(dissenting).
In Reid v. Memphis Publishing Co. (I), 468 F.2d 346 (6th Cir. 1972), this court upheld the applicability and constitutionality of an Equal Employment Opportunity Commission regulation, 29 C.F.R. § 1605.1 (1974), and remanded the case *523to the District Court for hearing and determinations of fact concerning “undue hardship.”
No judge of the court filed any motion for reconsideration in banc.
On remand the District Judge reheard the case, made extensive findings of fact and entered judgment for the plaintiff. He held that defendant had made no effort whatsoever to accommodate plaintiff Reid’s religious beliefs. His critical findings of fact were as follows:
Furthermore, it should be noted that one of the distinctions made by the Court of Appeals between the Dewey case and the instant ease was that the employer had offered an accommodation to Dewey prior to his being discharged. Reid v. Memphis Publishing Co., supra, at page 349. In the instant case the defendant is unwilling to offer to anyone an accommodation in the form of being allowed to be off work on any day for religious purposes.
Having determined that a request for Saturday off for religious reasons is a reasonable accommodation, it is incumbent upon this Court to apply the facts of the case to the “undue hardship” test referred to in the E.E. O.C. regulation and the Court of Appeals remand.
The regulation specifies an example of § 1605.1(b) wherein it provides:
“Such undue hardship for example, may exist where the employee’s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer.”
This would indicate that an employer would be expected to assign other employees voluntarily or involuntarily to perform the work of the Sabbath observer, provided the accommodation meets the test of reasonableness and does not create an undue hardship otherwise.
In the instant case clearly there were other copy readers of substantially similar qualifications to perform the work to be done by the plaintiff during his observance of the Sabbath. Upon consideration of the proof pertaining to specific hardships, such as the scheduling of copy readers of particular experience, the possible effect of morale of other employees, and the possible economic burden caused by additional overtime, the Court concludes that the defendant has not proven that an undue hardship would have rendered the required accommodation to the religious needs of the plaintiff unreasonable, particularly, in view of the fact that the defendant personnel did not make any attempt to accommodate the religious needs of the plaintiff.
While it is true that the plaintiff’s lack of experience on this newspaper’s staff and the then existing problems of scheduling would cause additional burdens, which might be considered a hardship for management personnel, the test is undue hardship, which this Court does not believe to be established by the proof.
The District Judge awarded plaintiff damages of $7,349 — the carefully computed difference between the salary Reid would have earned with defendant and what he actually did earn in the years before he secured a better paying job. He denied plaintiff’s request for attorney fees.
Astonishingly, my colleagues now reverse the District Court’s carefully considered judgment simply by accepting the defendant’s contentions as to the facts. As I view the matter, the majority opinion retries this case on the written record, giving no weight to the great advantage the trial judge has in seeing, hearing and judging the credibility of the witnesses.
Additionally, the majority opinion has the effect of reversing the burden of proof which the regulation places upon *524the employer to establish undue hardship.1
A full description of the case follows, including the bulk of the District Judge’s opinion and findings of fact.
This case represents the second appeal in a continuing controversy between appellant Reid, a black member of the Seventh Day Adventist Church, and the company which publishes both the Memphis Press-Scimitar and the Commercial Appeal. In the first appeal, Reid v. Memphis Publishing Co., 468 F.2d 346 (6th Cir. 1972), we held, contrary to the view of the District Judge, that an Equal Employment Opportunity Commission regulation, 29 C.F.R. § 1605.1 (1974),2 was applicable at the time Reid was denied employment when he refused to work on Saturday due to his religious beliefs. The regulation in question requires employers to make “reasonable accommodations” to the religious needs of employees where such can be accomplished “without undue hardship.”
By holding this regulation to be applicable, we distinguished this case from Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970), aff’d by an equally divided court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971), where this court’s majority opinion had held that this same regulation was not applicable at the time of the discharge there complained of and that it was not retroactive in effect.
Subsequent to defendant’s refusal to hire Reid in this case, but prior to our original case, the United States Congress amended Title VII so as to add to 42 U.S.C. § 2000e (1970), the following language:
(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 *525employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
Act of Mar. 24, 1972, Pub.L. No. 92-261, § 2, 86 Stat. 103, amending 42 U.S.C. § 2000e (1970) (codified at 42 U.S.C. § 2000e(j) (Supp. III, 1973)). We noted in our prior opinion:
As shown in Riley v. Bendix Corp., 464 F.2d 1113 (5th Cir. 1972) 4 E.P.D. § 7902, legislative history of this amendment stresses that the regulation (29 C.F.R. § 1605.1) did express the prior intention of Congress. This subsequent congressional affirmation strengthens our conclusion about the validity of the regulation.
Reid v. Memphis Publishing Co., 468 F.2d 346, 351 (6th Cir. 1972).
On remand additional proofs were taken. Judge McRae there held on the crucial issue not only that the facts in the record did not disclose any “undue hardship” to the potential employer, but that defendant had made no effort whatever to accommodate Reid’s religious beliefs. The District Judge reiterated a prior finding (made in the original case) that there was no intentional discrimination on the part of the defendant, but as indicated above, he awarded Reid $7,349 in damages.
Plaintiff’s appeal pertains solely to the disallowance of the attorney fees, while defendant contends that under the facts of its particular business, no accommodation to Reid’s religious objection to Saturday work was possible and, hence, that its failure to make any attempt to accommodate was irrelevant.
As to this last issue, Judge McRae’s critical findings were:
Since this suit was filed plaintiff has gained other satisfactory employment and does not at this time seek to became employed by the defendant. The relief now sought is monetary damages only. The amount of damages sought is the difference between what plaintiff would have earned while working as a copy-reader for the defendant and the pay he received until he took a position paying more than he would have earned as a copyreader for the defendant, and attorney’s fees.
For clarity, the Court reiterates certain findings, namely, that the plaintiff was well qualified to become a copyreader for the defendant; that plaintiff was a member of the Seventh-Day Adventist Church; that one of the religious principles of the Seventh-Day Adventist Church is that its members should not work on Saturday; that plaintiff was offered the job as a copyreader on the Press-Scimitar on the condition that he make himself available to work on any day, including Saturday.
The record further establishes that the Memphis Press-Scimitar, the one of the defendant’s two newspapers on which there was an opening for a copyreader, publishes three editions Monday through Friday, two editions on Saturday and no editions on Sunday, and that the plaintiff declined to accept the position due to his sincere religious belief that he should not work on Saturday.
In accordance with the direction of the Court of Appeals Opinion, further evidence was offered on the employment practices of the Memphis Commercial Appeal, the other newspaper published by the defendant publishing company.
The proof shows that the Commercial Appeal had at the time in question two employees who were of the Seventh-Day Adventist faith and who were not required to work on Saturday. These employees were Lindley Richert and Glenn Allen. Richert was employed by the Commercial Appeal as a copyreader. The editor of the Commercial Appeal who employed Richert knew that Richert was a Seventh-Day Adventist and that he would not work on Saturday. However, since the Commercial Appeal publishes seven days per week, it has need of copyreaders seven days a week. Sunday was a less preferable work day for many of the copyreaders; therefore, the editor employed Richert and assigned him to Sunday work on a regular basis *526with Saturday as- one of his regular days off.
In the ease of Allen, he had been an employee of the Commercial Appeal before he became a Seventh-Day Adventist. He worked in the Commercial Appeal’s library, which is staffed seven days a week. Allen customarily worked on Sunday and continued to work on Sunday after he became a Seventh-Day Adventist.
No charges in work schedules were required to be made by the Commercial Appeal, in order to accommodate Saturdays off for either Richert or Allen. On the contrary, their ready willingness to work on Sundays was well-suited to the Commercial Appeal’s seven-days-per-week publishing requirement and was actually an accommodation to the newspaper.
At the supplemental evidentiary hearing the defendant offered further testimony pertaining to the duties of copy-readers at the Memphis Press-Scimitar in an effort to meet the burden of proof cast upon it by the E.E.O.C. regulation determined to be applicable by the Court of Appeals, namely, that the accommodation of granting the plaintiff Saturday off would create an undue hardship on the newspaper.
The proof establishes that a newspaper copy desk is a kind of reduction or selection department for news. Much more news comes to the paper through the wire services and through local sources than can be printed in the paper. The news that comes in includes world news, national news and local news. It is the duty of the News Editor to receive and review the news; edit it; determine what will be printed; check for punctuation; check for accuracy of fact; write head lines and sub-heads; make selection of news items or stories based upon various factors such as the nature of the news, the edition concerned, length of the story or item, and the like. The copyreaders assist the News Editor in this task.
Copyreaders sit at a horseshoe shaped desk. The News Editor, or person performing his function, sits at the middle of the desk and is called the slot man. The copyreaders sit around the rim of the desk. As news comes in to the slot man he passes it to one of the copyread-ers for appropriate action.
Copyreaders usually develop special abilities in addition to their general abilities, and normal operations require a crew of copyreaders who possess expertise or experience in specific areas. Some of those specific areas or specialties at the Press-Scimitar are: the ability to perform as slot man; to handle telegraph, i. e. news arriving by wire; to handle Mid-South news; to handle society copy; to handle the magazine section; special features, makeup and markets.
The Press-Scimitar’s normal complement of copyreaders is ten, including the News Editor who mans the slot position when on duty.
The scheduling of the copyreaders is done on a weekly basis by the News Editor subject to the approval of the Managing Editor. This scheduling is difficult for various reasons. First, the specialty requirement must be considered. While some copyreaders possess more than one specialty, in addition to their general ability, none possess all of the specialties; and while some by additional training might acquire additional special skills, experience has demonstrated that certain ones are more adapted by nature, and other less adapted by nature, to become proficient in special skills. Because of this need for special skills, all copyreaders are not interchangeable with all other copyreaders.
The processing of the three editions published daily by the Press-Scimitar, Monday through Friday, requires copy-reader services during a period of time which may vary somewhat on different days but ranges from 5 o’clock A.M. to as late as 4:30 P.M. This range of time usually requires two different persons to man the slot position on days other than Saturday. The Saturday period ranges from 5:00 A.M. to about 1:30 P.M.
The length of a normal work day for a copyreader is eight hours. The copy *527desk work must be so scheduled as to have adequate manpower with proper specialties present during the entire copy desk operation period. Each copyreader gets an annual vacation of two, three or four weeks, depending upon his length of service. Timewise, about forty-six weeks of time go into vacations and holidays for the copyreaders. Sickness takes about another eight weeks. With a normal complement of ten copyreaders, including the News Editor, overtime work is required of copyreaders from time to time in order to meet the manpower requirements on the copy desk.
Trial Exhibits 4 and 5 of the June 1973 hearing are copies of weekly schedules for the copyreaders. Trial Exhibit 4 is a May, 1973 schedule and Trial Exhibit 5 is a collective exhibit of five weekly schedules in November and December, 1967. These exhibits and testimony of the News Editor, Luther South worth, show some of the problems of scheduling. However, they also reflect that there are regular variations from the desired normal situation and so called minimum standards. They also show that some copyreaders are pulled off the copy desk for other editorial assignments, and on some occasions reporters are used as copyreaders.
At the time plaintiff was being considered for the copyreader position, the Editor of the Press-Scimitar was planning to transfer George Lapides, one of the copyreaders, to another position, and he planned to put plaintiff, if employed, into the position to be vacated by La-pides. It was customary for Lapides to work on Saturday.
The proof shows that the News Editor intended to observe plaintiff’s performance during a period of his adjustment to the job of copyreader at this particular paper in the light of all the duties to be performed by the available personnel. This is a process which would apply on the hiring of any new copyreader. Because the plaintiff was not hired, there is no way to determine how long it would have taken to discover what jobs the plaintiff was best suited for. However, the record clearly establishes that the plaintiff had sufficient skill and experience to successfully become one of the ten copyreaders on the Press-Scimitar staff.
Proof was offered by the defendant that an alternative to manpower shortage would be to require overtime work from the available staff, at time and one-half pay, or to employ an extra copyreader. However, the proof in this regard was not specific and the amount of the additional economic burden incident to such overtime or employment of extra personnel was not shown.
The defendant contends and offered opinion testimony from the executive personnel that if plaintiff had been employed by the defendant with all Saturdays guaranteed off, a serious morale problem would have been encountered. The proof shows two copyreader employees, Pinegar and Parker, who customarily work on Saturday, had requested to be scheduled so as to have Saturday off, but these were not for religious reasons. Their requests were refused. The proof shows that all copyreaders, with the exception of the News Editor himself, are required to work from time to time on Saturday, in order to meet the manpower requirements which sometimes become critical due to factors of vacation, sickness and the fact that all copyreaders are not interchangeable. However, the proof also shows that Saturday work is infrequent for some copyreaders and there is a not too clearly defined rank hierarchy based upon the length of service and other factors. Presumably, the lower morale would result from resentment of the copyreaders with more seniority who preferred to be off on Saturday for non-religious reasons, if the management sought to accommodate the plaintiff’s religious practices. There is also opinion testimony offered by the plaintiff from a former employee of the Press-Scimitar editorial department to the effect that plaintiff would overcome this resentment.
*528The above noted proof addresses itself primarily to the “undue hardship” test which was offered alternatively in the event that the Court does not adopt a finding which supports the defendant’s persistent position, namely, that granting a member of the editorial department of the Memphis Press-Scimitar a regular day off for religious purposes is contrary to the policy of the newspaper which is applied equally to all personnel.1
By taking this position the defendant effectively contends that the plaintiff’s request to be relieved from Saturday work would be beyond the scope of a “reasonable accommodation” of his religious practices. This Court concludes that the request of the plaintiff to be relieved of Saturday work upon the basis of religious beliefs is within the scope of the “reasonable accommodation” test imposed by Congress and those authorized to promulgate E.E.O.C. regulation 1605.
Furthermore, it should be noted that one of the distinctions made by the Court of Appeals between the Dewey case and the instant case was that the employer had offered an accommodation to Dewey prior to his being discharged. Reid v. Memphis Publishing Co., supra, at page 349. In the instant case the defendant is unwilling to offer to anyone an accommodation in the form of being allowed to be off work on any day for religious purposes.
Having determined that a request for Saturday off for religious reasons is a reasonable accommodation, it is incumbent upon this Court to apply the facts of the case to the “undue hardship” test referred to in the E.E.O.C. regulation and the Court of Appeals remand.
The regulation specifies an example in § 1605.1(b) wherein it provides:
“Such undue hardship for example, may exist where the employee’s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer.”
This would indicate that an employer would be expected to assign other employees voluntarily or involuntarily to perform the work of the Sabbath observer, provided the accommodation meets the test of reasonableness and does not create an undue hardship otherwise.
In the instant case clearly there were other copyreaders of substantially similar qualifications to perform the work to be done by the plaintiff during his observance of the Sabbath. Upon consideration of the proof pertaining to specific hardships, such as the scheduling of copyreaders of particular experience, the possible effect of morale of other employees, and the possible economic burden caused by additional overtime, the Court concludes that the defendant has not proven that an undue hardship would have rendered the required accommodation to the religious needs of the plaintiff unreasonable, particularly, in view of the fact that the defendant personnel did not make any attempt to accommodate the religious needs of the plaintiff.
While it is true that the plaintiff’s lack of experience on this newspaper’s staff and the then existing problems of scheduling would cause additional burdens, which might be considered a hardship for management personnel, the test is undue hardship, which this Court does not believe to be established by the proof.
This Court has previously found that there was no intentional discrimination on the part of defendant personnel due to plaintiff’s religion. Similarly, there is no proof that the executives of the defendant were aware of the obligations imposed upon them by the regulation at the time of the refusal to hire. However, the opinion of the Court of Appeals in this case applied Griggs v. Duke Pow*529er Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) and quoted therefrom with regard to the principle that the Civil Rights Act of 1964 proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation. 468 F.2d at page 350. “. . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Griggs v. Duke Power Co., supra [401 U.S.] at page 432, 91 S.Ct. at page 854.
It must be remembered that Congress by the Civil Rights Act of 1964 recognized and established new statutory rights of employees in the areas of race, religion and sex. This imposed obligations on employers and, to some extent, employees to change some long standing policies and practices.
These findings of fact we review, of course, under the “clearly erroneous” standard. Fed.R.Civ.P. 52(a). Here the record shows that Saturday was the lightest work day of the six regularly scheduled work days. It does not show that accommodating Reid’s religious beliefs would have occasioned any added expense of any kind to defendant, unless we assume that other employees would have refused Saturday assignments because Reid was exempted from them. There is no evidence which supports such an assumption because, as the District Judge pointed out, defendant did nothing whatever to explore what it could do to accommodate Reid’s religious beliefs. At a minimum, I believe the regulation here involved (now adopted by law) requires more than a simple assertion by an employer that it had always required Saturday availability and would not hire an employee who was not prepared to work on that day.
Furthermore, although the District Judge made no reference to it and placed no reliance upon it, this same employer through its other wholly-owned paper, the Memphis Commercial Appeal, operated a seven-day a week newspaper where Reid’s ready availability for Sunday work would have been a distinct asset. Yet the record discloses no consideration at all by the employer of any possible exchange of personnel.
There may, of course, be situations where a prospective employee’s unavailability for Saturday work would make his employment truly an undue hardship. A small newspaper which needed only one sports reporter could hardly hire a Seventh-Day Adventist for that spot without “undue hardship.” This case, however, presents no such facts. The District Judge’s findings of fact are accurate and complete. They certainly are not “clearly erroneous.” The judgment of the District Court as to damages should be affirmed.
As to plaintiff’s appeal from denial of attorney fees, the case should be remanded for further consideration. This is a Title VII action where Congress has squarely authorized attorney fees. 42 U.S.C. § 2000e—5(k) (1970); See Alyeska Pipeline Service Co. v. The Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).
. For quite different reasons, both of my respected colleagues have deep-seated beliefs that the regulation at issue, 29 C.F.R. § 1605.1 (1974) (now enacted in the same words in statutory form, 42 U.S.C. § 2000e(j) (Supp. III, 1973)) is unconstitutional.
Judge Weick has expressed his concern that the regulation violates employer’s constitutional rights in Dewey v. Reynolds Metals Co., 429 F.2d 324, 331 n. 1, 334-35 (6th Cir. 1970), aff’d by an equally divided court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971). Judge Celebrezze has written strongly in dissent in Cummins v. Parker Seal Co., 516 F.2d 544 at 554-560 (6th Cir. 1975) (A. Celebrezze, J., dissenting), that the regulation (1605.1) is a violation of the establishment of religion clause of the First Amendment to the United States Constitution.
Neither of these constitutional arguments is frivolous and neither has been precisely dealt with by the United States Supreme Court. Each has, however, been rejected by a panel opinion of this court. See Reid v. Memphis Publishing Co., supra; Cummins v. Parker Seal Co., supra. In neither instance has there been a motion for rehearing in banc by any judge of this court.
. § 1605.1 Observation of the Sabbath and other religious holidays.
(a) Several complaints filed with the Commission have raised the question whether it is discrimination on account of religion to discharge or refuse to hire employees who regularly observe Friday evening and Saturday, or some other day of the week, as the Sabbath or who observe certain special religious holidays during the year and, as a consequence, do not work on such days.
(b) The Commission believes that the duty not to discriminate on religious grounds, required by section 703(a)(1) of the Civil Rights Act of 1964, includes an obligation on the part of the employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business. Such undue hardship, for example, may exist where the employee’s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer.
(c) Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable.
(d) The Commission will review each case on an individual basis in an effort to seek an equitable application of these guidelines to the variety of situations which arise due to the varied religious practices of the American people.
While there is no proof that any person who observes the Sabbath on Sunday has indicated unwillingness to do so on religious grounds, the customs and practices of the community and the newspaper permit the employees of the Memphis Press-Scimitar to be off on Sunday except in unusual circumstances.