Balint

Opinion by Judge T.G. NELSON; Dissent by Judge KLEINFELD.

This appeal presents the question of whether the existence of a bona fide seniority system obviates the duty to reasonably accommodate the religious needs of an employee pursuant to Title VIL We hold that the mere existence of a seniority system does not relieve an employer of the duty to attempt reasonable accommodation of its employees’ religious practices, if such an accommodation can be accomplished without modification of the seniority system and with no more than a de minimis cost. Because the district court granted summary judgment based on the mere existence of a seniority system and because there are genuine issues of material fact to be decided, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

Lisette Balint is a member of the Worldwide Church of God (“the Church”). A central tenet of the Church is the strict observance of the Sabbath from sundown Friday to sundown Saturday. The Church proscribes all forms of secular work during the Sabbath observance.

In February 1995, Balint was offered a position in the detention department of the Carson City Sheriffs Department (“the Department”). In mid-March,…

with whom BRUNETTI, KOZINSKI, and FERNANDEZ, Circuit Judges, join, dissenting in part:

I agree with the majority on the law, but disagree on the application of law to fact that results in a remand.

The majority holds that a bona fide seniority system does not relieve an employer of the duty to make reasonable accommodation, if that accommodation can be accomplished consistently with the seniority system and with no more than de minimis cost. I agree that that is a correct reading of Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 , 97 S.Ct. 2264 , 53 L.Ed.2d 113 (1977). The majority holds that because the seniority system in the case at bar prohibited employees from trading shifts on more than an emergency basis, requiring permanent shift trading to accommodate appellant’s religious beliefs would cause the City an undue hardship. That too is correct.

But the majority errs, in my view, in holding that there is a genuine issue of fact about whether “splitting shifts” to accommodate appellant’s religious beliefs would be an undue hardship for the City. What the majority means by “split shifts” is split days off, so that instead of a two day weekend, an employee would have two…