Warren E. Burger: -- 835, Dewey against the Reynolds Metal Company. Mr. Oosterhouse, you may proceed.
Donald F. Oosterhouse: Mr. Chief Justice and may I please the Court. Mr. Dewey has been working at Reynolds Metals Company since the district judge ordered him reinstated to the present date. The last time, Sunday, work was scheduled at that Reynolds’ plant was in November of 1968. The statute involved in this case, Civil Rights Act of 1964, Section 703 (a) (1), deleting the material not bearing on religion would say, “it shall be an unlawful employment practice for an employer to discharge any individual because of such individual’s religion.” The clause in the entire section or otherwise to discriminate against, I believe, defines discharge for religion as discrimination and thus the language is rather broad in prohibiting discharge for religion. While religion is difficult to define precisely, I think there are at least two elements always present in that they are beliefs on the one hand and conduct flowing out of these beliefs on the other.
Warren E. Burger: Well, does anyone challenge that issue here? Do we need to argue that this man is sincere?
Donald F. Oosterhouse: I don’t think it’s challenged, Your Honor.
Warren E. Burger: No, I don’t read --
Donald F. Oosterhouse: Except in the Chamber of Commerce brief, they would interpret the statute to cover and protect naked belief only rather than conduct. This Court has applied the Civil Rights Act. I’m thinking particularly of Griggs against Duke Power which was decided March 8 of this year. And the Court said that the face of a rule or even the uniform application of the rule is not an adequate matter for investigation “but Congress directed the thrust of the Act to the consequences of employment practices not simply the motivation.” This of course followed the Court’s doctrine in the constitutional free exercise of religion also in such a case as Sherbert against Verner and Barnett where it is the effect of discrimination rather than the face of the rule that counts.
Warren E. Burger: Well, in the Griggs case, wasn’t that impact discussion, is judging it by its impact or effect tied in with a situation in which there had been a long history of discriminatory employment practice --
Donald F. Oosterhouse: Yes --
Warren E. Burger: -- is not so?
Donald F. Oosterhouse: Mr. Chief Justice, this is correct. That case involved that kind of a fact situation.
Warren E. Burger: But do you claim any long history of discriminatory practices against religious beliefs in this case?
Donald F. Oosterhouse: No, we do not, but we do claim that the language which this Court used in Griggs is broad enough to cover more than the bare fact situation in that case that the approach to this Act is to look at consequences of discrimination. Reynolds’ defense that this rule of required over time applied uniformly to all people whether they had religious objections to working on Sunday or not, we claim therefore, is not an adequate defense because the effect of this rule is to put a person with Dewey’s religious beliefs to a choice that no other employee is put to and that is of either sacrificing his job or sacrificing his religious convictions was precisely this kind of a conflict which this Court disapproved of in Sherbert against Verner, even though that was under the Constitution I think the principle of interpretation is applicable to the conflict between religion and employment under the Civil Rights Act. The commission charged with enforcement of this Act has adopted regulations and it has by the regulations adopted an intermediate interpretation of the Act. As I indicated before the Chamber of Commerce brief would have us apply the protection of the Civil Rights Act only to belief, not to conduct flowing from that belief at all. The language of the statute itself is very broad in prohibiting discharge because of religion without any reference to the degree of hardship which might result from continuing the employment of a person. The regulations adopt an intermediate interpretation, saying that a person maybe discharged because of religion, if to do otherwise would create undue hardship upon an employer. The regulations place the burden of proof of showing this undue hardship also on the employer. In this case, the accommodation which is required by the regulations could have been easily accomplished and I think that the employer here has completely failed in his burden of proof to show that to accommodate would have created undue hardship. The evidence indicates that there were, on each of the Sundays involved, several people in Dewey’s classification who were not assigned to work. The evidence shows that Mr. Dewey was the only person in this classification with the religious convictions against Sunday work. The evidence also shows that there were two persons outside of the classification who were qualified and that in fact on one of the three Sundays involved, Reynolds did ask one of these persons outside of the classification to work and he did work. And there were no great problems according to the facts which are before this Court resulting from Reynolds doing that. We submit that on the basis of the evidence presented, there is nothing to show that Reynolds was unable to accommodate by getting volunteers to take Dewey’s place on the three Sundays in question and that’s an accommodation even short of using their Compulsory Overtime Clause. I don’t think that we on the evidence, even have to get in to the Compulsory Overtime Clause. They could have done it without directing an employee to work. They could have done it by asking another employee to work. However, even if use of the Compulsory Overtime Clause had been required, I think this is still in the area of reasonable accommodation and does not show undue hardship. Reynolds claims that at one point, some 10 years prior to the three Sundays which Dewey was involved, they had trouble obtaining enough people to do overtime work, but this was before their contract contained any Compulsory Overtime Clause, so I don’t think that that constitutes any evidence whatsoever of undue hardship in Dewey’s situation. Their other claim of undue hardship is that to accommodate Dewey would completely negate their Compulsory Overtime Clause and I submit that this too is not correct. If the statute is as we interpret it, it will supersede the provisions of the contract only to the very narrow extent necessary to comply with the Act. If the law be that accommodation must be made on the basis of religious belief, this does not mean as Reynolds argues that accommodation has to be made for every personal reason. The statute only lists specific classifications.
Warren E. Burger: Thank you Mr. Oosterhouse. Mr. Wallace?
Lawrence G. Wallace: Mr. Chief Justice and may it please the Court. This is the third case under Title VII of the 1964 Civil Rights Act to be argued in this Court. The first two cases were decided earlier this term. In all three cases, the complaint had been acted upon by the Equal Employment Opportunity Commission prior to the filing of suit as the law requires, but because of statutory differences between the enforcement powers of that commission and the powers of other federal agencies such as the National Labor Relations Board and the Interstate Commerce Commission, the Equal Employment Opportunity Commission was not a party to any of these three suits in the federal courts to enforce Title VII. Since we believe that this Court’s decisions in these cases are in many ways as vital to the work and responsibilities of the Equal Employment Opportunity Commission as this Court’s decisions under the statutes, other agencies administer are to those agencies and since the Attorney General also has important statutory responsibilities for the enforcement of Title VII. The United States filed an amicus brief in each of the three cases and asked to participate in the oral argument in each of them. And in two of the three cases including the present one, the Court granted our request to participate in the argument. Now, the District Court’s judgment in this case in favor of the petitioner was reversed by the Court of Appeals on two grounds. And we believe that the Court of Appeals was wrong on both grounds and that the District Court’s judgment should be reinstated. The first ground of reversal was that arbitration under the collective agreement foreclose suit in the Courts under Title VII. This holding is of great concern to us because of the severe impact it would have on all of the rights against discrimination conferred by Title VII.
Warren E. Burger: Do you suggest that it is undesirable to have rights under the Act disposed of by private arbitration, that is by contractual arbitration?
Lawrence G. Wallace: Congress specified a different method for enforcing the rights under the Act.
Warren E. Burger: Did that exclude private arbitration?
Lawrence G. Wallace: Not in terms, Your Honor.
Warren E. Burger: Does any statute ever exclude arbitration unless it does so by the most explicit terms? Has it ever been so held?
Lawrence G. Wallace: There has been no holding in this Court to my knowledge to that effect, but we think the legislative history indicates that Congress conferred on individuals an ultimate right to vindication of the rights against discrimination conferred under Title VII by their own lawsuit in the federal courts rather than through representation by their unions against whom Title VII was also directed and who have also in Congress’ view, been in some instance is guilty of the kind of discrimination that Congress wanted to eliminate in the arbitration process.
Warren E. Burger: Setting aside for a moment, even though not setting aside is unimportant the intervention of the union here or in such cases. Is it not true that the courts generally for a long time including this Court in opinions have indicated a broad approval of disposition of conflicts by arbitration?
Lawrence G. Wallace: Well, we believe our position is entirely compatible with that approval because if the decision below were to prevail, if an employee could invoke the arbitration remedy only at the cost of sacrificing some of his Title VII rights, he would be discouraged from invoking the arbitration remedy and --
Potter Stewart: I thought your point Mr. Wallace was that this arbitration did not and did not purport to settle any of these rights under the Act, but only to settle this right, the rights on the parties under the Collective Bargaining Agreement?
Lawrence G. Wallace: But that is our point in this case, Mr. Justice Stewart. That is entirely true. We felt that -- in our brief we also should address the broader issue --
Potter Stewart: That issue is --
Lawrence G. Wallace: And say what our position is. That issue need not be passed upon by this Court that we warrant our position now and because sometimes the Court’s opinion do speak beyond the narrow confines of the case. In this case, there’s no question what the arbitrator did not purport to pass on the Title VII issue and he had no authority under the collective agreement to pass on anything, but a claim under the agreement. The agreement did not contain any provision relating to religious discrimination. It did have a provision relating to sex discrimination and that is the only anti-discrimination provision in the agreement.
Byron R. White: But it did have a provision that said no one would be excused from overtime except for a good cause. There were some provision like that here.
Lawrence G. Wallace: There were provisions concerning overtime. The arbitrator ruled that the employer’s position in this case was supported by those provisions and the Title VII suit in no way questioned that decision of the arbitrator as to the meaning of the collective agreement. There is a salutatory right at issue that’s wholly independent of the collective agreement here and if the collective agreement hadn’t existed at all, the statutory issue would be exactly the same in our view because Congress conferred a right on individuals that doesn’t depend on whether they are have a union or whether the union entered into a collective agreement with their employers. That’s the point in this case and we have in our brief elaborated the fact that under what have been recognized, at least in the restatement of judgments, is elementary principles of the law of judgments are directly contrary to the position that the Court of Appeals took in this case. We’ve cited the relevant comments and illustrations from the restatement in our brief and as we pointed out to other Courts of Appeals, those in the Fifth and Seventh Circuits, have taken the opposite view about the relation between arbitration and Title VII in circumstances essentially similar to the circumstances here.
Potter Stewart: Earlier this term, we had a case involving a very ancient statute, 18th Century or very early 19th Century --
Lawrence G. Wallace: The Arguelles case.
Potter Stewart: -- affecting seamen and Collective Bargaining Agreement to which that seaman’s union and his employer were a party.
Lawrence G. Wallace: Yes sir. We’ve discussed that case in our brief and as we point out in the footnote in our brief, we don’t think the present case presents the difficulty that divided the Court in the Arguelles case. Even in that case, the majority was the Arguelles -- A-R-G-U- double L -E-S, that, as I recall as the second rather than first party. It’s discussed on page 19 of our brief in footnote number 6, United States Bulk Carries Incorporated against Arguelles. We pointed out in that case that the dissenting justices emphasized the fact that the statutory penalty in those circumstances depended quoting from Mr. Justice White’s opinion “entirely an interpretation and application of the bargaining agreement. We're not involved with that kind of right at all here and for other reasons that we discuss in the course of the brief, we don’t think that the difficulties of that case are presented here. Here, all the arbitrator decided was that the discharge of petitioner did not violate the terms of the Collective Bargaining Agreement, containing no anti discrimination provision relevant here. In other words, under the Court of Appeals holding, the petitioner is entitled to virtually nothing more than he would have had if Title VII had never been enacted, a decision by the arbitrator about whether the Collective Bargaining Agreement afforded a protection or not. I say virtually nothing more because he did have the benefit of conciliation efforts on his behalf by the Equal Employment Opportunity Commission that those efforts are likely to be of little effect in a situation in which any possibility of enforcing Title VII will be foreclosed and because of the grievance procedure. Now we believe that in enacting Title VII, Congress did accomplish more than this otherwise, a large category of employees covered by Collective Bargaining Agreements would be virtually denied the benefits of Title VII which to us is a very important matter. Although the relationship between arbitration in Title VII rights was not explicitly discussed in the legislative history of Title VII. Congress was of course aware in 1964 of the widespread use of arbitration under collective agreements and this is another distinction of the Arguelles case where you were dealing with an old statute and yet the whole design and intent reflected in Title VII was to confer an ultimate individual right to sue that would not displace all the rights, but would be an addition to them. We elaborate that in our brief and this is all taken into account in the decisions of the Fifth and Seventh Circuits which have held that the selection of rights doctrine is inappropriate here. Those decisions I cited on page 16 of our brief. And their holding is that arbitration under the collective agreement and remedies under Title VII may each be separately pursued to judgment, so long as double recovery is not allowed which we think is the proper approach. It may be coincidental that the same remedy is appropriate if rights under both the collective agreement and Title VII have been violated. In this case, no right under the collective agreement was violated by the employer, so that issue doesn’t even arise. There are important differences between arbitration and the Title VII rights which we think justify this view and one is the fact previously mentioned that the submission of the grievance to the arbitrator is controlled by the union whereas Congress in Title VII conferred the right to sue on the individual complainant. And it is significant in this context that Congress found it appropriate to afford protection under Title VII against discrimination by the unions as well as by employers and thought that this was a comparable problem. And although in this case, no claim of bad faith when the union’s representations is made, it is not worthy that in the grievance proceeding before the arbitrator, the employer was represented by a lawyer, the union was not and the employer filed a post-hearing brief and the union did not. We think it’s significant that Congress gave of the complainant the right to control his own litigation under Title VII. Another important difference and I think the crucially important difference is that the scope of judicial review of an arbitrator’s award is very limited and this is appropriate because arbitrators are applying the disparate provisions of private agreements. But in Title VII, Congress conferred the statutory right on individual and provided for it’s enforcement through the normal judicial processes which assured greater uniformity in the interpretation and application of that right. And there’s a corresponding public interest in assuring that access to the Courts is available because the availability of that access encourages compliance with the act as the courts have interpreted it.
Potter Stewart: Mr. Wallace didn’t the petitioner also seek redress under the state statute, the Michigan Civil Rights Law?
Lawrence G. Wallace: That is a prerequisite to his seeking of rights under Title VII --
Potter Stewart: To his rights under --
Lawrence G. Wallace: -- that is correct and the Michigan Civil Rights Commission determined that he did not have a right under the Michigan law and then he could proceed with the Equal Employment Opportunity Commission in bringing this suit.
Potter Stewart: That was a necessary condition precedent under the federal statute?
Lawrence G. Wallace: Under the federal statute that is correct. Well, if I may I’ll turn to the merits of the suit since we believe that this Court should also reach the merits and the Court of Appeals as a second ground for its reversal of the District Court’s judgment also ruled against the petitioner on the merits. And our starting point on the merits is this Court’s recent decision in Griggs against Duke Power Company which held that where employment practices are neutral on their face but discriminatory in their effect, the employer has the burden of showing that they are required by business necessity. This has a long been the Equal Employment Opportunity Commission’s approach to the Act. It’s true that in the Griggs case, as the Chief Justice just pointed out, there was a background of discrimination by the employer. This is relevant to the right of the Attorney General to bring a suit under Title VII because of the pattern or practice of discrimination perhaps, but it doesn’t seem to us to make a difference to Mr. Dewey.
Warren E. Burger: But didn’t the Griggs opinion link those two items rather intimately together?
Lawrence G. Wallace: In one portion of the opinion, yes Your Honor. But Congress didn’t require the individual to show a pattern or practice of discrimination. Congress said, the individual has a right not to be discriminated against his employment because of his religion. Regardless of whether anyone else is being discriminated against by the employer and indeed it doesn’t really comfort Mr. Dewey very much if he loses his job to know that the employer is not discriminating against anyone else.
Warren E. Burger: Well, that’s a different question, is it not, from conditioning this what might be called an impact test or impact inquiry to the existence of prior discrimination generally?
Lawrence G. Wallace: Well, it’s -- I don’t think that there’s a significant difference there and no employer today, certainly no institutional employer of the type largely covered by the Title VII is going to say that it won’t hire a member of the Faith Reformed Church or that it’s going to fire people because they belong to the Faith Reformed Church. The religious discrimination protection afforded by congress would become a virtual nullity if it were limited only to discriminations on their face because of religion and it seems to us that the religious guarantee that Congress had in mind, the protection of religious freedom and diversity in this country necessarily must extend beyond that as this Court’s opinions have recognized time and again. Whether you want to cite Sherbert against Verner or the West Virginia Board of Education against Barnette, Zorach against Clauson --
Potter Stewart: Those were all constitutional cases, First Amendment cases. This is not that --
Lawrence G. Wallace: This is not that. This is a statutory right that Congress has conferred which we think is very comparable to the constitutional right against governmental action. It may not be identical, but we don’t think there’s any warrant for reading it so drastically more narrowly than this Court has afforded in protections of individuals against governmental action.
Potter Stewart: Now the question is, what does this statute mean and if does mean that Congress was, by statute giving employees as against their employer, all the rights that all of us have against Government under the First Amendment then what you say is obviously correct, but that’s the issue in the case, isn’t it? That’s --
Lawrence G. Wallace: Well, we didn’t -- (Voice Overlap)
Potter Stewart: Well, the issue is, what does this statute mean as related to these facts?
Lawrence G. Wallace: And one of the best approaches to that is to look at the guidelines adopted by the agency responsible for the enforcement of the statute as this Court said in Griggs, those guidelines are entitled to great deference and --
Byron R. White: Which said (Inaudible)
Lawrence G. Wallace: Well, we don’t think that the acts in material difference in this case. As we pointed out in our brief, there’s really no substantial difference in the governing portion of them in this case. None of the -- the only difference of substance between the earlier ones and the later ones is that earlier ones gave a number of examples of the application, none of which that these precise facts and so the general standard in the earlier one in our view is the governing standard and that is essentially the same as the general standard applied by the District Court in relying on the 1967 guidelines. It’s set forth in the 1966 guideline on page 41, appendix B of our brief and the commission there referred to an obligation on the part of the employer to accommodate to the reasonable religious needs of employees so long as this can be done without serious inconvenience to the conduct of the business of virtually identical formulation of the 1967 formulation. And this approach which is very similar to the Griggs approach seems to us entirely appropriate here. Its application in this case is indeed much less disruptive of the employer’s preferences than was the application of the general business necessity standard in the Griggs case because there the employer was required to give up its high school diploma and testing qualifications altogether for jobs to which they were not shown to be job-related and here are the respondent is free to retain its over time substitute policy just as it has been applying it and all it need do is make a simple accommodation to the religious needs of this employee by arranging itself for a voluntary substitute for the petitioner rather than insisting that the petitioner make the arrangement which is a very minor intrusion it seems to us on is the employer’s preferences. The record shows that at least four possible substitutes were available on each of the Sundays in question and the respondent did not show that it could not arrange for one of them to work voluntarily in petitioner’s place. It seems to us, it was the respondent’s burden to make a showing just as this Court held in Griggs. The stipulated fact and this is on page 42 of the appendix that the petitioner had managed to get a voluntary substitute on at least five previous Sundays, strongly suggests that the employer could similarly have made satisfactory arrangements for the other three Sundays after the petitioner decided upon further reflection that his religion really forbade him to make the arrangements. He had managed on five Sundays to get a voluntary replacement without any power of compulsion over these individuals.
Speaker: It was always the same man, Mr. Wallace.
Lawrence G. Wallace: I think that was right and I believe that man was available also on two of the three other Sundays.
Byron R. White: You would like to same in argument though, if you knew -- if the other employee said to no, we don’t want to work on Sunday, we must to take turns at it?
Lawrence G. Wallace: We would make the same argument, but the Court need not reach it in this case. It seems to -- this case seems to us, a rather easy one. I don’t want to exaggerate, but we don’t have to go that far in this case.
Byron R. White: But your argument does?
Lawrence G. Wallace: Our argument does in the brief. We feel that in the amicus brief of this (Voice Overlap).
Byron R. White: (Voice Overlap) cases that are broader that it can’t be sustained, how about this -- how about this case?
Lawrence G. Wallace: Well, I think that that’s inherent and I might say the Court need not reach the broader ground. I think this kind of a minor adjustment by the employer is certainly justifiable under the Act. If the employer had made a showing that he could not get a voluntary replacement then there would be more substance it seems to us in his argument that the seniority exception has a bearing on this case.
Byron R. White: Would be here making the argument if the question was work on Saturday on a regular shift?
Lawrence G. Wallace: That would depend on the evidence in that case and what showing had been made about the needs of the employer’s business.
Byron R. White: Well, he’s always working on six-day a week and anybody who worked six days --
Lawrence G. Wallace: And what kind of problem he would have if this man were refused -- were excused from the Saturday work and perhaps work compensatory other times. It would depend on his business situation. That’s the commission’s approach to the Act and we think the proper approach.
Warren E. Burger: Mr. Wallace, if someone suggested that your argument for this Act and the agency’s construction tends to create a governmental preference in favor of religious people which it does not give to the nonreligious people, would you say that reason an improper inference?
Lawrence G. Wallace: Well, that argument is made in this case. Indeed, the argument is made that this application of the Act would violate the Establishment Clause. It seems to us to be almost exactly the same preference that this Court held in Sherbert against Verner, was required in the circumstances of that case under the Free Exercise Clause. It seems a little strange to us to be making the argument so much the other way with that case in West Virginia Board of Education against Barnette and Zorach against Clauson on the books. I think actually the case that’s most closely in point of the Sunday closing law cases decided by this Court in the 1960 term and in one of those cases Braunfeld against Brown. The Court held that while an exemption for Sabbatarians is not constitutionally required, it is constitutionally permissible and indeed the opinion of the Court said that may well be the wiser way of handling the problem of Sunday closing laws, even though it could be argued that, that gives Sabbatarians advantages to compete on Saturdays in a way that others can’t compete. There is also an argument advanced here by the respondent that even if the District Court was otherwise correct, it should not have awarded back pay because the respondent relied in good faith on the Collective Bargaining Agreement and the respondent there cites a District Court decision in Oregon in which the District judge did not award back pay because the respondent there had relied on a state statute, limiting the weights that can be lifted by women. We don’t think, in the first place, we do not endorse the decision of the District Court in Oregon, but we don’t think it is really apposite here. The respondent here was not in any dilemma comparable to that of the employer in Oregon arguably was in, where he felt he would be violating a requirement of state law if he exceeded to the request of his employee. Here, although the Collective bargaining Agreement, the arbitrator held, empowered the respondent to fire Dewey, it certainly did not require the respondent to fire Dewey in these circumstances. And the respondent could hardly claim that it felt its obligations under the agreement to the union required that it fired Dewey since the union took exactly the opposite position throughout the grievance preceding that the employer should not fire Dewey because of this problem. And so in sum argue is if the District Court properly applied the Act here in accordance with the congressional intent to protect religious freedom and diversity in this country from unnecessary rigidities in the employment practices of institutional employer such as the respondent and accordingly we asked that the District Court’s judgment be reinstated. Thank you.
Warren E. Burger: Mr. Coughlin?
William A. Coughlin, Jr.: Mr. Chief Justice and may it please the Court. This an action for money damages and reinstatement of position brought under Title VII of the Civil Rights Act of 1964. The respondent Reynolds Metals Company discharged petitioner Dewey because he violated the provisions of the Collective Bargaining Agreement entered into by his union and his employer Reynolds Metals Company. The violation consisted of his refusing to work on three overtime Sunday assignments when assigned pursuant to the Collective Bargaining Agreement and his refusing each of the Sundays in question to arrange for a replacement. This was an ultimate procedure which had been extensively used by all employees including petitioner Dewey. If you’ll bear with me and we feel strongly about this, there are six separate grounds which establish in this matter that the respondent did not violate the Civil Rights Act of 1964 and I would like to briefly outline them and then go to them. One, in this case, the discharge did not violate the Civil Rights Act in anyway. Two, the Act itself, the Civil Rights Act itself contains a number of exemptions, exceptions and limitations. Reynolds falls within the particular exception. Three, the Government through the EEOC has stated that the prohibition against discrimination for religious reasons includes an obligation to accommodate religious group also. Respondent argues there is no legal basis under this Act for an accommodation and the enforcement of accommodation by the EEOC may well be a violation of the Establishment Clause of the First Amendment. Four, even if accommodation required as a part of prohibition against discrimination the EEOC has issued guidelines which in two instances in 1966 read up by the conduct the Reynolds Metals Company and in a third part of the 1966 guideline, we accommodated in the words of that Act. Five, because of the wording of the Act itself which call in the remedial section thereof requiring intentional violation which Mr. Wallace just referred to, we don’t think there’s any right under the law to reinstatement of back pay. And finally under the election of remedies theory, the case shouldn’t even be here as the Sixth Circuit Court of Appeals indicated, but I would say that the Sixth Circuit Court of Appeals in ruling on this case went to the merits first and then to the procedure and so it's well done in our estimation at this point that the whole matter can be clarified because the individual involved, the petitioner does not suffer on the procedural basis, you have before you both the merits and the procedure. I’d like to go to the first of our basis. We don’t think under any interpretation of the Civil Rights Act, whether you go discrimination by intent or discrimination by effect that there’s any violation. The objective of the Act as was said in the Griggs case is to achieve equal employment opportunity. This objective is to be achieved through prohibiting selected forms employment discrimination involving religion, race, color, etcetera. What is discrimination? It isn’t defined in the law. The classical definition has to do and it’s that of making a distinction or making a difference in treatment between one employer and another, based on religion in this particular Act. The more important question, I suppose, is what kind of discrimination is prohibited. What are we talking about? Are we’re talking about discrimination by intent? Are we’re talking about discrimination by effect? I would summit to you that if you look at the legislation and I know you gentlemen are much more familiar with it than I, but nevertheless I submit that if you look at the Act itself, for instance, 703 (h) in this particular Act. It says, “an employer may have different -- may apply different terms and conditions to an employee,” and then the magic language, “if it is provided.” If it’s based on a bona fide seniority system.“ provided there is no intention to discriminate. Go to 706 (g); the remedial relief under this Act as envisaged by Congress was to be applied reinstatement and back pay and injunctive action if the employer has intentionally engaged in unlawful employment. Both sections seem directed at discrimination by intent. Let me quote to you, if you will, and it is very hard in the legislative debates because of the way that the Act was passed and the format that it went through the Senate and the House, but at the time that it was passed then Senator Humphrey had this to say, and he was talking about Section 706 (g) and he said in part, “706 (g) is amended to require a showing of intentional violation of the Title in order to obtain relief.” This is a clarifying change. Since the Title bars only discrimination because of race, color, religions, sex and national origin, it would seem already to require intent and thus the proposed change does not involve any substantive change in the Title. The express requirement of intent is designed to make it wholly clear that inadvertent or accidental discriminations will not violate the Title or result an entry of court orders. It means simply that the respondent must have intended -- must have intended to discriminate.
Warren E. Burger: Where does that appear in the briefs or appendix? Could you tell me?
William A. Coughlin, Jr.: I would probably -- I’m unable to say that it is in the brief, or the appendix. It is in a Michigan Law Review article that is yet unpublished. Senator Humphrey, let me correct myself maybe in the --
Warren E. Burger: Don’t interrupt your argument now, but give me the legislative reference sometime after your argument.
William A. Coughlin, Jr.: Well, the legislative reference would be 110 Congressional Record 12723 and going on to the next page, 12724, 1964. A further support for this definition of intent is found in the views expressed by Senators Joseph Clark and Clifford Case, the floor managers over Civil Rights Act. In their interpretation -- in their interpretive memorandum concerning Title VII, they noted inter alia, “It has been suggested that the concept of discrimination is vague. In fact, it is clear and simple and has no hidden meanings. To discriminate is to make a distinction, to make a difference in treatment or favor and those distinctions are differences in treatment or favor which are prohibited by 704,” which was later changed to 703 when the Act to came out, “are those which are based on any five of the forbidden criteria: race, color, religion, sex and national origin. Any other criterion or qualification for employment is not affected by this Title.” The reference is 110 Congressional Records 7230. I submit that with this background, I would like to take you to the actual facts of the case. Prior to 1960, this plant located on the outskirts of Grand Rapids, Michigan was found it impossible not difficult as the district judge said, but as the stipulation says found it impossible to work in overtime situations. This was because of the fact that overtime under the UAW Collective Bargaining Agreement was based on a voluntary overtime proposition as far as employees were concerned and the plant found it or the management found it impossible to operate on overtime situations. The company negotiated with the UAW in 1960 as the bargaining agent and achieved the Compulsory Work Clause which provides for the allocation of overtime work equally among the classification on a voluntary basis. And let me explain to you briefly how that’s done. In that situation, when there is an overtime situation, according to union contract, you equalize, you go to the classification and you at first, where there is an attempt to equalize the overtime opportunities, go to the low man in the classification, low man on overtime as far as overtime is concerned, his past experience. He is given first opportunity and then the next man and the next man based on his -- whether where they are on the overtime regardless of seniority for the moment. If enough people volunteer then there is no reason to go any further. If you don’t have enough people then you go to the low man in the classification by seniority and you compulse until you get enough people to work the overtime. This compulsory overtime was necessary in this plant to enable the company to work in overtime situations when business demanded. This is in the sense, a job shop. They do not produce for storage. They produce on the basis of orders and as the orders to accommodate your customers to compete with Alcoa and Kaiser. This is the necessity that arises at the time. This was the business necessity to enable this plan to work on six and seven days and also to work in a normal overtime situation. Beyond that, the substitute program was instituted in 1965. By the substitute program we mean that if an individual wanted a day off for whatever reason, be it religion or otherwise, he could have a day off, but under the compulsory overtime, the responsibility was his to seek out a substitute. This system of accommodation was inaugurated in 1965, long before the EEOC suggested accommodation by guidelines. In 1964, 1965 and 1966, there was an increase in production to the point where in 1966, the company worked substantial overtime on 24 out of 37 Sundays. How did we apply this Compulsory Work Clause in the substitute system in the contract? The company, as the arbitration indicates and as all courts agree to this point, the company disciplined all who refused to work whether it was because of Sunday, because of a problem on Sunday or because of any other day. There were 11 disciplinary penalty cases involving religion prior to Mr. Dewey’s discharge. There were a host of other disciplinary actions for reasons -- any reason on any day on overtime. What happened to Mr. Dewey? He worked overtime prior to 1961, but in 1960, we established, as I've indicated, a Compulsory Work Clause.
Warren E. Burger: You said he worked overtime?
William A. Coughlin, Jr.: He work over --
Warren E. Burger: Is it overtime on Sunday?
William A. Coughlin, Jr.: He worked overtime on Sunday prior to 1960. That will found in the appendix at 77a. In other words, this was and I think Mr. Chief Justice, the reason for that is, as you will see is that his present or his -- and I don’t want to say present, but his religious preference did not become apparent until 1961, so he had no scruple prior to 1961.
Hugo L. Black: Does that affect the merits?
William A. Coughlin, Jr.: I don’t think so sir.
Warren E. Burger: That would not be remarkable for someone to change his views on a religious issue, would it?
William A. Coughlin, Jr.: It would not be remarkable. The question beyond that. I agree it would not be. The question beyond that is how much protection should be given under the interpretation of the Act and I agree that there's no reason that we would say that one could not be converted to whatever faith one wanted regardless of the time in life. In 1965, I believe, in October -- on November of 1965, Mr. Dewey refused to work on a work assignment under the Collective Bargaining Agreement. At the point, he was warned, at that point he was not disciplined. In 1966, as the record indicates, at 42a, stipulation 15, Mr. Dewey in 1966 used the substitute system on five occasions and then finally in mid-1966, August 28 to be specific, Mr. Dewey refused to work. He refused to get the substitute. On September 4, the same practice, on September 11, the same practice. For each of these situations, on the first occasion, Mr. Dewey was disciplined. On the second, he was discipline again in the form of a three-day layoff and on the third occasion he was discharged for refusal to work or to get a substitute. In conclusion on that point, the labor agreement and the replacement system was nondiscriminatory and was applied uniformly to all employees via the seniority system of the Collective Bargaining Agreement. Dewey was never assigned nor denied overtime because of religion. Reynolds did not discriminate against Dewey, rather it afforded him and everybody else equal employment opportunity. The Sixth Circuit says very definitely and says it as well as I can say it that the collective bargaining -- there was nothing discriminatory in the Collective Bargaining Agreement itself nor in its application. It was a fair and equitable method of distributing a heavy workload among all the employees without discrimination against any. Griggs doesn’t require on our opinion the application of a different rule. I submit to you that the rule as far as we can see is that we are looking at discrimination by intention and Griggs doesn’t require in our opinion the application of the different rule. The Court said in Griggs with all do deference to the Court, our understanding of it that practices neutral on their face, neutral in intent, uniformly applied cannot be maintained if they operate to freeze the status quo of prior discriminatory employment practices. In this situation before this Court, there are no prior discriminatory practices. It was a regular policy neutral on its face, nondiscriminatory in intent and even-handed an application. That can't be anything more fair than the policy that was used in this particular situation.
Hugo L. Black: How long has Mr. Dewey been with the company?
William A. Coughlin, Jr.: Mr. Dewey has been with the company since approximately 1951.
Hugo L. Black: 20 years?
William A. Coughlin, Jr.: Yes sir. 20 years -- let me say 20 years to 1971 until the time of the discharge in 1966, he had been there 15 sir. He acquired his religious preference, his religious scruple in 1961.
Hugo L. Black: What religious scruple was that?
William A. Coughlin, Jr.: The reformed -- the religious scruple was that it was against the tenets of his religion as he envisaged his religion to work on Sunday.
Byron R. White: Or ask somebody else to?
William A. Coughlin, Jr.: Well, an interesting point, that aspect of this tenet did not develop until 1965.
Byron R. White: Yes, but that’s his present?
William A. Coughlin, Jr.: The present tenet is that he can't work in 19 -- he can’t work as a tenet of his religion and secondly he can't ask someone else to. Now, I don’t want to go in to the thing --
Hugo L. Black: We have to accept that.
William A. Coughlin, Jr.: Pardon me?
Hugo L. Black: We have to accept that though.
William A. Coughlin, Jr.: Yes sir. I have no quarrel with the religion nor do I really want to engage the Court in what is the definition of religion.
Hugo L. Black: How many times for doing it for you that you had trouble with it?
William A. Coughlin, Jr.: With Mr. Dewey?
Hugo L. Black: During the time he worked.
William A. Coughlin, Jr.: During the time he worked we had --
Hugo L. Black: How many days do you have a dispute over?
William A. Coughlin, Jr.: How many days we have a dispute over. We have a dispute within on one particular Sunday in 1965, on three particular days in 1966.
Harry A. Blackmun: Mr. Coughlin, I take it, there’s no question about -- otherwise about the integrity of his work, he was a satisfactory worker?
William A. Coughlin, Jr.: Yes sir.
Harry A. Blackmun: And then what did the company accomplish by firing him completely, to avoid the disruption of his not appearing for overtime?
William A. Coughlin, Jr.: Well, let me put it this way. Your question -- your question suggests why would not the company get the substitute.
Harry A. Blackmun: No, I’m not really asking --
William A. Coughlin, Jr.: Alright. Alright, I will answer you specifically. The discharge was in our opinion mandatory as far as the company is concerned in the uniform administration of the Collective Bargaining Agreement. In that day, this contract has both a contractual, it has a -- it has the contract itself. There are also in the record shop rules and the shop rules call for certain penalties under certain circumstances with the ability of the company to be more lenient if they choose. In an answer, Mr. Justice Blackmun, to your question if we back off this situation, we have to back off every religious situation and we know not where we go as far as how deep that exception is if we release as to Dewey or accept as to Dewey. Our fear is that we lose our -- we lose our rule, our compulsory work rule and under those circumstances, our last days are worse than our first in the sense that we’re back to a pre-1960 situation where we will not be able to work overtime when the company has a business necessity.
Hugo L. Black: You mean on Sunday?
William A. Coughlin, Jr.: Or Saturday. In other words, this rule of compulsory overtime applies to all overtime situations and if we accept as to one individual whether it'd be Sunday, whether it'd be Saturday, whether it'd would be any given day, a normal day, then we are of opinion that we can't apply it uniformly. We will have great resistance. In other words, the essence of a Collective Bargaining Agreement, in my experience is uniformity of application. Treat me just the same way you treat everybody else and if you make exemptions for me, Mr. Justice Black, you must make exceptions for everybody else under the labor agreement or else you have disparate treatment under the labor agreement.
Thurgood Marshall: Where is Dewey now?
William A. Coughlin, Jr.: Mr. Dewey was put back to work in the plant by way of injunction, by virtue of the injunction of the district judge from the Western District of Michigan.
Thurgood Marshall: Had there been any disciplinary problems since he got back?
William A. Coughlin, Jr.: No sir because we’re under injunction.
Thurgood Marshall: But why if he stays there, will you have all these things you’re talking about?
William A. Coughlin, Jr.: We would -- if he stays there, we’re under injunction at the present time, if he stays there he will be obliged to take his term overtime just as every single person in the plant when that occasion demands.
Thurgood Marshall: Is he doing that now?
William A. Coughlin, Jr.: No sir we’re under injunction not to apply overtime to him.
Thurgood Marshall: And it's running just normally just as if he had been --
William A. Coughlin, Jr.: Because we -- yes sir, in answer to your specific question.
Hugo L. Black: Well, that this was it this put in there as an effort to settle these controversies or you wouldn’t have to have all these constant lawsuits, wouldn’t it?
William A. Coughlin, Jr.: The injunction sir?
Hugo L. Black: The contract that you have?
William A. Coughlin, Jr.: The contract was -- the contract -- the essence of a collective bargaining contract is to treat everybody the same and to avoid disparate treatment that’s the essence of it.
Hugo L. Black: Wouldn’t it intended to settle this particular problem?
William A. Coughlin, Jr.: Yes sir.
Hugo L. Black: Why hasn’t he, what’s wrong with him?
William A. Coughlin, Jr.: Well, under the --
Hugo L. Black: Under the days, do you say that it had to be made to get it settled, but wouldn’t have to become in all the way up to --
William A. Coughlin, Jr.: My answer is that under our opinion, the matter was settled when it went to the -- when it went to arbitration and in that situation, the arbitrator held for the company as against Mr. Dewey and that was a final resolution in the ordinary contract situation, that would be final.
Hugo L. Black: Well, that’s what has happened, isn’t it?
William A. Coughlin, Jr.: Well, that’s final except that -- except that under the way that the Civil Rights Act is applied for the moment, an employee has two bites of the apple and this is the election of remedies problem. It reminds me into a certain extent of two small boys, we say let's go two out of three and we’ll flip and when the loser flips, loser says, let's go three out of five. In this situation, it’s heads, the employee wins, tails let's flip again because if he loses on arbitration then he goes the Civil Rights route.
Hugo L. Black: It sounds to me like that illustration is pretty good with reference apply the toe, heads up win and tails, you lose.[Laughter] How would you change that contract to get around this?
William A. Coughlin, Jr.: Well, I’d like to say, Mr. Justice Black that I don’t think the contract needs changing because I don’t think the law says that we have to do it.
Hugo L. Black: Suppose the law has said it and we say it, how would you get around it then?
William A. Coughlin, Jr.: I have to say to you at that point we would have to attempt to negotiate with the union to make certain exceptions to that policy and at that point, I don’t know what the consequences of the resolution of the problem would be. In other words, can you accept, can you get the union to accept for a part of its people accept overtime requirements on certain days for part of its people. I guess the easy answer to that is everybody will turn religious and then the exception will swallow up the rule. But I don’t --
Warren E. Burger: If the contract were amended, hypothetically to provide for final binding and unreviewable arbitration of all issues including rights claimed under the Civil Rights Act, would that be the end of the problem? Your friend in opposition with the question something like that said the union cannot bargain away the employees’ rights under the Civil Rights Act, what would you have to say about that?
William A. Coughlin, Jr.: I am of the opinion that you can't bargain away a right, but let me say that in this case, and we are going to the election of rights theory, the right -- the right in the contract and the right under civil rights, now the right in the agreements was discrimination against the individual. The right in Title VII that’s alleged is discrimination against the individual. The remedy is reinstatement back pay under arbitration. The remedy under Title VII is restatement of back pay and my answer is that I think in this situation that the rights are the same and there are two four of it are available, but you can't go both ways. And in answer to your question, I think you could make clause of that sort possibly, but I suppose it might not be applicable in every case. I'm not positive in this particular case. In this particular case, Mr. Chief Justice, the rights and remedies are the same. The Hutchings case says that there are two causes of action here and you can see that and look at the distinction between the rights and remedies. Hutchings and Bowe both say that analysis doesn’t bear the amount in this case and there’s one cause of action or one claim in this case, one common claim and really we don’t quarrel with whichever way you go, whether you go the arbitration route or whether you the civil rights litigation route, but go on -- and go both at the same time if you wish but when you get a judgment at one, it should be foreclosed. And in that regard, in that regard if this Court should go the concurrent remedy route, an interesting thing will come to pass, I believe, in this that the vitality of arbitration is its finality. In this particular situation, if you go, if you espouse a concurrent route, every employee will write his grievance in the language of the contract, in a discipline case. I was disciplined. I didn’t get a promotion, I didn’t get my vacation on time, you discipline me or you took me out of line to seniority and it will add one of the word in every grievance and that word will either be age and we all have it one way or another. It will be sex, we all have it one way or another, religion, generally we have it. Color, we have it one way or other. And so in that case each individual add one word and it doesn’t have to be too cleverly done, then the matter will be submitted to arbitration. If the employee wins, that’s the end of the case. If the employee loses, Mr. Chief Justice, at that point, he said that was too bad that was a bad ride, now, I will go on to my second of my two rides to the litigation route by statute under Title VII. And I say to you that as far as you union contracts are concerned that I can foresee very quickly that that vitality of that arbitration as a final and binding rule is gone and the Government says in its brief at a certain juncture, “Now look, what we really mean in this case is you as an employer get a quid pro quo for arbitration is a no straight clause. I grant you that but there is also a significant thing that when you get arbitration as a final step, it won’t be final anymore because these things are the basic essences of life when you take those things that are on the Civil Rights Act.
Hugo L. Black: May I just ask -- one of those who have been listening for years as to the idea of arbitration which are going to solve all our difficulties, it sounds to me like you think that arbitration may have some difficulty of its own?
William A. Coughlin, Jr.: Arbitration in its own -- in the collective bargaining context is as far I'm concerned, I agree with everything this Court and prior courts has said, it's an excellent way to keep the safety valve on the cap and it’s the one way that companies can live with unions and unions with companies and they can resolve their difficulties and that if the arbitrators in America today take a collection of these cases that are never getting to the Court. What happens is when you get a Title VII that pops up and I'm not disparaging Title VII but there isn’t any treatment, congressionally speaking, as to how this thing will be treated. And as the Third Circuit Court of Appeals said this is a matter for judicial discretion as to how we’re going to handle the interrelationship of Title VII and arbitration. I think arbitration does a splendid job in the American industrial complex today.
Hugo L. Black: When it decides your way?
William A. Coughlin, Jr.: Pardon me?
Hugo L. Black: When it decides your way?
William A. Coughlin, Jr.: Oh no sir, I have to say I've been in the labor practice for 20 years and I’ll take my lumps both ways. I think it’s a safety valve of no small impact. Yes sir.
Thurgood Marshall: Do I assume correctly that if you have a provision in the contract against discrimination on basis of religion, you would be arguing the exact same way you are now, would you?
William A. Coughlin, Jr.: Yes sir. Alright, let me --
Warren E. Burger: I have another hypothetical on you that may or may not be helpful to us. Suppose, I don’t know whether you have a union shop contract here, compulsory union membership but assume --
William A. Coughlin, Jr.: Yes sir, we do.
Warren E. Burger: -- that’s the kind you had and suppose Mr. Dewey had a tenet of this religion that prohibits him from joining any organization against his will, then you would have a collision between the compulsory union membership claims and the Civil Rights Act, I take it?
William A. Coughlin, Jr.: Yes sir.
Warren E. Burger: I'm going to ask your friend if he will comment on that in rebuttal, if they wish, but what would your reaction be to that?
William A. Coughlin, Jr.: Let me say this; that the hypothetical that you impose and the actual case before you, in other words, the union shop clause is negotiate -- the Taft-Hartley or the Labor Management Relations Act says that that union shop is a -- can be negotiated and it is negotiated and practically in every UAW contract with which we’re most familiar the union shop is in being. And it -- and also, in the case before you, the Taft-Hartley also says that overtime -- negotiation in overtime is a compulsory matter of negotiation between the parties and it can be negotiated, so that Taft-Hartley approves both of these situations. And your question to me I gather is that if there is a conflict between these situations as far as religion I have to say at this juncture, at the present state of the law, that I would say that as long as the application is made to -- as long as the law is in its present state and you apply the law to everybody the same rule, there isn’t any discrimination. The question I think that you’re getting at or what I sense and in this sense is what has the Civil Rights Act done as far as espousing discrimination? Some say and I think this is in direct answer to your question, what they really did, what Congress really did was they took the First Amendment and moved it into the Civil Rights Act of 1964, I say and that would be that you can freely exercise your religion and employment. I submit to you sir that the language -- if the Congress wanted to do that, they could very well have done it but they didn’t do it. So the question is the Civil Rights Act of 1964 does not involve a First Amendment transplant. I think what it does do is equal employment opportunity and it says, “Look, will you please treat everybody the same as far as religion is concerned. Treat them the same as far as sex is concerned.” For instance, in Martin Marietta that was before you, you say -- the Court says that you can't treat married woman differently from married man, this is equalization. So, that under those circumstances -- under those circumstances as far as your question is concerned, I must say that as far as I'm concerned, I think that the Civil Rights Act would not prohibit -- would not strike down the union shop. In my -- in summary on the interpretation of the Act, the objective as far as we are concerned and we see the Act as equal employment opportunity. However, the Act prescribes discriminatory preference for any group, minority or majority, words from Griggs v. Duke Power. In our estimation, Dewey is requesting preferential treatment not accorded to other employees. He has no such right under the First Amendment. He has no such right under the Civil Rights Act. In Michigan Civil Rights Act and this was raised today, the Michigan Civil Rights Commission, a constitutional body in the State of Michigan treated this case as far back as 1966 and said that an employer has the right to establish a normal work weekend foreseeable overtime in its labor agreement and absent an intent to discriminate there was no right of accommodation and there were no violation. I submit to you that the same result should be pertain here. I’d like to touch on one other aspect as far as Congress is concerned. There are a number of exceptions in this Act and no one with the exception of the Sixth Circuit would pay much attention to them. The exception to which I refer and is one that I start out with and I think it exemplifies again what Congress intended. 703 (a) specifies that it is not an unfair labor practice for an employer to apply different terms and conditions of employment pursuant to a bona fide seniority system provided that differences are not resolved with an intention discriminate because of race, color, religion. The questions in the Senate debate are very revealing and they ask at the time and they said at the time that the intent of the Act was that it shouldn’t conflict with the rights of seniority nor with collective bargaining contract which are based on bona fide seniority. And in the Senate, the question was asked, “Well, what if a Negro were the last man hired in your plant and you came to a layoff situation and the seniority provision says, the junior man will be laid off first as historically it does, that maybe a classification of seniority, it maybe plant wide seniority and what if it says the junior man is to be laid off and this Negro is the last man in?” Then the answer in the debates, there would be no discrimination on that theory that the low man on the totem pole or the junior man goes first. In the Reynolds overtime situation, the application is based on a seniority clause negotiated years ago based on classification of seniority. You get your seniority when you go to the classification. No one chooses, picks or does otherwise. You get it when you go in. There can be no question as to the bona fides of that classification of the seniority. So, the assignment of overtime is tied to a neutral policy, so that thus there arises differences in terms of employment. I work on Sunday, you don’t. You work on Sunday, I don’t. This is allowed under the Act and as far as I'm concerned the Congress said this is an exemption. I want to touch on one other point and this was alluded to I believe by Mr. Justice White and by Mr. Justice Stewart at one point. Two things, the prohibition against discrimination according to the EEOC includes an obligation to accommodate. The Civil Rights Act is expressed in term of prohibition meaning that an employer should not differentiate between employees on the basis of religion, I'll restrict myself to religion. The concept of accommodation has no basis in the statute and in effect is a form of discrimination itself. Accommodation in its simplest form means, to adjust, to help, to do a favor for. The Civil Rights Act permits the EEOC to interpret the law. The Civil Rights Act doesn’t permit the EEOC to legislate. The Sixth Circuit on page 32 or our brief said that the requirement of accommodation is not consistent with the Act. The Stemple case from California which was refused certiorari by this Court, although on a constitutional question because the relationship is the Government to an employee, also takes the position that accommodation is not necessary under the First Amendment. The Houston Greyhound case on page 33 of our brief, a decision of the highest court in the State of New York holds that as to accommodation one not need making accommodation to particularization which could assume many variations in appearance and in time schedules. And not only is their apparent, as far as we are concerned, that accommodation constitutes legislation not interpretation here, but to Mr. Justice Stewart’s question, I think that authorizing of accommodation by the EEOC or compelling employees to accommodate raises a question of whether you are not into the Establishment Clause of the First Amendment. In Shepp, you held that the Government must be neutral with respect to religious matters. In Gillette versus the United States, this term, you said that as a general rule the Establishment Clause prohibits the Government from departing secular purposes in order to put in it premature on one religion or on religion as such or to favor the adherence of any sect or religious organization. By issuing guidelines the EEOC, by issuing guidelines in which religious beliefs are to be accommodated, the Government find itself putting it in premature on religion as such and this seems to us a violation of the Establishment Clause. If the Government has a general rule as without power to support or favor any religion, it is submitted that the effect on this case is that EEOC is in fact favoring religion through its guidelines and such action could well be unconstitutional. This question was raised in the Sixth Circuit. Another step and this was raised also by you gentlemen especially I think by Mr. Justice White. If accommodation is required, I suggest that the guidelines exempt Reynolds. Section 713 (b) provides a guideline upon which one is, this is a Congressional Act of a Civil Rights Act, if you are on conformity with the guideline, if you rely on the guideline it’s a bar to actions or proceedings under this Act, the first guideline and the guideline that should be applied in this case is the 1966 guideline. Employee Dewey was disciplined and subsequently discharged in August and September of 1966. The 1966 guideline set forth for the first time the principle of accommodation as being included within the ambit of discrimination. But look what that guideline said at 1605.1 (a) (3), it said, “However, the commission believes that an employer is free under Title VII to establish a normal work week generally applicable to all employees, notwithstanding that such schedule may operate with uniformity in its effect may not operate with uniformity in its effect upon the religious observances of one’s employees.” This is the 1966 guideline. Reynolds established a normal work week generally applicable to all employees long prior to the discharge of Dewey, long prior to the effect of date the Civil Rights Act and long prior to the effect of date of the guidelines. When the guidelines came out in June 1966, Reynolds looked at those guidelines knew that they were, if you’ll excuse the expression, “on the money.” They were squarely in agreement with those guidelines with the exception that’s written into the 1966 guideline. That guidelines sets forth the impact, it sets forth the uniformity of application theory and specifies that regardless of the impact if you have a uniform application, you are free, you have a bar to this action and I submit to this Court that this case should have been taken care of by the EEOC years ago under it's own guideline. I recognize that the guideline was changed in 1967, a year later, but the law as written by Congress, if anybody is interested in it and I know you gentlemen are, but the question that the law is written it says this guideline or any guideline, if you are in conformity with it, if you rely on it under those circumstances it will be a bar to any action for discrimination even if the guideline is subsequently changed by judicial fiat, by administrated decree, it makes no difference. Again, look at the 1966 guideline, it says, here are some illustrations, what do you mean by accommodation? It says we authorized the employer. The employer should be authorized to prescribe the normal work week and foreseeable overtime requirements and absent any intent to discriminate. An employee who knows or has reason to believe that the requirements of his employment will conflict with his religious beliefs is not entitled to request an accommodation of his religious needs. We negotiated our Compulsory Work Clause in 1960. Mr. Dewey attained and we have no question he attained his religious scruple in 1961 for the first time. When he did, he had knowledge of our Compulsory Work Clause and under the guideline, he knew that our schedules had presented him with the problem and whether you like it or not and whether we like it or not, the EEOC at that time said that as far as they’re concerned, in such a situation you don’t have a right to request an accommodation. And then you go another step, what’s the accommodation in the guideline? The accommodation in the guideline is time off. That’s what it reads and I submit to you that’s what we have done as far as time off is concerned. We have reasonably accommodated, if there’s an accommodation obligation and the further question that's raised by the petitioner and by the Government is, “Look, when you get down to basics, why don’t you take the step and get the substitute?” Our answer is this. “In 1960, prior to ’60, we couldn’t work overtime.” We negotiated -- we negotiated the Compulsory Overtime Clause. We worked hard for that and in 1965, it was renegotiated. It has subsequently been renegotiated beyond this -- beyond the confines of this record in the seven-week strike and suit, partly on that clause. Disregard that if you will, but it's hard one, this clause. Now, under those circumstances, you get the substitute. If we get the substitute, three things happen. We fear, one and we went in to this a little bit, Mr. Justice Blackmun, at that point, one if we get Dewey’s substitute, obviously, we have to get all religious -- substitutes for all religious people who request. Now, the second step is what holds you to that? In other words, if you accept as to one element in your organization there are no and hand holds or bars to accepting to all. The Government says at a particular point in its brief as does petitioner, that in that situation, what you should do is you should accept as to the religious people and impress the other people, make the nonreligious people work because the Civil Rights Act takes precedence over the contract. I submit to you that what we’re doing, what they are suggesting that we do we will be back here. God willing, in approximately two or three years under a situation where what we then are doing is making people work who have no religious beliefs. Whatever their beliefs are, we must say there are no religious beliefs and under that circumstance, the religious people are free and those without religion or impressed into work. I think that’s a discrimination of the Civil Rights Act of 1964. I think we’re making our decision basically on religion. This is just what the Act says. I think this is intentional discrimination. I also think it's a violation of Title VII and it is also a violation of our labor contract because you -- such a situation would be making us go back up the ladder and skip those seniority people who had a religious exception. And under these circumstances we’ll not only have grievances, we will have arbitration, if we accept as to religion, I would if I were on the other side. If I were an employee and I I’m with UAW, I would probe us through arbitration to determine the extent of the waiver of the exception that we’re doing and we submit to you that if we were forced to get the substitute, these results come about, we will be back as the biblical expression is, “our last days will be worse than our first.” In other words, we will back to pre-1960. We will not be able to work overtime to meet our demands. We will be possibly faced with the Title VII violation. We will also be faced with the violation of our contract. So, under those circumstances, I think if you want to talk in terms the 1966 guideline, that certainly is a serious inconvenience. If you want to talk about the 1967 guideline, that’s undue hardship. I would say that on the -- as far as we are concerned, that we have not violated the contract under any -- the Civil Rights Act under any interpretation of the law and I would like to touch upon the election of remedies briefly and in that area, the two general theories that have evolved are the theories they were posed to you today, the Sixth Circuit saying that claims that when you have an employee obtains an adjudication in arbitration, he should not be permitted to proceed on the same claim because you impose upon an employer multiple legal actions on the same claim and you can lead to an erosion of arbitration as a final remedy. The second theory is phrased in terms of Hutchings and Bowe in terms of the rights and remedies under arbitration and under Title VII are separate and I mentioned this briefly but I wish you’d bear with me. In the grievance that was presented, in the arbitration or a grievance part of the contract, it was said that it was a clear case of discrimination on the part of the company in applying its policy to a petitioner. In the process of arbitration in which petitioner was represented by the international rep of the UAW, and I might add, notwithstanding Gideon and its ramifications, I think that in arbitration and in those areas that the international reps have most unions are as skilled, if not more so, than many lawyers and do a better job because this is their bread and butter vis-à-vis the lawyer who doesn’t specialize. But I say that in that situation, the union suggested in that arbitration that the effect of the application of the labor agreement resulted in discrimination against its employees who seek to be excused from assigned work for reasons of religion. Now, the arbitrator found the employee could not refuse to work on Sunday because of the wording of the labor contract and the employer’s consistent administration as to all employees of the relevant provisions of the agreement. I submit to you that the argument, that the rights under arbitration are different from the rights under the law or under the statute doesn’t stand up. They are the same in this case. Again, the distinguishing factor according to the Fifth Circuit, the remedies are different and I said before in this case the remedy, what is the remedy? The remedy in arbitration is reinstatement of back pay. What is the remedy under the statute? It's reinstatement on back pay. Someone would add, yes, but you can get in injunction under Title VII in the statutory process. I say you can get a prior decision of an arbitrator or a decision of an arbitrator which acts as precedent, so that I submit that under circumstances, the better judicial principle would be that enunciated by the Sixth Circuit and the District Court in California to the effect that you may pursue both remedies as long as you will, but when you get a decision in one then the issue becomes moot in the other forum. It would appear that this approach to the question would also be sound administratively. Speaking in that concurrent jurisdiction, it brings waste, confusion, forum shopping and what appears to be an unnecessary series of litigations. And I have given away part of my argument in the sense that I think that as far as arbitration is concerned and Mr. Justice Black discussed the finality of the arbitration, I think that we are in serious difficulty as a remedy. And I recognize Lincoln Mills and Boys Market and Steelworkers Trilogy and everything that this Court is said and it can be undone if you allow a concurrent jurisdiction theory. And then, I write into my arbitration, I write into my grievance, you violated my seniority provisions because you didn’t follow the wording in the contract and also I'm 49 because of age and you say this is ridiculous. What it's got to do with age? Don’t use age, use religion, use color, use sex and I say under those circumstances, this is what is coming in this situation that you then have two bites of the apple in every situation and unlike the National Labor Relations Act, the matrix of the Civil Rights Act is interwoven into the labor contract. Everything you do in the labor contract takes all the condition that you cover involved in the working conditions cover the prescriptions of the Civil Rights Act, so that as far as I'm concerned, the election of remedies theory should be applied. I read -- Arguelles is very interesting and the problem that was raised there and I think this problem that is raised here is much more significant than the problem with all due respect to Arguelles because of the impact that you’re going to suffer, that we are going to suffer are arbitration as a final process. So under these circumstances, I would conclude by saying that it is submitted that the Civil Rights Act -- under the Civil Rights Act management should have the right to establish working schedules including overtime. The working schedules in this case were applied on a uniform and nondiscriminatory basis. An employee has the duty to observe these work schedules that are so established and for the religious beliefs of an employee don’t entitle of individual to special or peculiar privileges denied to others. From a practical point of view, you gentlemen are faced and the enormous problems don’t balk you, they don’t bother you. I'm a lawyer from a Midwestern State and I am overwhelmed at some of these problems, but I won’t oppose the problem that faces you eventually. According to the 1962 Yearbook of American Churches which is the nearest year that I can take to the Dewey discharge in 1965, there were 259 religious bodies reporting membership in the United States. They had a membership at that point of 114 million people. The work force of the United States today amounts to 70 million employees. As to religious observances of various days I selected four categories. I chose Catholic because I am and I wanted to see what they did. There are 52 Sundays and 13 holidays, holy days or total of 65 particular days where we could wear this accommodation may work in. The Jewish religion has 52 Saturdays and 30 other holy days for a total of 82 days. The Greek Orthodox has 52 Sundays and 10 other holy days for a total of 62 days. The Seventh Day Adventist as best that I can see have 52 Saturdays. The total of these four religions alone amounts to approximately 261 days upon which the employees under the EEOC accommodation theory might ask for accommodation in terms of time off. The problem of scheduling, the problem of extra manpower, the problems of administration which are difficult in ordinary situations become a great deal more complicated. Such an analysis brings in to perspective the statement of the California Court of Appeals in the Stemple matter where they said “the proliferation of religions with an infinite variety of tenets would if the state is required as an employer to accommodate each employee's particular scruple place an intolerable burden upon the state and accommodation was not required. It is submitted that the EEOC approach also places an intolerable burden upon the private employers of America if the Court should accept the EEOC version of the law. We submit that it is not only intolerable; it is illegal under our Constitution and under our laws. Thank you, gentlemen.
Warren E. Burger: Thank you, Mr. Coughlin. Mr. Oosterhouse?
Donald F. Oosterhouse: Chief Justice and may it please the Court. First, to respond to the possible broad ramifications of employer sometime in the future accommodating all of the different possible religious days, let me just say that I'm sure that Congress was fully aware of the diversity of religion in this country when it passed the Civil Rights Act and said employers shall not discharge because of religion. I think this is an argument not to this Court but to the Congress to repeal this part of the Act.
Byron R. White: Do you think the employer here would be discriminating on the basis of religion if he permitted your client to avoid overtime on basis of this religion and said, nevertheless the Seventh Day Adventist is just going to work on Saturday or be fired?
Donald F. Oosterhouse: He would have to give the Seventh Day Adventist relief on Saturday under the same circumstances. Now, if you would -- if the employer is working a full shift on Saturday, and a partial shift on Sunday -
Byron R. White: If the employer -- and yet the employer in your case can easily find a replacement, you say he must do so?
Donald F. Oosterhouse: Yes.
Byron R. White: And if he can easily find a replacement for the Seventh Day Adventist on Saturday, he must do so?
Donald F. Oosterhouse: Yes.
Byron R. White: And even though that duplicates all sorts of company records and things like that and if has two employees instead of one for sixth day.
Donald F. Oosterhouse: Well, the question is always to be decided in terms of undue hardship but if as we say in this case and I think the evidence quite clearly shows this, it was easy for Reynolds to find a replacement for Dewey, then they must do so.
Byron R. White: You don’t know that, do you?
Donald F. Oosterhouse: I think --
Byron R. White: What you’re saying is that there were some other employees who weren’t busy?
Donald F. Oosterhouse: They were available, stipulation said.
Byron R. White: How do you know they were available? They weren’t asked.
Donald F. Oosterhouse: The stipulation says they were available.
Byron R. White: Available, what does that mean that they would have come without any objection?
Donald F. Oosterhouse: That’s the way I understand.
Byron R. White: What if they would have come without the union even objecting or what?
Donald F. Oosterhouse: I think that the stipulation saying they’re available combines with the other items in the stipulation showing that employees could get other employees when they had no power to compel them, means these people were available without recourse to the Compulsory Overtime Clause.
Byron R. White: So, that’s the basis that we take the case that all the employer had to do is pick up the telephone and they would have a replacement.
Donald F. Oosterhouse: This is correct.
Byron R. White: That’s the purport of the stipulation?
Donald F. Oosterhouse: Right.
Hugo L. Black: Mr. Oosterhouse, suppose, there were two others, me and Dewey and neither one of us won’t work on Sunday. He doesn’t like to work on Sunday because it’s the Good Golfer’s day. Dewey could not be discharged but I can.
Donald F. Oosterhouse: I think that this is correct.
Hugo L. Black: Is that right?
Donald F. Oosterhouse: The statute says –-
Thurgood Marshall: Aren’t you discriminated against me because of religion or lack of it?
Donald F. Oosterhouse: When the statute says that you may not discharge because of religion and certain other things --
Thurgood Marshall: Well, he’s not discharged. Is there anything in Dewey’s discharge, is that says because of religion?
Donald F. Oosterhouse: I think the evidence shows that it was --
Thurgood Marshall: Does anything in the discharge say religion. That you are discharged because you’re a remember of blank, blank church?
Donald F. Oosterhouse: No, it's the discharge because of a conduct flowing from his religion in not working on Sunday.
Thurgood Marshall: In fact, it is not so.
Donald F. Oosterhouse: This is a way to say it, yes. The effect of this practice was to cause his discharge because of religion. I think to come back to your question on golf, there is, when the statute sets up certain classification as being entitled to protection, there is at that point to some extent a preference for considerations or religion, race, sex as compared to considerations of golf or other strictly personal preference.
Byron R. White: But you would say Congress would have the power absolutely to pass a statute which would say that a company may not lawfully force with the threat of discharge, hanging over him if he doesn’t -- force any person to work on Sunday who has religious group?
Donald F. Oosterhouse: I think of the parallel to the constitutional right of free exercise where the compelling state interest has been adopted and I see that the undue hardship as a parallel limitation in whether this is a limitation on the power of Congress or strictly on the interpretation of the Act, I'm not sure.
Byron R. White: Well, in effect the guideline says that in circumstances you may not override a person’s religious scruples and make him work on Sunday?
Donald F. Oosterhouse: This is correct.
Byron R. White: And I have take then you would say that Congress could as it just impose a flat ban by statute and said that no work on Sundays for those religious groups?
Donald F. Oosterhouse: I would think that is within the power of Congress.
Byron R. White: But that we won’t excuse golf players?
Warren E. Burger: Or agnostics?
Donald F. Oosterhouse: Well, agnostics might be in the different category. Maybe this is a religion, but golf I think is not. There is a distinction drawn between protecting religion and the other categories as distinguished from golf.
Byron R. White: Well, the agnostic comes in and says, “I don’t want to work on Sunday either. It’s not because of my religion but because I just don’t like to work on Sunday and you can't discriminate against me. I don’t have religion but if you let some off who do, you’re discriminating against me?”
Donald F. Oosterhouse: The statute prohibits discrimination on certain classifications and to the extent that therefore people in those classifications have a write not to be discriminated against. They are to that very limited extent preferred as over people in a classification who are not protected by the statute.
Byron R. White: But notwithstanding the Congress says that they have as much power to do that is that would to accept people from draft on the kind of religion?
Hugo L. Black: Despite the difference that is in here now. Religion do accept into somebody on account of that professions of faith and on the kind of a conduct, which they say that professions (Inaudible) requirement, you would say that way.
Donald F. Oosterhouse: There certainly is a --
Hugo L. Black: And is also about the Mormon?
Donald F. Oosterhouse: It is distinguishable, yes but I think the Act protects both the belief and the conduct flowing from that belief.
Hugo L. Black: It wouldn’t protect the Mormon if he married three times.
Donald F. Oosterhouse: No, you get the compelling state interest or the undue hardship as a balancing factor.
Warren E. Burger: We’ll recess this time counsel.