TOMMIE ANN HILDEBRAND, Plaintiff and Respondent, v. UNEMPLOYMENT INSURANCE APPEALS BOARD et al., Defendants and Respondents; CEL-A-PAK, INC., Real Party in Interest and Appellant, 19 Cal. 3d 765

Opinion RICHARDSON, J.

Section 1256 of the Unemployment Insurance Code (all statutory references are to that code unless otherwise indicated) provides in pertinent part that “[a]n individual is disqualified for unemployment compensation benefits if the director finds that he left his most recent work voluntarily without good cause . . . .” In the matter before us defendant Unemployment Insurance Appeals Board (board) denied plaintiff’s application for unemployment benefits on the ground that she left her last employment “voluntarily without good cause” within the meaning of the section.

Plaintiff then sought judicial review of the board’s action through a petition for administrative mandamus (Code Civ. Proc., § 1094.5), contending that since her employment was terminated by reason of her bona fide religious objections to working on Saturdays, denial of benefits was improper as an unconstitutional interference with her freedom of religion. The trial court agreed with plaintiff and ordered the board to grant her application.

Plaintiff’s employer, real party in interest Cel-A-Pak, Inc., appeals. (An employer, such as Cel-A-Pak, has a direct interest in the unemployment compensation benefits paid to former employees since such benefits are charged against the employer’s account which is fed by the employer’s contributions (§ 1026).) We will conclude that plaintiff properly was denied unemployment benefits because she had accepted employment with Cel-A-Pak with full knowledge of the Saturday work requirement.

When she subsequently refused to perform such work, accordingly, she must be deemed to have left work voluntarily without good cause. Plaintiff was first employed by Cel-A-Pak in 1966 as a trimmer working at a vegetable packing plant in Salinas. Her employment was seasonal, commencing in April and extending through the following January. Cel-A-Pak employees customarily worked a six-day week from Monday through Saturday, and occasionally on Sundays when the condition and volume of the vegetables so required.

In 1970 plaintiff became a member of the Worldwide Church of God, one tenet of which prohibited working on a Saturday which is recognized by the church members as a Sabbath day. At this time plaintiff discussed her religious beliefs with her employer, and she was excused from Saturday work during the entire 1970 and 1971 seasons. Apparently, some coworkers complained of plaintiff’s “favored” treatment, and prior to the 1972 season Cel-A-Pak advised her that henceforth she, along with all the other employees, would be required to perform Saturday work.

Plaintiff agreed to do so and did work each Saturday during the 1972 season. ■ At the commencement of the 1973 season, Cel-A-Pak posted a notice to all of its employees, stating that “Because of unpredictable weather conditions and the irratic [sic] way in which cauliflower matures, it is necessary for the company to require its employees to work six days a week and occasionally even on Sundays and holidays.

Your employer cannot control mother nature and must maintain its quality standards by harvesting and packing on all days required to by this very perisable [j/c] crop.” Plaintiff informed her superior that she no longer could work on Saturdays, but she was told that she would not be excused from doing so. Following this discussion, plaintiff worked for three days (none of them a Saturday), became ill and took a 60-day sick leave. She returned on June 11 or 12 and was told that the plant would be operating on Saturday, June 16.

Plaintiff informed her supervisor that she would be in church on that day and, when she failed to report for work, Cel-A-Pak replaced her. Following an administrative hearing, the referee concluded that plaintiff had left Cel-A-Pak voluntarily without good cause, finding that “. . . the claimant accepted employment in 1973, as well as in 1972, knowing that a condition of the employment required her to work six and perhaps seven days a week .... [T]he claimant herein exercised her freedom of choice in accepting a call to work for the 1973-1974 season, being fully aware of the conditions of her employment.

She should not now in good faith be permitted to raise her religious convictions as good cause for leaving a job she knew, or should have known, she could not fulfill.” The board adopted the foregoing findings and conclusions. The trial court, on the other hand, reviewed the administrative record and concluded that the denial of unemployment benefits to plaintiff violated those principles announced by the United States Supreme Court in Sherbert v. Venter (1963) 374 U.S. 398 [10 L.Ed.2d 965, 83 S.Ct. 1790].

The trial court found that plaintiff’s religious beliefs were bona fide, and concluded that the state could not force plaintiff, in the court’s language, “to choose between following the precepts of her religion and forfeiting benefits on the one hand, and abandoning one of the precepts of her religion and work on Saturday on the other hand.” Our analysis of Sherbert v. Verner, supra, however, leads us to a contrary conclusion. In Sherbert, an applicant for unemployment benefits refused, on religious grounds, to accept employment with firms which required Saturday work.

Under the applicable South Carolina law, a claimant was ineligible for such benefits if he or she had failed without good cause to accept available suitable work, and the state agency denied benefits on that basis.

The high court reversed, holding that the state’s ineligibility rule forced the claimant to choose between “following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” (374 U.S. at p. 404 [10 L.Ed.2d at p. 970].) The court emphasized that since the state’s “suitable work” rule had the effect, under the circumstances of Sherbert, of abridging the free exercise of religious beliefs, that rule was invalid unless supported by a compelling state interest.

The state’s asserted interest in discouraging fraudulent claims for unemployment benefits was held not “compelling.” Sherbert is distinguishable from the present case. In Sherbert the high .court examined the circumstances under which a prospective employee refused without good cause “to accept available suitable work.” Although California imposes a similar “suitable work” requirement upon claimants (§ 1257), the legality of that statute is not before us. Instead, measuring the constitutionality of

section 1256, we must determine whether plaintiff, having initially accepted employment, thereafter left work “voluntarily without good cause.” The public policy underlying

section 1256 has been recognized both statutorily and judicially. By denying unemployment benefits to one who has voluntarily terminated employment without good cause, the state promotes a valid purpose in assuring that unemployment benefits are reserved “for persons unemployed through no fault of their own, and to reduce involuntary unemployment and the suffering caused thereby to a minimum.” (§ 100; see Zorrero v. Unemployment Ins.

Appeals Bd. (1975) 47 Cal.App.3d 434, 439 [120 Cal.Rptr. 855].) Unlike the situation in Sherbert, the state in the matter before us has not forced plaintiff to choose between her religious principles and her financial needs, as a condition to receipt of unemployment benefits.

Under Sherbert, plaintiff clearly would have been permitted to refuse employment with Cel-A-Pak without risking any loss of unemployment benefits for she would not have rejected “available suitable work.” However, plaintiff acceded to Cel-A-Pak’s insistence upon Saturday work, served the entire 1972 season on that basis, and commenced the 1973 season knowing of Cel-A-Pak’s continued policy requiring Saturday work.

The conclusion is inescapable that, in doing so, plaintiff voluntarily assumed employment which she knew would conflict with her religious principles, and thereafter voluntarily quit her employment when the conflict proved unavoidable. We emphasize the critical difference in the two cases. As illustrated by, and rejected in, Sherbert the condition of work imposed upon the initial employment required an impermissible sacrifice of conscience.

In the matter before us, the condition was knowingly and voluntarily accepted, work commenced, and a change of mind and heart thereafter ensued, doubtless motivated by the very deepest and most sincere of impulses.

Although there are no California cases directly on point, cases from states having comparable statutory provisions have held uniformly that one who knowingly accepts employment involving a condition which subsequently proves unsatisfactory cannot thereafter claim “good cause” for voluntarily terminating that employment because of a later unwillingness to continue to meet the condition. (See Department of Industrial Relations v. Scott (1951) 36 Ala.App. 184 [53 So.2d 882, 884]; Oliver v. Creamer Heating & Appliance (1966) 91 Idaho 312 [420 P.2d 795, 799]; Friloux v. Administrator, Div. of Emp.

Sec. of D. of L. (La. 1962) 136 So.2d 99, 101; In re Sellers (1961) 13 App.Div.2d 204 [215 N.Y.S.2d 385, 387]; Lirakis v.

Unemployment Compensation Bd. of Review (1.961) 194 Pa.Super. 342 [168 A.2d 647, 648].) The applicable principles were well expressed in Friloux, as follows: “To constitute good cause the circumstances attending the final termination of the employment must be compelling and necessitous and not merely because the applicant is dissatisfied with conditions that he well knew existed at the time he accepted the employment.” (P. 101, italics added.) In other words, an employee cannot “. . . take a job and use that job for the necessary qualifying period of employment, and then, for no reason not present in the first instance, voluntarily quit and receive unemployment insurance benefits.” (In re Sellers, supra, 215 N.Y.S.2d at p. 387, italics added.) While conceding that the foregoing cases do not involve termination of employment for religious reasons, we conclude that the underlying rationale of those cases is equally persuasive here within a different context.

In Stimpel v. State Personnel Bd. (1970) 6 Cal.App.3d 206, 209-210 [85 Cal.Rptr. 797], the issue was the propriety of the absence from work of a state civil service employee because of religious scruples against Saturday employment.

The appellate court observed: “[I]f a person has religious scruples which conflict with the requirements of a particular job ... he should not accept employment or, having accepted, he should not be heard to complain if he is discharged for failing to fulfill his duties.” We conclude that the foregoing principle has similar application to, and force in, the present case within the private sector.

After plaintiff voluntarily accepted employment, knowing that the Saturday work condition conflicted with her religion, she may not thereafter reject the condition, suffer discharge, and receive unemployment benefits charged against the employer’s reserve account claiming that she left work with good cause. In conclusion, we note that

section 1256.2, effective January 1, 1976, provides in pertinent part that “An individual who terminates his employment shall not be deemed to have left his most recent work without good cause if his employer operated so as to deprive him of equal employment opportunities because of that individual’s . . . religious creed, . . . except that this

section shall not apply: [1Í] (

a) To a deprivation based upon a bona fide occupational qualification . . . .” It has been recently suggested that

section 1256.2 “can only be regarded as declaratory of existing rather than new law.” (Prescod v. Unemployment Ins. Appeals Bd. (1976) 57 Cal.App.3d 29, 41, fn. 19 [129 Cal.Rptr. 540].) The parties herein have not discussed the application of

section 1256.2 to the present controversy. Assuming, however, that the principles underlying the

section applied to a case arising prior to its enactment, nevertheless it seems apparent that the

section would not avail a person such as plaintiff who voluntarily and knowingly accepted employment in conflict with his or her religious tenets. Furthermore, it is certainly arguable that Cel-A-Pak’s requirement of Saturday work was a “bona fide occupational qualification” under subdivision (

a) of

section 1256.2, since that requirement was evidently dictated by the perishable nature of Cel-Á-Pak’s crop. (Although the question of Cel-A-Pak’s compliance with, the Civil Rights Act of 1964 is not before us, the United States Supreme Court in Trans World Airlines, Inc. v.

Hardison (1977) — U.S. —, — [53 L.Ed.2d 113, 131, 97 S.Ct. 2264], recently held that employers are not required by the act’s provisions either to incur more than de minimis additional costs in attempting to accommodate the religious preferences of their employees, or to discriminate against some employees in order to enable others to observe a Saturday sabbath.) In view of our holding herein, we need not consider Cel-A-Pak’s further contention that the payment of unemployment benefits to plaintiff under the circumstances in this case would amount to a religious preference prohibited by the constitutional restraint against the establishment of religion. (U.S.

Const., 1st Amend.; Cal. Const., art. I, § 4.) The judgment is reversed. Tobriner, Acting C. J., Clark, J., Sullivan, J., Taylor, J., and Sims, J.,f concurred. Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council. Assigned by the Chairman of the Judicial Council.