Smith v. Olin Chemical Corp.

• Decision Date: 19 July 1976
• Docket Number: No. 75-1024,75-1024
• Citation: 535 F.2d 862
• Parties: 13 Fair Empl.Prac.Cas. 1, 12 Empl. Prac. Dec. P 11,084 Varice SMITH, Jr., Plaintiff-Appellant, v. OLIN CHEMICAL CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 862

535 F.2d 862

13 Fair Empl.Prac.Cas. 1, 12 Empl. Prac. Dec.

P 11,084

Varice SMITH, Jr., Plaintiff-Appellant, v. OLIN CHEMICAL CORPORATION et al., Defendants-Appellees.

No. 75-1024.

United States Court of Appeals, Fifth Circuit.

July 19, 1976.

Norbert A. Simmons, New Orleans, La., for plaintiff-appellant.

Wm. R. Tete, Lake Charles, La., William B. Dickinson, Stamford, Conn., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, GODBOLD and LIVELY, Circuit Judges.

GODBOLD, Circuit Judge:

Plaintiff-appellant Smith was hired February 8, 1973, as a laborer in the "utility pool" at the Lake Charles, Louisiana, plant of Olin Corporation. ¹ Smith successfully passed a preemployment physical examination and performed satisfactorily during a probationary period. His continued employment depended on the results of a second medical exam generally given around the ninetieth day of an employee's probationary period. Such an exam was administered to Smith on May 9. Olin's medical director determined from x-ray reports that Smith had "bone degeneration with a prognosis of possible aseptic necrosis or further bone degeneration in his spinal region and was physically disqualified for any manual labor job at the plant, including the job of Laborer, Utility Pool." When apprised of the exam results, Smith informed the doctor that the bad back diagnosis could be explained by his history of sickle cell anemia, a blood disorder which affects black Americans almost exclusively. His personal physician subsequently corroborated the correlation. The Olin Corporation terminated Smith's employment on May 10.

Following notification by the Equal Employment Opportunity Commission of his right to institute an action in federal district court, Smith sued Olin, alleging a racially discriminatory deprivation of rights secured by 42 U.S.C. § 1981 and 42 U.S.C. §§ 2000e et seq., Title VII of the Civil Rights Act of 1964. Olin moved for summary judgment, and both sides filed briefs, affidavits and exhibits. The District Court rejected Smith's assertion, made in his complaint, that he was "discharged . . . because defendant suspected that (he) has sickle cell anemia, a disease common to Black Americans." The uncontroverted matter before the court on the motion for summary judgment did not disclose any knowledge or suspicion by Olin that Smith had sickle cell anemia but rather showed that Olin had no such knowledge or suspicion until after the company doctor had examined him, concluded that he had a bad back, and informed him that he was disqualified for employment.

The case must, however, be remanded for further consideration of the possible liability of Olin based on employment practices that are fair in form but discriminatory in operation. As it has been construed by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), Title VII of the 1964 Civil Rights Act requires "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. . . . The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation . . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation." Id. at 431-432, 91 S.Ct. at 853, 28 L.Ed.2d at 164-165. While Smith's pleadings are not a model of precision or clarity, the allegations regarding his discharge ² sufficiently raise an "effect" claim as well as an "intent" claim. This court has continuously given wide scope to Title VII in order to remedy, as much as possible, the plight of persons who have suffered from discrimination in employment opportunities. Rowe v. General Motors Corp., 457 F.2d 348 (C.A.5 1972), and cases collected therein at 354, n. 13. In the Title VII area, consistent with the full spirit of Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 28 L.Ed.2d 80, 85-86 (1957), we have been very liberal rather than technical in pleading requirements. ³

Appellant's "effect" theory is more cogently articulated in his brief before us than it was before the trial court:

Because sickle cell anemia affects Blacks almost exclusively, probability dictates that bone degeneration, a common condition resulting therefrom, would be present among proportionately more Black workers in a labor force than among workers of any other race. If the presence of bone degeneration is used to automatically disqualify a worker from a position which involves manual labor, proportionately more Black workers would be disqualified than workers...