sullivan & Donald J. Siegel for Massachusetts AFL-CIO. David Marquez. Cordy, J. The Massachusetts Bay Transportation Authority (MBTA) appeals from a judgment of the Superior Court affirming a determination of the Massachusetts Commission Against Discrimination (MCAD) that the MBTA discriminated against a prospective employee, David Marquez, in violation of G. L. c. 15IB, § 4 (1A). More specifically, the MCAD determined that the MBTA failed reasonably to accommodate Marquez’s religious obligations when it refused to hire him as a part-time bus driver due to his need for time off to observe his Sabbath (Friday at sundown until Saturday at sundown). The principal basis for its determination was the failure of the MBTA to meet its statutory burden either to provide a reasonable accommodation for Marquez’s sincerely held religious beliefs or to demonstrate that any accommodation that the MBTA could have made would have posed an “undue hardship” on its operations. This failure of proof, in turn, the MCAD concluded, was largely the product of the MBTA’s failure to take any steps whatsoever to ascertain whether an accommodation was possible at the time, and evidence from MBTA employees suggesting the existence of a number of possibilities that went unexplored. We transferred the case to this court on our own motion. In its appeal, the MBTA presents three grounds on which it claims that the MCAD decision should be reversed: (1) requiring the MBTA to give Marquez Friday evenings off would have posed an undue hardship pursuant to G. L. c. 151B, § 4 (1A), or, alternatively would violate the establishment clause of the First Amendment to the United States Constitution,; (2) requiring the MBTA to engage Marquez in an interactive process for the purpose of identifying possible accommodation would likewise pose an undue hardship on the MBTA; and (3) the relief granted by the MCAD exceeded its authority. We affirm the Superior Court judgment, but not on all the grounds relied on by the judge. 1. Facts. The following material facts are not in dispute. Marquez is a practicing Seventh-Day Adventist, who serves as a deacon of his church in Cambridge. Consistent with the tenets of his religion, Marquez does not work on the Sabbath, which extends from sundown each Friday night to sundown each Saturday night. According to Marquez’s beliefs, he could be in transit home after sunset on Friday. He could not, however, work after sunset. He spends each Friday evening at home with his family, sharing Sabbath dinner, and spends each Saturday at his church. Former employers accommodated his religious obligations by allowing him to work on Sunday. In April, 1997, Marquez applied for a job with the MBTA. Throughout the application process, Marquez informed MBTA representatives that he was not able to work from sundown on Friday to sundown on Saturday. In May, Marquez passed a written examination to become a part-time streetcar operator, and on June 12, 1997, he was given a conditional offer of employment. That offer was contingent on the outcome of a criminal records check, a physical examination, and a drug screening test. On August 7, 1997, while his background checks were ongoing, Marquez expressed an interest in applying for the position of part-time bus operator. The manager of human resources for the MBTA informed Marquez that he would need a commercial driver’s license in order to become a bus operator. Shortly thereafter, Marquez obtained his commercial driver’s license. By late August, 1997, he had passed the preliminary screening, testing, and interview process. His physical examination, drug screening, and criminal records check all were unproblematic, and he was cleared for hiring. Marquez received his assignment to begin bus driver training on September 2, 1997. The training was scheduled to run from Tuesday through Saturday, which conflicted with Marquez’s observation of the Sabbath. Marquez notified an MBTA human resources representative of the conflict, who told him that she would “look into the issue.” Other than that one Saturday of training, working on Saturdays did not present any problem, as part-time bus operators work Monday through Friday, for a morning rush hour shift and then an evening rush hour shift each day. Friday evenings, then, became the point of conflict between Marquez’s Sabbath obligations and the requirements of his job. In early September, 1997, the MBTA notified Marquez that it could not grant his request to refrain from working on Friday evenings because of his religious beliefs and, therefore, would not extend an offer of employment. The parties agree that but for Marquez’s scheduling needs, he was qualified for the position of part-time bus operator. It is also undisputed that the MBTA never discussed with Marquez any possible accommodation. In the wake of the MBTA’s decision, Marquez suffered significant emotional distress. He felt that he was put in a position where he had to choose between his religion and his ability to work, and his choice made him question his faith. He took a hiatus from serving as a deacon in his church because he felt that he was an inadequate advocate for his religion. Marquez’s relationship with his wife began to deteriorate, and he began to drink and smoke cigarettes, in violation of his religious obligations. Only after a period of one and one-half years was he able fully to reembrace his religion. 2. Procedural history. On September 9, 1997, Marquez filed a charge of discrimination against the MBTA with the MCAD. He alleged that the MBTA discriminated against him on the basis of his religion by refusing to accommodate his religious observance of the Sabbath, in violation of G. L. c. 151B, § 4 (1A). The MCAD found probable cause to credit Marquez’s allegations and certified the case for a public hearing. A commissioner conducted a hearing on August 1 and 2, 2001. There was testimony from the manager of the human resources department at the MBTA that in 1997 the MBTA did not have a written policy regarding religious accommodation, but that the standard operating procedure was to ask for documentation supporting the request (which Marquez had provided), and to consult the legal department, the hiring department, the equal employment opportunity department, and the human resources department of the MBTA about potential accommodations. This process of consultation would include weighing factors such as the position the applicant was seeking and the impact any accommodation would have on operational needs, all of which would yield “some tangible evidence or documentation to support [the MBTA’s] decision.” There was, however, no evidence of any kind, written or oral, offered by the MBTA to establish that it engaged in such a process in response to the request made by Marquez. The MBTA’s chief transportation officer of bus operations testified at the MCAD hearing regarding the MBTA’s methods of covering for its many scheduled and unexpected employee absences. When there are insufficient drivers, he testified, the MBTA will use its “cover” list to fill in with relief drivers for any absent ones. If possible, the MBTA will also facilitate voluntary swaps among drivers to limit preventable absences. Although there was at the time a policy forbidding full-time drivers from swapping with part-time drivers, it was a “loose[ly]” enforced policy, and approximately thirty full-time drivers (who would have worked out of the same garage as Marquez) worked on Sundays and not on Fridays, and would have been in a position to swap shifts with Marquez if they chose to do so. There was also testimony that, if necessary, the MBTA would pay other operators overtime to cover for an unmanned route, or even leave the vacant shift uncovered. There was no evidence that any of these methods for covering employee absences was considered by the MBTA in response to Marquez’s request for accommodation. After the hearing, the commissioner issued a written decision, including detailed findings of fact and conclusions of law. The commissioner found that there were a number of possible means by which Marquez’s religious beliefs could have been accommodated, including coverage by relief drivers (over which management retained a measure of discretion), or through the use of overtime workers, or by leaving the Friday evening shift uncovered, or by allowing voluntary swaps between part-time and full-time drivers. Notwithstanding these possible accommodations, the MBTA offered no evidence to show that it explored any of them, but had concluded, without investigation, that an accommodation of Marquez’s beliefs was not feasible. Consequently, the hearing commissioner found, the MBTA had “refused to even attempt a good faith effort to accommodate [Marquez]” and did not meet its burden of proving undue hardship pursuant to G. L. c. 151B, § 4 (1A). The commissioner awarded Marquez $50,000 for emotional distress and ordered the MBTA to hire Marquez for the position for which he was qualified in 1997, if Marquez still desired to pursue it. The MBTA appealed from the commissioner’s decision to the full commission. The MBTA did not contest that Marquez was qualified to be a part-time bus operator or the commissioner’s finding that, despite a loose policy to the contrary, voluntary swaps between part-time bus operators and full-time operators happened frequently. Instead, the MBTA claimed that any accommodation that would have allowed Marquez to leave his bus route early every Friday evening would have caused undue hardship. Therefore, the MBTA contended, it did not need to engage Marquez in an interactive process to ascertain his religious obligations more fully and whether they could be reasonably accommodated. Indeed, the MBTA asserted that requiring such a process would itself be an undue hardship. The full commission affirmed the commissioner’s findings and order of relief, similarly concluding that the MBTA had not sufficiently demonstrated that accommodating Marquez’s religious beliefs would cause it an undue hardship. The MCAD also went further, interpreting the reasonable accommodation language of G. L. c. 151B, § 4 (1A), to require that an employer engage in an interactive process with its employee once the employer is notified of an employee’s conflicting religious obligation, and concluding that the MBTA’s failure to engage in such a process with Marquez was itself a separate violation of the statute. As the MCAD found, “the reasonable accommodation language . . . give[s] rise to a concomitant obligation on the part of an employer to engage in a meaningful dialogue with an employee in order to investigate fully whether a particular accommodation can be made.” The MCAD affirmed the relief granted by the commissioner and awarded $53,550 in attorney’s fees to Marquez. Pursuant to G. L. c. 30A, § 14, the MBTA appealed from the MCAD’s decision to the Superior Court. A Superior Court judge affirmed the decision of the MCAD, concluding that the MBTA had failed to demonstrate that the possibility of reasonably accommodating Marquez was foreclosed. Modes of accommodation, the judge observed, such as voluntary swaps and the use of relief drivers, may have been available to accommodate Marquez, and the MBTA failed to show that those options would have constituted an undue hardship. The judge noted that no MBTA official consulted with union officials regarding any possible accommodations (shift selections and swaps), and no employees were consulted regarding their willingness to swap shifts with Marquez. Additionally, the judge found that the payment of overtime to an employee to cover Marquez’s Friday evening shift would not impose an undue hardship on the MBTA, but that requiring the MBTA to leave a shift uncovered as an accommodation to Marquez’s schedule would impose such a hardship. The judge found ample evidence to support the MCAD’s finding that the MBTA should have conducted an interactive individualized inquiry seeking to accommodate Marquez, and that such an inquiry is required unless a reasonable accommodation clearly is impossible, which was not the case here. Last, the judge found that the relief ordered by the MCAD, including the award of attorney’s fees, was within the commission’s discretion. 3. Discussion. We will affirm a decision and order of the MCAD unless its findings and conclusions are unsupported by substantial evidence or are based on error of law. See G. L. c. 151B, § 6; G. L. c. 30A, § 14 (7); School Comm. of Brockton v. Massachusetts Comm’n Against Discrimination, 423 Mass. 7, 11 (1996); New York & Mass. Motor Serv., Inc. v. Mas sachusetts Comm’n Against Discrimination, 401 Mass. 566, 572 (1988). We begin by noting that the commissioner’s findings (adopted by MCAD) that Marquez established a prima facie case of religious discrimination in violation of G. L. c. 151B, § 4 (1A), and that the MBTA failed to take any steps to accommodate him or even to investigate whether any of a number of potential accommodations was possible without incurring undue hardship, are amply supported in the record. We now turn to the MBTA’s two central assertions of error. First, the MBTA asserts that the MCAD’s conclusion that it failed to prove that any possible accommodation would have been undue hardship was incorrect as a matter of law. Second, the MBTA asserts that any accommodation of Marquez would have imposed more than a de minimis cost on it in violation of the establishment clause. In applying G. L. c. 151B, § 4 (1A), the MCAD and the Superior Court judge properly looked to the familiar three-part inquiry that is applied when religious discrimination is alleged. New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra at 575-576. Initially, the employee bears the burden of proving that the employer required him to violate a religious practice compelled by his sincerely held belief. Id. See Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 137 (1st Cir. 2004), cert. denied, 545 U.S. 1131 (2005) (applying same analysis in context of amended statute). The employee must also demonstrate that he provided his employer with the required advance notice of his religious obligation (ten days). G. L. c. 15IB, § 4 (1A). Once the employee establishes these prerequisites, the burden shifts to the employer either to accommodate the complainant or “to prove that accommodation of the complainant’s religious obligations would impose on the employer an undue hardship as defined by the statute.” New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra at 576. In determining whether this burden has been met, the MCAD must focus on the particular nature and operations of the employer’s business. Id. Additionally, the MCAD must inquire “whether the employer could have exercised its managerial discretion in such a way that the employee’s religious obligations could have been reasonably accommodated.” Id. The burden here, then, is on the MBTA to demonstrate that any possible accommodation of Marquez’s religious beliefs would have constituted an undue hardship in the context of its operations. An employer’s mere contention that it could not reasonably accommodate an employee is insufficient, G. L. c. 151B, § 4 (1A); New York & Mass. Motor Serv., Inc. v. Massachusetts Comm’n Against Discrimination, supra, as is its mere speculation. See Brown v. General Motors Corp., 601 F.2d 956, 960 (8th Cir. 1979) (under parallel protections of Title VII of Civil Rights Act of 1964, “employer stands on weak ground when advancing hypothetical hardships in a factual vacuum”). The statute offers four express examples of undue hardship. G. L. c. 15IB, § 4 (1A). The term includes the “inability of an employer to provide services which are required by . . . federal and state laws.” If the employee’s absence would “unduly compromise[]” public health or safety, then accommodation is unreasonable. Similarly, an employer is not required to accommodate the absence of an irreplaceable employee “where [that] employee’s presence is indispensable to the orderly transaction of business.” Last, if the employee’s presence is “needed to alleviate an emergency situation,” his absence will be considered undue hardship. The list of examples is not exhaustive. Cloutier v. Costco Wholesale Corp., supra at 138. Rather, it illustrates the types of accommodation that constitute excessive interference with an employer’s business affairs under the statute. Id. The term “undue hardship” is the same term used in Title VII of the Civil Rights Act of 1964 regarding Federal protections from religious discrimination. 42 U.S.C. §§ 2000e(j), 2000e-2(a)(1) (2006). The United States Supreme Court has interpreted the inclusion of the “undue hardship” provision in Title VII to mean that an employer may not be required to bear more than a de minimis cost to accommodate the religious beliefs of an employee. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). Although the Massachusetts undue hardship standard in G. L. c. 151B is “notably different” and all