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Olin v. Fair Employment Practices Com.

OPINION FILED SEPTEMBER 20, 1977.

OLIN CORPORATION, APPELLEE,

v.

THE FAIR EMPLOYMENT PRACTICES COMMISSION ET AL., APPELLANTS.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. Victor J. Mosele, Judge, presiding.

MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

The question presented here concerns the claimed duty of an employer, under section 3(a) of the Fair Employment Practices Act (Ill. Rev. Stat. 1969, ch. 48, par. 853(a)), to reasonably accommodate to an employee's religious beliefs which prohibit him from working on Saturdays. The Illinois Fair Employment Practices Commission found that Olin Corporation had unlawfully discriminated against Leon Burl McEvers, in that it failed to reasonably accommodate to his religious beliefs. The circuit court of Madison County reversed the Commission's order and the appellate court affirmed (34 Ill. App.3d 868). We allowed petitions for leave to appeal filed by the Commission and McEvers under Rule 315 (58 Ill.2d R. 315).

The evidence presented to the Commission's hearing officer showed that McEvers was hired by Olin in 1964 and after training in an apprentice program was assigned to the midnight to 8 a.m. "graveyard shift" as a general machinist. His duties involved maintenance of Olin's production equipment and the fabrication of replacement parts in the shop. Olin staffed each shift with a sufficient number of general machinists to maintain the production equipment. In determining the number of general machinists to assign to each shift, Olin considered such factors as the normal absences of employees due to vacation, illness and personal problems. There were seven or eight general machinists permanently assigned to the "graveyard shift," which was approximately half of the number on each of the other two shifts. While occasional absences of employees for personal reasons were permitted, Olin did not permit any employee to be absent on a regular basis every week. Overtime work at busy periods, if not voluntarily accepted by an employee, became mandatory in order of seniority with the junior employees being the first required to do overtime work. An employee who refused to accept overtime work would be discharged.

McEvers was a member of District No. 9, International Association of Machinists and Aerospace Workers, and membership was a condition of his employment. At all times concerned here the union and Olin had a collective bargaining agreement which governed the terms and conditions of employment. Under this agreement all positions were governed by seniority without regard to religious beliefs. Each shift was staffed according to the seniority provisions of the agreement, and where there were vacancies on a shift they were filled by the employee with the greatest seniority who had bid for the position. So far as the regular work schedules of employees were concerned, absences were not allowed for the purpose of observing the Sabbath. It was because of McEvers' low rank in seniority that he was assigned to the least popular "graveyard shift."

In 1969 McEvers began receiving instructions in the teachings of the Seventh-day Adventist Church. According to the record, the church teaches that the Sabbath begins at sundown on Friday and continues until sundown on Saturday, and it is a period which may not be spent in secular work. At the time of his discharge by Olin, McEvers had not yet become a baptized member of the church, since he had not been able to give up smoking, an activity proscribed by the church. The Reverend A. John Graham, the pastor of the church attended by McEvers, described McEvers' status in the church as that of an "interested party."

In October of 1969 McEvers informed his foreman of his beliefs in the teachings of the church and requested to be excused from his Friday-night shift. At the time, everyone on his shift was working a regularly assigned six-day workweek. This request was refused, and McEvers then asked Reverend Graham to speak with management personnel of Olin concerning an accommodation which would allow McEvers to observe the Sabbath. Through Reverend Graham, McEvers advised Olin that he was willing to (1) work at other times at regular pay to make up for his loss of time, (2) secure a substitute to work his Saturday shift or, (3) work a four-day week, Monday through Thursday, until such time as he had developed sufficient seniority to bid successfully for a position on another shift. McEvers' situation was also discussed by Reverend Graham with the union, which informed Olin by letter on November 5, 1969, that it would not waive any involved rights under the collective bargaining agreement. Later the union also informed the Commission's investigator that it would hold Olin to the "letter of the agreement."

In November of 1969 McEvers informed his supervisor that he would no longer work his Saturday-morning shift. After being absent on two consecutive Saturdays he was informed by his supervisor that he would be dismissed if these absences continued. On Friday morning, December 5, 1969, he was told to report to Superintendent Richard Glassey, who informed McEvers that if he did not report for work that Saturday he would be dismissed for insubordination. McEvers was further advised that Olin had considered possible accommodations but had rejected them. Glassey explained that the position could not remain vacant on Saturday mornings, since that would result in an insufficient number of machinists to perform the necessary maintenance services during the shift. The alternatives of filling the vacancy by holding another employee from the previous shift or having one report early and then "doubling over" were rejected since such employees would receive overtime compensation that would cost Olin $1,000 in increased salary expenses in the course of a year. Trading shifts with another employee was rejected since this would violate the seniority provisions of the collective bargaining agreement, rights which the union would not waive.

McEvers informed Glassey he had attempted to bid on jobs for a shift that would resolve his problem but had been unsuccessful because of his low seniority. He had not attempted to secure a voluntary replacement to work for him on Saturday mornings. Glassey suggested that McEvers work his regular Saturday-morning shift until the time he had developed seniority sufficient to bid successfully for another shift or until he found employment elsewhere.

Later that day McEvers telephoned Glassey and requested that any decision be deferred for another week. Glassey refused, and McEvers informed Glassey he would not report for work on Saturday. When McEvers reported for his next regular shift he was given a disciplinary and discharge notice which stated that his dismissal was on the ground of insubordination.

The Commission ruled that although Olin had not intentionally discriminated against McEvers because of his religion, it had committed an unfair employment practice by failing to take steps to reasonably accommodate to McEvers' religious beliefs. Its order stated:

"1. A preponderance of the evidence sustains the complaint filed herein.

2. That Respondent shall re-employ Complainant as a general machinist, and if no other accommodation be agreed upon between the parties that Complainant shall work a four day shift until such time as his seniority shall entitle him to bid for a job or shift that does not conflict with his religious beliefs.

3. That Respondent shall pay to Complainant an amount equal to the difference between Complainant's actual earnings from the date of his termination and the amount he would have received had he worked a four day week for Respondent, together with interest at the legal rate of six percent from the date of termination. The amount due Complainant shall be computed until such time as Complainant is offered re-employment as provided in paragraph 2 above.

4. That Respondent instruct all of its supervisory personnel in Illinois in writing of the provisions of the Illinois Fair Employment Practices Act, and ...


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