finding under Title VII that "the ingredients of back pay should include more than`straight salary' ": "Interest, overtime, shift differentials, and fringe benefits such as vacation and sick pay are among the items which should be included in back pay."
How later courts described this case
- finding under Title VII that "the ingredients of back pay should include more than`straight salary' ": "Interest, overtime, shift differentials, and fringe benefits such as vacation and sick pay are among the items which should be included in back pay."
- holding that non-charging Title VII plaintiffs may rely on timely filed EEOC charge of named class member and that back pay award should be determined by the time period covered by the statute of limitations
- holding that the choice between individualized and classwide backpay determinations is “not a choice between one approach more precise than another” because “[a]ny method is simply a process of conjectures”
- finding that good-faith compliance with a state statute constitutes a “special circumstance” precluding receipt of certain monetary damages
Written by the judges who cited it.
Distinguished
Distinguished by Jackson v. Southeastern Pennsylvania Transportation Authority, 260 F.R.D. 168 (2009)
Pettway, however, is inapplicable.
Distinguished by Claude Cimino v. Raymark Industries, Inc., Pittsburgh Corning Corporation and Asbestos Corporation Limited, 151 F.3d 297 (1998)
However, Pettway is inapplicable here, for each of several reasons.
The opinion
BELL, Circuit Judge
(specially concurring) :
I concur in the result reached in the extended majority opinion to the extent that the result relates to the errors assigned. The result is in accord with the previous decisions of the Supreme Court and of this Court and is, with respect to each assignment of error, consonant and well within the interstices which the courts have been called upon to fill in administering Title VII, and in giving effect to the remedial aim of Congress which was expressed in enacting Title VII.
I do not join in those advisory portions of the opinion (pp. 260-264), having to do with determining back pay for the class. I prefer to wait for a concrete case involving an award of back pay before deciding whether the suggested approaches are valid in law. They may or may not be employed. Damage awards must be individualized to avoid constitutional problems which would arise in taking the property of one for another without a showing of loss to the particular recipient. This would not, of course, preclude a settlement by consent decree on terms suitable to the parties and which do not overreach the members of the class. The Georgia Power Company order referred to in Fn. 156(a) of the majority opinion is an example of such a consent decree.
I do not perceive the holding of the majority as going beyond what the court said in Johnson v. Goodyear Tire & Rubber Company, 5 Cir., 1974, 491 F.2d 1364 . There the court held that each member of the class, black employees hired before April 22, 1971, had been the victim of discriminatory testing and diploma requirements and transfer policies. The court placed the burden on those claiming back pay to establish membership in the class. The burden was then to shift to the employer to show that the particular claimant would never have transferred regardless of the discriminatory employment practices. The court went on to say:
“Our holding does not necessarily mean that every member of the class is entitled to back pay. Individual circumstances vary and not all members of the class are automatically entitled to recovery. There should be a separate determination on an individual basis as to who is entitled to recovery and the amount of such recovery. It is clear that all members of the class have been subject to unlawful racial discriminatory practices. Therefore, those who have suffered a loss of pay because of such practices are entitled to appropriate compensation. . . .”
The ratio decidendi of Goodyear avoids the constitutional problem which would inhere in an approach, for example, of comparing the total remuneration of one class with that of another class, e. g., black employees versus white, for the period of discrimination and simply allocating the difference amongst the class suffering the discrimination regardless of individual financial loss.
The controlling principle for determining back pay here is set out on the majority opinion at page 259. The principle stated does not conflict with the *268 burden of proof rule of Goodyear but is a more definitive statement of the same principle and gives greater assurance of individualizing each claim. The majority statement is as follows:
". . . the maximum burden that could be placed on the individual claimant in this case is to require a statement of his current position and pay rate, the jobs he was denied because of discrimination and their pay rates, a record of his employment history with the company and other evidence that qualified or would have qualified him for the denied positions, and an estimation of the amount of requested back pay. The employer’s records, as well as the employer’s aid, would be made available to the plaintiffs for this purpose. The burden then shifts to the company to challenge particular class members’ entitlement to back pay.”