# Brief for the United States — Dewey v. Reynolds Metals Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1486%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1971 - **Citation:** 402 U.S. 689 ## Text ee sate ym te EN TTT Es Ey Bm eta 1: A RI em i nn a ms: AIRY ye Ee ce i NM - gee wee ~ an the Supreme Gour of the United its Oc TOBE n Ve ka, 1970 ‘No. 835 - Ropert Kenneri Dewty, PETITIONER ars v. ReyNoups Merats COMPANY ON PETITION FOR A WRIT Or CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE en OPINIONS BELOW “The first opinion of the-court of appeals (Pet. App. 41a-5da)’ is ‘reported at 429 F. 2d 324. Its opinion denying re he aring and rehearing en bane (Pet. App. 56a-63a) is reported at 429 F, 2d 334. T he. opinions * of the district court: (Pet. App. Ya40a) are reported ; at 291.F. Supp. 786,300 F. Supp. 709, and 304 F. e Supp. 1116. 7 | JURISDICTION | ‘The judgment of the court of appeals was entered on June 4, 1970. A petition for rehearing was denied on August 11, 1970. The petition for certiorari was filed on October 12, 1970. The jurisdiction of this - Court is invoked under 28 U.S.C. 1254(1). “gs ; (1) 409-222—70 RADE FO A PLT OS RROD DE Mi ar QUESTIONS “PRESENTED «x= 1 W hether at emploxee, ane etnployme aut dis? evunitiation prohibited: by Tithe VIE of the Civil | Wights Net of L9G4, waives his right to bring. an hee ae btu under thi: ut Title iv federal district court by a pursuing fhe evievance-arbit ration: procedures of collective Tysun's aun awreement.. ao $e Whether an employer, subject to ithe: V 11, may “lawtullv’ discharge aur “anployee, whe refuses solely oe geligiotis peanone either fo work ove rite On Sy: al days or to find a qui ified ve pl wenment ‘when the em- inane plover has made no showing thi vt his refusal to make a reason: thle” Accommod: (tion. to the eraployee’s rele. gious ‘beliefs is necessary for the safe and efticient operation of its business. | | , oy ; STATUTE AND REGULATIONS INVOLVED Tithe V 1 of {he Civil Rights Act’ of 1964 provides in pe riment part: ; 42 USAC, 200002 ee ica (a) It shall be an. unlawful employment ‘ practice for an employer— | e | (1) to fail or-refuse to hire or to dise charge any individiial, er otherwise to discriminate » ‘against any individa: lf with respect to his come * . pen€tion, terms, conditions, or privileges of employment, beeause of suc ‘heindividual’s race, color, religion, sex, Or national origin He H The pe rfine nt EEOC Guidelines on Dise riminution _——-¥ Because of Religion are: set forth in Appendices Ay ‘and B, infra, pp. 11-15. , ° ° a ne De st AGE GY ” INTEREST OF THE UNITED STATES °.-. | Me o. a - . . ; ° “0 ‘ ° The decision of: the court of appeals may jhave a- significant impactupon enforcement of federal rights under Tithe Vitoof the Civil Rights Aet Gf 1964, as well astupon federal labor policy. Tithe VEE relies: strongly on private court actions: asa meats of enforcing statutory rights against dis- ¢ rimination on the basis of: religion, race,-cotor, tWa- tional origin, or Sex, Newinan v..Piggie Park Luter . piises, 390 U.S. 400. Mederal Jabor policy favors settlement of disputes arising tinder collective batr- -odining agreements through the erieVANCE and arbi- ; nie hn procedures provided for in such agreements, The decision of the court of appeals, which requires | that JM cinpleyee must - choose between . grievance- adite ation and suit tinder Title V i 4 & inevitably un- -dermines. one or both of these policies. The A nited States believes that the policies are complementary and that an election of fights should not be required, Congress. has also entrusted the Equal Employ- ment Opportunity Conimission and the Attornes ‘y Gen- eral With important responsibilities for eliminating discriminatory. employment practices. The court of. appeals’ ‘refusal to recognize the responsibility of employers: to abandon employment practices, not re- quired “by business necessity, which, although neutral * on their face, have a religiously ‘discriminatory effect, could ady ersely affect efforts of .the federal govern-. ment to cure all types of discrimination forbidde n by Title Wii ot at STATEMENT . Petitionér was employed by the respondent company ‘for fifteen years prior to his discharge in 1966. Begif- ning in ‘I 960, labor ,agreements between the United. pe Wor ke T'S; of avhich ‘petitioner Was a mem. ber, and the conipany” have included a provision giving the company the. right, to reguire employees to work overtime ‘unless they have a substanti ul. and ‘justifiable reason for not doing -sueh week. In Sep- tember 1965, the company issued an inter pretation @f the agreement which allowed an employee tothe re- lieved of an overtime assignment by. arranging for another qualified employee to replace: him.’ Petitioner, a member of the Faith ‘Reformed _Chureh sine © 1961, refused, because of his religious beliefs. to work overtime on Sundays or to ask any-. -one to replace him on that day.’ As a result, heswas laid off on September 4, 1966, and then dischat1 ‘od on September 11, 1966 (Pet. App. da—ha). He filed griey- ances because of his. lay off, (September. 7)* and dis- charge’ (September 19) (Pet. App. 5a). The ‘griev- -anees, were denied at every stage of the proce ‘dure— "qualified replacement on five Sundays between January 1966 ~... and. finaly Jby an arbitrator | on id une 2, 1967. “The. collective bar raining. agreement also provided for the procesding of grievances and their arbitration. , 2 Although he refused to work himself, petitioner did® find a ‘ and August 1966. Beginning on August 28, 1966, however, peti- . tioner’ refused to find a qualified replacement for Sunday work. It was stipulated that thjs refusal, like his refusal to work himself, was “because of his religious. beliefs,” the ees of’ which was not eas wee App. 4a-6a). oe * > ' Petitioner. alsg complained to the Michigan. Sivil Rights C omiunission on September 16, 1966 (Pet: App. 7a). ‘That. commission | denied - hus! ‘aim on Deceniber 13, 1966. Pr stitioner filed a charge with the Equal Em- “ployment Opport mity— Commission -onFanuary —- 1967.- EEOC “found reasonable Cause to believe the ‘Company had vielated. Title VIL. After conciliation efforts had faile d; me brought ‘this suit. (Pet. App. 7a-8a). - : The district “court, relying primarily. tfpon this Court’ Ss decision in She ‘bert v. Verner, 374 U.S. 398, and the Commission’ Ss Guidelines on Discrimination Because of. Religion, issued on July 10; 1967, ,29 | ~ OBR. 1605.1 (App. A, infra, pp. 10-11), held that the. company’ s discharge of Dewey constituted religious diseriniination in- ‘violation of Tithe VIL (Pet. App. 21a—27a). The disti iet court rejected the contention that’ petitioner was precluded from ‘suing undef Title VIT because he had pursued his rights under” the: grievance ‘e-arbitration procedure of ‘the collective: bar- gaining agreement (Pet. App. lla-l6a). © “The court’ of appeals, with. one judge dissenting, reversed -and ordered. the complaint “dismissed. It - . ruled that suit under: Title VII. cannot’ be brought . after, a grievance has been. finally” arbitrated (Pet. App. 51 53a). The court also reached the ‘diserimina- ° tion issue, however, holding that Title V I Was not “violated because ih company discharged petitioner ’ for violation of the provisions of the collective agree- “ment, w hich applied equally to-all employees, and not be- cause of his ies beliefs (Pet. “PP. 49a). | rer set rete by " Crete ‘ nr . or z . _— a s ¥: : . > é i 8 "is . e- ¥ ‘ . 2 i "ie > ss "a es - ; ; ; .° ; 3 He ; as a le 6 S on ‘ "'s REASONS ROR GRANTING THE WRIT + Si Wot, laieba tate cb Sbthe? Hon EERE. Tone oO 1. The holding of. the court Delow that an empl OVO me waives His right ta” bring wr court action -to- entarce. ‘sights against discrimination unidex: Tithe VIE of the. Civil Righis Act of 1964 by seeking relief through a erie vane e-arbitration “procedure which . 1s _compteted™ prior to the; Plingwof suit is in.diréct conflict: with the decisions of ‘two oth? courts of appeals, Hatehings” * United States Liduststes, Pie, 428 I", 2a 308 PCA. | 5); Bowe %, Colyate- Palmolive Co. 416 BF. 2d/ ren (CA. 7): Culpepper v. . Reynolds: Metals C0. 49) F. 2d 888 (C. A, D). Phese tevin liave « correctlygrecog “riized thi it dete rminations under a. eTie\ vance-arbitra-. 4 “ . Q - €é a Ad tion. process involve rights and remedies under a col- lective hare Lining-Aeveenent which are distinct front those involved in judicial ,proceedings ander Title "VIET, and that Congress bas made the ‘federal courts ‘the final’ arbiter -of ano mndividiial’s - rights under — Tithe VII: See Bekete v. US. Steel al a oink Fy 24: 331, 336 (CA, 3). : . parce Rars An chiployee, should, not be ast! ‘to lect betiveen his rights under a collective bargaining agreement % The national Tabor policy favors the suse of arbitration ° for, resolution of disputes arising “under collective bargaining ALVCCMOENtS,. SCC, Cee ‘Boys Markets. Tne, \. Retail: Clerks locks rae VIO, 398 U.S, Qh; Inited Steelworkers of Amerada \. Warijor & (ul Mavigation C0, 363 U.S: otd, _iBy aiteeeiite invocation of. the grievance procédiure “into a, waiver -of rights under Title VII, however, the election of @,. a) . rights doctrine, imposed by. the court below "is likely to discourage the use of arbitration asa means of private resolue - tion “of. problems of. diserimination—and thus to ‘undermine. the effectiveness of anti- discrimination: provisions in ‘collective qer cements, : “s ie : j @ . A NENENENENE ERENT NT o rm soning in Sherbert v. Verner, 374 U.S.°398, in holding ¢ i # ins et - | we oe fsa ute LOOT Eee weer mie x7 bee ie H a ; / . P * j- 2 : i 5 pera Se a ak thase der: ‘Title Vv Il. iver by this Couxd | is “needed ‘to resolve. the: conitlict among circuits on this * ‘ impotfant i issue, whichgaffec ‘ts the full rairge of *vights _ to equal émployment oppor ‘tunities confer red My Con- sass in Title WAT. 2 a aS an _\ 2,On the merits, the comrt below: appears torest fingla~ “mentally” on the proposition that Title VIET mikes Vie ean a shnple, direct diserimination unlawful. This narrow | interpiet ion conflicts with a growing line of deci- sions of other courts of appeals > shofting that employ-- ment practices regardless of, whether they were . ° » « ¢ “= ik adopted in good faith and are neutral on their face, are unlawful if they have a discriminator Vy effect and are not required for the safe and efficient operation _of the employer’s. business. L..q., Local 189, United Pa- permakers Vv. United States, 416 F. 24 980 (C.A.5), cere +" tiorari denied, 397 US. 919;*Local 53 of Fut.-Ass’u of ITe at & Frosted Td AL W oxkers v. Vogler, 407 F, 2d 1047 (CLA.5) v@riygs v. Dulve Power « 0., 420 F. 2d 1225 - (CLA, 4), certiorari granted, : 399 USS. 996: Jones v. Lee Way Motor Freight, Tne. 68 CCT thn, Cas. © 9504 (CA. 14, No, 464+ 69, Asess 17, 1970); United Slates Vv. Sheet Metal Workers Tit, Assn, Local U7. 36, 416 P, R123 (C.A.8). This Court employed similar rea- that 4) State. must show “seme compelling: terest,” 374 US. at 398, to justify denial, of unem- ployment compensation. wider an ostensibly neutral ° statute: to. an individnal Whose religious, beliefs. for- bale her ‘from working, on Saturdays. _ The holding — / + o = ee ey Ss 0 . of the evirt below’ also conflicts with the EEOC Guidelines which have consistently. required an em- Iyer to make reasonablé accommodations to the religious needs of employees and prospective em- ‘ployees, and which place the burden on the employer to justify refusal to diecommodaite to a particular prac- _tice in terms of business nec essity.' There was no showing by the company in this Case that its refusal to, accommodate to petitioner's religions beliefs Was necessary to the safe and effi- cient conduct of the business. In fact, the existence -of the substitute policy suggests that the only effect on the condact of the business which would be caused te, bY accommodating petitioner’ s religious belief would be shifting to the- “company the administrative burden of obtajning (from among the egmpany’s own ‘qualified em- ' ployees) a Sunday replacenient fér him. Accordingly, and particularly in light of the need for rey iew on the election of rights issue, review by this Court, on thie ques- tion of religious discrimination raised by this petition is wa rrantef.. . *The court of appeals held that the district court should have applied the EEOC Guidelines ( App. B, jnfra. pp. 12-14) which were in effect in 1966, rather than those which became effee- tive in 1967 after the petitioner's layoff and discharge. It held, . Pee. that the employer had complied with both Guidelines, Sudge Combs pointed out in dissent, both require the enr- arse to make reasonable accommodations: to religions newds of employees “where such accommodations can be made with- out undie hardship on the conduct of the employer's busines.” Pet. App. 54a; see App. A, infra. pp, I-12: App. B, fafa. pp. 1I%-15, ° The ‘concept of “reasonable accommodation” also appears in the C ommission’s Guidelines on Discrimination Because, of Ser. 29 (.F.R. 1604.1. =— + ' - 9. i CONCLUSION It is $ therefore 1 respectfully submitted that tlie peti- tion’ for a writ of certiorari should be granted, Respectfully submitted.” re , Erwin N.. Griswow, _ Solicitor General. Sv KRIS LEONARD, . Assistant Attorucy General. LAWKENCE~G._ WALLACE, Deputy Solicitor General. JouNn F. Diexews, ” Assistant to the Solicitor Generale Davi L. Rosé, Rosertr T. Moore, ©) Witt IAM 13, Fentox; , , Attorneys. Stantey P. Heserr, General Counsel, Juisa‘P. Coorén, Gvonce H. Darven, Attorneys, feat Equal Employment . — * yng . 0 pport unity Com mission. NovempBer. 1970. re APPENDIN A EF SOC GUIDELINES ON “Disc RIMINATION Bier AUSE OF RELIGION (1967) - 29 CFR. 1605.1 Observation of the Sabbath and other religious holidays. (a) Several complaints filed with the Com- mission have raised the question whether it is discrimination on account of religion to dis- charge or refuse to hire employes who: regu- larly observe Friday evening and Saturday, or “some other day of the week, as the Sabbath’ or who observe certain spec ‘ial. religious holidays during the year and, as a consequence, do hot work on such days. * (b) The Commission believes that the duty not to ‘discriminate on. religious. grounds, re- quired by section 703(a)(1) of the Civil Rights | Act of 1964, ineludes an obligation on the part of the employer to make reasonable aceommo-. dations to the religious needs of employeés and prospective employees where such accommoda- tions can be made without undue hardship on the conduct of the employer’s business. Such - undue kardship, for example, may exist where — the employee’s needed work cannot be per- formed “by another employee of substantially © similar qualifications during the period of ab- senee of the Sabbath observer. (¢) Because of the particularly sensitive na- ture of discharging or refusing to hire an em- ployee or applicant on account of his religions beliefs, the employer has the burden of proving . that an undue hardship renders the required ; (it) 12 s accommodations to. the a needs of the. employee unreasonable, (dy The Commission will rev iew éach case on an individual basis in-an effort to seek an equi-— table «pplication of these guidelines to the ‘aviety of situations which arise due to the ‘aried religious pee of the American peo- _ ple. (See. 713(b), Stat. 265; 42 U.S.C. 200001 a1 PLR. 0298, July 13, ae. _ APPENDIX ot 3, _ EEOC Gu IDELINES ON. DISGHEMINATION Brest: a Pals . RELIGION (1966) 29 CFR. 1605.1 Observance of. Sabbath and reli vious holidays, (a)(1) Several complaints filed with the Commission have raised the question - whether it is discrimination on account of religion to. discharge or.to refuse to hire a person whosé religious observances require that he take time off during the ‘employer’s regular workweek. These complaints arise in a variety: of contexts, but typically involve employees who regularly observe Saturdays as the Sabbath or who ob- serve certain special holidays during the year. (2) The Commission believes that’ the duty not to discriminate on religious grounds in- cludes an obligation on the part of the em- ployér to accommodate to the reasonable reli- gious needs of employees and, in some cases, prospective employees where such accommoda- ~~. tion ¢an . gnade w ithout serious inconvenience. to the conduct of the business. ~ (3) However, the Commission believes that - an employer is free under Title VIT to estab- lish ‘a normal .workweek (including paid holi- days)- generally ‘applicable to all employees, notwithstanding that this schedule may not operate with uniformity in its effect upon the religious observances of his employees. For ‘ example, an employer who is closed for busi- ness on Sunday does. not discriminate merely because he requires that all his employees he available. for work on Saturday. Likewise, an employer who closes his business on Christmas | (13) , aR St ae eg a lt ov Good Friday is not thereby obligated to give time off with pay to Jewish cialis for Rosh “Hashanah or. Yom Kippur. (b) While the question of what accomgnoda- ¢ tion by the employer may reasonably be re- quired must be. decided on the peculiar facts * each case, * the following ‘guidelines may prove helpful: ’ ; (1) An employer may permit absences from work on religious holidays, with or - without ‘pay, but mist treat all religions with substantial uniformity in ‘this: re- spect: However, the closing of a: business “on one religious holiday creates. no obli- gation to permit time off from work on another. (2) An employer, to the extent he can ‘do so without: serious inconvenience to the conduct of his business, should make ‘a reasonable ace commodation to the needs of his employees and applicants for employment in connection with special. religious holiday. observances. (3) The employer may prescribe the normal work week and foreseeable over- time requirements, and, absent an intent on the part of the employer to diserimi- nate on- religious grounds, a. job appli-. ‘ant or employee. who accepted the job knowing or having reason to believe that such requirements would conflict with his religious obligations is ‘not. entitled to demand any alteration. in- such require- ments to. accommodate his religious needs.. | (4) Where an n employee has previously been employed on a schedule which does not conflict with his religious obligations, and it becomes necessary to alter his work schedule, the employer. should at- tempt te achieve an accommodation so as _ 15 ¥ - to avoid a conflict. However, an employer is not eémpelled to make such an accom- modation at the expense of serious in- convenience to the conduct of his busi- hess or disproportionate allocation of unfavorable work assignments to other employees. - + (See; 713(b), 78 Stat. 265; 42 U.S.C. 20000-12) [31 F.R. 8370, June 15 5, 1966]. . U.S. GOVERNMENT PRINTING OFFICE: 1970 # : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1486%3A05. Public record. Not legal advice.