Reid v. Memphis Publishing Company Appellant's Brief

    IN THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT 

NO. 72-1088

McCANN L. REID,

Plaint iff-Appellant,

v s .

MEMPHIS PUBLISHING COMPANY,

Defendant-Appellee.

Appeal from the United States District Court 
for the Western District of Tennessee 

Western Division

APPELLANT'S BRIEF

JACK GREENBERG
WILLIAM L. ROBINSON 

10 Columbus Circle 
New York, New York 10019

LOUIS LUCAS
Ratner, Sugarmon, Lucas & Willis 

525 Commerce Title Building 
Memphis, Tennessee 38103

DAVID CAYWOOD
100 North Main Building 
Memphis, Tennessee 38103

Attorneys for Plaintiff-Appellant



INDEX

Page

Statement of the Questions Presented.......................  1

Statement of the C a s e ......................................  2

Statement of Facts...........................................  4

Summary of Argument.....................   7

Argument

I. The District Court erred in holding that 
defendant's conduct did not constitute, 
as a matter of law, a violation of Title 
VII1s proscription against discrimination 
in employment on the basis of religion........... 9

II. The court below erred in holding that 
plaintiff, who was the victim of 
defendants racially discriminatory prac­
tices, was not entitled to back pay................  2 1

Conclusion....................................................  2 3

Certificate of Service.......................................  24
Appendix......................................................  la

TABLE OF CASES

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th
Cir. 1 9 6 9 ) .............................................  15,22

Dewey v. Reynolds Metals Co., 429 F.2d 324 (6 th
Cir. 1970) ................................  8,9,17,18,19,20,21

Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . .8,9,14,15,17
18,19,21

Pettway v. American Cast Iron Pipe Co., ___
F. Supp. ___ (N.D. Ala., Mar. 18, 1970),
4 EPD Para. 76 51 .......................................  2 3

Robinson v. Lorillard Corp., 444 F.2d 791 (4th
Cir. 1 9 7 1 ) ............................................. 15,20

Sprogis v. United Air Lines, 444 F.2d 1194 (7th
Cir. 1 9 7 1 ) .............................................  23

l



Page

Tedford v. Airco Reduction, Inc., ___ F.2d ___ ,
(5th Cir., Feb. 1, 1972), 4 EPD Para. 7654 ............. 23

United States v. Bethlehem Steel Corp., 446 F.2d
652 (2nd Cir. 1971).................................... 15,16,20

United States v. Jacksonville Terminal Co.,
451 F. 2d 418 (1971)................................... 15,20

Weeks v. Southern Bell Telephone Co., 408 F.2d 228
(5th Cir. 1969).......................................  15

STATUTES

Civil Rights Act of 1964, Title VII

42 U.S.C. §706 ( e ) ...........................................  2

42 U.S.C. §706 (g) ...........................................  22

42 U.S.C. §2000e et seq...................................... 2

42 U.S.C. §2000e-5 ( g ) .......................................  22

EEOC Guidelines on Religious Discrimination,
§1605.1 (a); 29 C.F.R. 1605.1 ............................  10

1 1



IN THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT 

No. 72-1088

McCANN L. REID,

Plaintiff-Appellant,

vs.
MEMPHIS PUBLISHING COMPANY,

Defendant-Appellee.

Appeal from the United States District Court 
For the Western District of Tennessee 

Western Division

APPELLANT'S BRIEF

Statement of the Questions Presented

1. Whether the District Court erred in finding no viola­

tion of Title VII where evidence of defendant's unwillingness 

to make any accommodation for plaintiff's religious practices 

was unaccompanied by proof of "hostility" or "personal animosi 

toward Seventh Day Adventists."

2. Whether the District Court erred in ruling that 

defendant’s offer of a job to plaintiff eradicated plaintiff's 

claim to back wages for the two years preceding the offer 

during which time, the Court held, plaintiff was denied 

employment by defendant on the basis of his race.



Statement of the Case

This is an appeal from a final judgment of the United 

States District Court for the Western District of Tennessee 

entered August 13, 1971 dismissing plaintiff-appellant's,

McCann L. Reid, claim that the defendant-appellee, Memphis 

Publishing Company refused to employ plaintiff because of his 

religion and race in violation of Title VII of the 1964 Civil 

Rights Act, 42 U.S.C. §2000e e_t seq.

On October 28, 1967, plaintiff filed a timely written 

charge of discrimination against the defendant, Memphis Pub­

lishing Co., with the Equal Employment Opportunity Commission 

(hereinafter "EEOC"), alleging that the defendant had denied 

him employment because of his religion and his race, in viola­

tion of Title VII of the Civil Rights Act of 1964. On August 

29, 1968, the EEOC found reasonable cause to believe that viola­

tions of the Act by the defendant had occurred; and by letter 

dated November 14, 1968 advised the plaintiff that pursuant to 

Section 706(e) of the Act, he had thirty days following receipt 

of said letter in which to institute a civil action in federal 

district court. Plaintiff filed his complaint on December 2, 

1968.
The case was tried on July 21, 1971, before the Honorable 

Robert M. McRae, Jr., Judge of the United States District Court 

for the Western District of Tennessee, Western Division.

In his findings of fact and conclusions of law entered on 

August 13, 1971, Judge McRae found:

2



"There being an established policy on the 
par t o f the Memph L s Pross-Scimitar that all 
of its employees lie available to work on 
Saturday, and there being no duty on the part 
of an employer to accommodate an employee's or 
potential employee's religious belief contrary 
to the employer's established and required work 
schedule, the court concludes that religious 
discrimination has not been established by the 
plaintiff's proof, and concludes, therefore, 
that the defendant has not been guilty of a 
violation of the Civil Rights Act of 1964 for 
a refusal to hire plaintiff because of discrimi­
nation based on religion. Dewey v. Reynolds 
Metals Company, supra.

There is no proof that there was any 
hostility on the part of defendant because of 
plaintiff's chosen religion. There is no proof 
that the editor, or managing editor of the Press- 
Scimitar or any other employee of the defendant 
in a managerial capacity held any personal 
animosity toward Seventh Day Adventists. The 
problem arose merely because plaintiff's 
religious belief required a change of policy and 
practice on the part of the Press-Scimitar that 
it was not willing to make, and was not required 
to make in order to comply with the Civil Rights 
Act. Or, to state it another way, the failure 
of the defendant to accommodate plaintiff's 
religious belief was not discrimination against 
plaintiff because of his religion." (A. 241a- 
242a)

On the issue of racial discrimination, Judge McRae 

concluded,

"In fact, the court believes that there is 
evidence that racial discrimination existed 
prior to the time that the plaintiff was 
offered this job. However, the court does 
not believe that this entitles the plaintiff 
to a judgment for any damages, nor does it 
require an injunction as sought by the complaint, 
the court being of the opinion, and so finding, 
that any such policy of racial discrimination 
was corrected at the time this job was tendered 
to the plaintiff, if not before." (A. 242a)

Plaintiff filed his notice of appeal to this Court on 

September 7, 1971. (A. 245a)

3



Statement of Facts

Plaintiff-appellant, McCann L. Reid, is a black male,

47 years of age, and a member of the Seventh Day Adventist 

religious faith.

Defendant-appellee is the Memphis Publishing Company, 

which owns and operates two newspapers in Memphis, Tennessee; 

the Memphis Press-Scimitar and The Commerical Appeal. The 

Press-Scimitar is an afternoon paper publishing every day 

except Sunday. The Commercial Appeal is a morning paper, 

publishing every day including Sunday.

Except for their respective editorial departments, all 

operations of the Memphis Press-Scimitar and The Commerical 

Appeal are functionally integrated (A. 95a-96a). At the time 

of this suit, there were 70 employees in the editorial depart­

ment of the Memphis Press-Scimitar, all of whom were white, 

except for one morgue assistant and one copy clerk ("office 

boy," A. 126a) who were black. The editorial department of 

the Commercial Appeal had 114 employees, 5 of whom were black 

(A. 62a-6 3a) .

These figures were not the result of accident or chance. in 

Plaintiff-appellant's interrogatory No. 14, defendant-appellee 

was asked whether subsequent to January 1, 1950, the publishing 

company ever utilized "any rule, procedure, custom or practice 

which restricted employment to white persons" (A. 61a). They 

responded as follows:

4



"Prior to the effective date of the Civil 
Rights Act of 1964, this company had no 
formal rule or procedure against hiring 
non-whites. As a practical matter, however, 
the company followed the custom of the area 
in generally hiring only white persons in 
jobs other than custodial or truck driving 
jobs. This was dictated in part by the fact 
that very few qualified Negroes made applica­
tion for white collar jobs prior to the 
effective date of the Civil Rights Act."
(A. 61a)

Plaintiff-appellant originally applied on June 22, 1965,

for employment as a reporter with the Memphis Press-Scimitar

(A. 34a). The plaintiff had more than seven years of prior

journalistic experience, and was at that time the editor of the

Tri-State Defender, a weekly newspaper in Tennessee (A. 25a-26a).

Plaintiff was referred to the personnel office by the managing

editor, Mr. E. W. Ray, and was there given the Wonderlic test.

Although plaintiff scored in the 195th percentile on this test

(A. 61a), he was never notified about any job openings during
1/

the next two years (A. 34a-35a).

During that period, plaintiff made several inquiries 

about openings, but was told of none (A. 34a-36a). During this 

same approximate period, that is, from January 1, 1966, through 

July 31, 1969, there were 5 vacancies for reporters and 2 for 

copy readers at the Press-Scimitar. Some of those hired were

\J The district court found this test to be a "meaningless 
gesture" which was "never intended to be relied upon" in the 
appellee's hiring process (A. 234a). Mr. Ray did not learn 
what appellant had scored on the test until after this 
present suit had commenced (A. 200a).

5



never given the pre-employment test (A. 154a); others hired 

scored in the 44th to the 95th percentile (A. 64a-68a). All 

of those hired to fill these positions were white (A. 63a-69a).

On or about October 1, 1967, plaintiff returned again to 

inquire about a job with the appellee, and this time was 

referred to Mr. Luther Southworth, News Editor and chief of the 

copy desk of the Press-Scimitar. Upon arrangement with Southworth, 

plaintiff worked on the copy desk for a complete day, and was 

told by Southworth before he left that his work had been "very 

good", and that Southworth would recommend that because of his 

expertise, appellant should enter as a "third year man." (A. 84a) 

Ray informed plaintiff that he would be hearing from the paper 
"real soon" (A. 40a).

Plaintiff heard nothing, and after several weeks, telephoned 

Ray. Ray instructed plaintiff to make an appointment to see 

Mr. Charles Schnieder, Editor of the Press-Scimitar (A. 40a-41a).

The meeting with Schneider occurred on Friday, October 13, 

1967, and plaintiff was offered a job as a copy reader (A. 41a).

At the end of the discussion the fact that plaintiff was a 

Seventh Day Adventist and thus could not work on Saturdays was 

confronted. After consultation with Ray, Schneider decided 

that this would be a "major obstacle" (A. 42a-43a).

The plaintiff was told that the policy of the Press- 

Scimitar was that all employees be available for Saturday work, 

although no employees were specifically required to work that 

day (A. 92a-93a), which was the easiest day of the week in terms 

of workload, number of editions, and number of pages published

6



(A. 90a).

Plaintiff contacted Ray and Schneider several weeks 

later, and was informed that if he could not be available for 

work on Saturdays, he could not have the job as copy reader.

Defendant's management testified that it would have been 

possible to schedule appellant with Saturdays off, but that it 

would have been "extremely difficult" (A. 116a). if such 

rescheduling were performed, two men would have had their days- 

off switched, and three other employees would have required 

some work schedule changes. All of the men working as copy 

readers were capable of doing more than one job, and were 

competent enough to be taught any of the three basic functions 

required of persons in that position (A. 92a-93a). Rescheduling 
was therefore feasible.

Schneider also testified that at the point where he found 

out that appellant was a Seventh Day Adventist and could not 

work on Saturday, he "washed out the idea immediately" of hiring 

him "unless he could perform on our schedule like the rest of 

the members of the staff" (A. 115a). Because plaintiff was 

unable, due to religious conviction, to work or be available 

for work on Saturday, he was denied employment with the appellee.

Summary of Argument

The court below erred in holding that employers are not 

required by Title VII of the Civil Rights Act of 1964 and EEOC 

regulations to make reasonable accommodation for the religious 

observances of employees. The court further erred in holding

7



that no violation of Title VII is established absent proof of 

specific and personal animosity by individuals acting as agents 

of the employer against the employee and/or his co-religionists.

The court should have concluded instead that the job which 

plaintiff sought did not in fact necessitate his presence or 

availability for work on Saturdays. To the extent that some 

copy editors were required to work on Saturday, substantial 

evidence established that other employees who were not Sabbatarians 

could be given that assignment. The defendant was under a duty 

to offer a rearrangement of work schedules of his incumbent 

employees in order to accommodate appellant's religious observance 

where, as here, such rearrangement was not negated by business 

necessity.

The court below did not require the defendant to establish 

that the seven day work availability requirement was justified 

as a business necessity or bona fide occupational qualification. 

Testimony adduced at trial, however, demonstrated that no such 

necessity could be proven. Therefore, in this instance, a non­

job related criterion which had a discriminatory impact on a 

religious observer was maintained without a showing of business 

necessity to justify its utilization. That in itself is a 

violation of Title VII, and no showing of specific prejudice or 

subjective intent is required. Griggs v. Duke Power Co., 424 

U.S. 401 (1971).

This case is not governed by Dewey v. Reynolds Metals Co.,

429 F.2d 324 (1970) relied on by the court below as the mainstay 

of its decision. New EEOC Guidelines on religious discrimination

8



Duke Power Co. supra, decidedand the decision in C.riqqs v . 

subsequent to this Court's decision in Dewey, mandate employer 

efforts to accommodate an employee's religious practices.

This case is distinguishable on its facts from Dewey, and even 

under the Dewey standard, the decision below should be reversed.

The court below held that although plaintiff had been the 

victim of defendant's racially discriminatory employment policies 

for a period of at least two years, defendant's subsequent offer 

of a job erased plaintiff's claim for back wages. That decision 

departs from the well established case law on this question and 

should be reversed.

ARGUMENT 

I.
The District Court erred in holding that 
defendant's conduct did not constitute, 
as a matter of law, a violation of Title 
VII's proscription against discrimination 
in employment on the basis of religion.

A. The court below erred in holding that defendant was 

under no duty to make any accommodation for plaintiff's religious 

practices and that no discrimination was proven in the absence 

of a showing of religious animus or subjective intent.

The standards used by the court below in making its findings 

of fact and conclusions of law with respect to plaintiff's claim 

of religious discrimination are diametrically opposed to the 

text and spirit of Title VII of the 1964 Civil Rights Act, the 

EEOC Guidelines, and recent court decisions on this statute.

9



In making its findings, the court below stated that the Civil 

Rights Act of 1964 was not a statute which involved any 

"affirmative duty" by the defendant (A. 231a). Furthermore,

the court found that:
"[t]he problem arose merely because 

plaintiff's religious belief required a 
change of policy and practice on the part 
of the Press-Scimitar that it was not 
willing to make and was not required to 
make in order to comply with the Civil 
Rights Act." [p. 5 of Findings of Fact 
& Conclusions of Law] (emphasis added)

In so holding, the court absolutely ignored the EEOC Guidelines

which are pertinent here. Section 1605.1(a) of the Guidelines

is addressed to the precise question presented in this case,

i.e., what standard applies in deciding whether a violation

of Title VII has occurred where an employer refused to hire an

employee who is unavailable for work on his Sabbath day. The

guideline provides that
" . . .  the duty not to discriminate on 
religious grounds, required by Section 703 
(a) (1) of the Civil Rights Act of 196 4, 
includes an obligation on the part of the 
employer to make reasonable accommodations 
to the religious needs of employees and 
prospective employees where such accommoda­
tion can be made without undue hardship on 
the conduct of the employer's business."

Furthermore, "the employer has the burden of proving that an

undue hardship renders the required accommodation to the religious

needs of the employee unreasonable. 29 C.F.R. §1605.1. In

comparing these standards to those enunciated by the district

court, it is evident that they are in direct conflict.

10



1. Defendant made no effort to accommodate 
appellant's religious practice despite 
evidence that such accommodation was 
entirely practicable.

The defendant adduced no evidence at trial that any 

accommodation had been even considered by the Company or 

offered to plaintiffs because the court below held that no 

accommodation was necessary, it never reached the question of 

the point at which accommodation of plaintiff's religious 

observance would cause an undue hardship on the employer's 

business operation.
However, evidence offered by defendant through its manage­

ment demonstrated that accommodation of appellant's religious 

practice was indeed possible without undue hardship. Briefly 

stated, copy editors (the position for which appellant applied) 

appear for work early in the morning and during the first 

three hours of the day, prepare copy for publication in that 

day's editions of the newspaper (A. 78a-79a). Luther Southworth,

News Editor of the Press-Scimitar, testified that Monday and 

Wednesday were the hardest days to get out the paper, thus 

requiring the most work from the copy readers. Saturday was 

actually the easiest day as only two out of the usual three 

editions were published (A. 77a-78a). The following colloquy 

occurred between plaintiff's counsel and Mr. Southworth:

Q: "And it is your testimony, as I understand
it, that there is just no way you could 
have worked any of the other men around so 
Mr. Reid would have only had to work Monday 
through Friday?

A: It probably could have, but it would mean
maybe moving two other men to different days 
off, and it would upset the scheduling of

11



like three men that are competent to do 
one job." (A. 91a-92a)

Mr. Charles Schneider, Editor of the Press-Scimitar, 

likewise testified when asked whether it would be reasonably 

possible to hire an employee who observed the Saturday Sabbath, 

that it would indeed be possible but "extremely difficult"

(A. 115a-116a). He went on to describe the difficulty which 

would be caused by noting that senior men tend not to want to 

work on Saturday and their wishes, due to their seniority, are 

taken into account. Mr. Schneider noted by example, "One of 

our senior members is a farmer in Germantown and he likes to 

have his Saturdays to work on the farm, and the newer ones 

[employees] have to take whatever days are available" (A. 116a).

When Mr. Schneider was questioned regarding the seniority

preferences for days off, he assured the court that the Guild

contract contained no provision whatever guaranteeing senior

employees day off preferences (A. 116a, 137a). Thus it was

defendant's practice of accommodating other employee's work
1/

preferences that stood in the way of hiring appellant. Resort 

to such an informal policy cannot be adequate justification 

for ignoring the mandate of Title VII and EEOC's Guidelines.

2/ Cf. EEOC Decision No. 72-0606, Para. 6310 [Making reasonable 
accommodation to one employee's religious beliefs would not 
amount to unlawful discrimination against other employees whose 
religious beliefs do not require accommodation.]

12



2. There was no evidence submitted to prove 
that the seven-day work availability 
requirement was in fact job related.

The record contains ample evidence that the company's 

management asserted that all copy editors should be available 

for work every day (A. 92a-95a, 117a, 187a). There is scant 

evidence, however, that the requirement was job related. To 

the extent that the court below found to the contrary, that 

finding is completely without factual support in the record.

The EEOC investigators found that over a specified test 

sample period, no copy editor was ever asked to work overtime 

on his day off. Those who were not scheduled to work on 

Saturday did not work on Saturday. Despite that empirical 

evidence, appellee's Managing Editor staunchly maintained that 

all copy editors must be available every day of the week.

A. ". . . You can have the job the same as
anyone else has a 30b here, you are 
subject to work any of the seven days a 
week that is necessary. Sometimes we 
have this paper on Sunday if we have a 
disaster, they come in any other time, 
but we cannot set a (precedent) of 
guaranteeing anybody of this staff any 
particular day off."

*  *  *

Q. "If you had, nevertheless, employed Mr.
Reid with that restriction that he placed 
on the employment, namely, that he could 
not work on Saturday, nevertheless if you 
had employed him, would that have worked 
any hardship on the company?

A. "Well, I would say it would, because we have 
veterans on the staff there. We have a 
contract with the newspaper Guild,3/ and if

3/ It was elsewhere admitted by appellee's management (A. 116a), 
that there were no day-off provisions in the Guild contract.
Days off were established by management alone and were solely a 
matter of informal custom and privilege.



we had given special privilege to one 
person we would open ourselves up to 
special privileges for all the other 
seventy people on the staff . . . and we
still have plant rules, as far as you 
must be available seven days a week if it 
is necessary.

Q. "Do you publish seven days a week?

A. "We publish six days, but we have reporters 
and photographers and things of that sort 
when we don't publish." (A.187a, 189a-190a)

Hypotheses about disasters and seven day work schedules 

are insufficient grounds for maintaining a job criterion which 

has been found, upon investigation, to be unrelated to real 

job requirements. While there is evidence that some persons 

do work on Saturday, there is no significant evidence that 

supports the employer's assertion that all copy editors must be 

available for Saturday assignments or that the requirement is 
justified as a matter of business necessity.

3. Maintainance of the requirement of seven- 
day work availability was not justified 
as a business necessity.

Even if the appellee could have demonstrated that all of 

its current copy editors do work some Saturdays, the employer's

burden of proof would not have been met.
4/

Griggs v. Duke Power Co., 401 U.S. 424 (1971) teaches 

that more than some job related purpose is required as

4/ The Griggs case was a race discrimination case. There is 
nothing in that decision, however, or in Title VII itself, which 
suggests that the rule to be applied in measuring an employer's 
conduct in the context of Section 703 of the Act is other than 
the same in race, sex, religion, or national origin contexts.

14



justification for maintainance of an employment requirement 

that disqualifies a disproportionate number of protected minorities. 

Practices fair in form but discriminatory in operation are disallowed 

by the Act. The touchstone, the Court held, is business necessity. 

401 U.S. at 431. Thus, courts have consistently outlawed, as 

violative of Title VII, practices which although facially neutral 

have a discriminatory impact and are not required as a matter of 

business necessity. See Griggs v, Duke Power Co., Supra; Local 189 

v. U.S., 416 F .2d 980 (5th Cir. 1969); Robinson v. Lorillard,

444 F.2d 791 (4th Cir. 1971); United States v. Bethlehem Steel Corp.,

446 F. 2d 652 (2d Cir. 1971); Cf Bowe v. Colgate Palmolive Co.,

416 F.2d 711 (7th Cir. 1969); Weeks v. Southern Bell Telephone Co.,
5/

408 F.2d 228 (5th Cir. 1969).
Cases decided since Griggs have further refined the 

standard of proof required of an employer who wishes to perpetuate 

on business necessity grounds, a discriminatory policy. The 

Fifth Circuit held in United States v. Jacksonville Terminal Company, 

451 F.2d 418, 451 (1971) that the employer is required to show

not only that a particular employment criterion promotes the safe 

and efficient operation of the business but rather that the 

practice is essential to those goals. See also Uhited States v . 

Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir. 1971) and Robinson

v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971).

5/ Bowe and Weeks strictly interpret the statutorily permitted 
bona fide occupational qualifications exemption. This case involves 
the judicially created "business necessity" doctrine which without 
a statutory basis should be strictly construed.

15



In the instant case, no showing was made that plaintiff's 

availability for work on Saturdays was essential to the efficient 

operation of appellee's business. At most, management testified 

that it would be inconvenient to rearrange incumbent employees' 

schedules to accomodate plaintiff's religious observance. De­

fendant's Managing Editor asserted that accomodating plaintiff 

might open the way for other employees to request special privi­

leges. (A. 189a). However, similar predictions of employee 

discontent have been discounted in other instances where pro­

tecting complainants' rights would not only upset established 

practice but would further be in direct conflict with the plant's 

labor contract. In Bethlehem Steel, supra, the Second Circuit 

stated that,

"Assuming arguendo that the expectations of 
some employee will not be met, their hopes 
arise from an illegal system . . . .  If re­
lief under Title VII can be denied merely 
because the majority group of employees, who 
have not suffered discrimination, will be 
unhappy about it, there will be little hope 
of correcting the wrongs to which the Act is 
directed." 446 F.2d at 663.

The court below erred in its conclusion that the Title VII 

standard was met by a showing that the defendant was "not willing" 

to alter its stated requirement that all copy editors must be 

available for work all days of the week. The employer's duty is 

measured not by his willingness to change his rules but by his 

ability to do so. In this case, the requirement of seven day 

work availability was shown to have little or no relationship 

to the actual needs of the employer. Even if some copy editors

16



were needed for Saturday, there was no evidence that all 

editors were needed for work on Saturday. The employer was 

not held to the standard of proof of Griggs and its progeny 

on the questions of job relatedness and business necessity.

Nor was defendant held to the standards of the applicable EEOC 

Guidelines on accommodating religious practices of employees.

Mr. Schneider, when asked what he did or though of doing upon 

learning of plaintiff's religious practices, stated flatly,

"I washed out the idea [of hiring plaintiff] immediately unless 

he could perform on our schedule like the rest of the members of 

the staff." R. 103-104. On the record of this action, the court 

below erred in failing to find that the seven day work avail­

ability requirement was not job related; and for the same 

reasons, the court also erred in finding that the availability 

rule was essential to the employer's business. Finally, the 

court erred in holding that absent evidence of specific animosity 

toward or subjective intent to discriminate against plaintiff's 

persuasion, no violation of Title VII resulted from the employer's 

unwillingness to make any accommodation of plaintiff's religious 

observance. The decision below is incorrect as a matter of law 

and should be reversed.

B. This Court's decision in Dewey v. Reynolds Metals Co.,

429 F.2d 324 (1970) is distinguishable from the instant case 

on its facts and as a matter of law.

The court below cited Dewey as authority for the proposi­

tion that there is ". . .no duty on the part of an employer to

17



accomodate an employee's or potential employee's religious 

belief contrary to the employer's established and required work 

schedule. . ." (A. 230a) Dewey however, was decided upon the

basis of pre-1967 EEOC Guidelines and prior to the Supreme Court's 

decision in Griggs, supra. It should not be not controlling in this 

case.

1. Prior to July, 1967, Section 1605.1 of the Guidelines 

provided that an employer should make reasonable accomodation 

for "reasonable religious needs" of employees if the accomodation 

could be made without "serious inconvenience" to the employer's 

operations. The Commission further stated specifically that the 

employer was free to establish a normal work week requiring all 

employees to be available to work on Saturday even if doing so had 

a disparate impact on the religious observances of his employees. 

That regulation was in effect at the time material to the Dewey 

decision.
In September or October of 1967 (A. 231a) when appellant

was told that he must be available for Saturday work or be denied 

employment, new EEOC guidelines were in effect. As described 

above, the guidelines require a much greater effort by an employer 

to accomodate an employee's religious observance. In the 1967 

Guidelines, the Commission specifically advises employers to 

attempt to arrange schedules so that non-Sabbatarians may work 

in place of religious observers. Unlike the earlier guidelines, 

the present Section 1605.1 does not give a blanket sanction to 

an unlimited work availability requirement. Thus the Dewey ruling 

on the old EEOC guidelines is outdated and not applicable here.

18



The EEOC guidelines are, of course, entitled to the traditional 

deference courts give an agency entrusted with the responsibility 

of administering the Act. See Griggs, supra. 429 F.2d 334 (1970).

2. The Dewey court, on the petition for rehearing, suggested 

that the Act and the Guidelines were inconsistent insofar as the 

Guidelines mandated accomodation to employees' religious obser­

vances. It must be noted first, that the Dewey court described 

approvingly the efforts which the employer there had made to 

adjust his rules and accomodate Dewey's religious practice. 

Complete neutrality or obliviousness to the employee's religious 

requirements even in Dewey was not the standard.

Further, the Court in Dewey merely held that the Guidelines 

should not be construed to require an employer to accede to 

all of the religious beliefs of all his employees. (429 F.2d at 

334-335) Dewey did not hold that religious beliefs could be 

ignored. Even the minimal accomodation required by the 1966 

Guidelines and by the Dewey decision was not offered plaintiff.

Finally, Griggs v, Duke Power Co., supra, has laid to rest 

the notion that Title VII does not require the accomodation man­

dated by the EEOC Guidelines. Again, Griggs holds that a job 

related criterion for employment which has a discriminatory 

impact on a protected minority may be maintained only upon a 

showing of business necessity. Under that standard, Dewey 

is distinguishable from the instant case.

In Dewey, the employer established a real need to have 

employees available to work on Sundays. As noted earlier,

19



no such need was established by defendant here. More importantly, 

in Dewey, the employer was willing to allow the complainant to 

pursue his religious beliefs if he performed the administrative 

burden of securing a readily available replacement for his 

Sabbath assignments. Not even this accomodation was contemplated 

here. (A. 114a-115a)

The Court in Dewey found that an offer of further accomodation 

of Dewey's religious practices would have led to unequal admini­

stration of the collective bargaining agreement and could lead

to "chaotic personnel problems" and "grievances and additional
6/

arbitrations." In short, the Court ruled that refusal by the 

employer to make further accomodation for Dewey was essential 

to the efficient operation of the employer's business. See 

United States v. Jacksonville Terminal Co.; Uhited States v . 

Bethlehem Steel Corp., and Robinson v. Lorillard Corp., supra.

There is no basis in fact for reaching the same conclusion 

in the instant case. There is evidence in the record which 

demonstrates that someone other than plaintiff could have worked 

on the copy on Saturday. Copy editors have areas of speciali­

zation. Their work assignments, therefore, are designed to achieve 

a distribution of specializations on each publishing day. (A. 8 6a) 

In order to insure that plaintiff would not be required to work

6/ In United States v. Bethlehem Steel Corp., 446 F.2d at 663 
and Robinson v. Lorillard, 444 F.2d at 799, the Second and Fourth 
Circuits ruled that even these upheavals in an employers' 
operations were not obstacles to the imposition of an order 
granting relief to a wronged protected minority.

20



on Saturdays, management need only have assigned him a 

speciality in an area with other employees who were available 

for Saturday work. Defendant news editor testified that some 

copy editors have several specialties and that specialties are 

easily learned (A. 92a). Management, without any contract 

obligation, was free to set work schedules (A. 91a). The 

company's own witnesses testified that a schedule which accom­

modated plaintiff could have been arranged (A. 91a-92a, 116a). 

Under the rationale of Griggs and the ruling of Dewey, again 

defendant in this case have not met his Title VII obligation 

to plaintiff Reid.

II.

The court below erred in holding that 
plaintiff, who was the victim of defendants 
racially discriminatory practices, was not 
entitled to back pay.

The court below held that plaintiff was not employed by 

defendant between June, 196f and September-October, 1967,

because of appellant's race. Despite plaintiff's experience
7/

and obvious qualifications, he was not hired while seven jobs 

for which he was qualified were filled (between January 1, 

1966 and July 31, 1969) by seven white persons. Defendant 

even stated in its answer to interrogatories, that although 

the company had no formal rule against hiring non-whites 

prior to July, 1965, "[a]s a practical matter . . . the

7/ See Statement of Facts regarding appellant's test score and 
journalistic background as compared with those persons hired.

21



company followed the custom of the area in generally hiring 

only white persons in jobs other than custodial or truck 

driving jobs" (A. 61a). This custom clearly continued in 

effect between 1965-1967 when plaintiff repeatedly returned 

to the company inquiring about available positions and was 

told of none. The court below held that the offer of a ;job 

which finally was made to appellant in 1967 eradicated the 

past racial discrimination and, with it, the plaintiff's claim 

for back wages.

Under these circumstances, the decision of the court below

should be reversed and the case remanded for determination of

the amount of back pay actually due plaintiff.

"The back pay award is not punitive in 
nature, but equitable -- intended to 
restore the recipients to their rightful 
economic status absent the effects of the 
unlawful discrimination." Robinson v.
Lorillard, 444 F.2d 791 at 802 (1971)

As Title VII's remedial authority should be broadly read 

to make whole victims of discrimination, Bowe v. Colgate- 

Palmolive Co., 416 F.2d 711, 721 (7th Cir. 1969), a back pay 

award was appropriate and necessary in this case. Section 706(g) 

of Title VII, 42 U.S.C. Section 2000e-5(g), specifically 

authorizes the district court to award back pay as part of the 

remedy for a Title VII violation. Although the language of 

Title VII makes the back pay award discretionary, its denial 

in the circumstances of this case was an improper exercise of 

that discretion. Even if appellant had been able to accept the 

1967 job offer and had begun to work for appellee, a back pay

22



award would be proper. Tedford v. Airco Reduction, Inc.,

___ F.2d ___ (5th Cir., Feb. 1, 1972), 4 EPD Para. 7654;

Pettway v. American Cast Iron Pipe Co., ___ F. Supp. ___

(N.D. Ala., Mar. 18, 1970), 4 EPD Para. 7651.

The Seventh Circuit has brought into focus the importance 

of Title VII remedies, including back pay, as a means of 

enforcing the strong national policy against discrimination;

The vindication of the public interest 
expressed by the Civil Rights Act consti­
tutes an important facet of private litigation 
under Title VII . . . and the court has a
special responsibility in the public interest 
to devise remedies which effectuate the policies 
of the Act as well as afford private relief to 
the individual employees instituting the 
complaint.

Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1201 (1971).

The decision of the court below not to impose a back pay 

order in this case is erroneous and the decision should be 

reversed and the case remanded for determination of the amount 

wages due.

CONCLUSION

Wherefore, for the foregoing reasons, plaintiff-appellant 

respectfully prays this Court to reverse the decision of the 

district court on the issue of religious discrimination, and 

order the defendant-appellee immediately to offer acceptable 
employment to the plaintiff.

In addition, plaintiff prays that the district court's 

decision denying him back wages resulting from the race 

discrimination found to have existed between 1965 and 1967,



be reversed and remanded for a proper determination of the

amount of back wages due appellant.

Respectfully submitted,

JACK GREENBERG
WILLIAM L. ROBINSON 

10 Columbus Circle 
New York, New York 10019

LOUIS LUCAS
Ratner, Sugarmon, Lucas & Willis 

525 Commerce Title Building 
Memphis, Tennessee 38103

DAVID CAYWOOD
100 North Main Building 
Memphis, Tennessee 38103

Attorneys for Plaintiff-Appellant

CERTIFICATE OF SERVICE

This is to certify that I served copies of Appellant's

Brief and Appendix in the above referenced case on Mr. Armistead

Clay, Sterick Building, Memphis, Tennessee, this 7th day of

March, by depositing same in the United States mail, air mail,

postage prepaid.

Attorney for Appellant