Granviel v. Estelle Brief of Amicus Curiae

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 73-1600

RAY E. ROBERTS,
Plaintiff-Appellant, 
- vs -

HERMITAGE COTTON MILLS, Camcen,
South Carolina,

Defendant-Appellee.

On Appeal From The United States District Court 
For Tfye District of South Carolina 

Columbia Division

BRIEF FOR APPELLANT

MITCHELL & JOE 4 Nona Street
Greenville, South Carolina 29601

JACK GREENBERG 
CHARLES S. RALSTON 
MORRIS J. BALLER
Arthur c. McFarland 10 Columbus Circle 

Suite 2030
New York, New York 10019

Attorneys for Plaintiff



Page
I N D E X

Table of Authorities ..............................  j_

Questions Presented ................................. £v

Statement of the Case ...............................  1

I. Proceedings Below .......................  2

II. Statement of Facts ......................  2

ARGUMENT

I. THE DISTRICT COURT ERRED IN HOLDING THAT 
DEFENDANT DID -NOT VIOLATE TITLE VII OF 
THE CIVIL RIGHTS ACT OF 1964 IN DIS­
CHARGING PLAINTIFF FOR HIS RELIGIOUSBELIEFS ..................................  5

A. Defendant Did Not Attempt An 
Accommodation, of Plaintiff's 
Religious Beliefs As Required By 
Title VII of the 1964 Civil Rights 
Act And the EEOC Guidelines ..........  7

b. The Evidence Presented at Trial Dons Not Support the Trial
Court's Finding of Undue Hardship ......  9

C. The Evidence Does Not Support a
Holding That a Reasonable Accommo­dation is Possible ...............   12

II. THE COURT BELOW ERRED AS A MATTER OF LAW IN STATING THAT EVEN IF INJUNCTIVE RELIEF 
IS ORDERED, SPECIAL CIRCUMSTANCES RENDERING BACK PAY AND COUNSEL FEES INAPPROPRIATE
EXIST H E R E ..... ..............•.......... 13

CONCLUSION________________'....................... 20
CERTIFICATE OF SERVICE



TABLE OF AUTHORITIES

Bowe v. Colgate-Palmolive Co., 415 F.2d 711
(6th Cir. 1969)................................  15,

Claybaugh v. Pacific Northwest Bell Telephone
Co., 355 F.Supp. 1 (D. Ore. 1973)................ 6,8,13

Dewey v. Reynolds Metals Co., 429 F.2d 324
(6th Cir. 1970)................................  6

Eastern Greyhound Lines v. Division of HumanRights ____ F.Supp. ____ (1970) 2 FEP Cases
710 (1970).....................................  6

Head v. Timken Roller Bearing Co., 486 F.2d
870 (6th Cir. 1973)............................  16 15

Johnson v. U.S. Postal Service, 6 EPD [̂7740
(E.D. Ark. 1972)...............................  6

Kober v. Westinghouse, 480 F.2d 240 (3rd
Cir. 1973)............... -..................... 15

Kettell v. Johnson & Johnson, 337 F.Supp. 892
(E.D. Ark. 1972)............................... 6,9

Lea v. Cone Mills, 438 F.2d 86 (4th Cir. 1971).........  15,17,18,19
Le Blanc v. Southern Bell Tel. & Tel. Co.,333 F.Supp. 602 (E.D. La. 1971) aff'd per

curiam, 460 F.2d 1228 (5th Cir. 1972)
cert. denied. 409 U.S. 990 (1972).............  18

1
Manning v. International Union, 466 F.2d 812

(6th Cir. 1972)............................... 16
Moody v. Albemarle Paper Co., 474 F.2d 134(4th Cir. 1973)............................... 4,14,15
Newman v. Piggie Park Enterprises, Inc. 390 U.S.

400 (1968)...................................  19
Reid v. Memphis Publishing Co., 468 F.2d 346

(6th Cir. 1972).............................. 5,8,12

Page

r



TABLE OF AUTHORITIES TCont'dl

Page

Reid v. Memphis Publishing Co., ____ F.Supp.
____ (W.D. Tenn. 1973) Slip, op.............. 7 12

Riley v. Bendix Corp., 464 F.2d 1113 (5th Cir.
1972)........................................  5,7,8,

Robinson v. Lorillard, 444 F.2d 791 (4th
Cir. 1971)...................................  18

Rowe v. General Motors Corp., 457 F.2d 342
(5th Cir. 1972)............................... 15

Schaeffer v. San Diego Yellow Cabs, Inc., 462
F . 2d 1002 (oth Cir. 1972).....................  15

United States v. Georgia Power Co.., 474 F.2d 906
(5th Cir. 1973)............................... 15



Statutes and Regulations

Civil Rights Act of 1964, Title VII,
42 U.S.C. §§2000e et_ seq.................. 1
42 U.S.C. §2000e-(j)...................... 2,642 U.S.C. §2000e-2 (a)..................... 2,5
42 U.S.C. §2000e-5(g)..................... 1442 U.S.C. §2000e-5(k) Section 706(k).......  17

Equal Employment Opportunities Commission
Guidelines On Religious Discrimination....
29 C.F.R. §1605.1(b)..................... 5
29 C.F.R. §1605.1(c)..................... 5

Page

t

- iii -

i

r



QUESTIONS PRESENTED

1. Whether Hermitage Cotton Mills' refusal to attempt 
to accommodate the religious beliefs of plaintiff 
violates Title VII of the 1964 Civil Rights Act 
where the evidence does not support a finding of 
undue hardship as required by the EEOC guidelines 
of July 10, 1967 on religious discrimination.

2. Whether the District Court Erred as a matter oflaw in stating that, even if injunctive relief is 
ordered, "special circumstances" rendering back 
pay and counsel fees inappropriate exist where 
plaintiff sought actual employment worked all 
shifts except his Sabbath and was subsequently discharged for his religious beliefs.

#

IV



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 73-1600

RAY E. ROBERTS,
Plaintiff-Appellant, 
- vs -

HERMITAGE COTTON MILLS, Camden,South Carolina,
Defendant-Appellee.

On Appeal From The United States District Court 
For The District of South Carolina 

‘ Columbia Division

BRIEF FOR APPELLANT

Statement of the Case

This appeal involves a private employment discrim­
ination suit under Title VII of the Civil Rights Act of 
1964, 42 U.S.C. §2000e et seq. The appellant, plaintiff 
below, is a former employee at Hermitage Cotton Mills in 
Camden, South Carolina. The appellee, defendant below, is



Hermitage Cotton Mills, a South Carolina corporation (textile 
mill incorporated in South Carolina).

I. Proceedings Below
This action was commenced on November 15, 1972 within

thirty days of the issuance of a right-to-sue letter by the 
Equal Employment Opportunity Commission pursuant to the 
provisions of Title VII. The compjaint alleged that the 
defendant, Hermitage Cotton Mills, discriminatorily discharged 
plaintiff because of his religious beliefs in violation of 
Title VII, 42 U.S.C. §§2000e-2(a) and 2000e(j). Plaintiff 
prayed for injunctive relief against defendant as well as an 
award of back pay, attorney's fees and costs.

On January 12,' 1972, defendant, Hermitage Cotton Mills 
filed its answer acknowledging jurisdiction but denying any 
liability to plaintiff. The case was tried on the merits 
before Judge Sol Blatt on April 16, 1972, and an order dis­
missing the case with costs assessed against plaintiff was 
entered the same day. A timely notice of appeal was filed on 
April 19, 1973, and the appeal was docketed in this Court on 
February ll, 1974.

II. Statement of Facts
Plaintiff is and has been since 1967 a devoted adherent 

to the Worldwide Church of God religious faith . (R. 23) which 
requires him to abstain from working from sundown on Friday

2



until sunset Saturday (R. 26). Plaintiff, since his con­
version to said faith has adhered strictly to this requirement.

Defendant Hermitage Cotton Mills manufactures tobacco 
cloth (commonly known as cheese cloth), which is used in 
hospitals as surgical gauze (R. 47, 98). In October 1969
defendant operated 6 days a week, three shifts per day from 10 p.m 
Sunday through 10 p.m. Saturday. It employed approximately 
400 persons in various job categories including 30 loom 
fixers, 10 to a shift, who fix the weaving looms so thay can 
make as perfect a cloth as possible (R. 37). In the plant there 
were 10 set 3 of looms, each containing 92 looms; each set required 
a loom fixer, a weaver and a battery filler. Although there 
was a spare weaver and battery filler on each shift there was 
no spare loom fixer (R*. 49) . All employees are paid time and 
a half for all working hours over forty hours.

On Tuesday, October 21, 1969 plaintiff commenced employ­
ment with defendant as a loom fixer working the third shift
(10 p.m. - 6 a.m.) on that date and on the following Wednesday

1/and Thursday (October 22 and 23) (R. 50). On Firday, October
24, 1969, plaintiff did not report to work for the third shift 
(R. 34) due to the observance of his Sabbath. Defendant, after 
being advised of plaintiff's religious beliefs, refused to

1/ Prior to his employment with defendant, plaintiff
had worked at another textile mill for 27 years as a loom- 
fixer (R. 18) .

- 3



attempt to accommodate plaintiff (R. 26, 60). When plaintiff 
refused to work after sundown the following Friday, he was 
discharged (R. 57 ).

The district court found that the defendant made an 
exceptionally strong case to show that it would have created 
an undue hardship to provide employment for plaintiff; that 
there was no way the employer could have made provision for 
relief every Firday for fifty Fridays (R. Ill); and that there 
was no evidence as to what would have actually happened if the 
plaintiff and defendant worked together to determine if such 
an arrangement could in fact be made (R. 113, 114). Therefore 
the court directed defendant to reemploy plaintiff for a period 
of two weeks to give plaintiff and defendant an opportunity 
to find someone willing to work 50 Fridays for him or 4 hours 
each Friday (R. 115) . However, the court held that even if an 
injunction were to be issued at the end of this two week period, 
plaintiff's prayer for back pay and attorney's fees would be 
denied on grounds that the special circumstances described in 
Moody v. Albemarle existed making such relief inappropriate. 
Plaintiff, because he was by then employed by the South 
Carolina Highway Department, refused this offer of temporary 
re-employment. Consequently, the court dismissed the complaint.

4



A R G U M E N T
I .

THE DISTRICT COURT ERRED IN HOLDING THAT 
DEFENDANT DID NOT VIOLATE TITLE VII OF THE 
CIVIL RIGHTS ACT OF 1964 IN DISCHARGING 

PLAINTIFF FOR HIS RELIGIOUS BELIEFS.

This case raises a question of religious discrimi­
nation of first impression in this Court. It is controlled 
by 42 U.S.C. §2000e-2(a) which prohibits employment dis­
crimination based on religion and the EEOC July 10, 1967 
guideline on religious discrimination, 29 C.F.R. Sec. 1605.1 
which provides in part:

(b) The Commission believes that the duty 
not to discriminate on religious grounds 
required by section (703 (a) (1)) of the Civil 
Rights Act of 1964, includes an obligation
on the part of the''‘■employer to make reasonable 
accommodations to the religious needs of 
employees and prospective employees where such accommodations can be made without undue 
hardship on the conduct of the employer's 
business. Such undue hardship, for example, 
may exist where the employee's needed work 
cannot be performed by another employee of 
substantially similar qualifications during 
the period of absence of the Sabbath observer.
(c) . . . the employer has the burden of
proving that an undue hardship renders the 
required accommodations to the religious 
needs of the employee unreasonable.

Courts have almost uniformly applied the EEOC guideline in
cases alleging religious discrimination arising since its
issuance. Riley v. Bendix Corp., 464 F.2d 1113 (5th Cir.
1972); Reid v. Memphis Publishing Co., 468 F.2d 346 (6th Cir

5



1972); Johnson v. U.S. Postal Service, 6 EPD [̂8984 (N.D.
Fla. 1973); Claybaugh v. Pacific Northwest Bell Telephone 
Co., 355 F.Supp. 1 (D. Ore. 1973).

The EEOC's authority to issue this guideline was 
challenged in some other cases where courts refused to apply 
it. See Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 
1970), aff'd by an equally divided Court, 402 U.S. 689 (1971); 
Kettell v. Johnson & Johnson, 337 F.Supp. 892 (E.D. Ark. 1972),
Eastern Greyhound Lines v. Division of Human Rights ____ F.Supp.
____ (1970), 2 FEP Cases 710 (1970). However, any doubts as
to the effect to be given to these guidelines were laid to 
rest by Congress on March 6, 1972 when the following provision 
was added to the 1964 Civil Rights Act:

tThe term "religion" includes all aspects of 
religious observance and practice, as well 
as belief, unless an employer demonstrates 
that he is unable to reasonably accommodate 
to an employee's or prospective employee's 
religious observance or practice without 
undue hardship on the conduct of the employer's 
business.

42 U.S.C. §2000e (j) .
The legislative history of the 1972 amendment makes

it clear that the EEOC guideline expressed the prior intention
of Congress. Senator Randolph, the sponsor of the amendment,
noting that the Supreme Court had divided evenly in Dewey v.
Reynolds Metals Co., supra, stated:

The amendment is intended, in good purpose, to resolve by legislation - and in a way I 
think was originally intended by the Civil 
Rights Act - that which the courts have not 
resolved. 118 Cong. Rec. §228.

6



See also Riley v. Bendix Corp., supra, where the
Fifth Circuit had little difficulty finding the EEOC guide­
lines valid as being a proper interpretation of the statute.

A . Defendant Did Not Attempt An Accommodation of 
Plaintiff's Religious Beliefs As Required by 
Title VII of the 1964 Civil Rights Act and the 
EEOC Guidelines-

The district court held that defendant made an excep­
tionally strong case to prove or to carry the burden that iv. 
would have created an undue hardship to provide employment 
for plaintiff (R. Ill) . It also found that "all of the evi­
dence and the undisputed testimony is to the effect that it 
would have created an undue hards?nip and an undue burden on 
the employer bach in 1969 to employ plaint iff"(R. 121). The 
court then sets up what appears to be a direct contradiction

i

by stating that there is no evidence as to what would have 
actually happened if plaintiff and defendant had worked to 
accommodate plaintiff and had made work available for him 
(R. 113).

The holding of undue hardship must be taken as the con­
clusive one since it is necessary to support the award of 
judgment for defendant. That award, however, was initially 
made contingent upon the failure to work out an accommodation 
during a two-week re-employment period which the court offered 
plaintiff (R. 113-14). When plaintiff rejected this offer, 
the court immediately entered judgment for defendant.

This offer of re-employment is critical, however, be­
cause it evidences the trial court's uncertainty as to which

- 7 -

i



party carries the burden of making a reasonable accommodation. 
The court stated, "The burden is to be on the plaintiff to
make every effort . . . (R. 115). It also said, "I want to
know (after the probationary period) what plan, if any, the
plaintiff has made, a workable 50-week plan, and one that
wouldn't create an undue hardship on defendant. And . . .  I
want to know from the defendant what efforts it has made . . .
(R. 115). The most reasonable conclusion to be drawn here is
that the court believed that the burden is not entirely on
the defendant to attempt an accommodation. Plaintiff submits
that the trial court's requirement that plaintiff share the
burden of making a reasonable accommodation does not satisfy
the requirements of Title VII nor the EEOC guidelines.

Courts of other circuits have held that the EEOC
guideline by its very language places an affirmative duty upon
an employer to attempt an accommodation. Claybaugh v. Pacific
Northwest Bell Telephone Co., supra, at 5; Riley v. Bendix
Corp., supra. See Reid v. Memphis Publishing Co., supra.
In Claybaugh, a case where the employer discharged plaintiff
for his religious beliefs, the district court stated:

The burden is on the employer and not 
the employee asking for an accommodation 
to seek out the cooperation of other 
employees if, as here, this would be a reasonable accommodation. 355 F.Supp. at 5.

*  *  *

The requirement upon an employer to make 
a reasonable accommodation to the 
religious needs of an employee is not 
unbending. However, an employer cannot sustain its burden of showing undue hard­
ship without first showing that it made an 
accommodation as an attempted remedy. I_d. at 6.

8



that the employer did not demonstrate that he was unable to
reasonably accommodate to Riley's religious observance or
practice without undue hardship on the conduct of the
employer's business noted that:

. . . no "accommodation" of any kind was 
made to permit Riley to be absent on Friday 
evenings. . . . Nor was there any effort
made . . .  to arrange for another person 
to substitute for him during these hours.
464 F .2d at 1115.^

The district court found that defendant made no 
affirmative effort whatsoever to accommodate plaintiff's 
religious beliefs. Thus, the lack of any affirmative action 
precluded the district court from making a finding of undue 
hardship.

B . The Evidence Presented At Trial Does Not Support
The Trial Court's Finding of Undue Hardship.

The district court cited certain facts in support of 
its holding of undue hardship. To illustrate the insuffi­
ciency of these facts to support this holding as a matter of 
law, we quote at length from the court's opinion:

The Fifth Circuit in Riley v. Bendix, supra, holding

2/ Even in Kettell v. Johnson & Johnson, supra. the dis­
trict court, although refusing to apply the EEOC guidelines, 
found that the defendant had made reasonable efforts to accom­
modate to plaintiff's religious beliefs and that failure to take further affirmative action cannot be said to constitute dis­
crimination. The court held that the EEOC guidelines went 
beyond any legitimate interpretation of Title VII by placing the 
burden upon the employer to-inflict upon itself some hardship to avlid a charge of discrimination; but it qualified its holding, 
however, stating:

This is not to say that the Act, and particularly 
the word "discriminate,cannot be interpreted to •
require some degree of affirmative accommodation.• ' ;. 
Under the proper circumstances, failufe to reason­ably accommodate may indeed be strong evidence . 
of discrimination.* :

9



Some of the facts which have led the Court to 
conclude that the employer has made such a 
strong showing is that there has been testimony by the General Manager of the plant, and by 
one of the shift supervisors, that based on 
their expertise from years in this type of 
work, and by the General Manager of a simi­
larly situated plant, that it would have been 
impossible to have accommodated the plaintiff.
And there has been no testimony by the plaintiff 
to the contrary.
The Court is impressed with the fact that 
there were thirty loom fixers, which is a 
specialty in the mill of the defendant, and 
that generally 50 percent of these employees 
don't want to work on the weekends,vhich would 
eliminate about half of the ones who would be 
available to work in the place of the plaintiff.
There is further testimony that a 16-hour day 
would be necessary for somebody to replace the 
plaintiff and over a period of time that would 
be injurious to the health of loom fixers who 
are older people generally, and that it would 
not be conducive to the maintenance of the 
health of the person or persons who agree to 
provide this 16 hours of steady work (R. 111-12).

However, the trial court itself and the testimony of witnesses
at trial was contradictory.

First, the trial court in its opinion stated:
I am going to direct that plaintiff and defend­
ant, working together, to determine factually 
rather than by opinion if such an arrangement 
can be made and if relief can be given to the 
plaintiff. . . (R.ill).
I realize that the expert testimony has been 
given in good faith that it can't be done, 
but sometimes things that you think can't 
be done, if you try, work far better than 
you anticipate (R.l 11).

Had the trial court been certain that the testimony was suffi­
cient to support the conclusion, it would not have been nec­

10



essary to postpone entering of a judgment to await the results 
of plaintiff's and defendant's efforts to achieve accommo­
dation .

Secondly, the testimony of defendant's witnesses leaves 
open the question whether an accommodation was possible. Mr. 
Hughes, the Superintendent of Weaving testified it was possible 
to get someone to replace plaintiff sometimes but not on a 
weekly basis. He reasoned that it "is too much to ask people 
to double over fifty times a year" (R. 61). However, he also 
testified that when a loom fixer is sick, his substitute works 
a 16-hour day (R. 58-9), so apparently at least some loom fixers 
are willing to work 16-hour days at the request of defendant. 
Moreover, he stated that there was a replacement who was will­
ing to work a day a week even though he didn't always want it 
to be on Firday (R. 85).

The trial court's conclusion that fifty percent of the 
loom fixers don't want to work on the weekend was drawn from 
the testimony of the General Manager of the mill, Mr. Pitts, 
who stated, "And there is no question in my mind that if we 
let the people run the mill, I think 50 percent of them would 
not show up on weekends, and a lot wouldn't come in on Friday 
night? (R. 112). However, the defendants also stated that 
they had not polled employees "in years" as to their willing­
ness to work on weekends. ■

Finally, a generalization about the preference of 
defendant's employees does not satisfy the EEOC guideline or

- 11 -



the developing judicial standards. Subsection (b) of the EEOC
guideline suggests that undue hardship may inhere in a lack
of substitutes with "substantially similar qualifications."
There is no indication in the record that all of the 30 loom
fixers are not fungible. In Reid v, Memphis Publishing Company,
supra, the employer's policy was to give senior employees their
preference of which days to work. This did not deter the
Court of Appeals from requiring defendant to attempt an
accommodation. 468 F.2d at 348. Nor did the district court
find on remand undue hardship where the employees in plaintiff's
category (copyreaders) had areas oi special expertise and hence
were not all interchangeable. F .Supp. _____, (W.D. Tenn.

3/December 17, 1973). Slip op. at 10-11.
C. The Evidence Does Support A Holding That A 

Reasonable Accommodation Is Possible.
4/In 1969 the defendant's mill operated 6 days a week, 

three shifts per day from 10 p.m. Sunday to 10 p.m. Saturday.
At the time of his discharge, plaintiff was working on the 10 
p.m. to 6 a.m. Sunday night to Saturday morning shift. The 
trial court in offering plaintiff temporary employment suggested 
that it would only be necessary to find someone willing to work 
4 hours for plaintiff on Fridays. Thus, a replacement would

3/ The district court also ruled that an accommodationwopld not necessarily involve undue hardship just because it 
included assigning other employees, voluntarily or involuntarily, 
to substitute for the plaintiff on his Sabbath. Id.
4/ At time of trial defendant operated on a 5 day week.

12



only have to work 12 hours at most during any season of the 
year. In late spring and summer the replacement would only

5/have to work 9 hours due to the extra hours of sunlight.
Other possibilities exist presently in light of defendant's 
shift to a five day work week. Plaintiff merely suggest that 
alternatives are available and does not wish to usurp the 
duty of defendant to make whatever accommodation is reasonable.

In sum, we submit that the testimony of defendant's 
witnesses leaves undisputed the fact that no attempt was made 
to accommodate plaintiff's beliefs; that their testimony does 
not support a finding of undue hardship and that, as suggested 
by the trial court, a reasonable accommodation was possible. 
Therefore, the district court erred in holding that defendants

4did not violate Title VII of the 1964 Civil Rights Act in dis-•H.
charging plaintiff for his religious beliefs.

II.
THE COURT BELOW ERRED AS A MATTER OF LAW IN 
STATING THAT EVEN IF INJUNCTIVE RELIEF IS 
ORDERED, SPECIAL CIRCUMSTANCES RENDERING BACK 
PAY AND COUNSEL FEES INAPPROPRIATE EXIST HERE

Plaintiff sought as part of his remedy relief in the
form of attorney's fees and back pay for economic loss suffered
as a result of defendant's unlawful discriminatory practices.
The district court concluded that, as a matter of law, even

5/ . See Claybaugh v. Pacific Northwest Bell Telephone Co.,
supra. 355 F.Supp. at 5, n.8 where the court noted that "at least 
during the winter months where on the Saturday evening shift an hour or less of post-sundown time was involved Bell could 
have accommodated Claybaugh as it accommodated other employees 
for these activities.

13



if it issued an injunction or passed an order requiring re­
employment, special circumstances rendering back pay and 
attorney's fees unjust and inequitable are present in this 
case. The court assigned the following reasons in support 
of its denial of back pay:

(1) Plaintiff knew of defendant's six-day work 
week and did not inform defendant of his 
religious beliefs at the time of hire;

(2) Plaintiff was knowledgeable about the issues 
involved since prior to his employment he had 
filed an EEOC charge two years earlier against 
a former employer; and

(3) Thus plaintiff had baited a trap for defendant. 
Plaintiff submits that the trial court's description of the 
circumstances of the instant case is not the kind of special 
circumstances this Court described in Moody v. Albemarle Paper 
Co., 474 F.2d 134, 142 n.5 (4th Cir. 1973), which would render 
back pay and attorney's fees inappropriate. Therefore, should 
an injunction be issued, an award of back pay and attorney's 
fees would be required under the present state of the law in 
this circuit.

The relief provision in Title VII authorizes "the 
court to enjoin the respondent from engaging in such unlawful 
employment practice, and order affirmative action as may be 
appropriate, which may include reinstatement or hiring of 
employees, with or without back pay." 42 U.S.C. §2000e-5(g).

- '14 - •



This Court and other circuits have developed from this pro­
vision the principle that back pay is an integral part of 
injunctive relief which compensates the victim rather than 
punishes the respondent and therefore courts should give wide 
scope to the act in order to remedy the plight of victims of 
employment discrimination. United States v. Georgia Power 
Company. 474 F.2d 906, 921 (5th Cir. 1973); Rowe v. General 
Motors Corp., 457 F.2d 348, 354 (5th Cir. 1972); Moody v. 
Albemarle Paper Co., supra at 142. See also Bowe v. Colgate- 
Palmolive Co.. 415 F.2d 711, 720 (7th Cir. 1969).

Hence in Moody v. Albemarle, supra, this Court gave
concrete meaning to the above stated principle of law while at
the same time limiting its application when it said:

Thus, a plaintiff or a complaining class who 
is successful in obtaining an injunction under 
Title VII of the Act should ordinarily be awarded 
back pay unless special circumstances would 
render such an award unjust. 474 F.2d 
at 142.

See also, Head v. Timken Roller Bearing Co., 486 F.2d 870,
877 (6th Cir. 1973).

This Court in Moody and the other courts which have 
adopted the "special circumstances" exception to the award of 
back pay have cited only cases involving female protective 
statutes as examples of proper application of this rule of 
law. See Albemarle v. Moody, supra, citing Schaeffer v. San 
Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972); Lea 
Blanc v. Southern Bell Te. & Tel. Co., 333 F.Supp. 602 (E.D. 
La. 1971)'; aff'd per curiam, 460 F.2d 1228 (5th Cir. 1972),

15



cert, denied, 409 U.S. 990 (1972); Accord the Sixth Circuit
in Head v. Timken Roller Bearing Co., supra, at 877 n.10 
citing Manning v. International Union, 466 F.2d 812 (6th Cir. 
1972) and the Third Circuit in Kober v. Westinghouse, 480 
F.2d 240 (3rd Cir. 1973). The rationale behind these decisions 
is that where unlawful discrimination is shown but the employer's 
practices were compelled by a state law in conflict with Title 
VII, there is no abuse of the trial judge's discretion in deny­
ing back pay. Kober v, Westinghouse, supra, 480 F.2d at 
246-48.

The instant case has none of the trappings of the cases 
cited by this Court and other circuit courts a_ involving 
"special circumstances." Thus, the district court would have

tthis Court expand the circumstances under which a trial judgeH.
may deny back pay to include situations where plaintiff seeks
employment with the knowledge that he might be discriminated
against by defendant. In such cases, says the district court,
even though unlawful discrimination occurs back pay should be
denied because plaintiff lured ("baited a trap") defendant into
violating plaintiff's rights. However, the evidence does not
support the trial court's conclusion. When plaintiff approached
defendant, he was seeking actual employment. Although he did

6/not reveal his religious beliefs to defendant, it is of no

6/ Q. ' And you withheld evidence on the fact that you would
not work on Friday night from him?

A. No sir; nobody asked me.
* * * * * * * * *

If he had asked me I would have told him the whole 
truth (R. 68).

16



consequence since defendant made it clear that he would not 
have hired plaintiff had he been aware of his religious beliefs.

Thus, this case is unlike Lea v. Cone Mills Coro..
438 F.2d 86 (4th Cir. 1971) where this Court affirmed a denial 
of back pay citing the trial court's findings (1) that 
plaintiff's primary motive was to test defendant's employment 
practices rather than seek actual employment and (2) that there 
was no vacancy of any type at the time plaintiff applied fcr 
employment. Ld. at 87-8. As stated above, plaintiff sought 
actual employment, was hired and worked all shifts except his 
Sabbath during his ten day employment period.

With regard to attorney's fees, they are to be awarded 
as one of the remedies available to the courts as a means of 
fostering enforcement *of Title VII by private litigants. In 
§706(k) 42 U.S.C. §2000e-5(k), Congress provided that plaintiffs 
should receive an award of "reasonable" attorney's fees as part 
of the costs allowed to them. Congress realized that such a 
provision would encourage effectuation of Title VII rights by 
the private sector on behalf of those who would not ordinarily 
be able to hire an attorney by their own means. The district 
court, however, found that because of the "special circumstances" 
of this case, counsel fees would be denied even if injunctive 
relief was granted. Plaintiff submits that no special cir­
cumstances exist and should an injunction be issued an award 
of attorney's fees is required by the precedents of this 
Court.

17



The instant case is controlled by this Court's decisions
in Lea v. Cone Mills, supra, and Robinson v. Lorillard, 444 F.2d
791 (4th Cir. 1971) where Judge Sobellof stated:

In Lea v. Cone Mills [supra] we noted that 
under Title II of the Civil Rights Act of 
1964, attorney's fees are to be imposed not 
only to penalize defendants for pursuing 
frivolous arguments, but to encourage indi­
viduals to vindicate the strongly expressed 
congressional policy against racial discri­
mination. The appropriate standard, therefore, 
is that expressed by the Supreme Court in 
Newman v. Piggie Park Enterprises, 390 U.S. 400,
432 88 S.Ct. 964, 19 L.ed 2d 1263 (1968):
"It follows that one who succeeds in obtaining 
an injunction under that Title should ordinarily 
recover an attorney's fee unless special circum­
stances would render such an award unjust."
[Emphasis <udded]

Id. at 804. Above, we have dealt with the trial court's
trefusal to award back pay; for the same reasons given, supra, 

pp. 16-17, no "special circumstances" exist which would justify 
the trial court's position with regard to attorney's fees.

Furthermore, we note that in Lea v. Cone Mills, supra, 
this Court ordered that attorney's fees be awarded notwith­
standing the fact that it agreed with the lower court that 
plaintiffs' primary motive was to test defendant's employment 
practices. 438 F.2d at 88. The instant case is far removed
from the difficult question of whether attorney's fees should

1/be awarded in test cases, plarntiff here presents no such

7/ . Attorney's fees have even been awarded in cases involving
what this Court has described as "special circumstances" in Le 
Blanc v. 'Southern Bell Tel. & Tel. Co., supra; the district 
court stated:

18



extraordinary situation.
Thus, to deny plaintiff counsel fees is to penalize 

him for seeking vindication of his rights in the only forum 
available to him. More importantly, plaintiff has performed 
the public function of furthering the Congressional policy 
against religious discrimination as embodied in Title VII. 
Plaintiff acted within the purposes set forth as basis for 
compensation in Newman v. Pigcpie Park Enterprises, Inc., supra, 
and Lea v. Cone Mills, supra and therefore, the district 
court had no valid reason for denying plaintiff counsel fees.

#

7J  [Cont'd]
The Courts have uniformly awarded attorney's 
fees in these cases even where the prevailing 
party was unable to recover back pay or other 
damages because the defendant was relying in 
good faith on a state statute. 333 F.Supp. 
at 6 1 1 . . .

19



C O N  C L U S I O N

The district court order should be reversed and 
the case remanded for injunctive relief for plaintiff, back 
pay and attorney's fees.

Respectfully submitted,

MITCHELL & JOE
4 Nona street
Greenville, South Carolina 29601

JACK GREENBERG 
CHARLES S. RALSTON 
MORRIS J. BALLER 
Arthur c. McFarland10 Columbus Circle Suite 2030

New York, New York 10019

Attorneys for Plaintiff

-  ' 2 0  • -



CERTIFICATE OF SERVICE

I hereby certify that I have this day of March, 
1974, served a copy of the above Brief for Appellant upon 
the attorney for appellee, G. Thomas Cooper, Jr., Esq., by 
mailing sane to him at his office at P. 0. Box 656, Camden, 
South Carolina 29020, postage prepaid.

for Appellant