Motion for Leave — Dewey v. Reynolds Metals Co.

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PR a IARC RIA

a .TABLE*OF CONTENTS 3 9

= LF ‘ : S : af : s

- “ : abet. ae

INTERE ‘ST oF THE Ampces CURIAE *.~ Sdseiperen gs.

pos —

Qupstioxs arrsaran GMS ip PLO Rp re EE 5 |

A RGUMENT : - :

ee iiieoduetion and Summar Ee ae 4

I. Petitioner’s Observance of a Weekly’ Day of Rest --

: Is ‘‘Religion’’ W ithin the Meaning: of the Civil .°

Rights Aet instant td EEE 6

¢

. IL. The Effec€® of Respondent? s Dusparteiiiy ‘‘Nen-

‘tral’? Employment Policy Is To Discriminate

- Against Those Who Observe a Religious Day of

a Saern any ch cehah Kaiba eas # sq

. IIT., The Interpretive Regulation of Equal Employ-

ment Opportunity Commission of July 1967.

Requiring, Reasonable ’ Accommodation’ to an.

~-Employee’s Religious Requirements, in the Ab-.

sence of Undte Hardship, Is'a Proper Statutory.

Interpretation and May Be Applied to the Facts

Sy te Pe ere Pieris er eee ee 2.

. IV. Respondent Failed To Make a Reisarkbls Ac- |

/, eommodation to Petitioner’s Religions Seruples

Against Personally Obtaining a Replacement for

’ Bunday Work .....65.¢0%5 ane ian ee ae eae oe 16

COMQLUBION 150i veep eo csvopscecestoes ‘sees vesvevty— ie

‘ 3] ‘

APPENDIX aver

Pid TABLE OF AUTHORITIES

CASES: Sia : of é » rca ;

The Abbotsford, 98 U.S. 440 (1879) . as ee ae

Barnett v. Rodgers, 410 F. 2d 995 (D.C. Cir. 1969) ae 8

Cantwell v. Connecticut, 310 U.S. 296 (1940) .?...... 6

2»

>» s 7% ‘es

.

oa

> ee,

ij, pk Table of Contents Continued

, ne | Pc

Cooper Mfq. Ca, v. Ferguson, 113 U.S. 727 (1885) . 7

Dobbins v. Local 212, IBEW, 292 F. Supp. 413 (S.D.

| PRS oe REE ae eae

Grigs v. Duke Power Co., 420 F. 2d 1225 (4th Cir.

1970), cert. granted No, 124, OT 1970 ....-....... 10

Hecht v. Malley, 265 U.S, 144 (1924) e's ood ecevcccceee s

In re Jenison, 375 US. 14 (1963) ........ Sndv banned 5, 6,8

Jones v. Lee Way Motor Freight, Inc., 431 F: 2d 245

oC ee SUE boo dbcsden cobucatOdisecescces’ a

Looid 53 v. Vogler, 407 F. 2d 1047 (Sth Cir. 1969) . 9

Local 189, United Papermakers v. United States, 416

* FP. 34-000. (Gths Gir. 1008) coc ccccpecccccdvicccss 9

Red Liou Broadcasting Co, v. Federal Communications

Commission, 395 U.S, 367 (1969) ..27...........- 14

Reina y. United States, 364 U.S. 507 (1960) .......... 8

Rosado v. Wyman, 397 U.S. 397 (1970) .............. 14

“Shapiro v. United States, 3390.8. 1 (1948)........... 8

Sherbert vy. Verner, 374 U.S. 398 (1963) .......... 4, 5,6, 7,

o | 8,11,13.

Udall v. Tallman, 380 U.S. 1 (1965) Salis Wand Cenagen 14

United States x. Bethlehem Steel Corp., 312 ¥- Supp.

“See CO ae ROTOR ak 0c dec bdepsccccestiadeése's

United States_v. Hayes International Corp., - F. 2d

BOSS (EEE Ole, SBGR) oc ccc cccdsccctweccstastoc? 9

United States v. IBEW Local No. 38, 428 F. ‘2d 144 ,

o Kms CORN COU, MPUOED n'a pe wb 0c Psd ae eehdunted 40an ken 9

Weeks v. Southern Bell Telephone and Telegraph: Co.,

. 408.F. 2d 228, 235 (5th Cir. 1969) ..........06.5 15

Welsh v: United States, 398 U.S. 333 (1970) ......... “<2

Williams v: Illinois, 399 U.S. 235 (1970) ..........:. 11

; ° . 3

_ Coxstrfvution or tne Ustrrep States Creep: - :

United States, Constitution « _ .

First Amendment :............. space cetres 7,8, 11,14

ee PIE n'ecbnond o00 cdc bccsl shoes duds - 7

Fourteenth Amendment ..................+e00+- 7,11

Table of mney Continued sp iii

STATUTES; 5 | +: ys 15°) ae.

42 U.S.C. 2000e-2(a)(1) sdininseetine aeeel <a

Civil Rights Act of 1964 7 FA y

S * SEED WEE cveseerieteprécerse roy tee ere 11,17

_ © Seetion 703(a) (1) ol cenedecalnne i deuaea 93, 5; 7,8

EEOC Regulations ; i

Section 1605.1 :.......... vhessadscdnelences could,

‘Section 1605.1(a) ........ Cescnsdennbes sGneeevae 15

; Section 160).1(d) ......---.0-eeeeeeees béatsvcee 15

45 Fed. Reg. 19580-19581 (daily ed. December 24, 1970) 12

: te

MISCELLANEOUS + _

‘Deuteronomy; V We sas wie gh epecske iravaunees 2.’

3 Maimonides, i

ishnesT orah, ** Laws af the Sabbath” S

ch.6..%.....++5. aoe ctnccesescccecoosschprtasese 16

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IN. THE . j

_ Supreme Court of the United States

OCTOBER TERM, 1970

ae:

“No. 835

- ROBERT KENNETH DEWEY, Petitioner’

| j

REYNOLDS METALS COMPANY, Respondent

On Writ of Certorar to the United States Court of Appeals

; forthe Sixth Circuit 4

MOTION FOR LEAVE TO FILE A BRIEF AMICI CURIAE

sj

~~ ©

,

1. The National Jewish Commission on Law and

Public Affairs (COLPA), a voluntary association

‘ organized to combat all forms of religious prejudice

2

and discrimination and to represent the position of .

the Orthodox Jewish Community in matters of public

‘ ¢oncern, hereby applies .on its own behalf and on be-

half of the American Jewish Committee and the Anti-

Defamation League of B’nai B’rith, for leave to sub-

mit the attac ‘hed brief.

2, Pursuant to Rule 42(3) of the Revised’ Rules of

this Court, consent to the filing’ of this, brief-was re-.

quested of the parties_on January 25,.1971. Counsel

for petitioner-consented. on January 29, 1971, to the

filing of the brief, but counsel for respondent replied’

on February 491971, that ‘it would not be appropriate

for it [iée., respondent] to select those to whom it

might grant or withhold its consent. but rather this

issue should be left to the dlise retion of the Supreme

Court.”’

3. The National Jewish Commission on Law and

Public Affairs filed amicus briefs in this ease in the

District Court, during its initial consideration by the

Court_of Appeals, again in support of the. petition |

for rehearing, and again on the filing of a petition of.

a writ of certiorari with this Court. Its Meniorandum

in support of the Petition was filed with the consent

of both parties.

* 4, The amici are concerned with the problem of pro-

tecting racial and religious mimorities against . dis-

crimination in all aspects of fe and securing for all —

Americans full and equal: employment opportunity.

Among the principal areas which have occupied the

concern of COLPA and the other amici has been that

of employment for Sabbath-Observers, who have been

the victinis of much discrimination in the past. The *

instant ease is the first to come to this Court on the

.

‘ = °

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‘subject of religious discrimiination in employment, and

‘the familiarity of the amici with the case law and

constitutional principle on the subject will, we believe,

assist the Court in its gonsideration of the important :

issues at stake,

‘

, Qn + eee - - -” ——— 9 ree ef One eee

“777 =" GONCLUSION

For the foregoing reasons, the motion to file ‘the

attached brief amici curiae should be granted.

Respectfully submitted,

NaTHan Lawn. ,

llowanp 1. Ringe ee Minin, Cassipy, LARROCA

National Jewish Commission | & LEWIN

on Law and Publie Affairs . Washington, D. C. 20036

Attorney for Amici

«c/o National Jewish Com-

mission on Law and

SAMUEL RAuINOVE -

American Jewish Committee

159 Fast 56th-‘Street — . * . ,

’ “6 Publie Affairs p

New York, New Y ork 10022. —, . 690 Mason Sized

Sor Rapkin New York, New York

.. Anti-Defamation isan 10038

of B'nai B’rith ~ . . ‘

~ > Lexington Avenue

New York, New York 10016

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oe §

IN THE

Wicetials Court of. the United States

OcroBER TERM, 1970

&. No. 835

ROBERT KENNETIF DEWEY, Petitioner

es wf

RE YNOLDS METALS C OMPANY, Respondent

On Writ of Certiorari to the United States Court of oe

for the Sixth Circuit

7-7

BRIEF OF NATIONAL JEWISH COMMIS [SION ON LAW

AND PUBLIC AFFAIRS, AMERICAN. JEWISH COM-.

MITTEE AND ANTI-DEFAMATION LEAGUE OF: B’NAI

_ B’RITH ASMICI CURIAE

INTEREST OF THE AMICI CURIAE

The Nationa! Jewish Commission on Law and Publie

Affairs (COLPA) is a voluntary association of Jaw-

vers and social scientists organized to combat all forms

of relrgious prejudice and discrimination and to rep-

resent the position of the Orthodox Jewish community

in matters of publie concern.

The interest of the National Jewish Commission on

Law and Public Affairs in this case—ir which it filed

briefs in the District-Court and the Court of Appeals

oe

eX

= * > , ° . é aoe *

Se de ee ee a ee ee ) addi oll “4 - . .

—arises out of the vital importance of the egal issues

presented in the, within easé to Sabbath-Observers

throughout the country, and particularly to Orthod

Jews who are enjoined hy Biblieal command to ‘ob-

serve the Sabbath day te keep it holy’? and “not [fo] :

dou a manner of work’? on that day (Deuteronomy,

V, 12, 14)- | Pon tine as

ioe Tamme we Amerie Jewish Committee, founded in, 1906,

sas: incorporated by Act of the Legislature of the

\ + State of New York in 1911. . It has long been a

“we fundamental tenet of the American Jewish Committee

that the welfare and secarity of all religious groups

i the Enited States depend upon the preservation

of Coustitutional guarantees. "The: American Jewish

( ‘orumiittee’ believes that the religious liberty of Jews

will only -be fully secure: when the religious liberty

of American citizens of all faiths is: fully secure,

The Anti-Defamation League, an arm of B'nai

Brith, is a voluntary organization which has long

been concerned with the ‘preservation of the religious

freedom and Constitutional rights of Jews in Ameriecs.

It is deeply committed ‘to the belief that thé religion

clauses of the First Amendment are the surest guar-

antee of. re ligious liberty and. have proved the gr eatest’

guarantor of freedom of religion for all. |

In ‘the view of . the amici, Congress’ * prohibition

against diserimination, on aecount:of ‘religion’? ‘in

Section 703(a)(1) of the Civil Rights Act of 1964, 42

TUS:C. 2000022 ( a) (1), was designed to secure the rights

of in dividu: il employees to the free exercise of religious -

practices*sueh as Sabbath-observance wherever such °

practices would not impose a demonstrable undue hard-

hase onstrued the Act to deprive the 2 ced observ-

J

ship, onan employer. | The majority of the court below.

Rey

ant of that right, and the corresponding riglit to = |

ty of employment opportunity free fronr diserimie;

| -

‘of a weekly day of rest because of a collective =bargain-_

vo

nation, notwithstanding the definitive inte pretation: ig.

given the Act by the federal agency charged. with

its administration and implementation. In our view,

the holding below. presents a grave danger to re ieious

‘liberty in this country ‘und must be reversed by this

ourt, ete mel ‘

| . c

QUESTIONS PRESENTED .

b. Whether the prohibition in Section 703 ( (2) (1) of .

the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1),

against employment: -diserimination’ “because of as

employee’s] * *.* religion”? requires an empldyer: to.

,

ninke reasonable accommodation to an ‘employee’ s.re-

ligious observane ‘e of a weekly: day of rest.

“+ 2. Whether an employer may refuse to make’ a rea-

sonable ‘accommodation to an employee’ s_ observance

ing agreement which pr eseribes the method for ap-

-portioning overtime work without reference to reli- .

gious: needs. :

* 3s Whether the interpretive regulation construing

the statutory term ‘‘religion’’? issued by~the Equal

Employment Opportunity Commission -in July 1967

-1s a proper statutory interpretation, and whether, its

application to facts occurring in September 1966,

amounts to ex post facto rulemaking.

4, Whether petitioner forfeited his Civil Rights. Act

- remedy by unsuceéessfully’ pursuing arbitration of. his

grievance under the epllective-hargaining agreement.

‘Our brief is addressed to the first three of the above

questions.

4 ” a

/ARGUMENT |

INTRODUCTION AND SUMMARY | ir

Petitioner’s religiotis beliefs: ‘require him to abstain

-from labor on Sundays, and the issue here is simply

whether federal law permits him to be’ discharged be-

‘ause he refuses to deviate from the command. of. his-- .

_ faith. Theré is no possible claim that the conduct in.

~ which = religion directs hin to- engage presents any

‘sthreat’? whatever—muceh less a‘‘‘substantial threat”

~.- to ithe safety, peace or order.’’ Sherbert v.

Verner, 374_U.S. 398, 403 (1965). Nor is there any

question as to the sincerity of the belief which prompts

Itim to-act-as-he-does,

Our argument that the conduct of petitioner’s em-

ployer.violated the Civil Rights Act proceeds from —

four premises: (1) The term ‘religion’? as used in

the Civil Rights Act of 1964 encompasses—as does the

same term in the First Amendment not merely belief

but also conduct which is not socially harmful. (2) An

employer engages in‘ disérimination’’ within the meani-

ing of the Act if he rigidly applies a hiring, wage, or

promotion poliey which though appearing neutral on

‘its'face necessarily and ineluctibly imposes disabilities:

~ upon and effectively forecloses employment to indi-

viduals of a certain race or religion by reason thereof.

(3). If an employer’s superficially ‘‘neutral’’ policy

has such an effect, he at least has the burden of dem-

onstrating that accommodation of that policy to the

needs of the religious- minority member will result in.

undue hardship tothe operation of his business. (4)

No adequate accommodation was made in this ease’ to.

“petitioner’s legitimate religious needs,

”

7 k ; , . rete ’ » 5 Pag é ' . re

?* : af ‘ oe > ‘ _ t . an

Petitioner's Po a of a » Weak Day of Rest Is “Religion”

Within the.Meaning of the Civil Rights Act of 1964 -

Section 703 (2) (1) of the 1964, Civil Rights Act flatly

prohibits ‘the ‘‘dischatge [of] any individual *°* *

because of such indivi ual’s *' * * religion * * *.?.

_. Petitioner g employment\ was. terminated because he:

refused, in: ‘ accordance with his religious. beliefs,, to. .

work overtime on Sundays.2nd-to obtain a replacement

for his assigned overtime Simday shifts. The initial 7

question, therefore, ig whether his discharge on this\ ° ,

_ account amounted to discharge ‘“hecause of”. his >

“yeligion.” *’ Gy K.

The majority of. é’ Court of pena read és yell

gion’ narrowly wil thereby, misapplied the Act. It

held that the reason: for [petitioner’s] discharge was

not dise ‘rimination on ‘account of his religion’’ (App.

181a), and, on rehe aring, it construed “religion” as

limited to the right to hold ‘religious beliefs’? (App.

142a). In fact, the record indisputably discloses. that

the sole reason for petitioner’s discharge was his ad-

herence to a principle of conduct commanded by his’. “A

faith. And conduct such as observance of a weekly *

day of rest is protected by the constitutional and an

tory safeguards for religious freedom.

That proposition was firmly established by ‘this

Court’s decisions in Sherbert v. Verner, 374 US. 398:

(1963), and In re Jenison, 375 U.S. 14 (1963). In the

Sherbert case, the Court held’ that ‘‘overt acts prompted. -

by religious beliefs.or principles”? are‘within the reach

of state legislation” only if they pose ‘¢some substan-—

tial threat to public safety, peace or order.”’ 374 U.S.

at 403, At i issue in ‘Sherbert was the s same sais as

a ,

. *

“=

6 ad

ix at issue here—*conscientious objection to * * *

work” on one day of the week—and this Court held

that such objection “plainly enough”’ is protected by

the constitutional safeguards for the ‘free exercise -

_ of religion.”’ And the same rule was applied, at the

_™ inception of the following Term‘of Court, to the con-

scientious refusal to:serve on a jury; See In re Jen~ ene ‘os

ixon, 375 U.S. 14 (1963), summarily vacating 269 Minn.

- 96, 120 NAV. 2d 515 (1963). . Yes

As long ago as Cantwell vy, Connecticut, #10 US. 296,

20% (1940), this Court recognized that in safeguarding

the free exercise of religion the Constitution ‘em-

braces two concepts—freedom to believé and freedom

to act.”’ 310 U.S. at 303. While the Court conceded

that *‘freedom to act”’ could not be absolute, it limited

the permissible range of regulation of religiously-moti- |

vated conduct to-that which wad “for the protection

of society.’ Tt also observed’ that the power to regu-

late “*must be so exercised as not, in attaining a per-

missible end, unduly to infringe the pretected free-

dem’ 310 U. s., at 304,

Here, as in Sherbert, petitioner’s conduct did not

pose any threét whatever—much less a ‘substantial

threat”—to public safety, peace.or;order. And, as in

Sherbert, the conduct was direetly traceable to peti-

titger’s religious faith. Accordingly, the discharge of

rion was well within the prohibition against dis-

_erimination‘’on account of religion.

It is no answer to snioind respondents have below

and ag the majority of the Court of Appeals did (App.

129a)—that-the Sherbert decision-was a constitutional

one applicable to “state on” while the issue here

is the applicability of — statute to private par-

‘ties. Both the First Ameidit nit and Section 703

(a)(1) of the Civil Rights Act use the same ‘term—

“religion”’— and the two should be construed in pari

materia, Foy if Congress had intended to safeguard

“beliefs” only and to leave conduct beyond the pro-

tection of the 1964 Act, it would have used the word

‘beliefs.’ By defining the right, in terms of ‘reli-

gion’’—a word which had been meaning by this

Court in its 1963 Sherbert deisign“and its 1940 Cant-

‘well decision—the Congy s nitist have intended the

broad interpretation Ph orded by this Court’s ‘consti-

tutional] decisions. -o e

The pee rule of statntory tnterveotation was

applied in Cooper Mfy. Co. v. Ferguson, 113 U : 127°

(1885), where the ‘question presented for revJew was —

the meaning to be’ given tosterms in 3 0 statuite

which had been enacted pursuant to the provisions of

a section of the Colorado constitution. The Court said

(113 U.S. at 732): ie ns

As the clause. in the Constitution and the Act. of

the Legislature relate to the same subject, like

statutes in ‘pari materia, they are to be construed:

together.

It is plain from its face and frém its legislative his-

tory that the Civil Rights Act of 1964 was enacted to

provide, inter alia, federal judicial remedies for pri-

vate infringement of rights seenred by the Fourteenth .

Amendment against state-detion and by the First and

_ Fifth Améndments against federal interference. There

can be no question, therefore, as to whether the Con-

stitution and the Civil Rights Act ‘relate to the same

subject,’ and it is appropriate that they be construed

similarly.

‘Ss

Siiads er, by incorporating. in the 1964 Act a term

which this Court had very recently construed in Sher-

' bert and.Jenison, the Congress must be deemed to have

acted with the judicial construction in mind. See, |

C.J. Reina y. United States, 364 U.S. 507, 510 (1960) ;

ape v. United States, 335 U.S.1, 16 (1948) 7 Hecht

_ vy. Malley, 265 U.S. 144, 153 (1924). As long ago as

1879, in The Abbotsford, 98 U.S. 440, 444 (1879), this _

rule of construction was held to apply to “words in

a statute * * * [which] had acquired, through judic ial

interpretation, a well-understood legislative meaning,”’

and the Court held that that meaning ‘is to be pre-

_ sumed * * * in this instance, unless the. contrary is

in'some way made to appear.’’ | : nae

Accordingly, the term ‘‘religion’’ as used in Seetion

703(a)(1) is pot limited to beliefs but extends—as

‘«loes the Free Exercise Clause of the First Amend-

- ment—to aefion (or, as in this case, refusal to act)—

based upon religious conviction. Dissenting in Welsh

\. United States, 398 U.S 333, 372 (1970), Mr. Justice

White (speaking also for the Chief Justice and Mr.

_ nice Stewart) observed that the Religion Clause of

the First Amendment ** protects conduct as well as reli-

gious belief and speech,’’ and he noted that ‘free ex-

excise values [may] prompt Congress to relieve reli-

gious believers from the burdens of the'law.”’ 398

U.S. at 373. This case involves precisely that kind

of decision by the Congress.

9.

Il

The Effect of Srereadane’ s Parpentelly “Neutral” Employment

Policy Is -To Discriminate Against. Those Who Observe as

Religicus Day of Rest

- The majority of the Court of Appeals rejected neti-

tioner’s aim of religious dise rimination on the ground.

that ‘the collective hargaining agreement was equal in -

-its application to all employees and was uniformly ap-

plied * * *”’ (Pet.*60a). This conclusion overlooks

the necessarily discriminatory effect of the terms of

the collective-bargaining agreement, and-the decided .

cases squarely hold that effect—and not subjective in-’

tent—is the benchmark of statutorily prohibited dis-

crimination.

* This rule ee. been applied repeatedly in cases in-

volving racial discrimination in employment, ‘where

collective-be egaining agreements which appear neutral

on their face contain provisions w hich, in actual prac-

tice, reduce the- employment opportunities of blacks.

84 e.g., Local 53 V., Vogler, 407 F.2d 1047, 1054 (5th

Cir. 1969); United States y. Hayes International Corp.,

415 F.2d 1038 (5th Cir. 1969) ; Local 189, United Paper-

makers y¥. United States, 416 .F.24-980 (5th Cir. 1969) ;

United States vy. IBEW Loeal No. 38, 428 F.2d 144

(6th Cir, 1970) ; Jones vy. Lee Way Motor Freight, Inc.,

431 F.2d 245 (10th Cir. 1970); Dobbins v. Local 212,

IBEW, 292 F. Supp. 413 (8.D. Ohio 1968) ; ef. United

States v. Bethlehem Steel Corp.,:312 F. Supp. 977

(W.D.N.Y. 1970). , Respondent’s ‘uniformly applied”’

‘overtime policy had the same effect on those who, for

religious reasons, observe a weekly day of rest as the

similarly ‘‘neutral’’ provisions in the ¢ollective-har-

_ gaining agreements im the cited cases. In each in-

stance, the consequence of the “‘neutrality’’ is to. re-

10

duce the employment opportunities of an individual or ,

group. Indeed, in the case. of Sabbath-Observers, a

policy such-as respondent’s has the necessary and in-

eluctible effect of totally excluding the conscientious.

' .* In the absence of remedial legislation properly con-

strued, individuals such as petitioner, and others’ such |

as Orthodox Jews, are: effectively denied employment

by the application of such ‘‘neutral’’ rules. Simply

stated, the effect of respondent’s ‘uniformly applied

neutral”’ policy is. to deny employment to Sabbath-

Observers. Saha :

It ix, we submit, plainly insufficient for an employer

to attempt to justify such a policy by merely saying

that his policy is framed in even-handed terms. If

it has the effect of exeluding .or harming racial or

religious ‘minorities, he must show that the require-.

ment which is ‘uniformly applied” is an essential con-

dition of maintaining and operating. his business.

- Put in another way, the employer must show that to’

deviate from his policy and accommodate the religious

needs of his employee would eause him undue hard-

ship—the standard adopted by the Equal Employment

Opportunity Commission. (Point (3), infra.) Dis-

senting in Griggs v. Duke Power Co.,.420 F.2d 1225

(4th Cir, 1970), certiorari granted, No. 124, this Term,

Circuit Judge Sobeloff said (420 F.2d at 1238) :

Overt racial: discrimination in hiring and promo-

tion is banned. So too, the statute interdicts prac-

tices that are fair in form but discriminatory in

substance. Thus it has become well settled that

‘“‘objective”’ or ‘neutral’ standards that favor

whites but do not serve business needs are indu-

bitably unlawful employment practices. The crit-

ical inquiry is business necessity and if it cannot ©

be shown that an employment practice which ex-

ie

‘Hl

cludes blacks stems from legitimate needs the prac-

tice must end: * * * .For example, a requirement.

that all applicants for employment shall have at-

tended.a particular type of school would seem

racially neutral. But what if it develops that the

_ specified schools were open only to whites, and if,

moreover, they taught nothing of particular sig- --

nificance to the employer’s needs? No-one can

doubt that the requirement would be invalid.

_ The Jesson here is also to be learned from Sherbert

v. Verner, 374 U.S. 398 (1963), where this Court con-

cluded that a seemingly even-handed unemployment-

compensation policy could constitutionally be applied

tu the detriment of Sabbath observers only if it were

supported by a “compelling * * * interest.’”’ Mere

aesthetic interest in achieving uniformity of rules was

not deemed sufficient in Sherbert to entitle the, State

- to override the religious needs of the Sabbath-observer.

And the obligation of the private employer under Title

VII of the Civil Rights Act of 1964 is, as we have

shown above, no less in kind or degree than the obli-

gation of federal, state and’ local governments under —

the First and Fourteenth Amendments.’

'The importance of looking beyond ‘‘neutrality’’ of a rule

was demonstrated by this Court’s opinion of last Term in Williams

v. Illinois, 399 U.S. 235 (1970), wherein the Chief Justice observed

that a statute whigh appeared to apply equally to all defend-

ants actually ‘‘visited different consequences on two categories

of persons.’’ The same is true of the seemingly ‘‘evenhanded’’

overtime. clause of the labor contract which is involved in this

case.

~~

’

G

* 3 III

The Interpretive Regulation of Equal Employment Opportunity

_ Commission of July 1967 Requiring Reasonable’ Accom-

modation to an Employee's Religious Requirements, in the

Absence of Undue Hardship, Is a Proper Statutory Inter-

pretation and May Be Applied ‘to the Facts of This Case

-The Distriet Court coneluded, on the stipulated facts,

that petitioner's claim was governed by Section 1605.1

‘of the Regulations.of the Kqual Kmployinent Oppor-

-inity Commission (quoted at pp. 94a-93a of the Single

Appendix), That regulation, which was issued on

July 10, 1967, interpreted the religion provision of the

Civil Rights Aet as requiring employers ‘to make rea-

sonable accommodations to the religious needs of em-

ployees and prospective employees where such accom-

modations can be made without undue hardship on

the conduct of the employer’s business,’ and it: im-

posed on the’employer the burden of proving that

asserted *tundue hardship” exists.

The EEOC regulation—which has been the mode!

for similar guidelines by loeal agene ies in at least four

States and in New York City? and by.other agencies

of the federal. government ais proper—if not, in-

deed, necessary—construction of the Act.. It is ap-

plicable to this case because it represents the considered

judgment of the agency charged with enforcement of

~~ ,

2 Sev, the Appendix to our Memorandum in support of the peti-

tion for a writ of certiorari.

7On December 21, 1970, the Secretary of Labor issued Proposed

Rule Making on the stibject of ‘‘ Reasonable Aceommodations to’ the

Religions Needs of Employees and Applicants’? which appeared at —

35 Fed Reg. 19580-19581 (daily ed. December 24, 1970). The pro-

posed rules—which are reprinted as an appendix to this brief—

apply the same cuidelines to government contractors and subcon-

tractors. ; : .

: 13 .

the federal statute as to the’ meaning of one of its pro-

visions. And the fact that that judgmeit was not °

published until after petitioner’s discharge does” not

lessen its effect‘on this case or on petitioner’s past .

and future rights under the Act..

The ‘reasonable accommodation” requirement. is

nothing less than a formylation, in different terms, of

the legal rule applied in Sherbert v. Verner, supra,

aud lower-court decisions such as Barnett v. Rodyers,

410 F.2d 995 (D.C, Cir. 1969). In Sherbert, this

fourt held that the Constitution’s solicitude for reli-

gion requires some flexibility in the administration of

a State’s unemployment-compensation system to take

account of the conscientious scruples of a Sabbath-

Observer. In essence, what the Court did was to djrect

South Carélina to make an accommodation in its other-

wise’ superficially “‘neutral”’ policy for those whose

religion, required them to abstain from work on.

Saturdays. |

In Barnett v. Rodgers, supra, the Court of Appeals

for the District of Columbia Circuit considered the de- |

mand of Black Muslim prisoners in D, C. Jail for a

‘ pork-free diet. The court’s re was A 410 F. 2d at

. 1000, footnotes omitted): «.-

Where governmental activity impairs individual

ability to abide religious beliefs, two demonstra-

tions become essential to its validity. The first

is a clear showing that ‘‘any incidental burden

on the free exercise of appellant’s religion [is]

justified by a ‘compelling state interest ‘in the reg-

ulation of a subject within the State’s constitu-

tional power to.regulate * * *;’”’ on this score,

‘*Tojnly the gravest abuses, endangering para-

_mount interests’’ can engender permissible limita-

tions on free exercise. The second is an equally

Va

14

:

oe

convincing showing that ‘‘no alternative forms of

regulation would combat such abuses without ‘in-

fringing First. Amendment rights.’? For ‘‘even

though the governmerital purpose be legitimate and

substantial, that purpose cannot be pursued by.

means that broadly stifle fundamental personal

‘liberties when the end can be more. narrowly

‘achieved.’’. However attractive the end to be

-achieved, the means employed must hoard First .

Amendment values, * ei

The rule that a government agency may not, by its

-detion, “impair individual ability to abide religious.

beliefs’’suniess it can show convincingly that a ‘*com-

_ pelling”’ interest requires it-and that no. less harmful

“alternatives”? are available to achieve the same goal

is merely another way of requiring the ageney to make

a *‘reasonable accommodation” to an indiyidual’s reli-

gious needs and: imposing on it the burden of estab-

lishihig’ its position convincingly if it claims that such

an accommodation is impossible. |

“Our position is, therefore, that even without tlre

EEOC regulation, the statutory protection for ‘reli-

gion,’’ construed, in light of this Court’s First.Amend-

ment decisions, sustains petitioner’s- contention. | If,”

howevet, there be doubt as to the meaning of the stat-,

utory language; we believe that the authoritative inter-

pretation-of the EEOC, as reflected in the present See-

tion 1605.1, concludes the issue. . For under a long line

of decisions culminating with Udall vy. Tallman, 380

U.S. 1, 16 (1965), and several recent cases applying

Uda, this Court has applied the ‘‘venerable principle

that the construction of a statute by those charged with

its execution should be followed unless there are com-

pelling indications that it is wrong.”’ Red Lion Broad-

- casting Co. v. Federal Communications Commission,

15.

-

395. U.S. 367, 381 | (1969) see Rosado v. Wanan, 397

U.S. 397, 415 (1970).* =

‘The present regulation involves the meaning of the

statute; the Civil ‘Rights Act did not give the EEOC

‘substantive authority to make law, and the agency did

not purport to exercise ‘any such authority. Indeed,

\ subsection (a) of the régulation plainly demonstrates,

on its face, that the issue to which it is addressed is

a inatter of statutory construction—i. e., ‘whether it

is discrimination on account of religion. to refuse to

' hire * * *,?? and subsection (d) indicates that the

EEOC Nntends to consider future cases ‘‘on an indi-

vidual basis’? in light of the interpretive guideline. °

In these circumstances, the majority of the Court of

Appeals was plainly wrong in characterizing the ap-

plication of the current interpretation to incidents oc-

curring in 1966 as er post facto. Courts and adjudica-

tory ageticies are constantly in the business of; apply-

“ing their current understanding of statutory terms to ~

past incidents; that process has tiever ‘been thought

to constitute unfair surprise to the parties. - Nor, in-

deed, can respondent cl laim surprise here. Pex. as»

Circuit Judge Combs noted in dissent (App. 138a), .’

the obligation on an employer to ‘‘acecommodate to

religious needs of employees’? was part of the 1966 -in-

terpretation of the Act, even though it was not spelled

outin the same specific form as the 1967 and current’

initer pretations.” ih this case, therefore, petitioner’s

—. This doctrine has been applied to interpretive guidelines of

the EEOC as well. Weeks v. Southern Belt. Telephone and

Tclegraph C., 408 F.2d 228, 335. (5th Cir. “1969). e-

>The District Court went further than it had to by limiting any

back-pay award to the time after August 1, -1967—several weeks

after the issuance of the current. interpretive regulation—on the

; theory that ‘‘béfore then defendant was not on notice as to the

_meaning of the statute’’ (App. 11 Da). , .e

16 .

| Be: . .

rights were properly measured by the most recent

authoritative statutory construction provided by the

federal agency, and that construction was at least con-

sistent with—if not démanded by —this Court’s s earlier

decisions.

IV

Rednondons Failed To Make a Reasonable Actonimodation to

Peiitioner’s Réligious Scruples Against Personally Obtain-

ing a Replacement for Sunday Work

We turn finally to: the alternative conclusion of the

majority of the Court of, Appeals that respondent had —

made a reasonable accommodation .to petitioner’s reli-

gious needs, by permitting him to obtain a replacement

for Sunday assignments (App..132a, 144a)—a ‘‘ privi-

lege’? which, according to the majority, he “stubbornly

refused to exercise” (App. 132a). The majority of

» the Court of Appeals erred in assuming, on the stip-._

“ulated facts of this case, that the “privilege” Amounted °

to: any ‘‘accommodation’”? whatever. And the ma-

jority’s characterization of petitioner’s refusal as

“stubborn’’ demonstrates its total misunderstanding

“of thée-nature of his religious convictions,

The stipulation of facts éstablished that petitioner's

religious beliefs affected his Sunday overtime assign-

ments in two distinct ways: First, he “refused to work .

because of his religious beliefs’? (App. 42a); and

second, “he * * * refused because of his religious ~

beliefs to obtain a svorpinpacil in. accordarice with the

replacement system”? (ibid.) which respondent had put

into effect. in response to an earlier unrelated union -

®° The cia, that it is impermissible to ask another person to

do forbidden work on the Sabbath is not unique to petitioner’s

faith. A similar. rule apjlies in the Jewish tradition. See 3

Maimonides, ‘Mishiie Torah, ‘‘ Laws of the Sabbath?’ ch. 6...”

.

¥

7

ie inquiry (App. 580-54). It was also stipulated that can |

“the sincerity of [petitioner’s] personal religious

beliefs is not contested” (App. Sa fs,

The accommodation which respondent is said to have

made to petitioner’s religious needs touched only the

first of these conscieritious scruples; it was plainly no:

answer whatever to the second. By advising peti-

tioner that he could avoid Sunday duty by .violating

—another.rule of his faith relating to Sunday observance,

respondent was, in effect, telling petitioner that no . =o

accommodation was possible and that his conscientious - a. ©

Sunday observance would cost him his job. — (on

A ready alternative available to the. responderit was -

to select petitioner’s replacements itself, and it ap-~ oe

parently ‘followed this course, withou® any sign of -.

hardship, when petitioner refused: to budge from ‘his -

7 ‘religious convictions. (See App. 63a— ‘When -Mr. .

Dewey failed to report into work Sunday, Mr. 2eag- “@.

man was ask [sic] to work an additional shift due to:

Mr. Dewey’ s. absence. 49) The only suggestion from

the parties as to why respondent was unwilling to. make

the ‘selection of replacement employees is the cryptic

assertion that such acts ‘‘would result in a waiver of .

* the compulsory overti ime. provisions ofthe Labor Agree-

ment’? (App. 45a). Surely ly respondents. not given a

_ right—which it may refuse to ‘‘waive’’—by the labor

agreement to violate federal law. Yet that is the only...

apparent explanation for its failure to take the ob- ee

‘vious step. : :;

ee

7 There is no apparent. motive other. than the religious one for

‘petitioner’ s refusal to work on Sundays. Since the ov ertime pro- a

visions of the labor contract prescribe that double time is to be : ”

- paid for Sunday work (App. 48a), economic motivations would -

seem to favor such assignments.

18. , >

The record squavely belies the suggestion, madp ap-

parently sua spoute*by the majority of the Court of:

. Appeals, that if respondent were to select replacements:

it would “create chaotic personnel problems” and give

rise to a ‘charge of unequal naming of replacements”

(App. 132a). For fn the grievance ‘arbitration pro-

ceeding, the union—which would surely have been the

‘first to raise such claims—supportéd the petiti@er

and urged **that if the Company had wanted to work

. out the problem it could and should have cooperated

with the Union in obtaining replacements for the-—

grievants instead. of penalizing these men for their

_religious beliefs”’ GApp. 74a-75a). And the arbitrator

squarely rejected the argument based upon petitioner's

conscientious refuspl to seek a replace wt because

. of any alleged administrative hardship but by von- .

_ eluding (App. 77a): “Ido not question the sincerity

of their conviction that it would be sinfal for them to

look for a replacement, but’I consider it to be miseon-

duet under the Agreement for them to have refused to

do so."

The only,conelusion sustainable on the record is the

conclusion reached by the District Judge—* Requiring:

* the employee to obtain a qualified replacement may be

some acconynodation to those who do not approve of

Sunday wayk, but it is no acéommodation whatsoever

_té those who believe, as-petitioner does, that it is a

- + gin to ny ahother to commit the sin of working on

*We do not, of course, mean to suggest that the side the union

takes is dispositive. In many instances, provisions in labor agree-

ments which both employers and unions wigh to. preserve have the

effect of ‘discriminating against minorities. See authorities ‘cited

at p. 9,.supra. But the union's readiness to support’ petitioner

in this case demaqystrates the insubstantiality of any elaim of un-

fairness to other employees.

aN

“ 2.

Sunday. As to this sincere religious belief of peti-

tioner, respondent has made t no accommodation” (App.

101a). ; ’

' : CONCLUSION

‘In enacting Title VII of the Civil Rights ‘Act of ©

1964 Congress intended to prohibit all forms of racial

and religious discrimination in private employment and

to afford meaningful equal economie opportunity to

all citizens. This case tésts whether that promise is

~ tou be made a reality for those whose creed requires

*. them to act or‘refrain from acting in a manner

~ which does no harm to others. The yecord in, this

case demonstrates graphically that petitioner has ‘Deen

discharged from a job, he has held for inueh of his

adult life solely because he has refused té surrender

his conscience to the demands made of him by his

—employér. And'the employer has provided no justi- .

fication for making the inflexible demands it has made.

Accordingly, the judgment of the Court of Appeals

should be reversed and the case remanded with in-

structions to affirm the judgment entered by the

District Court. |

Respectfully’ submitted,

Natian Lewin

Howanp 1. Rite - Mrirn, Cassy, Lanno®s

National Jewish Commission & Lewin

on Law and Publie Affairs Washington, D.C, 20036

. Attorney for Amici

Samven Rawnove corey [OF LEmNCer

American Jewish Committe , ¢/o National Jewish Com-

;

159 Kast 56th Street / Mission on Law and

. Publie Affairs

New York, New York 10022 - 119 Nassau Street

So. Rankin New York, New York

- Anti-Defamation League wns

of B'nai B'rith

_ 315 Lexington Avenue

New York, New York 10016

‘ Of Counsel ° a | .

’

-) ee

2 . P

APPENDIX

DEPARTMENT OF LABOR

' Office of the Secretary :

[41 CFR Part 60}.

Reasonable Accommodations to the Religions Needs of

P Employees and Applicants

Notice of Proposed Rule Making

Notice is hereby given that, pursuant to Exeentive Or-

der 11246 (20 F.R. 12319), ax amended by, Exceutive Or-

der 11375 (22 F.R. 14303), the See retary of Labor ix con-

sidering the addition of a new scetion 60-1.10, ‘entitled

** Reasonable Accommodations to the Religions Necds of —

Employees ‘and Applicants,’ to Title 41 Part 60-1 of the

Code of Federal Regulations. . .

The purpose of the preposed addition is to clarify the

obligations of contractors and subcontractors subject. to

Executive Orders 11246 and 11275 with respect: to the re-

ligious needs of their employves.

This proposed addition concerns matters ae to pub-

‘lie tontracts. While public participation in this. rule-mak-

ing ix not réquired by 5 U.S.C, 553, the Department wishes

to invite written comments, suggestions, or objections re-

. garding this-proposed addition.- Accordingly, interested

‘persons are invited to submit written comments, regarding’

the proposed addition to Mr..Arthur A. Fletcher, Axsist-

ant Seeretary for Workplace Standards, U.S. Departinent

of Labor, 14th Street and Constitution Avenue NW., Wash-

‘ington, DC 20210, within 20-days after the date of publiea-

. tion of this notice in the, Fevers Reotsrer.

Part: 60-1 of ( thapter 60 of Title 41 of the Code of Fed-—

' eral Regulations ix hereby amended by adding § 60-1,10,

reading as follows:

21

“$604, 10 Observance of Sabbath and other holidays.

“(a) In order to comply with his obligations under the

‘equal opportunity clause an employer must make reason-

able accommodations, to the religious needs of employees

and applicants for employment who regularly observe Fri-

day evening and Saturday, or some other day of the week,

as the Sabbath or who observe certain special religious

holidays during the year and, as a consequence, do not

work on such days. The obligation on the part of the em-

ployer to make reasonable ace ‘ommédations to the religious

needs of employets and applicants for employment exists

when 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 em-

ployee’s néeded work cannot be performed by another em-

ployee of ‘substantially similar qualifications during the

period of absence of the Sabbath observer.

(b) Because the employer. has the information upon

which a judgment may he ,made, he has the burden of

showing that an undue hardship renders the required ae-

commodations to the -religious needs of the employee or

applicant unreasonable.

(ce) Every employer shall maintain and preserve rec- —

ords containing the following information :

(1) Names and addresses.of each employee and appli-

eant for employment described in paragraph (a) of this

section who has been discharged or denied employment

and the reason or reasons in detail upon which the em-

ployer relies in justifying such discharge or refusal to

hire.

(2) A listing of all job mated (job ‘‘eategory”’ here-

in meaning one or a group of jobs having similar content, .

wage rates and opportunities) for avhich the employer will

make no accommodations to the religious needs of em-’

ployees or applicants and detailed reasons in support of

the employer’s position in this regard. °

ae

’ ; yy)

(d) Upon request by an interested indiv idual or organi-

“zation, a prime contractor or subeontractor shall provide

an assurange, in the form of a signed or endorsed notice

which shall be made available for general distribution in|

connection with solicitation or advertisement for employees,

expressly stating the extent to which the prime contractor

or siibcontractor will accommodate to the religious needs _

of employees who observe Friday evening and Saturday, |

or some other day of the week, as the Sabbath, or who ob-

serve certain special religious holidays during the year and,

as a consequence, do not work on such days. °

(E.0. 11246, 30 F.R. 12319; E.0. 11375, 32 F.R. 14303)

Signed at Washington, D. C., this 21st day of December

1970. + @ ae

J. D. Hopesox,

Secretary of Labor.

““{F.R. Doe. 70-17371; Filed, Dec. 23, 1970; 8:50 a.m.]

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