Petition — Woods v. Safeway Stores, Inc.

IN THE eee

Supreme Court of the United States

OcTOBER TERM, 1978

No. 78- a,

Mr. ANDREW Woops, Petitioner,

¥.

SAFEWAY Stores, Inc., Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Rospert B. FITZPATRICK

LANA Kay JONES

FITZPATRICK & JONES

1707 N Street, N.W., Suite 300

Washington, D.C. 20036

(202) 737-3334

Attorneys for Petitioner

December 5, 1978

pce aE aD

Press oF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

I I ee eid 5 neh uk we buen a oirae 1

ES EER AAP SEL IOS AERO Mh EE EE 2

fe ee ee 2

I ee ve beeteensinué eens 2

Sennen WP ete COR oi 5 ccs cwiecccekesekewese 3

Reasons For GRANTING THE PETITION FOR WRIT OF

eon Coc ena Glos aace hace ae ene es 7

ee teas ued arn ane aewaw wee 11

APPENDICES

A. Opinion of the Court of Appeals for the Fourth

RR bg ke ene a Cee he wade Neen ewes ek la

B. Order of the Court of Appeals Denying Rehearing 3a

C. Opinion of the United States District Court for the

Eastern District of Virginia ................005: 4a

TABLE OF AUTHORITIES

CASEs:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . 7, 8,10

Board of Trustees of Keene State College v. Sweeney,

US. , 47 U.S.L.W. 3330 (November 13,

NP re oe ee ae ale vena geewe wes

Dothard v. Rawlinson, 433 U.S. 321 (1977) ........... 7,8

Frontiero v. Richardson, 411 U.S. 677 (1973) ......... 11

Furnco Construction Co. v. Waters, 57 L.Ed 957

RA Sag ST ah ee eee

General Electric Co. v. Gilbert, 429 U.S. 125 (1976)... 7

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .. 7,8, 10,11

International Brotherhood of Teamsters v. United

oe ke Gy 5 a rerererereee 7

Los Angeles Dept. of Water and Power v. Manhart,

da Skies wud a be ees cane caine 8, 10

il Tabie of Authorities Continued

Page

McDonnell Douglas Corp. v. Green, 411 U.S. 792

Lg EEE eae ea Y

mackie bas :

a f compag or U.S. 1116 (1973) ....... 9

wallace v. Debron Corp., 494 F.2d 674 8th Ci r. 1974) .

Waters v. Wisconsin Steel Works of atl aa ’

Co., 502 F.2d 1309 (7th Cir. 1974), cert. denied sub

nom Bricklayers, Local 21 y. Waters, 425 U.S. 997

Ww co eee Fee aes cists 9

eber v. Aetna Casualty & Surety ¢ “ge CARRE SS

a Ce ee es

STATUTE:

Section 703(a)(1) of Title VII of the Civil Ri

of 1964, as amended, 42 U.S.C, CTA TET o 2

OTHER Sourcgs:

TB MED 287, Department of the Army Technical Bul-

letin, ‘‘Pseudofolliculitis of the Beard,” August

SOE epee eg 6

AFM 35-10 (September eee 6

AFM 160-44 (August 1977) .................... 6

Marine Corps Order 6310.1 .............. 6

Marine Corps Order 6310.1A (August 15, 1977) . 6

Alexander & Delph, ‘‘ Pseudofolliculiti in the

id » itis Barbae t

al eg cng Sere nnreive and Sociat

rol . ournal of the Nati

ciation, 66 J.N.M.A,. 459 (974) Pnine anes 6

IN THE

Supreme Court of the United States

OcToBeR TERM, 1978

No. 78-

Mr. ANDREW Woops, Petitioner,

We

Sareway Stores, Inc., Respondent.

—

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

-

Petitioner, Mr. Andrew Woods, respectfully prays

that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Fourth

Circuit entered in this action on July 24, 1978, as to

which rehearing was denied on September 6, 1978.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth

Cirenit, reported at 579 F.2d 43, affirming the judg-

ment of the District Court is printed as Appendix A.

The Order of the Court of Appeals denying rehearing

is printed as Appendix B. The opinion of the United

States District Court for the Eastern District of Vir-

ginia, reported at 420 F.Supp. 35, is printed as Ap-

pendix C.

2

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on July 24, 1978 (Appendix A).

Petitioner’s timely petition for rehearing and sugges-

tion for rehearing en bane was denied on September 6,

1978 (Appendix B).

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the court below, in affirming the judg-

ment of the District Court, erred when it upheld the

respondent’s racially discriminatory treatment of pe-

titioner without a showing that the treatment was justi-

fied on grounds of ‘‘business necessity”’.

2. Whether the court below should have required a

compelling justification for petitioner’s discharge

rather than accepting respondent’s articulation of a

‘business purpose’’ as a sufficient defense.

3. Whether respondent sustained its burden by ar-

tieulating a ‘‘business purpose’’ and by showing that

petitioner was the only black employee discharged on

account of a physical characteristic peculiar to his race.

4. Whether the court below should have found that

a less discriminatory alternative existed.

STATUTE INVOLVED

The statutory provision involved is Section 703(a)

(1) of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-2(a) (1), which provides as

follows:

3

“Tt shall be an unlawful employment practice

for an employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because

of such individual’s race, color, religion, sex, or

national origin; .. .”’

STATEMENT OF THE CASE

This case raises significant questions as to the mean-

ing and enforcement of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e-et seq. Pe-

titioner contends that the respondent-employer, the

Nation’s largest chain of retail grocery stores, diserim-

inated against him in violation of Section 703 of said

Act, 42 U.S.C. § 2000e-2, when it discharged him solely

on the ground of a racially-based physical character-

istic without establishing a ‘‘business necessity” for

such action.

Petitioner, a young black man, has a severe skin dis-

order called pseudofolliculitis barbae. Pseudofollicu-

litis barbae is caused by the tips of kinky Negroid fa-

cial hairs penetrating the skin surface and causing an

inflammatory reaction. This reaction ranges from a few

“razor bumps” to multiple papules and pustules, which

ean be very painful. For many victims, shaving in-

creases the pain. Expert testimony at trial established

that this disorder is peculiar to and is a racial char-

acteristic of Negroid people.

Unless the disorder is properly treated, permanent

disfigurement can result. In a severe case of pseudo-

folliculitis barbae, the only remedy may be temporary

cessation of shaving until an individual treatment plan

4

can be devised by a dermatologist, as regular shaving

can exacerbate the disorder. And in some severe cases,

dermatologists’ only known cure is indefinite absti-

nence from shaving. This case arose out of respondent’s

refusal to modify its grooming eode to permit petitioner

to wear a neatly-trimmed beard and its subsequent

discharge of petitioner.

Petitioner was employed by respondent as a store

clerk in the Hampton-Newport News area of Virginia.

Prior to accepting employment with respondent, pe-

titioner was employed as a store clerk at respondent’s

principal local competitor directly across the street

from respondent’s store. Only after petitioner had ac-

cepted respondent’s job offer and resigned from re-

spondent’s competitor did respondent’s store manager

inform him that he was required to be clean shaven.’

For several months the petitioner endeavored to com-

ply with this code by shaving regularly. However, shav-

ing exacerbated his condition and it beeame so severe

that his dermatologist, a consultant to the United

States Army, advised him to abstain from shaving

indefinitely.

When petitioner’s dermatologist first advised repond-

ent of petitioner’s condition and of his medical advice,

respondent allowed petitioner to continue working with-

out shaving. During this period, petitioner trimmed

his beard regularly and continued to perform his duties

in a diligent and capable manner.? None of respond-

'Respondent’s grooming code is set forth in its entirety in

Appendix C at p. 5a, n. 2.

“As a store clerk, petitioner’s principal duties were to stock

shelves, primarily with canned goods and paper products. A sub-

stantial portion of his duties were performed after the store had

been closed for the day.

on al Ce ee

5

oe aouae

ent’s customers ever complained about petitioner Ss ap

pearance nor were his co-workers inconvenienced

thereby.

After respondent had exempted petitioner from its

grooming code for nearly six months, it discharged him

for his continued inability to comply with its code.

Thereafter, this action was initiated as an individual

action seeking to establish that respondent's treatment

of petitioner violated Title VII of the Civil Rights

Act of 1964, as amended.

At trial, respondent attempted to justify its treat-

ment of petitioner on the ground that the purposes ”

its grooming code were legitimate and petitioner was

the only black discharged because of his inability _

comply with the rule. Respondent presented testimony

at trial that the purposes of its code were to provide

clear guidance to its employees regarding its grooming

standards and to restrict employment to those individ-

uals who would ‘‘be objectionable to the least number

of people in the community”. Respondent also testified

that petitioner was the only employee with such a of

vere case of pseudofolliculitis barbae that he could no

comply with respondent’s grooming code.

Petitioner, on the other hand, established that re-

spondent permitted its store employees to wear other

facial adornments such as mustaches, long sideburns,

and Afros, and ‘‘to wear their hair at any length they

prefer so long as it is kept clean and neat’’, even though

these were not worn out of medical necessity ; that no

complaint was ever made by a customer about oh

tioner’s appearance during the nearly six months tha

he continued to be employed by respondent while —

ing a beard; that his beard presented no health hazard ;

6

that at the time of trial the manager of the store at

which petitioner had been employed was allowing a

black employee to violate the rule without any showing

of medical necessity; that respondent allowed other

employees in a publie contact job to grow beards: that

a number of respondent’s competitors in the Hampton-

Newport News area allowed their store employees to

wear beards; that respondent allowed its store em-

ployees in several other areas of the country to grow

beards; and that the United States Army, Air Force

and Marines allow servicemen with severe pseudofol-

liculitis barbae to grow short, well-trimmed beards pre-

scribed by military dermatologists.’

The District Court found that respondent acted ‘‘to

disqualify an otherwise qualified black from employ-

ment solely on the basis of a genetic characteristic pe-

culiar to his race’’ (App. 16a). Despite this finding,

however, it held that respondent had not violated Title

VII ‘‘because the rule is justified by a legitimate busi-

ness purpose’’ (App. 16a); it has ‘‘a relation to exist-

-————

‘In express recognition of this disorder, the rules of the United

States Army allow servicemen with pseudofolliculitis barbae to

grow a temporary and, in some cases, a permanent beard. TB

MED 287, Department of the Army Technical Bulletin, ‘‘ Pseudo-

folliculitis of the Beard,’’ August 15, 1973.

The Air Force’s policy as of September 21, 1973 permitted a

well-trimmed beard of one-fourth inch in length where medically

prescribed. AFM 35-10 (September 21, 1973). The Air Force’s

current policy is AFP 160-44 (August 1977).

The Marine Corps’ policy as of July 9, 1975 permitted tempo-

rary beard growth not to exceed one-fourth inch where medically

prescribed. Marine Corps Order 6310.1. The Marine Corps’ current

policy is Marine Corps Order 6310.1A (August 15, 1977). See

Alexander & Delph, ‘‘Pseudofolliculitis Barbae in the Military:

A Medical, Administrative and Social Problem,’’ Journal of the

National Medical Association, 66 J.N.M.A. 459 (1974).

Pe aS ee eee ee

7

ing human preference scales” (App. 18a); and “‘the

degree of impact of the employment practice in ques-

tion is slight’’ (App. 18a). In short, the District Court

decided that ‘‘a business purpose exists to support”

respe"dent’s rule and ‘‘the rationale behind the rule

overrides the slight racial impact resulting therefrom”

(App. 19a).

The Fourth Cireuit Court of Appeals affirmed for

the reasons set forth in the District Court’s decision

(App. la-2a).

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI

The writ should be granted for two reasons. First,

the decision of the court below in this case conflicts

with decisions of this Court and several Courts of Ap-

peals. Second, the decision presents an important fed-

eral question regarding the scope of the ‘‘business nec-

essity” defense where an individual is denied employ-

ment solely on account of a physical characteristic that

is directly traceable to race.

Racial discrimination can be established by demon-

strating that an individual has been subjected to “dis-

parate treatment”’ or ‘disparate impact’’ on account

of race. International Brotherhood of Teamsters V.

United States, 431 U.S. 324, 335-336 n. 15 (1977).* The

‘McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-806

(1973) (disparate treatment) ; Purnco Construction Co. v. Waters,

57 L.Ed. 957 (1978) (disparate treatment) ; Board of Trustees of

Keene State College v. Sweeney, US. , 47 U.S.L.W. 3330

(November 13, 1978) (disparate treatment) ; Griggs v. Duke

Power Co., 401 U.S. 424, 430-432 (1971) (disparate impact) ;

Albemarle Paper Co. v. Moody, 422 U.S. 405, 422, 425 (1975)

(disparate impact) ; General Electric Co. v. Gilbert, 429 U.S. 125,

137 (1976) (disparate impact) ; Dothard v. Rawlinson, 433 U.S.

321, 329 (1977) (disparate impact).

8

only non-statutory defense to a demonstration of racial

discrimination that has been recognized by this Court

in a ‘‘disparate impact” case is a counter-demonstra-

tion by the respondent of ‘‘business necessity’’. Griggs

v. Duke Power Co., supra, 401 U.S., at 431; Albemarle

Paper Co. v. Moody, supra, 422 U.S., at 425 (1975).

Cf. Dothard v. Rawlinson, supra, 433 U.S., at 329

(1977); Los Angeles Dept. of Water and Power v.

Manhart, 435 U.S. 702, 716 n. 30 (1978).

Tn Griggs v. Duke Power Co., supra, 401 U.S., at 431,

this Court held:

_'The Act proseribes not only overt discrimina-

tion but also practices that are fair in form, but

discriminatory in operation. The touchstone is

business necessity. If an employment practice

which operates to exclude Negroes cannot be shown

to be related to job performance, the a"

prohibited. J P ’ practice is

See also Los Angeles Dept. of Water and Power v.

Manhart, supra, 435 U.S., at 716 n. 30.

Thereafter, this Court indicated that the existence

of a less discriminatory alternative that serves the em-

ployer’s interests would defeat a ‘‘business necessity”

defense. Albemarle Paper Co. v. Moody, supra, 422

USS., at 425.

Then, this Court held that in order to fulfill the

‘‘business necessity’’ test, the practice ‘‘must be shown

to be necessary to safe and efficient job performance

to survive a Title VII challenge’’. Dothard v. Rawlin-

son, supra, 433 U.S., at 332 n. 14.

Lower courts have concluded that the defense of

‘business necessity’’ requires a demonstration by the

employer that: (a) it has a business purpose for its

9

treatment of the individual that is necessary for the

safe and efficient operation of its business;* (b) its

treatment of the individual was necessary to achieve

that business purpose;° and (c) the desired objectives

cannot be achieved through a method which has less

discriminatory impact.’

Here, petitioner proceeded under a ‘‘disparate im-

pact’’ analysis and the court below found that peti-

tioner had established that his exclusion from further

job opportunities with respondent was directly trace-

able to his race. Having found that petitioner had sus-

tained his initial burden in a ‘‘disparate impact”’ case,

the court below held that proof by respondent of a

‘‘business purpose’’, rather than a “business neces-

sity”, was a sufficient defense where only one indi-

vidual had been excluded from job opportunities on

account of race.

5 See, e.g., Waters v. Wisconsin Steel Works of Int’l. Harvester,

Co., 502 F.2d 1309, 1321 (7th Cir. 1974), cert. dented sub nom

Bricklayers, Local 21 v. Waters, 425 U.S. 997 (1976) > «tee

employment practice ‘can be justified only by showing that it is

necessary to the safe and efficient operation of the business’. . Said F

United States v. St. Louis-San Francisco Ry. Co., 464 F.2d 301,

308 (8th Cir. 1972) (en banc), cert. denied sub nom United Trans-

portation Union v. United States, 409 U.S. 1116 (1973) (The

discriminatory policy ‘‘must not only foster safety and efficiency,

but must be cssential to that goal’’.) (Emphasis in the original.)

® See, e.g., United States v. Bethlehem Steel Corp., 446 F.2d 652,

662 (2nd Cir. 1971) (‘‘Necessity connotes an irresistible de-

mand.’’).

"See, e.g., United States v. Bethlehem Steel Corp., supra, 446

F.2d, at 662. (‘‘If the legitimate ends of safety and efficiency can

be served by a reasonably available alternative system with less

discriminatory effects, then the present policies may not be con-

tinued.’’); Wallace v. Debron Corp., 494 F.2d 674, 677 (8th Cir.

1974).

10

By substituting a ‘‘business purpose’”’ standard, the

court below adopted what was rejected in Griggs and

its progeny. Moreover, by substituting a ‘‘business pur-

pose’’ standard because petitioner was the only indi-

vidual before the court, the court below rejected in

principle the recent holding of this Court that empha-

sizes that the Act is designed to protect individuals

from unfair treatment linked to a protected character-

istic.

The statute makes it unlawful ‘‘to discriminate

against any individual ... because of such tndt-

vidual’s race’... The statute’s focus on the in-

dividual ‘is unambiguous... Even if the statutory

language were less clear, the basic policy of the

statute requires that we focus on fairness to indi-

viduals rather than fairness to classes.

Los Angeles Dept. of Water and Power v. Manhart,

supra, 435 U.S., at 708-709. (Emphasis in original).

Finally, the lower court ignored the plethora of

evidence that demonstrated that alternatives short of

discharge existed. In doing so, it ignored or misapplied

the holdings of this Court in Moody, 422 U.S., at 425,

where it held the existence of some less burdensome

alternative requires that judgment be entered for the

discriminatee. Here, the respondent could have achieved

its business purposes by simply notifying petitioner’s

fellow employees and its customers that petitioner had

been exempted because of medical necessity. Where the

evidence at trial established that respondent had ex-

empted an employee at the same store not for reasons

of medical necessity, but rather because of personal

preference, it would seem hard put to argue that its

business purposes could not have been served equally

well by that simple expedient.

EI ee

11

Because there is an evident conflict between the de-

cision below and the opinions of this Court and several

Courts of Appeals, it would be highly desirable to have

the issues resolved by this Court to eliminate confu-

sion as to the allocation of burdens of proof in a ‘‘dis-

parate impact’’ case and the meaning of ‘‘business

necessity’’.

CONCLUSION

In Griggs, this Court forbade the use of ‘‘artificial,

arbitrary and unnecessary barriers to employment”’,

401 U.S., at 431, and held that the Act is designed to

make race irrelevant. 401 U.S., at 486. Here, the peti-

tioner performed his duties and responsibilities as an

employee in an “efficient and trustworthy” manner.

McDonnell Douglas Corp. v. Green, supra, 411 U.S.,

at 801. Sclely because of a physical characteristic that

is dire*tly linked to his race, he was unable to comply

with respondent’s grooming code. The decision below

permits that racial characteristic to be determinative

even though it was demonstrably ‘artificial, arbitrary

and unnecessary’’. 401 U.S., at 431. Such treatment

would seem to violate “the basic concept of our system

that legal burdens should bear some relationship to

individual responsibility ...’? Weber v. Aetna Casualty

& Surety Co., 406 U.S. 164, 175 (1972). Cf. Frontiero

v. Richardson, 411 U.S. 677, 686 (1973).

12

For these reasons, a writ of certiorari should issue

to review the judgment of the United States Court of

Appeals for the Fourth Circuit.

Respectfully submitted,

Rosert B. FirzPpaTrick

LANA Kay JONES

Firzpatrick & JONES

1707 N Street, N.W., Suite 300

Washington, D.C. 20036

(202) 737-3334

Attorneys for Petitioner

December 5, 1978

13

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of December,

1978, three copies of the foregoing Petition for a Writ

of Certiorari to the United States Court of Appeals

for the Fourth Circuit were sent by first class mail,

postage prepaid, to James Patrick McElligott, Jr., of

the firm of MeGuire, Woods & Battle, 1400 Ross Build-

ing, Richmond, Virginia 23219.

/s/ Rosert B. FrrzPatTrick

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-223

Mr. Anprew Woops, Appellant,

versus

Sareway Srores, Inc., Appellee,

No. 76-2235

Sareway Stores, Inc., Appellant,

versus

Mr. Anprew Woops, Appellee.

Appeals from the United States District Court for the Eastern

District of Virginia, at Richmond, Robert R. Merhige, Jr.,

District Judge

Argued June 9, 1978 Decided July 24, 1978

Before Winter and Wipener, Circuit Judges, and TxHom-

sen*, Senior District Judge

Robert B. Fitzpatrick for Appellant in 76-2234 and for

Appellee in 76-2235; James Patrick McElligott, Jr. (Wil-

liam H. King, Sr., John M. Oakey, Jr., McGuire, Woods &

Battle on brief) for Appetlee in 76-2234 and for Appellant

in 76-2235,

* Senior District Judge for the District of Maryland, sitting by

designation.

2a

Per Curiam:

In No. 76-2234, plaintiff below appeals from a judgment

in favor of his former employer, Safeway Stores, Inc.,

rendered by the district court after a full trial on the mer-

its of an action brought by plaintiff under Title VII of the

Civil Rights Act of 1964, as amended. We affirm the judg-

ment for the reasons fully and carefully stated by the

district judge in discussing the merits of plaintiff’s case.

Woods v. Safeway Stores, Inc., 420 F. Supp. 35 (B.D. Va.

1976).

This decision makes it unnecessary to reach the question

of the timeliness of plaintiff’s filing of his charge with the

Equal Employment Opportunity Commission (EEOC),

which the district judge decided in favor of plaintiff. De-

fendant’s appeal, No. 76-2235, is therefore dismissed.’

No. 76-2234—Affirmed

No. 76-2235—Dismissed

’ Plaintiff’s motion for leave to file the affidavit of the Director

of the Washington, D.C. office of EEOC has been granted.

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-2234

Mr. Anprew Woops, Appellant,

versus

Sareway Srores, Inc., Appellee,

No. 76-2235

Anpris Woops, Appellee,

versus

Sareway Sronrgs, Inc., Appellant.

Order

Upon consideration of the appellant’s petition for re-

hearing and suggestion for rehearing en banc, and no judge

having requested a poll on the suggestion for rehearing

en bane,

It is Apsupcep and Orperep that the petition for re-

hearing is denied.

Entered at the direction of Judge Thomsen for a panel

consisting of Judge Winter, Judge Widener, and Judge

Thomsen.

Filed September 6, 1978

U. S. Court of Appeals

Fourth Circuit

For the Court,

/s/ Wiutam K. Suate, II

CLERK

4a

APPENDIX C

Filed July 15, 1976

Clerk, U. S. District Court

Richmond, Va.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

Civil Action No, 75-0321-R

Anprew Woops, Plaintiff,

v,

Sareway Stores, Inc., Defendant.

Memorandum

This action is brought by the plaintiff to redress an

alleged violation of the provisions of Title VII of the Civil

Rights of 1964, as amended 42 U.S.C, § 2000e et seq. Plain-

tiff seeks injunetive and other appropriate equitable relief

including an award of back pay. Jurisdiction over the con-

troversy is premised on § 706(f) of the Civil Rights Act of:

1964, 42 U.S.C. § 2000e-5(f), and ,by 28 U.S.C. § 1343(4),

The plaintiff, a black citizen of the United States, is a

resident of the Commonwealth of Virginia. Defendant

Safeway Stores, Inc. (hereinafter ‘‘Safeway’’) maintains a

chain of retail grocery stores throughout the Common-

wealth of Virginia, one of which, Store No, 365, is located

in Hampton, Virginia. Safeway is a Maryland corporation

with its principal office in Oakland, California and is an

employer within the meaning of § 701(b) of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 20000-(b),

The Court makes the following findings of fact and con-

clusions of law:

5a

In November, 1973, plaintiff, then 19 years of age, ap-

plied for a position at defendant’s Store No. 365, Hampton,

Virginia. Upon the recommendation of another black em-

ployee, he was hired by the store manfiger.' Pursuant to

directions, he reported to work on Monday, November 12,

1973, and continued his employment at that facility until

discharged on June 28, 1974. The basis of the discharge

was the plaintiff’s failure to adhere to the defendant’s

local employee grooming code; * the plaintiff grew a beard

'The Court finds, however, that the plaintiff was not informed

of the grooming regulations until he had given up other employ-

ment and had begun work at Safeway. Accordingly, the parties

will be requested to submit briefs on whether, pursuant to this

finding, the plaintiff may recover on any pendant state claims,

*The Safeway ‘‘Employee Handbook’’ contains the following

passage ;

Personal Appearance and Cleanliness, Customers like to shop

in a store where the atmosphere is friendly and helpful, In

comparing one store with another, the customer may say that

one has ‘‘personality’’ or a good image where the other is un-

friendly or cold, Consistently well groomed and friendly em-

ployees help to create the image or ‘‘store personality’’ we

seek, The customers recognize this atmosphere in a store and

it influences their store selection,

It is the responsibility of management to establish personal

appearance and grooming standards so that employees will

know what is expected of them, It is impossible and imprac-

tival to spell out every possible detail in this area, However,

the general standard for our store employees are outlined and

illustrated here in these pages. If you have any questions con-

cerning these policy standards, you should discuss them with

your manager,

We should all strive to present our best personal appearance,

and that is all that the Company asks or wants,

« * *

Personal Appearance Male Store Employee.

+ * *

Face must be smooth shaven, Mustaches are permitted, but if

worn should not extend below the lower lip. Goatees of any

style are not permitted. ...

6a

on advice of his dermatologist in the treatment of a con-

dition of pseudofolliculitis barbae (‘‘PFB’’), a condition

that afflicts, almost exclusively, members of the black race.

On July 2, 1974, through Local 233 of the Retail Clerks

International Association, plaintiff filed a grievance against

the defendant. Subsequent to an appropriate hearing,

and in a decision dated December 4, 1974, the arbiter

found against the plaintiff. No allegation had been made in

that proceeding of racial discrimination; the sole issue be-

fore the arbiter was whether the plaintiff had been dis-

charged for proper cause.

On December 30, 1974, plaintiff filed a sworn charge

with the Equal Employment Opportunity Commission

(*‘EEOC’’) against the defendant in which he alleged that

his discharge was racially discriminatory. On July 7, 1975,

the EEOC issued to the plaintiff a notice-of-right-to-sue

letter which he received on July 9, 1975, See § 706(f£)(1) of

the Civil Rights Act of 1964, 42 U.S.C, § 2000e-5(f) (1).

Thereafter, on July 14, 1975, plaintiff filed this action.

Section 706(e) of the Act, 42 U.S.C. § 2000(e)-5(e), re-

quires a charging party to file a charge with the Equal

Employment Opportunity Commission ‘‘within 180 days

after the alleged unlawful employment practice occurred

..»’’ The date of discharge as to the plaintiff was June 10,

1974, It was not until 208 days later, December 30, 1974,

that plaintiff filed a charge against the defendant. Ordi-

narily, in the absence of a tolling of the requirements of

Section 706(e), plaintiff’s instant claim would be time

barred, See Burwell vy, Eastern Airlines, Inc., 68 F.R.D.

495 (E.D.Va, 1975). For reasons which follow, however, the

Court, while of the view that resort to the grievance proc-

ess does not toll the limitations period, bolds that the

plaintiff’s claim is nevertheless not time barred.

Prior to the Supreme Court’s rulings in Johnson v.

Railway Express Agency, 421 U.S. 454 (1975), and Aleax-

ander v, Gardner-Denver Co., 415 U.S, 36 (1974), with few

7a

exceptions courts that had occasion to address the issue

concluded that the filing of a labor grievance procedure did

toll the filing time requirements of the Civil Rights Act of

1964. E.g., Sanchez v. Trans World Airlines, Inc., 499 F.2d

1107 (10th Cir, 1974); Moore vy. Sunbeam Corp., 459 F.2d

811, 826-27 (7th Cir. 1972); Malone v. North American

Rockwell Corp., 457 F.2d 779 (9th Cir. 1972); Hutchings v.

United States Industries, Inc,, 428 F.2d 303 (5th Cir. 1970).

Cf. Reynolds v, The Daily Press, Inc., 5 EPD § 7991 (B.D.

Va, 1972) (dieta); Phillips v. Columbia Gas of West Vir-

ginia, Inc,, 347 I. Supp. 538, 5388 (S.D.W.Va, 1972) (dicta),

aff'd, 474 F.2d 1842 (4th Cir, 1973). Subsequent to the

aforementioned Supreme Court rulings, however, courts

reconsidered, holding that the filing of a grievance will not

toll the jurisdictional requirements of the Act. Guy v. Rob-

bins & Myers, Inc,, 525 F.2d 124 (6th Cir, 1974), cert.

granted (1976); Roberts v. Lockheed Aircraft Corp., 11

FEP Cases 1440 (C.D. Calif 1975), reconsidered and va-

cated on other grounds, (C.D, Calif., Feb. 5, 1976), But see

Caldwell v. Seaboard Coast Line Railroad, C.A, No, C-C-

75-133 (W.D.N.C, April 8, 1976),

In Alexander v, Gardner-Denver Co., supra, the Supreme

Court held that an individual is entitled to a de novo con-

sideration of his/her Title VII cause of action in spite of

the fact that he/she has pursued a labor grievance proce-

dure to its completion, While that case is not dispositive of

the question presented in the instant action, it does contain

colorable language on the relationship between Title VII

and the grievance process of collective-bargaining agree-

ments,

Title VII does not speak expressly to the relationship

between federal courts and the grievance-arbitration

machinery of collective-bargaining agreements, It

does, however, vest federal courts with plenary power

to enforce the statutory requirements; and it specifies

with precision the jurisdictional prerequisites that an

individual must satisfy before he is entitled to insti-

8a

tute a lawsuit. In the present case, these prerequisites

where met when petitioner (1) filed timely a charge

of employment discrimination with the Commission

and (2) received and acted upon the Commission’s

statutory notice of the right to sue. 42 U.S.C. §§ 2000e-

5(b), (e), and (f).

415 U.S. at 47. (Emphasis added).

In submitting his grievance to arbitration, an em-

ployee seeks to vindicate his contractual right under

a collective bargaining agreement. By contrast, in fil-

ing a lawsuit under Title VII, an employee asserts in-

dependent statutory rights accorded by Congress. The

distinetly separate nature of these contractural and

statutory rights is not officiated merely because both

were violated as a result of the same factual occur-

rence. And certainly no inconsistency results from per-

mitting both rights to be enforced in their respectively

appropriate forums.

415 U.S. at 49-50.

Both rights have legally independent origins and are

equally available to the aggrieved employee.

415 U.S. at 52.

[I |n instituting an action under Title VII, the em-

ployee is not seeking review of the arbitrator’s de-

cision. Rather, he is asserting a statutory right inde-

pendent of the arbitration process,

415 U.S. at 54. The Court in that case specifically and em-

phatically noted that the arbitration process established

in collective bargaining agreements and the adjudication

process established in Title VII of the Civil Rights Act of

1964 are completely distinct and independent processes.

9a

In Johnson vy. Railway Express Agency, supra, it was

held that the timely filing of an employment discrimination

charge with the EEOC, pursuant to § 706 of Title VII of

the Civil Rights Act of 1964, did not toll the running of the

limitation period applicable to an action based on the same

facts brought under the Civil Rights Act of 1866, 42 U.S.C.

§ 1981. The Court noted that since there is no relevant

federal statute of limitations for a cause of action under

§ 1981, the controlling period was one provided in that in-

stance by the law of Tennessee. It was noted that Tennes-

see statutes explicitly provided no tolling exceptions appli-

cable to the case, and that a failure to toll the limitation

period in issue would not seriously conflict with the pur-

poses of Title VII.

Petitioner argues that a failure to toll the limitation

period in this case will conflict seriously with the broad

remedial and humane purposes of Title VII. Specifi-

cally, he urges that Title VII embodies a strong fed-

eral policy in support of conciliation and voluntary

compliance as a means of achieving the statutory man-

date of equal employment opportunity. He suggests

that failure to toll the statute on a § 1981 claim dur-

ing the pendency of an administrative complaint in

the EEOC would force a plaintiff into premature and

expensive litigation that would destroy all chances for

administrative conciliation and voluntary compliance.

... But the fundamental answer to petitioner’s ar-

gument lies in the fact—presumably a happy one for

the civil rights claimant—that Congress clearly has re-

tained § 1981 as a remedy against private employment

discrimination separate from and independent of the

more elaborate and time-consuming procedures of Title

VII.

421 U.S. at 465-66. The Court continued, perhaps revealing

its overriding philosophy of the case in footnote 13:

10a

We expressly note how little is at stake here. We are

not really concerned with the broad question whether

these respondents can be compelled to conform their

practices to the nationally mandated policy of equal

employment opportunity. If the respondents, or any

of them, presently or actually engaged in such conduct,

there necessarily will be claimants who are in a posi-

tion now either to file a charge under Title VII or to

sue under $1981. The question in this case is only

whether this particular petitioner has waited so long

that he has forfeited his rights to assert his § 1981

claim in federal court.

421 U.S. at 467 fn. 13. Mr. Justice Marshall, with whom

Justices Douglas and Brennan joined, dissented in part

contending that the majority’s failure to apply the tolling

principle undermines the foundation of Title VII and

frustrates the congressional policy of providing alternative

remedies. “Foreed compliance with a short statute of limi-

tations during the pendency of a charge before the EEOC

would discourage and/or frustrate recourse to the congres-

sional favored policy of conciliation.’’ 421 U.S. at 472.

Additionally, the majority rejected the argument that

the timely filing of a charge with the EEOC has the effect

of placing the charged employer on notice that a claim of

discrimination is being asserted, thus alleviating the need

for strict adherence to the limitations period. ‘‘Only where

there is complete identity of the causes of action will the

protections suggested by petitioner necessarily exist and

will the courts have an opportunity to assess the influence

of the policy of repose inherent in a limitation period.’’

421 U.S. at 467, fn. 14. (Emphasis added),

The import of the Johnson case is apparent; the policies

behind Tithe VII do not support an argument for the toll-

ing of a limitation period based solely on the pursuit of an

independent remedy. Since the Supreme Court concluded

lla

in Alexander that labor arbitration and Title VII adjudi-

cations are distinct and separate procedures, it would be

inappropriate for this Court to hold that an arbitration

proceeding does toll the limitations period congressionally

enacted in Title VIL.

The plaintiff has attempted to distinguish the Johnson

holding on several grounds. First, it is argued that John-

son involved only a judgment on the values implicit in the

Tennessee statute of limitation applied to 42 U.S.C. § 1981,

and was not an evaluation of the policy behind Title VII.

The language of the opinion is clearly to the contrary.

E..q., 421 U.S. at 465-66. Second, it is argued that the policy

of encouraging ‘‘in-house’’ resolution of claims through

arbitration before the administrative machinery of the

EEOC is engaged, is stronger than the policy of encour-

aging EEOC action before resort to the courts under

§ 1981. However, the answer to the former position applies

with continued force to the latter—Congress clearly has

created a remedy in Title VII that is separate and distinct

from labor-agreement arbitration; it would be inimical to

this independency to have one remedy toll the operation of

the other. £.¢., 421 U.S. at 465-66. Furthermore, while the

court’s holding may encourage employees to file griev-

ances with the EEOC before arbitration is concluded, there

is clearly room in the Title VII procedure for a court to

stay any judicial action on a Title VII allegation until the

arbitration has concluded. The end result therefore may

not increase litigation in the courts, although it may well

increase the number of concurrent EEOC administrative

and labor arbitration proceedings. It is not at all clear that

arbitration will be avoided, as is contended by the plaintiff.

Third, it is argued that the purposes and rationales behind

any limitation period have been satisfied by the prior re-

sort to arbitration; the employer has been put on notice

of the claim and may take steps to preserve his case. The

Supreme Court has held, however, that the claims must be

identical for the position to have substance, 421 U.S. at

12a

566-67, fn. 14. In the instant action, the arbitration did

not involve any claims of racial discrimination, and it can

hardly be said that the arbitration proceeding put the em-

ployer on notice of the claims asserted in the instant suit.

In a very real sense, the plaintiff ‘‘slept’’ on his claims of

racial discrimination. Finally, it should be noted that there

are no claims of government or employer delay or induce-

ment to delay; the facts are plain—the plaintiff simply did

not file within the specified time limit.

The plaintiff’s final contention in this regard, and one in

which the Court concurs, is that if the Court holds as it

does that the limitations period is not tolled by a resort to

the grievance process under the principles of the Johnson

decision, the holding should be given only prospective ap-

plication from the date of the decision in Johnson, It is

urged that since Johnson was decided in May of 1975, and

the plaintiff filed his sworn charge with the EEOC in De-

cember of 1974, Johnson principles ought not be applied to

the plaintiff so as to bar his claims in the instant action.

Non-retrospectivity is controlled by the standards enumer-

ated in the Supreme Court’s holding of Chevron Oil

Company v. Hudson, 404 U.S. 97, 106-07 (1971):

In our cases dealing with the nonretroactivity question,

we have generally considered three separate factors.

lirst, the decision to be applied nonretroactively was

to establish a new principle of law, either by overrul-

ing clear past precedent on which litigants may have

relied, .. . or by deciding an issue of first impression

whose resolution was not clearly foreshadowed .. .

Second, it has been stressed that we ‘‘must ... weigh

the merits and demerits in each ease by looking to the

prior history of the rule in question, its purpose and

elfect, and whether retrospective operation will fur-

ther or retard its operation.’’ ... Finally, we have

weighed the inequity imposed by retroactive appli-

eation, for ‘‘|wjhere a decision of this court could

13a

produce substantial inequitable results if acquired

retroactively, there is ample basis in our cases for

avoiding the ‘injustice or hardship’ by a holding of

nonretroactivity.’’

(Citations omitted). Since (1) all previous authority on

the issue had held that the pursuit of arbitration pursuant

to a collective-bargaining agreement does toll the limita-

tions period specified in Title VII, (2) the plaintiff would

clearly be prejudiced by retroactive application, as his

claim would be lost, and (3) Title VII evinces a strong

policy in favor of airing employment discrimination griev-

ances, this Court is satisfied that the Johnson principles,

as applied in the instant case, should be given prospective

effect from the date of that decision. See Roberts v. Lock-

heed Aircraft Corp., Nos. 75-3093-JWC, 75-3095-JWC, 75-

3111-J WC, 75-3112-JWC (C.D.Calif., Feb. 5, 1976), Ham-

brick v. Royal Sonesta Hotel, 403 F. Supp., 943, 944-45

(E.D.La. 1975); Bush v. Wood Brothers Transfer, 398 F.

Supp. 1031 (S.D.Tex. 1975). Accordingly, the plaintiff will

be considered as having filed a timely sworn charge with

the EKO,

Turning now to the merits of the controversy, it is plain-

tiff’s position that he was discharged by the defendant on

the basis of racially tainted criteria. Defendant’s regula-

tions on grooming*® that included a prohibition against

beards in its retail stores were admittedly violated by the

plaintiff in his efforts to cure a skin condition—PFB. The

violation led to his dismissal. PF'B, colloquially known as

“razor bumps” or “shaving bumps,” is a condition far

more common and much more severe among blacks than

members of other races. It is caused by the ingrowing of

hairs in the beard area of the face and neck. Regular shav-

ing with a sharp blade is usually the precipitating stimu-

* See footnote 2 supra.

l4a

lus, the hairs become sharpened points, and the natural

curvature of the hair and the hair follicle—aggravated in

blacks—facilitates ingrowth. Papules forra where the hair is

ingrown as the result of an inflamatory [sic] foreign body

reaction. In severe reactions, papules may become pustules

and subsequently abscesses. If the condition is not treated,

a danger of permanent disfigurement of the fact exists. The

evidence satisfies the Court that in its severe form, PFB is

peculiar to blacks.

The plaintiff, in an effort to conform with the defendant’s

grooming regulations, began by procuring shaves with

electric clippers at a local barber shop. Understandably,

the costs proved to be prohibitive. He thereafter attempted

to remove his facial hair with a depilatory—a powder or

cream that dissolves the hair above the skin line. The de-

pilatory in plaintiff’s instance caused his skin to redden

and develop ‘‘bumps.’’ He thereafter attempted to shave

once with a bladed razor and twice with an electric razor

hut both techniques aggravated the inflamation [sic] of his

skin. Plaintiff thereafter returned to the use of a depila-

tory and sought the assistance of a dermatologist. His der-

matologist diagnosed his infliction as PFB, instructed him

to diseontinue shaving, and provided him with an explana-

tory note to his employer. Subsequent visits by the plaintiff

to his dermatologist resulted in the same recommendation.

Despite his doctor’s letters and verbal communications of

explanation, Safeway terminated plaintiff on account of

the fact that he had a beard and hence was in violation of

its grooming code.

The testimony of experts introduced at trial gives rise

to a conclusion that from 45% to 55% of all black males are

afflicted with a form of PFB, although the number af-

tected by its severe stages is limited, and that the affliction

is typically caused by cutting or clipping the hair close to

the skin so as to create a hair lance that is, by curving

l5a

growth, foreed back into the skin. Furthermore, most

blacks can avoid the condition by using a depilatory ap-

propriately and in a timely fashion, or by having a barber

shave them with the use of clippers. Once the affliction,

however, has been contracted, treatment typically consists

of growing the hair out into a beard until irritation sub-

sides. It was estimated by at least one dermatologist that

of those suffering from the condition 20-22% needed beard

therapy. A second method, apparently preferred by doc-

tors but usually not prescribed because of its tediousness,

is to pluck individually the ingrown hairs from the skin.

Thereafter, the skin is medically treated.

There is no contention here that Safeway adopted its

growing standards with the purpose or intent to diserimi-

nate against black employees. Indeed, until the filing of the

complaint with the EEOC, there is nothing in evidence to

indicate that Safeway had any knowledge of the condition

known as PFB. Furthermore, the evidence is undisputed

that Safeway applies that ‘‘no beard’’ policy uniformly to

both white and black males. Plaintiff argues, however, that

the grooming regulation operates to deprive him of em-

ployment on racially tainted criteria, and, accordingly, is @

violation of §703 of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-2:

(a) It shall be an unlawful employment practice for

an employer—(1) to fail or refuse to hire or discharge

any individual, or otherwise to discriminate against

any individuals with respect to his compensation,

terms, conditions, or privileges of employmen’, be-

cause of such individual’s race, color, religion, sex, or

national origin; or (2) to limit, segregate, or classify

his employees or applicants for employment in any

way which would deprive or tend to deprive any indi-

vidual of employment opportunities or otherwise ad-

versely affect his status as an employee, because of

16a

such individual’s race, color, religion, sex, or national

origin,

The statute has been interpreted to prohibit even racially

neutral employment practices if same have a significantly

disparate impact on members of a distinct racial group,

and if they cannot be justified by proven business necessity.

What is required by Congress is the remoyal of arti-

ficial, arbitrary, and unnecessary barriers to employ-

ment when the barriers operate invidiously to discrim-

inate on the basis of racial or other impermissible

classifications.

The Aet proseribes not only overt discrimination but

also practices that are fair in form, but discriminatory

in operation. The touchstone is business necessity. If

an employment practice which operates to exclude

Negroes cannot be shown to be related to job perform-

ance, the praetice is prohibited.

Griggs v. Duke Power Company, 401 U.S. 424, 431 (1971).

See also Gilbert v. General Electric Company, 519 F.2d

661, O64 (4th Cir. 1975); Wallace vy. Debron Corporation,

44 Pd 674 (8th Cir. 1974); Gregory v. Litton Systems,

lie., 472 F.2d 631-32 (9th Cir. 1972). The evidence adduced

in the instant case does establish that the ‘‘no beard’?

policy can act to disqualify an otherwise qualified black

from employment solely on the basis of a genetic charac-

teristic peculiar to his race.

The Court concludes, however, that although some dis-

eriminatory impact may result from the ‘‘no beard’’ regu-

lation, it does not violate the Act because the rule is justi-

fied by a legitimate business purpose. The business purpose

doctrine was best stated for this jurisdiction by the late

Judge Sobeloff in Robinson v. Lorillard Corp., 444 F.2d

791, 798 (4th Cir. 1971 ):

The test is whether there exists an overriding legiti-

mate business purpose such that the practice is neces-

17a

sary to the safe and efficient operation of the business.

Thus, the business purpose must be sufficiently com-

pelling to override any racial impact; carry out the

business purpose it is alleged to serve; and there must

be available no acceptable or alternative policies or

practices which would better accomplish the business

purpose advanced, or accomplish it equally well with

a lesser differential racial impact. (Footnotes

omitted).

Of necessity, however, the doctrine’s application will vary

with (1) the nature of the business involved, (2) the busi-

ness practice employed, and (3) the degree of the diserimi-

natory impact. In the Robinson case, for example, the

Court dealt with a discriminatory seniority system in a

tobaceo plant. The system acted to continue the effects, for

numerous employees, of a past history of intentional hiring

discrimination. The Court, quite understandable, applied a

fairly stringent business purpose doctrine test.

In the instant case, the business involved is the retail

food business, a highly competitive multi-denominational

industry. Since the product sold is intended, for the most

part to be consumed, overall store hygiene and an appear-

ance of cleanliness is an important aspect of customer pref-

erence. It was the judgment of of the Safeway management

tending stores in the Virginia area, that a grooming code,

maintaining an image of cleanliness, was necessary to at-

tract and retain customers. The code was carefully drafted

to prevent misunderstandings and any misuse of regula-

tions by both employer and employee. The right of an

employer to maintain grooming standards has been upheld

in a plethora of Title VII litigation. E.g., Brown v. D.C.

Transit System, Inc., 523 F.2d 725 (D.C. Cir. 1975) ; Wil-

lingham vy. Macon Telegraph Publishing Co., 507 F.2d 1084

(Sth Cir. 1975) (en bane); Baker v. California Land Title

Company, 507 F.2d 895 (9th Cir. 1974); Dodge v. Giant

Food, Inc., 488 F.2d 1333 (D.C. Cir. 1973); Fagan v. Na-

18a

tional Cash Register Co., 481 F.2d 1115 (D.C, Cir, 1972);

Boyce v. Safeway Stores, Inc., 351 F.Supp. 402 (D.D.C.

1972); Baker vy. California Land Title Co., 349 F. Supp. 235

(C.D. Calif. 1972). The defendant, exercising sound busi-

ness judgment, concluded that a ‘‘no beard’’ rule was a

necessary part of its grooming code.

It is of little consequence that other Safeway divisions

in other parts of the country, or that other stores within

the Hampton area permit their retail store employees to

wear beards. The Court finds that it was the legitimate

business decision of the defendant, reflecting on the local

clientele, to prohibit beards in its Virginia stores, and that

decision must be given appropriate deference, This is not

to say, however, that appearance codes with provisions

that have no basis or foundation in past history or practice,

will be respeeted if discriminatory impact is shown, It is

only those provisions that have a relation to existing hu-

man preference scales which will be countenanced.

l'urthermore, in applying the business purpose stand-

ard, consideration must be given to the fact that the de-

gree of impact of the employment practice in question is

slight. The sole black that has been prejudiced by the ‘‘no

beard’’ regulation appears to be the plaintiff, even though

Safeway has a number of other black employees. The tes-

timony at trial satisfied the Court that a substantial ma-

jority of black males either do not have PFB or can cope

with it and continue to shave their faces if care is taken.

The regulation is neutral on its face; no discriminatory

intent was manifest, and no past discriminatory practice

is perpetuated. Finally, it must be noted that Safeway did

not rigidly apply the ‘tno beard’’ policy. It permitted the

plaintiff to continue to work for some time despite his

beard, by scheduling his time to minimize customer con-

tact, in the hope that the condition would improve. Plain-

tiff’s termination was accompanied with a stipulation that

he would be reinstated if the condition was corrected. Ad-

ditionally, plaintiff was offered work in the defendant’s

19a

warehouse, an area which did not require public contact

and, therefore, had no grooming code. The location of the

warehouse, however, proved to be a substantial distance

from the plaintiff’s home and was not a financially feasible

alternative.

In conclusion, the Court finds that a business purpose

exists to support defendant’s ‘‘no beard?” rule, and that the

rationale behind the rule overrides the slight racial impact

resulting therefrom.

A appropriate order will issue.

/s/ Rosert R. Meruieer, JR.

United States District Judge

Date: July 15, 1976