(concurring).
The record reveals that in September 1967, plaintiff, a Seventh Day Adventist, applied for a'position as copyreader on the Memphis Press-Scimitar. It is an afternoon newspaper in Memphis published by defendant-appellee; and the appellee also publishes the morning Commercial Appeal.
Appellant, editor of the Tri-State Defender, a weekly newspaper, demonstrated in a day’s trial under the eye of the news editor that he was qualified to perform the duties of a copyreader. The managing editor recommended his employment; and the editor offered him the position. While the salary terms and other conditions were being settled the plaintiff first made known to the editor that because of his religious tenets as a Seventh Day Adventist plaintiff could not and would not work on Saturday. The editor withdrew the offer. However, it was made clear to plaintiff that he could have the job if he agreed to be available for Saturday work.
The trial court found as a fact that
The Press-Scimitar has never had a policy whereby any person, white or black, has been hired with the understanding that he would be relieved from working on any particular day.
The managing editor put this policy in context when he testified:
This [plaintiff’s refusal to work on Saturday because he was a Seventh Day Adventist] was a little upsetting because we never hire anybody and promise them any particular day off because of the six day week, and the scheduling, and the emergencies we have we can just not promise anybody *352any time they will be off a certain day.
Supported by evidence the court made this related finding: It was the policy of the newspaper to require “all employees to be available for work, if necessary, seven days a week, and certainly to be available for Saturday assignments.” The court further found that new employees were assigned to Saturday work “to give preference of other week days to employees with more seniority, subject to the specialities possessed by the copyreaders.” Cataloging the special abilities and expertise required of copyreaders on this newspaper the trial court found that:
Copyreaders are not readily interchangeable with other copyreaders, and a minimum crew made up of a certain number of copyreaders who possess different specialities is required for every day’s operation, even for the lighter work day on Saturday.
The trial court, relying upon Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970), held that: “There . [was] no duty on the part of an employer to accommodate an employee’s or potentional employee’s religious belief contrary to the employer’s established and required work schedule,” and therefore, plaintiff did not establish a Title VII violation based upon religious discrimination.
In September 1967, when appellant was refused employment as a copyreader because he refused to work on Saturday there was in effect (not so, in Dewey, supra) a regulation promulgated by the EEOC under the Equal Employment Opportunity Act. 29 C.F.R. § 1605.1(a)(b)(c)(d), supra.
It is likely that the trial court did not apply this regulation to the instant case because of footnote 1 in Dewey, supra 331 that doubts the authority of EEOC to adopt such a regulation. On March 24, 1972, Congress amended Title VII in several respects. One of those amendments incorporates the substance of EEOC Regulation 1605.1. This appears in the following definition of religion:
“(j) The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” Act of March 24, 1972, Pub.L. No. 92-261, § 701 (j) 86 Stat. 103. (42 U.S.C. § 2000e(j).)
As shown in Riley v. Bendix Corp., 464 F.2d 1113 (5 Cir. 1972), 4 E.P.D. ¶ 7902, legislative history of that amendment stresses that the regulation (29 C.F.R. § 1605.1) did express the will of Congress. This subsequent congressional affirmation clarifies any doubts about the validity of the regulation. Hence, it becomes mandatory that the regulation be applied to the instant case. A similar result was reached in Riley v. Bendix Corp., supra. I concur, therefore, with the court’s opinion that the judgment of the trial court must be reversed and the case remanded with the trial court directed to determine whether the Press-Scimitar could make “reasonable accommodation” to the religious practices of appellant “without undue hardship on the conduct of the employer’s business.”
Since the ease is being remanded for action consistent with the Court’s opinion, I think it necessary to elaborate on some of the matters expressed in the Court’s opinion. The trial court should apply the test of the regulation directly to the.policy of the Press-Scimitar that requires all employees to be available for work on Saturday and refuses to guarantee a new or old employee a particular day off. In applying the test to this policy and requirement of the Press-Scimitar the trial court will be governed by Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and its conclusion that in the Equal Employment Opportunity Act,
*353. . . Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.
The record reveals the existence of a policy and requirement of not guaranteeing any employee a specific day off. To uphold such a policy and requirement the trial court must find that the employer has sustained his burden of demonstrating that such policy and practice is necessitated by the requirements of the employer’s business and find further that such policy and practice is applied equally to all employees. “What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Griggs, supra, 431, 91 S.Ct. 853.
While the trial court found “that there was . . . [no] hostility on the part of defendant because of plaintiff’s chosen religion,” such finding does not automatically insulate the employer’s policy from further challenge. “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs, supra, 431, 91 S.Ct. 853.
This does not mean that all employment practices which happen to adversely affect an employee’s or prospective employee’s religious observance or practice are proscribed by Title VII. It does mean, and the amendment to Title VII makes it clear, that “unless an employer demonstrates he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business,” then such practice is prohibited. If the employer shows that a reasonable accommodation cannot be made and the trial court so finds, then Title VII does not command that the Memphis Press-Scimitar abrogate its policy of not guaranteeing its employees a particular day off each week.
There is another dimension of the case that on remand must be considered. The trial court concluded:
While the record contains some proof to the effect that the Commercial Appeal did have personnel who did not work on certain days for religious reasons, nevertheless these two newspapers are different organizations within the corporate entity named herein as a defendant, and so plaintiff’s claim which is based upon his failure to be employed by the Press-Scimitar must be tested by the separate policy of the Press-Scimitar.
The record reveals that the Press-Scimitar and the Commercial Appeal maintain separate and independent editorial policies. However, both papers are owned by the defendant publishing company, both newspapers are published on the same presses, and both operate in the same building. In addition, the two newspapers follow the policy of not raiding each other’s staff. Under these circumstances I believe that the trial court erred in finding that the plaintiff’s claim “must be tested by the separate policy of the Press-Scimitar." In determining whether the Press-Scimitar’s business policy of. not guaranteeing a specific day off was necessitated by the requirements of its business the trial court should consider that in its answer,
Defendant admits that it employs a . Seventh Day Adventist or a copyreader who works on schedules that do not include Saturdays and employs a . member of the Jewish faith who does not work on Saturdays . . ' . [because] the Commercial Appeal publishes a paper on Sunday and it has been able to arrange the schedules of said two employees in such a way that the fact that they will not work on Saturdays has not too seriously curtailed its operation.
In light of this admission and any other relevant evidence it should be deter*354mined whether the seven day publishing schedule of the Commercial Appeal distinguishes the Appeal’s apparent ability to accommodate to the Saturday off of two of its employees due to their religious observance and practice.