# Petition — United States Steel Corp. v. United Steelworkers of America

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 817

## Text

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APR 13 1976 |

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No. O5- 14 ras

UNITED STATES STEEL CORPORATION,
Defendant-Petitioner,

and
UNITED STEELWORKERS OF AMERICA, et al.,
Defendants-Respondents,
V

JOHN S. FORD, et al.,
Plaintiffs-Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals
for the Fifth Circuit

JAMES R. FORMAN, JR.
1600 Bank for Savings Building
Birmingham, Alabama 35203
Attorney for Petitioner United
Of Counsel for Petitioner States Steel Corporation

THOMAS, TALIAFERRO, FORMAN,
BURR & MURRAY
1600 Bank for Savings Building
Birmingham, Alabama 35203

WILLIAM K. MURRAY
D. FRANK DAVIS
JOSEPH W. LETZER

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

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TABLE OF CONTENTS

Page

PE GEE behead Weenddeneéeeaboosesnceces se l
IE re er et eee ee re 2
Caniann Fe. 66 6:06sesncerewbeetensdseewnss 2
CG PE OCR ee ey eee Tee eee Tee ee ee 3
POPC ET CERT CCT ECCT RT CCC 3
Reasons for Granting the Writ ..............0 cee eeee 7

1. The Decision Below Conflicts With the Decisions of

ee I ED obec ccicéanecdéonsneesene 7

2. The Decision Below Raises Significant and Recurring
Problems Concerning the Scope of F.R.C.P., Rule
EE a ee ee Tee 9

3. The Decision Below Conflicts With the Class Action
Tolling Rule Enunciated by This Court in American
Pipe v. Utah, and Conflicts With Decisions by Other
oF PPPOE TTT CT TOTTI TT eee 11

4. The Decision Below Regarding Back Pay Conflicts
With Decisions of This Court, Decisions of Other
Courts of Appeals, and Usurps the Equitable Discre-

tion of the District Court Under Title VII ........ 15
0 Pry ee ee Pe er eee eee 29
Appendices:

et EE oi vc tun nascceanntaubanwsen A-l
Amendment to the Ford Complaint ............... A-13

POULT TTT Tee eee CT eer ee A-16

Decree of the District Court .............cccccces A-18
Opinion of the District Court ....... ES POET TT pee A-42
Notice of Appeal by John S. Ford ................. A-73
Opinion of the Court of Appeals .................. A-75

Opinion of the Court of Appeals Clarifying Its Previous
Opinion and Denying Rehearing ............... A-103

Statutory Provisions Involved

TABLE OF AUTHORITIES

Cases

Albemarle Paper Co. v. Moody, — U.S. —, 95 S.Ct. 2362
RI ape Pe tals 2, 15, 16, 17, 18, 19, 20, 26, 28

American Pipe and Construction Co. v. Utah, 414 U.S. 538
DE dcccs Peae eemcae sc Ta 2, 11, 12, 13, 14, 15

Archulete v. Duffy's, Inc., 471 F.2d 33 (10th Cir. 1973) .. 12

Bailey v. Patterson, 369 U.S. 31 (1962) .............. 8-9

Cleveland v. Douglas Aircraft Co., 509 F.2d 1025 (9th Cir.
1975)

Draper v. U. S. Pipe & Foundry Co., — F.2d —, 11 FEP
Cas. 1106 (6th Cir. 1975) ...... 0... ccc cece cece, 18

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ..10, 12, 14

Flast v. Cohen, 392 U.S. 83 (1968) .................. 8
Franks v. Bowman Transportation Co., 44 U.S.L.W. 4355
Se PU ts HUE 5 ss kod add uds deadeceedecec: 26

Genovese v. Shell Oil Co., 488 F.2d 84 (Sth Cir. 1973) .. 13
Goodman v. City Products, 425 F.2d 702 (6th Cir. 1970) 12

Hairston v. McLean Trucking Co., 62 FRD 642 (M.D.

ok, Re ee ee ee ee i3
Hairston v. McLean Trucking Co., — F.2d —, 11 FEP

ce Sf Le yer rrrr errr reer rer 18
Hall v. Beals, 396 U.S. 45 (1969) ..... 6... eee eens 8
Hansberry v. Lee, 311 U.S. 32 (1940) ........6.- eee. 10
Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th

CE eau phe

A-9 —

vised by the Company they would have to take and pass a test
before they would be considered for the job vacancies. Here-
tofore, no test had been administered for promotion purposes in
any of the jobs currently listed in the 1A, 1B or 1C lines of
promotion. Several of the Negroes who agreed to take the test
and were successful have been allowed to fill some job vacancies
in the 1A and 1B line of promotion on a temporary basis. Plain-
tiffs believe and allege that the test is not professionally devel-
oped as required under 42 U.S.C. § 2000e-2(h) and that the
test, its administration and action upon the results, is intended
to discriminate against Negro employees because of race and
color.

IX

A. Neither the Company nor either of the defendant labor
unions has made any efforts or attempts since June 3, 1964, and
through or since July 2, 1965, to correct, modify or disavow
the policy, practice, design or purpose perpetuated by the dis-
criminatory agreement of June 3, 1964.

B. All of the practices herein alleged existed prior to and
have continued to exist subsequent to July 2, 1965. The way
in which the lines of progression are presently structured is in-
tended to discriminate, and has the effect of discriminating
against the plaintiffs and the class they represent in ways which
deprive plaintiffs and the class they represent of equal employ-
ment opportunities because of race and color in violation of
42 U.S.C. §§ 2000e et seq.

xX

Plaintiffs and the class they represent are qualified for pro
motions and for training which could lead to promotion on the
same basis as such opportunities are provided for white em-

ployees.

— i

XI

The Company maintains racially segregated bath and toilet
facilities in violation of Title VII of the Act known as “The
Civil Rights Act of 1964”, 42 U.S.C. §§ 2000e et seq.

XII

A. On or about February 19, 1966 plaintiffs filed a com-
plaint with the Equal Employment Opportunity Commission
alleging a violation by the defendants of their rights under Title
VII of “The Civil Rights Act of 1964”, 42 U.S.C. §§ 2000e et
seq. On July 18, 1966 the Commission found reasonable cause
to believe that a violation of the Act as alleged by the plainti is
had occurred by the defendant. The Commission notified the
plaintiffs under date of September 8, 1966 that the Commission
had not achieved voluntary compliance by the defendant through
conciliation, as provided by Title VII of “The Civil Rights Act
of 1964” and that plaintiffs were entitled to initiate a civil
action in a United States district court, as provided by § 2000e-
5(f) of “The Civil Rights Act of 1964.”

B. Neither the State of Alabama, nor the City of Birming-
ham, nor the City of Fairfield have a law prohibiting the unlaw-
ful employment practices alleged herein.

XIII

Plaintiffs and the class they represent have no plain, adequate
or complete remedy at law to redress the wrongs alleged herein
and this suit for a preliminary and permanent injunction is their
only means of securing adequate relief. Plaintiffs and the class
they represent are now suffering and will continue to suffer ir-
reparable injury from the defendant’s policy, practice, customs
and usages as set forth herein.

— A-ll —

Wherefore, plaintiffs respectfully pray this Court advance this
case on the docket, order a speedy hearing at the earliest prac-
ticable date, cause this case to be in every way expedited and
upon such hearing to:

1. Grant plaintiffs and the class they represent a preliminary
and permanent injunction enjoining the defendants, United
States Steel Corporation, United Steelworkers of America, AFL-
CIO, Local 1733 of the United Steelworkers of America, AFL-
CIO, their agents, successors, employees, attorneys and those
acting in concert with them and at their direction from con-
tinuing to enforce, give effect to, or operate under the provisions
and terms of the June 3, 1964 agreement heretofore described.

2. Grant plaintiffs and the class they represent a preliminary
and permanent injunction enjoining the defendants, United
States Steel Corporation, United Steelworkers of America, AFL-
CIO, Local 1733 of the United Steelworkers of America, AFL-
CIO, their agents, successors, employees, attorneys and those
acting in concert with them and at their direction from using or
agreeing to any seniority agreement other than (a) the August 5,
1963 agreement heretofore described; or (b) a seniority arrange-
ment which recognizes the seniority rights of all employees
without regard to race or color.

3. Grant the plaintiffs and the class they represent a pre-
liminary and permanent injunction enjoining the defendants.
United States Steel Corporation, United Steelworkers of Amer-
ica, AFL-CIO, and Local 1733 of the United Steelworkers of
America, AFL-CIO, their agents, successors, employees, attor-
neys and those acting in concert with them and at their direction
from continuing or maintaining any policy, practice, customs or
usages of denying, abridging, withholding, conditioning, limiting
or otherwise interfering with the rights of the plaintiffs and others
similarly situated to enjoy equal employment advancement or
training for advancement as secured by Title VII of “The Civil
Rights Act of 1964”, 42 U.S.C. §§ 2000¢ et seq.

aw p83 aw

4. Grant plaintiffs and the class they represent a preliminary
and permanent injunction enjoining the defendant, United States
Steel Corporation, its agents, successors, employees, attorneys
and those acting in concert with them and at their direction from
continuing or maintaining the policy, practice, custom and usage
of maintaining racially segregated bath and toilet facilities.

5. Allow plaintiffs their costs herein, including reasonable
attorneys’ fees and other additional relief as may appear to this
Court to be equitable and just.

Respectfully submitted

/s/ OSCAR W. ADAMS, JR.
OSCAR ADAMS, JR.
1630 Fourth Avenue, North
Birmingham, Alabama
JACK GREENBERG
LEROY D. CLARK
ROBERT BELTON
10 Columbus Circle
New York, New York
Attorneys for Plaintiffs

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— A-13 —

AMENDMENT TO THE ORIGINAL
FORD COMPLAINT

In the United States District Court
For the Northern District of Alabama
Southern Division

John S. Ford, et al., >
Plaintiffs,

> Civil Action No. 66-625
United States Steel Corporation,
et al.,

Defendants. /

Amendment to the Complaint

Come now the plaintiffs, by their undersigned counsel, pur-
suant to the Order of the court of August 2, 1967 and here-
with file an amendment to their complaint in accordance with
the opinion of the court of August 2, 1967 on the designation
of the class:

Amending Paragraph II to read as follows:

Plaintiffs bring this action on their own behalf and on be-
half of other Negro persons similarly situated, who are em-
ployed in the Rail Transportation Department of the United
States Steel Corporation, whose promotion and seniority rights
are governed by the seniority arrangements which are alleged
herein to be structured or maintained in violation of their in-
dividual rights and rights of the members of the class, pursuant
to Rule 23(b)(2) of the Federal Rules of Civil Procedure. There
are common questions of law and fact affecting the rights of
other Negroes in this class who are, have been, and continue

a= frl4 =

to be limited, classified and discriminated against in ways which
deprive and tend to deprive them of equal employment op-
portunities and otherwise affect their status as employees be-
cause of race and color. These persons are sO numerous as
to make it impracticable to bring them all before this Court.
A common relief is sought. The interests of said class are
adequately represented by plaintiffs.

Amending Paragraph IV to read as follows:

Plaintiffs and some members of the class they represent have
been at all times material to this action members of defendant
Local 1733 of United Steelworkers of America, AFL-CIO,
and through their membership in Local 1733 are members
of defendant United Steelworkers of America, AFL-CIO.

This 28th day of September, 1967.

Respectfully submitted,

OSCAR W. ADAMS
1630 Fourth Avenue North
Birmingham, Alabama

JACK GREENBERG
LEROY D. CLARK
ROBERT BELTON
10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs

— A-15 —

Certificate of Service

I hereby certify that a copy of the foregoing Am ondment
to the Complaint has this day been served upon:

Jerome A. Cooper, Esq.
Cooper, Mitch & Crawford
1025 Bank for Savings Building
Birmingham, Alabama 35203

attorneys of record for defendants United Steelworkers of
America, AFL-CIO; Local 1733 of United Steelworkers of
America, AFL-CIO; and Orville M. Duggan, President of Lo-
cal 1733 of United Steelworkers of America.

— A-16 —

COMPANY TRIAL EXHIBIT 1013

Summary of the Impact of Various Factors on Earnings

Differences According to Color
Estimated Impact of Factor of

White-Black Earnings Differential
Factor Lower Estimate Upper Estimate
SD. FD PR oo cc wccesses $80 $137
ee CR GTN osc ccccvece $69 $344
3. Quantity of Schooling’ ..... $351 $400
4. Craft Training’ ........... $450 $521
5. Corporate Service® ........ ($117) ($104)
6. Achisvement® .....cccccees $188 $496

ME 6 wo

and equally important, the court established an on-the-site three-
member Implementation Committee, consisting of a knowledge-
able representative of the company, of the unions, and of plain-
tiff class. In addition to acting as a communications link, the
Implementation Committee is available to monitor the griev-
ance procedures for possible deviation from the principles estab-
lished by the court decree and has assisted in the preparation of
plans for upgrading to journeyman status certain black em-
ployees in conformity with the court's decree.

Back Pay and Future Pay

Back pay is properly viewed as an integral part of the
whole of relief, which seeks not to punish the defendant,*' but
to compensate the victim of discrimination. United States v.
Georgia Power Co., 474 F.2d 906 (CAS 1973). Cf. Moody v.
Albemarle Paper Co., 474 F.2d 134 (CA4 1973) (in view of
strong congressional policy successful plaintiffs should ordinarily
be awarded back pay unless special circumstances would render
the award unjust).

This policy, however, is one that guides the court in
its exercise of equitable discretion.** Monetary awards must
nevertheless be made only for actual damage. Lea v. Cone Mills
Corp., 438 F.2d 86 (CA4 1971); Moody v. Albemarle Paper
Co., 474 F.2d 134 (CA4 1973). While equity may for purposes
of injunctive relief presume damages from the invasion of a

‘1 But see United States v. N. L. Industries, 479 F.2d 354 (CA8
1973) in which the court indicated that the deterrent effect of back-
pay awards, spurring other employers and unions to initiate correc-
tive measures, is more important than the compensatory role. This
comment sounds much like punitive damages.

*2 Concluding that the award of back pay in these cases is but a
part of an equitable procedure, the court has denied any right to a
jury trial. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122
(CAS 1969); Lynch v. Pan American World Airways, Inc., 475
F.2d 764 (CAS 1973).

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legal right, United States v. Hayes Intern'] Corp., 415 F.2d
1038 (CAS 1969),"* traditionally the courts have required, as a
prerequisite to compensatory monetary awards, both proof that
the claimant has actually sustained a loss from the defendant's
improper conduct and evidence from which the amount of such
damage can be determined with a reasonable degree of ac-
curacy, See United States v. Huff, 175 F.2d 678 (CAS 1949),
Blake v. Robertson, 94 U.S. 728, 24 L.Ed. 245 (1877); Philp
v. Nock, 17 Wall. 460, 84 U.S. 460, 21 L.Ed. 679 (1873). The
question becomes what evidence is sufficient for these purposes
and, of necessity, what party has the burden of proof with respect
thereto.

“Statistics often tell much, and Courts listen.” Bing v. Road-
way Express, Inc., 444 F.2d 687 (CAS 1971). An argument
can be made on the basis of the opinions in Cooper v. Allen,
467 ©.2d 836 ‘CAS 1972) and Hodgson v. First Federal Sav-
ings & Loan Ass'n, 455 F.2d 818 (CAS 1972), that evidence,
such as statistical data, which would suffice to shift the burden
of proof** to the defendant respecting the alleged discrimination
by the employer, would likewise shift such burden to the defend-
ant respecting the claim for back pay. In Cooper and Hodgson,
however, both of which involved claims of discrimination by
applicants who were refused employment, the real controversy
was not whether the plaintiffs had been injured, but whether such
injury was the result of discrimination.

The array of statistical evidence presented in this case
by the plaintiffs strongly indicates that the effects of past
racial discrimination have been perpetuated by the employment

** Also see 42 Am.Jur.2d Injunctions § 29.

‘4 The distinction between the burden of going forward with the
evidence and the burden of persuasion, each sometimes meant under
the label “burden of proof”, is frequently blurred, even in cases
which specifically deal with the issue, See, e. g., McDonnell Douglas
C we Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973).

— A-62 —

practices at Fairfield Works, and the court has placed great
weight upon such evidence both in finding statutory violations
and in tailoring injunctive relief to remedy the same. But proof
that these practices have discriminated on the whole against
black employees—or, stated another way, discriminated against
the “average” black employee—is not evidence that William
Hardy,*® for example, has been damaged by a violation of Title
VII. Nor, at least in the absence of evidence supporting punitive
action for wilful misconduct, does the class action device trans-
form individual claims into a “fluid” claim for the class as a
whole. Cf. Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (CA2
1973), cert. granted 414 U.S. 908, 94 S.Ct. 235, 38 L.Ed.2d
146 (1973).

The applicable rule has been stated by the Fifth Circuit as
follows:

But, back wages are not to be automatically granted when-
ever a person is ordered reinstated. The wages sought must
be “properly owing to the plaintiffs.” This requires positive
proof that plaintiff was ordinarily entitled to the wages in
question and, being without fault, would have received them
in the ordinary course of things but for the inequitable con-
duct of the party from whom the wages are claimed. Jinks
v. Mays, 464 F.2d 1223, 1226 (CAS 1972).

** Hardy, lead plaintiff in the first private action filed, is a sig-
nificant example for the reason that he was a member of a group,
blacks in the Blast Furnace Department of the Ensley Steel plant,
with respect to which the evidence was sufficient to show injury from
discriminatory practices on which individual damage claims were sus-
ceptible of fair approximation. Yet, when the lengthy “flow charts
were prepared showing the impact which the court decree would
have made had such provisions been instituted by the parties back
in July 1965, it turned out that Hardy himself had not been dam-
aged by the old system, but indeed had greater earnings under it
than the new system would have yoy The back pay awards
were limited, of course, to those who had been injured, and accord-
ingly Hardy himself - no benefits from the back pay award in favor
of members of the class which he represented.

—

— A-63 —

This principle was, by quoting the foregoing with apparent ap-
proval, held applicable to Title VII cases in United States v.
Georgia Power Co., 474 F.2d 906, 922 (CAS 1973), the court
noting that a finding of racially disproportionate earnings due to
employment practices is not by itself a proper premise for the
making of a back pay award. Thus, in Bing v. Roadway Ex-
press, Inc.,*° 485 F.2d 441 (CAS 1973), where one employee
was found to be entitled under the evidence to back pay, other
claimants were not: “The other four are not entitled to back pay
because . . . even if Roadway had not been discriminatory, they
could not have obtained road jobs earlier than they did. There-
fore they suffered no financial loss from Roadway’s discrimina-
tion.” At 452. In a case such as the one sub judice, where em-
ployee initiative and choice are critical factors in the job selection
process, it seems clear that the burden of proof must, consistent
with traditional rules of jurisprudence, be placed on the claimant
to establish his injury and damages.

*® On the surface Bing 11, by using qualification dates rather than
application dates, may appear inconsistent with this decision. Inso-
far as seniority is concerned, footnote 12 of the Bing // opinion notes
that “qualification date” is essentially only a variation on the theme
of company seniority, which, under the particular circumstances of
the case sub judice, is the equivalent the plant seniority man-
dated by the court. This court's consideration of the significance of
the bidding system upon the back pay claims is, however, somewhat
at variance with the reasoning of the Fifth Circuit regarding Bing’s
back pay claim. The variance is thought to be justified by factual
differences in the two cases. Here, the bidding system was recog-
nized by the parties prior to July 1965 as giving, in the context
of Bing II, transfer rights; in Bing I] the “application” process was
in July 1965 not a recognized right, but indeed contrary to the es-
tablished no-transfer policy. Here, some three years of experience
with the open bidding system had elapsed so that by July 1965
blacks knew—or should have known—that they could enter the
formerly all-white LOPs; in Bing // the court recognized that in
July 1965 blacks, with the exception of a few who had the courage
to “fight the system”, did not bother to apply because they knew
full well that blacks were not going to be hired as road drivers.
Here, there are scores of ible jobs of varying attractiveness to a
= employee, in Bing // the issue related to a single higher-paying,
tigher-status job, obviating any real question of interest.

— A-54 —

In three situations this burden was carried; that is, the evi-
dence ss@yed that a particular group of black employees, or
some of them, had been injured by an unlawful employment
practice and, at least with supplementation of the original evi-
dence, it would be possible to fix with a reasonable degree of
accuracy, though not with exactitude and certainty, the approxi-
- mate amount of their respective individual damages. The groups,
and the causative employment practice involved, were: em-
ployees in the former Pratt City Car Shop LOP, where a needed
merger of segregated lines was inexcusably rescinded until De-
cember 1971 (the Ford class); employees in the Blast Furnace
Department of the Ensley Steel plant hampered by discriminatory
lines of promotion (“1A-1B” configurations) (the Hardy class) ;
and PM Finishing Hookers in Fairfield Steel's Plate Mill Depart-
ment, whose promotional opportunities were frustrated by place-
ment of the Finishing Craneman jobs up in a separate line of
promotion (the McKinstry class).

The basic approach to fixing the damage claims in these
situations was to assume that the changes made in the af-
fected LOPs by the court decree had been made on July 2, 1965,
along with the changes in measurement of “age” (/. e., by using
plant age) and in defining when vacancies arose (i. e., on force
cut-backs of 15 days or more). The employees in the lines were
assumed to possess equal fitness and skill and to be equally
interested in accepting vacancies higher in the LOP.*’ Then a
history was prepared since July 1965, showing deaths, retire-
ments, transfers, increases and decreases in work forces, etc.,
and vacancy events thereby determined. Employees were then
slotted into the vacancies using plant age and the assumptions
indicated, producing in essence a flow chart of hypothetical per-

*? A variation was made in the Ford case due to the significant
number of declinations of promotion by both white and black em-
ployees. One study was prepared assuming no declinations had the
new system been in effect; a second study was prepared assuming
the same declinations under the new system as took place under the
old system. The results of the two studies were then averaged.

— A-65 —

sonnel changes. Earnings in a hypothetical assignment were
determined during a particular time segment by looking at the
earnings in fact of the employee who actually had occupied that
job, the number of hours actually worked during that same time
by the assumed occupant at the job and multiplying those hours
worked times the hourly rate of the hypothetical assignment.
Then the employee's hypothetical earnings were compared to
his actual earnings over the same period. Those siown to have
sustained a loss by such study were then given an award of back
pay equal to 150%"* of the difference in earnings. Sixty-one
employees received back-pay awards, most being several thou-
sand dollars though with a spread from a low of $74.62 to a
high of $9,851.90, The employment practices causing these
damages were joint products of company and local union action,
and, utilizing 42 U.S.C.A. § 2000e-2(c)(3), the court assessed
one-half of each award against the responsible local union,"
and the other half against the company.

Each flow chart involved assumptions as to a_ single
LOP and the employees already in such LOP. Even so, many
hours were required to make the necessary calculations. Other
approaches suggested by plaintiffs were rejected by the court as
inconsistent with the requirement to determine on an individual
basis the actual loss caused by the unlawful employment prac-
tice.*”

** A 50% increment to the ascertained back-pay loss was added,
essentially as a prospective-pay equivalent, because the affected em-
ployees, even under the decree, will require some additional time
to reach their “rightful place.” The best estimate of this was, on
the average, some 3-4 years, which represents about one-half of the
period involved in the study, hence the 50% increment.

*" The international union was not really responsible for the prac-
tices giving rise to the three back-pay awards. It should, moreover,
be noted that the international has taken a strong role of leadership,
not always without disagreement from the locals, in pushing non-
discriminatory policies.

‘” Plaintiffs’ suggestion that damages be ascertained by com-
paring average white employee earnings in the LOP during the period

— A-66 —

One might argue that, albeit with the expenditure of thou-
sands of man-hours, comparable studies could be made to esti-
mate damage caused by the hindrance to the bidding system re-
sulting from use of occupational or LOP age. The court could,
for example, be asked to hypothesize that entry into LOPs had
been filled since July 1965, purely on the basis of departmental
age without regard to the bidding system. But, apart from per-
sonal preferences, not all vacancies offer the same actual or
apparent opportunities. The most senior employee would be
slotted to the first vacancy, perhaps one with lower earnings than
his pool job, and, indeed, due to lack of subsequent vacancies in
upper jobs in the LOP, it might end up as the final spot for that
employee. A younger employee under this hypothesized move-
ment could experience the fortuitous circumstance of getting
into a line which subsequently had a number of vacancies or
increased work requirements, and move rapidly up to higher
paying jobs. Perhaps the court would be asked to assume that
the more senior employees, after entering an LOP, would have
moved to another LOP having a subsequent vacancy. Or per-
haps the court would be asked to reconstruct a progression using
complete hindsight, i. ¢., look back now at al vacancies and
operational levels in LOPs over the eight years, determine in
retrospect which turned out to be “the best”, and hypothetically
assign the employees in order o department, plant or company
age—such an approach would, f course, produce a funda-
mentally false methodology for measuring loss caused by any
unlawful employment practice.

with the earnings of blacks is fundamentally inconsistent with the
“rightful place” approach—the court should determine the loss
caused by the unlawful employment practice, as distinguished from
that which is the result of pre-Act discrimination independent of per-
petuating policies. The suggestions regarding lump-sum payments,
whether or not accompanied by distinctions based on AL. or years
of employment, while easier in administration and ably more
understandable to the affected employees, would result in some em-
ployees being paid more than their loss and others less, thus actually
creating inequity among recipients of back pay.

—_y

The ultimate conclusion, simply, is that in the particular
context of this case the assessment of back pay for the pre-1 963
discrimination systematically perpetuated by the effect of inhibit-
ing seniority standards upon the bidding procedures would be
fraught with speculation and guess-work.*! What were problems
in assessing back pay in the three situations in which the same
was awarded are unsurmounted obstacles to the across-the-board
claims for back pay generally. This conclusion is reached
whether under the label of failure of proof,** Jinks v. Mays, 464
F.2d 1223, 1226 (CAS 1972), or under the label of equitably
determining the true balance of interests, United States v. Geor-
gia Power Co., 474 F.2d 906, 922 (CAS 1973).** As stated in
Georgia Power,

The trial court's decision must also include a weighing of
issues as to limitations and laches . . ., factors of economic
reality (i.e., the relative expense of accurate determination
of individual rights vis-a-vis the amounts involved) and,

41 While the analysis has dealt with the problems of entering lines
of promotion, similar difficulties arise regarding promotion within
many LOPs, particularly where there are branches in an LOP or
where a job in an LOP actually has higher earnings than some job(s)
above it in the line. It should be reiterated that this litigation is con-
cerned with systemic discrimination; it has not determined, or at-
tempted to determine, each claim of individual discrimination, such
as the assertion of some black employee who may assert that the
rejection of his bid on a job was racially motivated.

42 In this case it is not so much that the evidence is insufficient,
as that the evidence adduced demonstrates that assessment of dam-
ages cannot be made consistent with applicable principles of law.

‘* It should be noted that the court has considered the question
of back pay both from the perspective of class action claims in the
private suits and as part of the relief appropriately sought in the
Attorney General’s suit. In indicating to the parties in January
1973, its conclusion that the Attorney General was not precluded
from seeking back pay for the victims of discrimination, the court,
as it turned out, correctly predicted the decision of the Fifth Circuit
in Georgia Power.

—- A-68 —

most assuredly, the physical and fiscal limitations of the
court to properly grant and supervise relief. This listing is
intended to be illustrative and not exhaustive. It is our
intention to leave the issue altogether open for reconsidera-
tion and decision by the court below. 474 F.2d at 922.

If, as indicated, an accurate determination—or even a reason-
ably accurate estimate—of individual rights is to be a corner-
stone for back pay awards, then, with the exception of the three
specific situations noted, this cannot be done in the present case,
and most certainly not within the physical and fiscal limitations
of the court.

While it is clear that a claim for back pay cannot be defended
on the lack of evil intent or even on a showing of good will,
Rowe v. GM Corporation, 457 F.2d 348 (CAS 1972) (remand-
ing for reconsideration of, inter alia, back pay notwithstanding
strong evidence of good will), this is not to say that such mat-
ters are completely unworthy of any consideration, at least in
equitably attempting to strike a true balance of interests. See,
e. g., LeBlanc v. Southern Bell Telephone & Telegraph Co., 333
F.Supp. 602 (E.D.La.1971), aff'd, 460 F.2d 1228 (CAS 1972);
Jinks v. Mays, 464 F.2d 1223 (CAS 1972); Schaeffer v. San
Diego Yellow Cabs, Inc., 462 F.2d 1002 (CA9 1972).

Here, the company—particularly at upper management
levels—and the unions—particularly at the international level,
and their representatives—have been in the forefront of expand-
ing employment opportunities for blacks. There is no need to
recount the evidence which establishes the many initiative steps
taken by them to eliminate racial discrimination, albeit still
falling short by today’s standards. They have modified the em-
ployment practices at Fairfield periodically to comply with all
legal requirements as from time to time they with reason under-
stood them to be. The Steelworkers union was, in fact, active
in obtaining support for passage of Title VII. They had good
reason to believe that the seniority system at Fairfield, lauded

— A-69 —

in Whitfield y. United Steelworkers, 263 F.2d 546 (CAS 1959),
also was consistent with Title VII, at least in this circuit.**
Though not a defense, reasonable good faith efforts at compli-
ance merit some consideration, in equity, particularly where a
purpose of back pay awards is to encourage non-judicial solu-
tions.

It should perhaps also be noted, though obvious, that in
this case the parties being asked to provide damages have not
received any monetary benefit from the conduct being pro-
scribed. The recipients of the compensation which should have
been paid to the victims of discrimination here are not the com-
pany and the unions, but rather fellow employees. As immedi-
ate displacement of incumbent feliow-workers through “bump-
ing” is considered inappropriate, so also is any consideration of
assessing damages directly against those who have benefited
from the wrongful practice. The point is—though this, of course,

#4 In Local 189 v. United States, 416 F.2d 980 (CAS 1969),
the first appellate decision requiring a revision of a seniority system
such as at Fairfield Works, the court saw no necessary conflict with
the decision of the district court in United States v. H. K. Porter,
296 F.Supp. 40 (N.D.Ala.1968), which had upheld such a system
in the steel industry. The District Court in United States v. Bethle-
hem Steel Corp. (Lackawana plant), 312 F.Supp. 977 (W.D.N.Y.
1970), concluded that remedies such as required in Local 189 were
inappropriate in the steel industry. A similar conclusion was reached
by a Hearing Panel in the Matter of Bethlehem Steel Corp. (Spar-
rows Point Plant), OFCC Dkt. 102-68, issued December 18, 1970.
Not until June 1971, was the Bethlehem Steel (Lackawanna) deci-
sion reversed by the Second Circuit, 446 F.2d 652. Even so, the
H. K. Porter decision was then on appeal to the Fifth Circuit and.
particularly in view of its treatment in the Local 189 opinion, the
strong possibility of a confiict in circuit decisions remained. An
effort was made on behalf of the parties in the case sub judice to
obtain information, at least tentatively, as to the Fifth Circuit’s de-
cision in H. K. Porter for guidance at Fairfield Works, but the de-
cision has not yet been rendered. In forming the decision for Fair-
field Works, no effort has been made to analyze factual differences
from H. K. Porter. Rather, the court has, on the basis of the evi-
dence produced in this case, concluded that violations of Title VII
a ee and formed remedial measures considered appropri-
a ereto.

—*

is true in virtually all employment discrimination cases—that
there is no factor of unjust enrichment for consideration by the
court in weighing the equities.*°

Another factor for consideration in weighing the equities on
an award of back pay is the extent of other relief being granted.
In this case, concluding for the reasons already mentioned that
back-pay should not be awarded to the rank-and-file black em-
ployee, though also recognizing that, while not susceptible of
sufficient proof, black employees generally have suffered over
a number of years from prior discrimination, the court, quite
frankly, has made its injunctive relief somewhat broader than
what might strictly be required to correct the statutory viola-
tions.** The award which cannot be made for pre-Act discrimi-
nation and which under the evidence should not be made for
post-Act perpetuating policies is in part taking the form of
broader injunctive relief for the whole class of black employees,
including those who have not suffered the prior discrimination.
In this sense the victims of past discrimination are responsible
for a better legacy to the younger members of their race.

One further item bears mention; namely, the provision
for a form of prospective pay. As part of the injunctive relief

45 Of course, some of the beneficiaries of the unlawful practices
were black employees, just as some of those hindered by such prac-
tices were white employees. One may well question the equity of
an award which required payment of back wages to those blacks
underpaid (assuming the evidence were sufficient for such purpose )
without giving any credit for over-payments to other blacks which
were necessary results of the same act or procedure. Likewise, where
a system is being reformed because of its effect on blacks generally,
rather than from any actual desire to discriminate against blacks,
one may question the equity of an award which failed to compensate
those white employees who might be shown to have suffered loss
from the very same system.

46 This is not to suggest that the remedial provisions esiablish any
Utopia for black employees, any more than the prior rules were so
viewed by whites. Experience indicates that as new rights are ob-
tained, other less annoying problems invariably are perceived as in-
creasingly troublesome.

—_— be used in the line of promotion.
As the conversion to the bidding procedure actually took place over
a period of time, no one point clearly stands as “the” cut-off point.
The court chose January 1, 1963, as, on balance, a fair place for de-
marcation.

—_—<

role carried by the Unite@afignags in its pattern and practice suit,
the time and, in turn, the award of attorney’s fees would no
doubt have been even more substantial.

Detision

The findings of fact and conclusions of law contained in this
memorandum were the basis for the court’s decree of May 2,
1973, and its judgment of August 10, 1973.

—_— =

NOTICE OF APPEAL BY JOHN S. FORD

In the United States District Court
for the Northern District of Alabama
Southern Division

John S. Ford, et al.,

Plaintiffs,
VS.

ve 66-625.

United States Steel Corporation, et al.,
Defendants. |

Notice of Appeal

Please Take Notice that the above-named plaintiff John S.
Ford, on behalf of that class consisting of all black persons
who have at anytime prior to January 1, 1973 been employed at
the Fairfield Works of United States Steel Corporation, hereby
appeals to the United States Court of Appeals for the Fifth
Circuit the final order of the United States District Court for the
Northern District of Alabama entered in the above action on
August 10, 1973, insofar as said order denies backpay; excepting
however from this appeal those classes of persons encompassed
in the cases of McKinstry et al. v. United States Steel Corp., et
al. (No. 66-343), Hardy, et al. v. United States Steel Corp., et
al. (No. 66-423), Brown, et al. v. United States Steel Corp.,
(No. 67-121), Love, et al. v. United States Steel Corp., et al.
(No. 68-204), Donald, et al. v United States Steel Corp., et al.
(No. 69-165), and that class of persons included in Ford, et al.
v. United States Steel Corp., et al. consisting of all black persons

—_—<

who have at any time prior to January 1, 1973 been employed

in the former Pratt City Car Shop line of promotion.

/s/ OSCAR W. ADAMS, JR.
OSCAR W. ADAMS, JR.

/s/ JAMES K. BAKER
JAMES K. BAKER

/s/ U. W. CLEMON
U. W. CLEMON
ADAMS, BAKER & CLEMON
1630 Fourth Avenue, North
Birmingham, Alabama 35203

BARRY GOLDSTEIN
WILLIAM ROBINSON
JACK GREENBERG
10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs

—_<

OPINION OF THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT

United States of America,
Plaintiff-Appellant,

Vv.

United States Steel Corporation, et al.,
Defendants-Appellees.

John §. Ford, et al., Plaintiffs-Appellants,
Clifford Craig and L. G. Phillips, Movants-Appellants,

Vv.

United States Steel Corporation, et al.,
Detendants-Appellees.

No, 73-3907.

United States Court of Appeals,
Fifth Circuit.

Oct. 8, 1975.

Appeals from the United States District Court for the North-
ern District of Alabama.

Before Thornberry, Morgan and Clark, Circuit Judges.
Thornberry, Circuit Judge:

These appeals arise from a sharply-contested employment dis-
crimination case which involves over 3,000 black steelworkers.
The proceedings below culminated in a decree, entered May 2,
1973, in which District Judge Pointer ordered major changes

— so

in the seniority structures at the nine plants of defendant United
States Steel Corporation’s Fairfield Works, Birmingham, Ala-
bama. Of main interest for present purposes, Judge Pointer
found that the Fairfield seniority systems (occupational, line of
progression, and departmental)—products of collective bargain-
ing between the company, the United Steelworkers of America,
AFL-CIO, and various locals—operated to lock blacks into
lower-paying and less-desirable jobs, and thus perpetuated the
effects of the company’s pre-Title VII active racial discrimination
in hiring and initial assignments. The district court ordered im-
plementation of a broad scheme of plant service seniority, rate
retention (“red circling”), racial quotas for hiring and promotion,
and other remedies designed to eradicate continuing impedi-
ments to blacks’ reaching their “rightful places.” Those measures
are not before us for review, as the defendants did not appeal
from the court's findings or the decree.

A number of complaints were consolidated below for trial.
Out of six certified private class actions brought pursuant to 42
U.S.C. § 2000e-5 and 42 U.S.C. § 1981, involving 464 black
employees, the district court awarded back pay to sixty-one
members of three classes (the Hardy, McKinstry, and “original”
Ford classes). No appeals were taken with respect to those
three classes. The government also litigated a “pattern or prac-
tice” suit, 42 U.S.C. § 2000e-6, and sought back pay for the
approximately 2,700 remaining blacks in the Fairfield produc-
tion and maintenance workforce. This prayer was denied, and
is the subject of the present appeal.

The government, however, has withdrawn its appeal in favor
of the nationwide steel industry settlement, to which United
States Steel and the Union are parties. See United States v. Al-
legheny-Ludlum Industries, Inc., 5 Cir. 1975, 517 F.2d 826.
In this court the representative appellant for the rank and file
black workers on whose behalf the government unsuccessfully
sought back pay below is John S. Ford, who, throughout the

—*

trial, represented only thirty-five lacks in the Fairfield Car Shop
of the Rail Transportation Division (the “original” Ford class).
The substitution was accomplished by Judge Pointer in the May
2 decree, wherein he summarily enlarged the “original” Ford
class so as to include in a F.R.Civ.P. 23(b)(2) class action
judgment all blacks employed at Fairfield prior to January 1,
1973 who were not otherwise represented in a private class ac-
tion. Thus, the district court designated in practical and legal
effect a “new” Ford class.

The now-unchallenged facts which supplied the bases for
findings of liability on the part of the company and the unions,
and hence the works-wide injunctive relief, are reported with the
opinion of the district court, United States v. United States Steel
Corp., N.D.Ala.1973, 371 F.Supp. 1045, 1049-57. The “new”
Ford class appeal involves issues concerning the manageability
of the class action and whether back pay is available to putative
class members. There is in addition an appeal by a group of
former black and white ore miners from the denial of their ap-
plication for permissive intervention pursuant to F.R.Civ.P. 24
(b). That is denominated the Craig appeal. Following careful
consideration of the district court's opinion, the briefs and oral
arguments of the parties, together with the parties’ Joint Appen-
dix, we are of the opinion that the district court must be charged
with an abuse of discretion in the denial of back pay to every
member of the new Ford class. This is largely due to a recent
series of binding case law developments in this circuit and in the
Supreme Couri. These cases were decided subsequent to Decem-
ber 11, 1973, the date of the district court's opinion, and there-
fore Judge Pointer did not have the benefit of them. Furthermore,
subsequent to the May 2, 1973 enlargement of the “orig-
inal” Ford class—or, if one prefers, substitution of the “new”
Ford class—this court sitting en banc issued guidelines addressed
to the handling of Rule 23(b)(2) employment discrimination
class actions in the trial courts. Whether the substance of these
guidelines was observed below is not apparent from the record.

—*

On remand, a variety of additional determinations must be
made before this case will be capable of assured resolution.
We therefore vacate the denial of back pay to the group on
whose behalf the government sought back pay below (the “new”
Ford class), and remand for further proceedings consistent with
this opinion and other controlling authority. On remard the dis-
trict court should carefully redetermine the propricty of the
amorphous “new” Ford class in light of the consequences of bind-
ing such a group to a final judgment. Also, specific findings
should be made with regard to the availability of back pay and
certain of the defendants’ special defenses. Finally, it is necessary
that the district court reexamine its legal approach in the con-
text of the foregoing tasks. The existing analysis is no longer
acceptable—if ever it was—to justify a generalized conclusion
that back pay should not be awarded to victims of employment
discrimination. To the extent that the trial court may conclude
that additional back pay is now warranted, it should proceed
to Stage II of the bifurcated class action procedure, discussed
infra. At that point it should invite the parties’ proposals for
computation and distribution, and select a reasonable method
for making the affected class whole, while avoiding—as far as
possible—the “quagmire of hypothetical judgments.”

We are of the view that the present record in the Craig appeal
presents essentially a grievance by ore miners generally—the use
of plant age instead of company age for seniority purposes—
rather than a complaint by blacks that whites were discrimina-
torily favored in promotion and regression. The testimony rele-
vant to intervenors’ application indicated that the focal feature
of the seniority system affected the 593 whites and 331 blacks
in the same manner: all lost company (ore mine) seniority
when assigned to Fairfield Steel Plant. The district court cor-
rectly determined that this does not present a palpable Title VII
dispute. “The Act does not require a remedy for those not dis-
criminated against.” Gamble v. Birmingham Southern R.R., 5
Cir. 1975, 514 F.2d 678, 686 Intervenors now indicate they

—_—S

are prepared to make a specific showing of discrimination di-
rected at black ore miners in violation of Title VII. We conclude
that this appeal must be dismissed for want of Title VII juris-
diction, irrespective of other requirements for intervention.
Whether the proffered showing should be allowed by way of a
repleaded application and new evidence in support of interven-
tion will be a question for the district court on remand

We now proceed to outline the parameters of the district
court's inquiry on remand.

I. The “New” Ford Class Action

Judge Pointer’s designation of the “new” Ford class dovetails
with his most complicated set of findings and reasons for deny-
ing back pay to the class's members: “failure of proof” or “equi-
tably determining the true balance of interests.” 371 F.Supp.
at 1061. In three private class actions, involving around 360
black steelworkers, the court found from the evidence specific
aspects of the pertinent seniority structures which it was able to
identify as having caused economic injury to certain class mem-
bers. /d. at 1059-60. Sixty one individuals received awards of
back pay which were measured with a substantial degree of
certitude. In the broader government (“new” Ford) action,
Judge Pointer denied back pay, not for want of evidence of racial
discrimination—such evidence was abundant in statistical form
—but because he was unable to isolate specific causal factors
to explain earnings disparities between an average black and
average white worker in a given production and maintenance
line, ability and plant seniority being relatively equal. Noting
that under the Fairfield open bidding and job classification
scheme “choice and chance,” id. at 1053 (emphasis in original),
played major roles in predicting every line or pool employee's
success—airrespective of race or seniority lock-in, see id. at 1059
n.36—Judge Pointer “presumed” damages for purposes of in-

— A-80 —

junctive relief, id. at 1058, but concluded that individualized
back pay could not reasonably be afforded “within the physical
and fiscal limitations of the court.” /d. at 1061-62.

It is simply unclear whether the district court believed that
individual awards of back pay to class members must be predi-
cated on proof of each discriminatee’s personal economic loss
and racially-discriminatory causation at the liability stage (Stage
1) of the trial. Appellant Ford argues that Judge Pointer did so
believe, and certain portions of the opinion support the argument.
E.g., id. at 1058 & n.35. On the other hand, the court in fact
proceeded to a second, individualized stage, see Baxter v. Sa-
vannah Sugar Refining Corp., 5 Cir. 1974, 495 F.2d 437, 443-
45, cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308
(1974), with respect to the three private classes in which back
pay was awarded. 371 F.Supp. at 1059. Moreover, it appears
that the court clearly recognized the liability phase’s emphasis
on proof of broad patterns and practices, as opposed to individual
damages. /d. at 1053 & n.18, 1061 & n.41. Also, Judge Pointer
correctly anticipated our decision in United States v. Georgia
Power Co., 5 Cir. 1973, 474 F.2d 906, where we held that the
government may seek and recover back pay for discriminatees in
a “pattern or practice” action. 371 F.Supp. at 1061 n.43. In
summary, the critical factor by which Judge Pointer distinguished
the large government suit from the smaller private classes was
his ability in the latter instances to identify the causal discrimi-
natory features of the seniority systems and the manner in which
they affected those classes, in contrast with his inability to make
such determinations in the former case. See id. at 1059.

As if to illustrate this justification for denying back pay,
Judge Pointer considered several possible methods by which back
pay arguably might have been awarded to the members of the
“new” Ford class. He rejected these approaches as either in-
equitable and lacking in probative value (gross comparison of
average black and average white earnings in the line of progrey-

— A-81 —

sion); inequitable and overly speculative (factor out the chance
of bidding into jobs that turned out less advantageous in the long
run); or inequitable and unduly complex in terms of time and
expense (use complete hindsight to flow chart all historical
vacancies and operational levels; hypothetically assign the most
senior blacks to the openings that turned out to be most ad-
vantageous). /d. at 1060-61. The latter two methods would
yield similar, if not identical results, and probably either would
have led in some instances to the quagmire, see Pettway v.
American Cast lron Pipe Co., 5 Cir. 1974, 494 F.2d 211, 260-
61. Yet in the cases of the sixty-one blacks to whom he awarded
back pay from among some 360 potential recoverees in three
private classes, it appears that Judge Pointer did utilize a method
which resembled the approaches he rejected for the larger group.
It is clear that the court reconstructed eight years of workforce
changes in the three departments and hypothetically assigned
plant-senior blacks, in order of plant seniority, to the vacancies
(redefined in light of the decree) which the court determined
those blacks would have occupied but for discrimination. The
effect of the bidding system, moreover, is reflected only in the
awards within the “original” Ford class, where the court found a
“significant number of declinations of promotion by both white
and black employees.” 371 F.Supp. at 1060 n.37. The court
elected to disregard the bidding system in the Hardy (Ensley
Steel Plant blast furnace department) and McKinstry (finishing
hookers in the Fairfield Plate Mill) classes. The defendants have
not complained of the court’s approach as to those two classes.

Appellant Ford strongly contends that the district court's
denial of back pay to the larger class of nonrecoverees re-
flects a manifestly erroneous reliance on “difficulty of ascertain-
ment,” a theory which this court has discredited as a general
defense to back pay liability. E. g., Johnson v. Goodyear Tire &
Rubber Co., 5 Cir. 1974, 491 F.2d 1364, 1380; Pettway, supra.
There are, however, two distinct aspects of both the back pay
problem and Judge Pointer’s reasoning. First, there is the re-

— A-82 —

quirement that the economic disparity—the damages—be the
reasonably certain result of unlawful conduct perpetrated against
the aggrieved individual or the class to which he belongs. See
42 U.S.C. § 2000e-5(g). But second, once a court has deter-
mined that a defendant's inequitable conduct caused some dam-
ages to the class, or to a representative sample of its members,
then the burden falls upon the wrongdoer to explain away or
disprove the damages which each claimant’s evidence arguably
supports. In other words, our decisions established that, with
respect to computing those damages which are the reasonably
certain result of the wrong,

(1) unrealistic exactitude is not required, [and](2) uncer-
tainties in determining what an employee would have
earned but for the discrimination, should be resolved against
the discriminating employer.

Pettway, supra, 494 F.2d at 260-61 (footnotes omitted); see
also Johnson v. Goodyear, supra. Although it appears that Judge
Pointer recognized these distinct problems, his opinion confuses
them. Statements which may fairly be read to rely on the ab-
sence of proof of each discriminatee’s individual loss at the
liability stage add to the confusion. 371 F.Supp. at 1058.

Hence, the decision below yields an anomalous contrast. The
evidence demonstrated that, since 1965, certain features of the
seniority systems had operated widely to reduce blacks’ mobility
to better jobs in preduction and maintenance units, including
supervisory positions and trades and crafts, and furthermore to
deny blacks the training and preparation necessary for advance-
ment to the better jobs. The district court found that those fea-
tures perpetuated the effects of past discrimination in violation of
Title VII and ordered injunctive reforms. In three relatively small
departmental classes, moreover, the court could identify specific
features which had caused economic losses to the classes, and
awarded back pay to certain class members after taking addi-

— A-83 —

tional evidence. Nowhere did the court draw a qualitative dis-
tinction between the discrimination practiced against tre small
classes and that practiced against the “new” Ford class, yet it de-
nied back pay throughout the latter group. Thus, the only dis-
tinction of substance followed from the district court's inability
to discern causal factors as to the larger group’s losses in the
sense that damages, to be compensable, must be the result of a
legal wrong and not some other cause. This inability may have
been compounded by a misunderstanding of the role of individual
proof at the liability stage (Stage 1).

We believe that both of these difficulties can be largely
obviated on remand by the fundamental expedient of reexamining
the scope of the “new” Ford class. In a conscientious effort to
eliminate multiplicitous litigation by binding the otherwise un-
represented employees to a Rule 23(b)(2) class judgment in
which able counsel on both sides had vigorously and thoroughly
litigated the issues, the district court created a class which it
found in essence to be so diverse and unmanageable that the
effects of unlawful discrimination could not be separated from
other plausible, but not demonstrably unlawful, causes of mem-
bers’ reduced earnings. On remand the district court should
conduct a hearing and take evidence as to the propriety of the
“new” Ford class, its scope in terms of the ingredients of the
judgment, if any, by which it ought to be bound, and its size
and membership. General guidance is contained in our en banc
opinion, Huff v. N. D. Cass Co., 5 Cir. 1973, 485 F.2d 710,
although the court should tailor its inquiry on remand to the
particular circumstances of this case. We do not intend to re-
strict the focus of a highly serious determination which must
involve gr at flexibility, and concerning which the district court
bears special responsibility. See Hutchings v. United States In-
dustries, Inc., 5 Cir. 1970, 428 F.2d 303, 310-11.

Inasmuch as the issues already have been thoroughly litigated,
at least from the standpoint of basic liability and systemic in-

—_

junctive relief, the district court need not fear to tread prelim-
inarily on the merits of a classwide request for back pay. The
question on remand will be comprehensive and multifacited: the
extent to which the “new” Ford class is maintainable in a “mean-
ingful and manageable” sense as a class action seeking monetary
relief. Huff, supra. As a corollary matter, the court should con-
sider the adequacy of the representation, F.R.Civ.P. 23(a)(4),
which in this court has been impressive. In this respect the court
should consult Huff, supra, Johnson v. Georgia Highway Express,
Inc., 5 Cir. 1969, 417 F.2d 1122, 1125, and Judge Godbold’s
specially concurring opinion in that case. We also suggest that
the court enter findings in support of its determination.

If the district court again concludes that the “new” Ford
class action should go forward, the matter will not then be
ended, nor will it automatically be appropriate to proceed to
Stage II, as described in Baxter, supra. It seems to us that much
trouble might be eliminated—though we encourage the district
court’s independent judgment on the point—by the use of sub-
classes under Rule 23(c)(4). See the discussion in Nix v.
Grand Lodge of Int'l Assn. of Machinists, 5 Cir. 1973, 479 F.2d
382, 385-86, cert. denied, 414 U.S. 1024, 94 S.Ct. 449, 38 L.
Ed.2d 316 (1973). See also Weathers v. Peters Realty Corp.,
6 Cir. 1974, 499 F.2d 1197, 1200; Jenkins v. United Gas Corp.,
5 Cir. 1968, 400 F.2d 28, 35; Oatis v. Crown Zellerbach Corp.,
5 Cir. 1968, 398 F.2d 496, 499; 7A C. Wright & A. Miller,
Federal Practice and Procedure § 1790 (1972).

It appears that the district court’s principal difficulty with the
“new” Ford class was its size and diverse composition. Those
aspects have made meaningful review equally problematic for
this court. A large variety of employment practices coalesced to
greater and lesser degrees to affect groups of black employees
across different plants, departments, job classifications, and
earned seniority levels throughout Fairfield Works. In consider-
ing whether to designate subclasses for the purpose of back

— A-85 —

pay, the district court has at its disposal the injunctive decree
of May 2, 1973, the decree’s Appendices, and the parties’ lengthy
stipulation which describes the seniority and job classification
systems during Fairfield’s history up to the trial. These items
provide substantial assistance in identifying those departments
and lines which were affected by specific practices ordered en-
joined, and the contexts and effects of the unlawful practices.
The district court by now is intimately familiar with the case
and should encounter no impassable obstacles in drawing sub-
class lines on the basis of the objective commonality of particular
seniority effects as to given groups of employees. We believe
that this approach may greatly facilitate the court’s determina-
tion of the groups of employees within the larger class who are
entitled to proceed to Stage II and the presentation of individual
back pay claims. Likewise, it should provide this court with a
complete picture of the district court’s mental processes in the
event this lawsuit again comes before us.

In conclusion to this part we dispose of several argu-
ments which are ancillary to the basic class action problems.
Initially, we reject appellee United States Steel's argument that
appellant Ford lacks standing as a matter of law to represent
any class of black employees broader than the “original” Ford
class, in which his personal back pay claim has been satisfied. The
scope of Mr. Ford's standing is a matter which the district court
should address in the first instance as an element of the inquiry
on remand. The court should consider the question in light of
Jenkins, supra, and Long v. Sapp, 5 Cir. 1974, 502 F.2d 34, 42,
together with any other relevant cases. Nor do we accept the
argument that the designation of a “new” Ford class constituted
inherent error or an unauthorized substitution of parties. Rule
23(c)(1) does require the court to determine the propriety of a
class action “[a]s soon as practicable” after its commencement,
but the rule adds that the order “may be conditional, and may
be altered or amended before the decision on the merits.” What
is of immediate concern to us is not the class modification stand-

— A-86 —

ing alone, but the analysis upon which it was entered and the mis-
chief which it inadvertently produced with regard to back pay.
The modification itself is not unique in either its purpose or its
timing. See, e.g., Hairston v. McLean Trucking Co., M.D.N.C.
1974, 62 F.R.D. 642, 663-64. It is literally authorized by Rule
23, provided other constitutional and procedural safeguards are
satisfied. Finally, we disagree with appellant Ford’s argument
that we may venture no review whatever of the class enlargement,
for want of a notice of cross-appeal by the appellees. F.R.App.P.
4(a). By contrast with a trial ruling which results in the sustain-
ing or denial of a claim or defense, the certification of a class
action involves important considerations of judicial housekeep-
ing. If we assume, somewhat skeptically, that formal notice of
cross-appeal is necessary to bring this class action order forward,
we would hold nonetheless that the circumstances of this case
are sufficient to bring the order within the principle that “the
rules themselves ought not be allowed to subvert the ‘just’
result which 28 U.S.C. § 2106 obliges every appellate court to
reach in cases lawfully brought before it for review.” 9 J. Moore’s
Federal Practice © 204.11[5], at 948 (1973) (footnote omitted).
In any event, this circuit is committed to the proposition that
“{a]ction by the court on maintainability may be triggered by
motion of the parties or on the court's own initiative.” Huff,
supra, 485 F.2d at 712 (emphasis added). Just as the district
court took up the matter without formal request by any party
below, this court may properly do likewise in the interest of
justice.

Il. Back Pay

In Part I we summarized the chief reasons upon which the
district court denied back pay to the “new” Ford class: the
inability to identify and distinguish the various causes of class
members’ economic losses, perhaps with some emphasis on the
difficulty of ascertaining the amount of compensable damages.

we ee ret en ee ee woe

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—_—?

just as the court’s discussion of these problems is unclear, it is
also unclear whether Judge Pointer’s concern lay with the proof
of economic injury to the class, or with the absence of each mem-
ber’s individual proof at the liability-injunction stage (Stage I).
The court also gave other, less prominent reasons for denying
back pay: lack of bad faith on the part of the defendants; good
faith efforts to comply with the law together with reliance on
judicial and administrative decisions which had given positive
treatment to steel industry seniority systems; the absence of un-
just enrichment to the defendants; and the breadth of other af-
firmative relief. 371 F.Supp. at 1062-63.

As general or complete defenses to recovery of back pay
by any employee, the district court’s reasons must fail. Con-
trolling precedent disposes of absence of bad faith, no unjust
enrichment, and broad injunctive relief as a counterweight for
denial of back pay. See Albemarle Paper Co. v. Moody, — U.S.
—, —, 95 S.Ct. 2362, 2374, 45 L.Ed.2d 280, 299 (1975);
Baxter, supra, 495 F.2d at 442-43, Pettway, supra, 494 F.2d
at 252-53; Johnson v. Goodyear, supra, 491 F.2d at 1376-77;
U'nited States v. Georgia Power Co., 5 Cir. 1973, 474 F.2d 906,
921. With deference to Judge Pointer, we recognize his precog-
nition that the absence of bad faith—or even the presence of
good faith—will not by itself defeat a claim for back pay, but
is at best a factor to be considered in the larger balance. 371 F.
Supp. at 1062. Accord, Moody, supra, — U.S. at —, 95 S.Ct.
at 2374, 45 L.Ed.2d at 299 (majority opinion); — U.S. at —,
95 S.Ct. at 2389, 45 L.Ed.2d at 315 (Blackmun, J., concurring
in the judgment).

Also to be rejected are the burden of proof-equitable
balance justifications mentioned earlier, along with the reliance
theory, which we treat infra as a special defense. With regard to
the proof problems, the inquiry and procedure we suggested in
Part I should assist the court on remand in identifying particular
groups of employees who are entitled, one-by-one, to present

— A-88 —

personal claims for back pay. Not unreasonably at the time of
his decision, Judge Pointer read certain language in our Georgia
Power opinion, 474 F.2d at 922, as authorizing a blanket de-
nial of back pay as a matter of discretion in view of the proof,
causation, and computation problems posed by the “new” Ford
class’s claim. 371 F.Supp. at 1059, 1061. Indeed, after our
subsequent opinion in Johnson v. Goodyear, supra, one might
have thought that a conflict existed within this circuit as to the
circumstances under which a district judge could decline to
award back pay to an aggrieved class, despite findings of em-
ployment discrimination practiced against the class. Later in
Pettway, however, all doubt was resolved in favor of the John-
son v. Goodyear presumption, which entitles the class to proceed
with individual claims for back pay once the class representative
has made out a prima facie case of systemic discrimination.
There Judge Tuttle (who also authored Georgia Power) ex-
plained the Georgia Power language as an expression of factors
to be considered in connection with the individual claimant's
burden, rather than the class’s:

This holding [in Johnson v. Goodyear) is entirely consistent
with, and flows from our decision in Georgia Power that
the presumption in favor of a member of a class tiscrim-
inated against Goes not per se entitle an employee to back
pay without some individual clarification. (citing Georgia
Power, 474 F.2d at 921-22).

494 F.2d at 259 (emphasis added). Thus, regardless of what
might have been a reasonable reading of Georgia Power at one
time, that case can no longer be taken for the sweeping proposi-
tion that “factors of economic reality ... and... the physical
and fiscal limitations of the court to properly grant and supervise
relief’ may operate to preclude an award of back pay to every
aggrieved employee in a large class action.

Instead, in an effort to relieve tension between manage-
ment difficulties with numerous, sometimes diverse, claimants

a tt

— 9) —

and Title VII's policy of compensation for discrimination-caused
economic injuries, this court has established a bifurcated ap-
proach in class actions seeking back pay. At Stage I the class
must demonstrate a prima facie case of employment discrimina-
tion. Sometimes statistical evidence alone will suffice; on other
occasions live testimony or additional exhibits may be neces-
sary. At all events, however, the stress at Stage I is upon demon-
stration of the defendant's broad employment policies and prac-
tices, the defendant's rebuttal and business necessity defenses,
and the inferences which remain at the close of the evidence.
See United States v. T. 1. M. E.—D. C., 5 Cir. 1975, 517 F.2d
299 at 315-16; Rodriguez v. East Texas Motor Freight, 5 Cir.
1974, 505 F.2d 40, 53-55; United States v. Hayes International
Corp., 5 Cir. 1972, 456 F.2d 112, 120. Although the district
court may then find liability and conclude that injunctive relief
is appropriate, as did the court below, it is improper at Stage I
to require any particular discriminatee to prove personal mone-
tary loss. Baxter, supra, 495 F.2d at 443.

Thus, the focus at the close of Stage I is still upon the class,
as Opposed to any particular putative member. As we noted
earlier, once the class has proven a prima facie case of discrim-
ination—as was done below—then it is presumptively entitled
to move into Stage II with the presentation of individual back
pay claims. Johnson v. Goodyear, supra. This presumptive en-
titlement serves the important function of filling the logical hiatus
between large-scale practices and statistically significant effects,
which were shown at Stage I, and individual members’ claims for
sums of money due, which have not yet been demonstrated. At
this point the basic question which seemingly perplexed the dis-
trict court arises: may the court, consistently with the “make
whole” purpose of back pay, require a class or subclass to demon-
strate some tangible economic loss as a class or subclass, attribu-
table to one or more proven discriminatory practices? In other
words, may the court condition the presumption upon some
quantifiable showing of causation between inequitable conduct

— A-90 —

and economic injury-in-fact to an objectively and empirically
homogeneous group qua group?

We need not further constrict the district court's statu-
tory discretion by saying that it may never do so under any
circumstances. Logically, a suit that proceeds as a class action
for monetary relief necessarily contemplates some degree of
proven economic damage to the class in general, as a result of the
defendant's violations. Where, as here, the circumstances of a
large class action raise occasional issues of alternative causation
—as with the bidding system and the irregular correspondence
between hourly wages and job classification—some minimal
burden on a given group may be appropriate. On the other
hand, the fact that a defendant has managed to discriminate
against many people instead of a few is no ticket to freedom
from liability to those who suffered less than the most obvious
victims. “Important national goals would be frustrated by a
regime of discretion that ‘produce[d] different results for breaches
of duty in situations that cannot be differentiated in policy.’ ”
Moody, supra, — U.S. at —, 95 S.Ct. at 2371, 45 L.Ed.2d at
296, quoting Moragne v. States Marine Lines, 398 U.S. 375,
405, 90 S.Ct. 1772, 1790, 26 L.Ed.2d 339. Moreover, any
causation burden which the court imposes on the group, as such,
must be not only minimal in weight, but also very general in
scope, so as to avoid converting the procedure into the protracted
series of claimant-by-claimant trials which Baxter commits to a
later stage.

With these considerations in mind, and cognizant of
our responsi ility to “maintain a consistent and principled
application of the backpay provision,” Moody, supra, — U.S.
at —, 95 S.Ct. at 2373, 45 L.Ed.2d at 299, we conclude that
the district court may require a class or subclass to come forward,
as a part of the class or subclass prima facie case, with some
threshold showing of economic loss and causation, if the defend-
ant’s evidence has drawn into substantial question the group's

ee ea

|
.
.

— A-91 —

entitlement to move into Stage IT claimant-by-claimant. In all
likelihood the defendant's ability to raise substantial doubt about
the group's entitlement will occur only rarely. We anticipate that
the defendant would have to show convincingly, and with sta-
tistically fair exhibits, that a given group of discriminatees out-
earned, or at least earned as much as, a plant seniority-compara-
ble group of whites during the discriminatory period. Even this
kind of showing will not defeat the right of each member of the
group to claim back pay at Stage II, if the class representative
can make a reasonable argument that the exhibit is distorted, or
that a significant number of members might have earned even
more than their white contemporaries but for the continued ef-
fects of discrimination. Positive proof by each member of the
group is not necessary at that point. The representative need
only raise on behalf of the class a reasonable inference of “cog-
nizable [economic] deprivations to it as a class,” Baxter, supra,
495 F.2d at 443, “based on racial discrimination by the employer
[or union] in the employment relationship.” Johnson v. Good-
year, supra, 491 F.2d at 1375. This inference justifies the pre-
sumption which entitles the group to move into Stage II.

On remand the district court should reconsider its approach
to back pay for the “new” Ford class in light of the preceding
discussion. The procedures suggested in Part I, supra, may well
facilitate the court’s task. Considerations of judicial efficiency
are important, but there is no reason why the need for efficiency
cannot be reconciled with what is by now a nearly certain, if
not “automatic or mandatory,” duty to award back pay to dis-
criminatees who can prove their entitlement to monetary recov-
ery. Cf. Moody, supra. In the event the court again decides that
any particular group within the affected class should not go for-
ward to Stage II, it must carefully articulate its findings and con-
clusions. /d. — U.S. at — n.14, 95 S.Ct. at 2373 n.14, 45 L.
Ed.2d at 299 n.14; Stevenson v. International Paper Co., 5 Cir.
1975, 516 F.2d 103, at pp. 117-118.

— A-92 —

Insofar as the district court may conclude that additional
back pay is now in order, the burden-of-proof rules respecting
individual claims are set forth in Baxter, 495 F.2d at 443-45,
and Johnson v. Goodyear, 491 F.2d at 1379-80. These rules
generally contemplate a scheme of proof, computation, and dis-
tribution initiated by a series of claimant-by-claimant trials, and
we have spoken accordingly heretofore in describing the func-
tions of Stage II.

A
After consulting Pettway, supra, 494 F.2d at 258, with .

regard to Alabama limitations, the beginning date, and the clos-
ing date of the back pay period, the district court, with the
assistance of the parties, should strive to the fullest practicable
degree to award back pay by reconstructing hypothetically each
eligible claimant's work history. This was done in the cases of
the sixty-one employees who received back pay following the
trial below. 371 F.Supp. at 1060. To the extent that actual,
historical vacancies in the employer's workforce can be flow-
charted with reasonable accuracy, the court should award the
back pay to the minority employees who, in its sound judgment,
would have occupied those vacancies but for discrimination,
and whose projections show a loss of wages. Part of “[t]he key
is to avoid . . . granting a windfall to the class at the employer's
expense .. .” Pettway, supra, at 262 n.152. Therefore, if the
parties can reasonably reconstruct the history of the changes
in the Fairfield workforce, the court should utilize those data
for identifying “vacancies” in light of its decree, and should not
presume that additional vacancies occurred. Apart from pro-
tecting the defendant, this method has the virtue of distributing
the recovery to the victims who, by the greater likelihood, are
entitled to it.

On the other hand, the remainder of “the key” is to avoid
“the unfair exclusion of claimants by defining the class or the
determinants of the amount too narrowly.” /d. Quite prob-
ably there are some aggregations of claimants, similar in plant

— A-93 —

seniority and ability, each of whom might reasonably be slotted
into the same historical vacancy and awarded a “winner-take-
all” sum of back pay. Obviously, this cannot be done if the
court is to remain faithful to the actual experience in the plant.
Such a situation calls forth the “quagmire of hypothetical judg-
ment” for which Pettway, 494 F.2d at 262-63, suggests several
alternative solutions. The district court is free to consider the
classwide approaches suggested in Pettway, as well as any other
reasonable methods for making the affected class whole. We
commend the court particularly to the use of pro rata shares, /d.
at 263 & n.154, in those instances where the quagmire persists
even after reasonable efforts geared toward greater individual
certainty have been attempted. This method involves a distribu-
tion across the affected group of the sum which represents the
largest loss suffered by a group men Ser who, as likely as any
other, could have occupied the vacancy in question but for dis-
crimination. Individual awards can be computed for each mem-
ber of the group by the use of a linear progression formula, For
example, if during a given period white A, with less plant senior-
ity, occupied a job at which he earned $15,000, but blacks B,
C, D, E, and F, with respective earnings in lower jobs of $10,-
000, $11,000, $12,000, $13,000, and $14,000, each were
equally capable and substantially equal in superior plant senior-
ity, than their pro rata recoveries for the period could be com-
puted as follows: 5x + 4x + 3x + 2x + x = $5,000. The
variable, x, comes to roughly $333. Thus, B, whose hypothetical
loss is five times greater than F’s, recovers about $1,665; C re-
covers $1,332; D takes $999; E recovers $666; while F, who
suffered the least economic injury, recovers $333. The defend-
ants may wish to argue that under no circumstances would em-
ployee F, the one with the most damages, or for that matter
any of the other discriminatees, have succeeded to the job ahead
of A, or ahead of another black. The defendants have the bur-
den of persuasion on the point, by a standard of “clear and con-
vincing” evidence. Johnson v. Goodyear, supra, 491 F.2d at
1380.

— A-94 —

Of course, the pro rata method will seldom, if ever, work
out as conclusively or as simply as the example. The threshold
determination of the eligible group of employees will often pre-
sent complex factual issues. The court that opts for a pro rata
method will have to deal with tediously-computed fractional con-
stants in most cases. By suggesting such a method we do not
intend to exclude other reasonable alternatives, for we recognize
that “the trial court will often have the keener appreciation of
those facts and circumstances peculiar to particular cases.”
Moody, supra, — U.S. at —, 95 §.Ct. at 2373, 45 L.Ed.2d at
299. Also, we reemphasize that alternative methods possessed
of superior certainty should be exhausted before the court resorts
to racially-drawn classwide comparisons or pro rata approaches.
See Judge Bell’s specially concurring opinion in Pettway, supra,
494 F.2d at 267. Similarly, the indiscriminate black-white wage
averaging approach advanced by the plaintiffs and rejected by
the district court, 371 F.Supp. at 1060 n.40, would seem to be
foreclosed by our decision in Georgia Power as a basis for mak-
ing individual awards, see 474 F.2d at 921-22, absent at least
a precise breakdown of subgroups from the standpoint of plant
age See Pettway, supra, 494 F.2d at 262, discussing Stamps
v. Detroit Edison Co., E.D.Mich.1973, 365 F.Supp. 87, 121-22
[rev'd on other grounds, sub nom., Equal Employment Op.
Com'n v. Detroit Edison Co., 6 Cir. 1975, 515 F.2d 301). In
conclusion, we express full confidence in the ability of the dis-
trict judge to achieve a result consonant with the important
compensatory purpose of back pay. The court is free to appoint
a master to assist with Stage II, and, as always, the parties are
free to negotiate a settlement.

As a caveat to our discussion of back pay, we add a few re-
marks which are necessary to place this matter in full perspective.
On December 19, 1974, Judge Pointer entered, as between the
government and the defendants, an amendment which conformed
the May 2, 1973 Fairfield decree to the industry-wide consent

— A-95 —

decrees which we upheld in United States v. Allegheny-Ludlum
Industries, Inc., supra. The amendment provides that the back
pay under Consent Decree I shall become available to eligible
Fairfield employees (1) upon “exhaustion of all appellate pro-
ceedings” in Allegheny-Ludlum, in which appellant Ford is an
intervenor challenging the settlement’s legality; and (2) “upon
receipt of a remand, if any,” from this court in this appeal. Thus,
it is clear that the back pay provision of Consent Decree I wi'!
not apply to Fairfield Works unless and until both conditions
are met. Timewise, there is no way to foretell how quickly the
back pay under the settlement will become available at Fairfield,
nor could we predict how quickly any class or subclass involved
in this appeal might reach the stage of individual back pay re-
lief. Either could involve anywhere from a few weeks to many
months. Nevertheless, we point out that the liability stage of the
trial in this case was completed almost a year prior to the entry
of the consent settlement. Under these circumstances, we con-
clude that those Fairfield employees who fall within the descrip-
tion of a class or subclass duly certified by the district court on
the remand of this case, pursuant to F.R.Civ.P. 23(b)(2),
shall look at all times to this case for their back pay. In specific
instances this case may yield more money than the consent de-
cree; in others it may yield less. Yet, insofar as this action con-
tinues toward final repose as a Rule 23(b) (2) class action, there
will be no “opting out” by individual class members at any point.
LaChapelle v. Owens-Illinois, Inc., 5 Cir. 1975, 513 F.2d 286,
288 n.7. But cf. Pettway, supra, 494 F.2d at 263 n.154. To the
extent that the class of eligible black employees under the con-
sent decree overlaps with the Fairfield class or classes—and
presently there is considerable overlap—the latter employees’
identification with this case will serve the interests of both sides.
It will ensure contested, adjudicated compensation to Fairfield
employees who are so entitled; it will preserve whatever co-
hesiveness they achieved prior to the entry of the consent de-
crees; and it will protect the defendants from the risk of em-
ployees gambling on greater or double recoveries under the

—_—y

consent decree. Conversely, in the event the consent decree funds
earmarked for Fairfield become available while this case is be-
fore the district court, the defendants ought to be able to use
those moneys—to the extent they are adequate—in satisfaction
of back pay judgments which may be rendered on remand. There
is nothing in the conforming amendment or the May 2 decree
which suggests that Consent Decree I's allotment for Fairfield
should not be distributed in that fashion, provided the defend-
ants observe the consent decree’s terms as to eligibility and
method of computation.

Ill. Other Defenses and Related Issues

Both the company and the union seek to escape back pay lia-
bility to the members of the “new” Ford class by way of certain
affirmative defenses. Unlike the generalized pleas to equity which
we dismissed earlier, however, these defenses—to the extent they
are valid—either do not call for a blanket denial of back pay
to all discriminatees, or else they merely entail equitable appor-
tionment of eventual back pay responsibility as between the de-
fendants.

The company relies on a mass of pretrial and post-trial
exhibits which purportedly demonstrate significantly higher
black, as opposed to white, rates of refusal to bid on entry-level
jobs in the line of progression, voluntary freezing in lower jobs
following advancement into the line, and waivers of promotional
opportunities under the court-reformed seniority system. The
company seeks to use this evidence primarily in an effort to
block the class, or particular groups within it, from reaching the
individualized back pay stage. This, we conclude, the exhibits
cannot accomplish. Initially, there is at best only a tenuous logical
connection between the failure of isolated blacks to promote and
the issue of economic injury to the broader class of blacks on
account of unlawful discrimination. Judge Pointer found that

0s cheatin

—y

Fairfield’s numerous forms and subforms of occupational, line.
and departmental seniority operated to perpetuate the effects
of the company’s pre-Title VII active racial discrimination in
hiring and initial assignments. The company does not question
those findings on appeal. Additionally, we must recognize that
victims of discrimination frequently hesitate to move into new
jobs when, as at Fairfield the price of mobility is loss of seniority
earned in a former position. See United States v. Jacksonville
Terminal Co., 5 Cir. 1971, 451 F.2d 418, 453, cert. denied,
406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972), where
the black employee’s dilemma is aptly described. Under a history
in which blacks were hired into less-desirable jobs and remained
behind their white contemporaries in terms of the kinds of se-
niority necessary for advancement to and security in the higher-
paying jobs, the experience under a bidding system neutral on
its face is not a persuasive indicator of the progress blacks would
have made as a group but for seniority discrimination.

On the other hand, we do not wish to demean whatever evi-
dentiary value the company might be able to extract from its
exhibits in terms of class or subclass mitigation, as in Judge
Pointer’s method of awarding back pay among the members of
the “original” Ford class. Nor do we intend to subtract from the
probative value of any particular employee's declination of a
promotional opportunity, either before or after the institution of
reformed seniority. In either case it is more likely with the evi-
dence than without it that the employee would have refused the
promotion under any circumstances, in which event he should
not receive damages for the wages waived. We simply note
that these are questions to be considered by the district court on
remand. The applicable burden-of-proof rules are those laid
down in Johnson v. Goodyear and Baxter, supra.

In contrast to the company, the union does not rely so much
upon factual arguments as upon a rather fragile theory of the
law. Essentially, the union contends that any discrimination

— A-98 —

for which it may be responsible was the result of good faith ef-
forts to comply with the law, undertaken in reliance upon earlier
lower court and administrative decisions which had given positive
treatment to similar seniority systems at other basic steel produc-
tion facilities. Specifically, the union points to Whitfield v.
United Steelworkers, 5 Cir. 1959, 263 F.2d 546; United States
v. H. K. Porter Co., N.D. Ala. 1968, 296 F.Supp. 40, 66-67,
vacated with instructions, 5 Cir. 1974, 491 F.2d 1105; United
States v. Bethlehem Steel Corp., W.D.N.Y.1970, 312 F.Supp.
977, modified and remanded, 2 Cir. 1971, 446 F.2d 652; Matter
of Bethlehem Steel Corp. (Sparrows Point Plant), OFCC Dkt.
102-68, Dec. 18, 1970, rev'd by Sec’y of Labor, Jan. 15, 1973,
EPD ¢ 5128; and certain language in Local 189, United Paper-
makers v. United States, 5 Cir. 1969, 416 F.2d 980, 993, cert.
denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970).
From these cases the union gleans respectable support for its
contention that, at least until the Second Circuit’s decision of
June 21, 1971 in Bethlehem Steel, it appeared that the remedies
of plant-service seniority and rate retention would not be ap-
plied to the steel industry due to the dangers and complexities of
the steel manufacturing process. Moreover, when the Second
Circuit issued its opinion in Bethlehem Steel, the district court
decision in H. K. Porter was pending on appeal to this court,
and remained on this court’s docket for almost three more years,
despite interim requests by the government and the union for
this circuit’s response to the issue of “rightful place” relief in the
steel industry. Thus, the union insists that the defendants in
this case reasonably relied on the prior decisions in maintaining
and defending the Fairfield seniority systems, and that the prior
decisions gave positive notice of a steel industry business neces-
sity exemption from the remedies which were first ordered in the
tobacco and paper industries. See Quarles v. Philip Morris Co.,
E.D.Va.1968, 279 F.Supp. 505; Local 189, supra. The union
therefore asks us to exonerate it from potential back pay lia-
bility on grounds of “exceptional circumstances” cr “substan-
tial injustice.”

— A-99 —

The appellants characterize the union's theory of a “unique”
steel industry litigation history as an elaborate appeal
to the “unsettled state of the law”’—a theory which we have
thoroughly rejected as a defense to back pay liability under both
Title VII and Section 1981. See Johnson v. Goodyear, supra,
491 F.2d at 1377: Pettway, supra, 494 F.2d at 255 & n.132.
Cf. Moody, supra, -— U.S. at — & n.15, 95 S.Ct. at 2374 &
n.15, 45 L.Ed.2d at 299 & n.15. Despite the union's lack of bad
faith and Judge Poirter’s finding that it “had good reason . . . at
least in this circuit,” 371 F.Supp. at 1062, to believe that the
Fairfield seniority systems comported with the law, we believe
that the appellants are fundamentally correct. As we stated in
Johnson v. Goodyear, supra:

At least since July 2, 1965, the effective date of Title VII,
the employers of this nation have been on notice that em-
ployment discrimination based on race, whether overt, co-
vert, simple or complex, is illegal. In this case, the em-
ployer has been violating the Act as to some employees since
that date. If we were to accept the employer's position the
effective date would be advanced at least to the date of the
Griggs {Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct.
849, 28 L.Ed.2d 158] opinion. This result would be un-
tenable and completely at odds with the Congressional pur-
pose evidenced by enacting Title VII. Title VII is strong
medicine and we refuse to vitiate its potency by glossing it
with judicial limitations unwarranted by the strong remedial
spirit of the act. (footnote omitted ).

Accord, Pettway, supra, 494 F.2d at 255-56.

Title VII applies of course to unions which are parties to
the collective bargaining agreement as well as to employers.
See Johnson v. Goodyear, supra, at 1381; Carey v. Greyhound
Bus Co., 5 Cir. 1974, 500 F.2d 1372, 1379. Both were placed
on notice of the law at the same time. The gist of the union’s

— A-100 —

argument, however reasonable it may appear depending on the
orientation from which one reads the cases cited in support
thereof, reduces to a contention that the defendants should not
somehow be penalized for reliance on what turned out to be an
erroneous view of the law. We dismissed a similar argument
in the context of the public accommodations provisions of Title
II of the 1964 Civil Rights Act, see Miller v. Amusement Enter-
prises, Inc., 5 Cir. 1970, 426 F.2d 534, 536: “[t]he actions of
Fun Fair Park became subject to the prescribed judicial relief
not because the Court said so, but rather because the Court said
—even perhaps for the very first time—that the Congress said
so.” We reach the same conclusion here, without consideration
of whether other cognizable “exceptional circumstances” or “sub-
stantial injustices” may exist apart from compliance with state
protective statutes which have not been ruled inconsistent with
Title VII. Cf. Moody, supra, — U.S. at — nn. 17, 18, 95 S.Ct.
at 2374, nn. 17, 18, 45 L.Ed.2d at 299, 300 nn. 17, 18; Pett-
way, supra, 494 F.2d at 254; Johnson v. Goodyear, supra, 491
F.2d at 1377. See also Stevenson v. International Paper Co.,
supra, at 113-114 (“government [OFCC] imposed” discrimina-
tion at the plant involved in the lawsuit). The crux of the matter
is that the defendants in this case took a particular legal posi-
tion in litigation over the issue of their seniority system’s legality.
This was their right, but with it came the usual risks of litigation,
including the risk of civil liability. The defendants’ position
failed them; the statute and the authoritative cases construing it
provide for back pay in order to make the victors whole; and we
decline to subvert that integral scheme with a crazy-quilt pattern
of different back pay liability dates, industry-by-industry, plant-
by-plant, on the basis of a few district court decisions, adminis-
trative panel rulings, and nonprecedential appellate language, all
involving factual settings at places other than Fairfield Works. To
embark upon such a course would entangle the compensatory,
nonpenal purpose of back pay in a web of judicial gamesman-
ship.

— A-101 —

Nevertheless, one legitimate defense of sorts remains avail-
able to the union with respect to back pay liability. In the
three private class actions in which Judge Pointer awarded back
pay below, the International was absolved of back pay responsi-
bility because it “was not really responsible for the practices
giving rise to the three back-pay awards.” 371 F.Supp. at 1060
n.39. Instead, the court assessed the awards one-half against
the company and one-half against the offending locals. On re-
mand the parties are free to litigate these same issues in connec-
tion with any back pay which may be awarded in favor of the
members of the “new” Ford class. The apportionment problem
is initially one for the district judge, and we intimate no further
view except to suggest that the court consider the matter in
light of our recent cases. See Guerra v. Manchester Terminal
Corp., 5 Cir. 1974, 498 F.2d 641, 655-56; Gamble v. Birming-
ham Southern R.R., supra, 514 F.2d at 686-87; Johnsen v.
Goodyear, supra, 491 F.2d 1381-82, and any other relevant
cases which the parties may bring to the district court's attention.
The district court also should enter specific findings in support of
its determinations of back pay responsibility.

IV. Conclusion

We have given careful consideration to all other conten-
tions on appeal and find them to be without merit.’ For the

! For example, we note that the company’s request for a trial by
jury has been foreclosed in this circuit by Johnson v. Georgia High-
way Express, supra, 417 F.2d at 1125. We are also aware that the
company’s alternative plea for recognition of substantial discretion
in the district judge over whether to award back pay is supported by
Justice Rehnquist’s concurring opinion in Moody, supra, — U.S. at
—, 95 S.Ct. at 2384-87, 45 L.Ed.2d at 312, 313. On the other |
hand, our cases, e. g., Pettway, supra, hold that the district court’s
discretion to deny back pay is “narrow.” 494 F.2d at 252. The only
“special circumstance” we have recognized is that of a conflicting
State statute which required the employer to violate Title VII. See

— A-102 —

reasons discussed heretofore the Craig appeal is dismissed. The
decision of the district court denying back pay, which was
brought forward by the Ford appeal, is vacated and remanded
for further proceedings consistent with this opinion.

LeBlanc v. Southern Bell Tel.&Tel. Co., E.D.La. 1971, 333 F.Supp.
602, aff'd per curiam, 5 Cir., 460 F.2d 1228, cert. denied. 409 U.S.
990, 93 S.Ct. 320, 34 L.Ed.2d 257 (1972). Moreover, this circuit
has already extended the principle of Story Parchment Co. v. Pater-
son Parchment Paper Co., 282 U.S. 555, 565-66, 51 S.Ct. 248, 251,
75 L.Ed. 544, 550 (1931), to Title VII back pay cases. (“Difficulty
of ascertainment is no longer confused with right of recovery.”).
Johnson vy. Goodyear, supra, 491 F.2d at 1380. As Mr. Justice
Rehnquist observed in Moody, this principle’s classic application has
occurred in suits for money damages, in which the parties ordinarily
are entitled to a jury trial. Thus, to reconcile this variety of com-
peting tensions in the context of Title VII is no simple task. Yet
we have endeavored conscientiously herein to follow the controlling
precedents of this court and of the Supreme Court. In the absence
of a material conflict between our decisions and the majority opinion
in Moody, we are bound to do so. Though perhaps, as the union
argues, some degree of conflict now exists, compare Moody, supra,
— US. at —, 95 S.Ct. at 2371-72, 45 L.Ed.2d at 296-297, with
Pettway, supra, 494 F.2d at 253, we believe that the inconsistency
is superficial to this case. Our lawsuit is now well beyond the point
at which the “reasonably certain prospect of a back pay award”
operates as an incentive to voluntary compliance. Cf. Moody, supra,
— US. at —, 95 S.Ct. at 2371, 45 L.Ed.2d at 296. Instead, we
are concerned with back pay as “an equitable award for past eco-
nomic injury.” Pettway, supra (emphasis in original). From the
standpoint of the compensatory purpose of back pay, which is at
issue here, we perceive no conflict whatever between previous de-
cisions of this court and the majority opinion in Moody.

Sa en

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eenes ae ee Ms te) et A a oe

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— A-103 —

OPINION OF THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT CLARIFYING ITS PREVI-
OUS OPINION AND DENYING REHEARING

United States of America,
Plaintiff-Appellant,

ve

United States Steel Corporation et al.,
Defendants-Appellees.
John S. Ford « 1,
Plaintiffs-Appellants,

Clifford Craig and L. G. Phillips,
Movants-Appellants,

Vv.

United States Steel Corporation et al.,
Defendants-Appellees.

No. 73-3907.

United States Court of Appeals,
Fifth Circuit.

Jan. 14, 1976.

Appeals from the United States District Court for the North-
ern District of Alabama.

On Petitions for Rehearing and Petition for Rehearing En Banc

(Opinion Oct. 8, 1975, 5 Cir., 520 F.2d 1043)

Before Thornberry, Morgan and Clark, Circuit Judges.

— A-104 —

Per Curiam:

The petitions for Rehearing are denied and no member of this
panel nor Judge in regular active service on the Court having
requested that the Court be polled on rehearing en banc (Rule
35, Federal Rules of Appellate Procedure; Local Fifth Circuit
Rule 12), the Petition of United States Steel Corporation for Re-
hearing En Banc is denied.

By way of clarification, all parties should recognize that
the district court’s final certification of the “new” Ford class
is the door that bars opting out by class members. The panel's
original opinion in this cause was not intended to rule out the
tender of back pay under the Consent Decree approved by this
Court in United States v. Allegheny-Ludlum Industries, Inc.,
5th Cir. 1975, 517 F.2d 826. The district court will, on remand,
define the “new” Ford class in such a way as to exclude those
persons who elect to accept such back pay tenders. Cf. La-
Chapelle v. Owens-Illinois, Inc., Sth Cir. 1975, 513 F.2d 286,
288 n. 7.

— A-105 —

CIVIL RIGHTS ACT OF 1964, 42 U.S.C. §§ 2000e-
5 AND 6 PRIOR TO 1972 AMENDMENTS

2000e-5

Prevention of Unlawful Employment Practices

(a) Whenever it is charged in writing under oath by a per-
son claiming to be aggrieved, or a written charge has been filed
by a member of the Commission where he has reasonable cause
to believe a violation of this title has occurred (and such charge
sets forth the facts upon which it is based) that an employer,
employment agency, or labor organization has engaged in an
unlawful employment practice, the Commission shall furnish
such employer, employment agency, or labor organization (here-
inafter referred to as the “respondent”) with a copy of such
charge and shall make an investigation of such charge, provided
that such charge shall not be made public by the Commission.
If the Commission shall determine, after such investigation,
that there is reasonable cause to believe that the charge is true,
the Commission shall endeavor to eliminate any such alleged
unlawful employment practice by informal methods of confer-
ence, conciliation, and persuasion. Nothing said or done during
and as a part of such endeavors may be made public by the
Commission without the written consent of the parties, or used
as evidence in a subsequent proceeding. Any officer or employee
of the Commission, who shall make public in any manner what-
ever any information in violation of this subsection shall be
deemed guilty of a misdemeanor and upon conviction thereof
shall be fined not more than $1,000 or imprisoned not more than
one year.

(b) In the case of an alleged unlawful employment practice
occurring in a State, or political subdivision of a State, which has
a State or local law prohibiting the unlawful employment prac-

— A-106 —

tice alleged and establishing or authorizing a State or local au-
thority to grant or seek relief from such practice or to institute
criminal proceedings with respect thereto upon receiving notice
thereof, no charge may be filed under subsection (a) by the per-
son aggrieved before the expiration of sixty days after proceed-
ings have been commenced under the State or local law, unless
such proceedings have been earlier terminated, provided that
such sixty-day period shall be cxtended to one hundred and
twenty days during the first year after the effective date of such
State or local law. If any requirement for the commencement
of such proceedings is imposed by a State or local authority
other than a requirement of the filing of a written and signed
statement of the facts upon which the proceeding is based, the
proceeding shall be deemed to have been commenced for the
purposes of this subsection at the time such statement is sent by
registered mail to the appropriate State or local authority.

(c) In the case of any charge filed by a member of the Com-
mission alleging an unlawful employment practice occurring in
a State or political subdivision of a State, which has a State or
local law prohibiting the practice alleged and establishing or au-
thorizing a State or local authority to grant or seek relief from
such practice or to institute criminal proceedings with respect
thereto upon receiving notice thereof, the Commission shall, be-
fore taking any action with respect to such charge, notify the
appropriate State or local officials and, upon request, afford
them a reasonable time, but not less than sixty days (provided
that such sixty-day period shall be extended to one hundred and
twenty days during the first year after the effective day of such
State or local law), unless a shorter period is requested, to act
under such State or local law to remedy the practice alleged.

(d) A charge under subsection (a) shall be filed within ninety
days after the alleged unlawful employment practice occurred,
except that in the case of an unlawful employment practice with
respect to which the person aggrieved has followed the pro-

be et nr

— A-107 —

cedures set out in subsection (b), such charge shall be filed by
the person aggrieved within two hundred and ten days after the
alleged unlawful employment practice occurred, or within thirty
days after receiving notice that the State or local agency has
terminated the proceedings under the State or local law, which-
ever is earlier, and a copy of such charge shall be filed by the
Commission with the State or local agency.

(e) If within thirty days after a charge is filed with the Com-
mission or within thirty days after expiration of any period of
reference under subsection (c) (except that in either case such
period may be extended to not more than sixty days upon a
determination by the Commission that further efforts to secure
voluntary compliance are warranted), the Commission has been
unable to obtain voluntary compliance with this title, the Com-
mission shall so notify the person aggrieved and a civil action
may, within thirty days thereafter, be brought against the re-
spondent named in the charge (1) by the person claiming to be
aggrieved, or (2) if such charge was filed by a member of the
Commission, by any person whom the charge alleges was ag-
grieved by the alleged unlawful employment practice. Upon
application by the complainant and in such circumstances as
the court may deem just, the court may appoint an attorney for
such complainant and may authorize the commencement of the
action without the payment of fees, costs, or security. Upon
timely application, the court may in its discretion, permit the
Attorney General to intervene in such civil action if he certifies
that the case is of general public importance. Upon request, the
court may, in its discretion, stay further proceedings for not
more than sixty days pending the termination of State or local
proceedings described in subsection (b) or the efforts of the
Commission to obtain voluntary compliance.

(f) Each United States district court and each United States
court of a place subject to the jurisdiction of the United States
shall have jurisdiction of actions brought under this title. Such
an action may be brought in any judicial district in the State in

— A-108 —

which the unlawful employment practice is alleged to have been
committed, in the judicial district in which the employment
records relevant to such practice are maintained and adminis-
tered, or in the judicial district in which the plaintiff would have
worked but for the alleged unlawful employment practice, but
if the respondent is not found within any such district, such an
action may be brought within the judicial district in which
the respondent has his principal office. For purposes of sec-
tions 1404 and 1406 of title 28 of the United States Code, the
judicial district in which the respondent has his principal office
shall in all cases be considered a district in which the action
might have been brought.

(g) If the court finds that the respondent has intentionally en-
gaged in or is intentionally engaging in an unlawful employment
practice charged in the complaint, the court may enjoin the re-
spondent from engaging in such unlawful employment practice,
and order such affirmative action as may be appropriate, which
may include reinstatement or hiring of employees, with or with-
out back pay (payable by the employer, employment agency, or
labor organization, as the case may be, responsible for the un-
lawful employment practice). Interim earnings or amounts earn-
able y.ith reasonable diligence by the person or persons discrimi-
nated against shall operate to reduce the back pay otherwise
allowable. No order of the court shall require the admis-
sion or reinstatement of an individual as a member of a union
or the hiring, reinstatement, or promotion of an individual as
an employee, or the payment to him of any back pay, if such
individual was refused admission, suspended, or expelled or was
refused employment or advancement or was suspended or dis-
charged for any reason other than discrimination on account of
race, color, religion, sex or national origin or in violation of
section 704(a).

(h) The provision of the Act entitled “An Act to amend the
Judicial Code and to define and limit the jurisdiction of courts
sitting in equity, and for other purposes,” approved March 23,

— A-109 —

1932 (29 U.S.C. 101-115), shall not apply with respect to civil
actions brought under this section.

(i) In any case in which an employer, employment agency, or
labor organization fails to comply with an order of a court issued
in a civil action brought under subsection (e), the Commission

may commence proceedings to compel compliance with such
order.

(j) Any civil action brought under subsection (e) and any
proceeding brought under subsection (i) shall be subject to appeal

as provided in sections 1291 and 1292, title 28, United States
Code.

(k) In any action or proceeding under this title the court, in
its discretion, may allow the prevailing party, other than the
Commission or the United States, a reasonable attorney's fee
as part of the costs, and the Commission and the United States
shall be liable for costs the same as a private person.

2000e-6

(a) Whenever the Attorney General has reasonable cause to
believe that any person or group of persons is engaged in a pat-
tern or practice of resistance to the full enjoyment of any of the
rights secured by this title, and that the pattern or practice is of
such a nature and is intended to deny the full exercise of the
rights herein described, the Attorney General may bring a civil
action in the appropriate district court of the United States by
filing with it a complaint (1) signed by him (or in his absence the
Acting Attorney General), (2) setting forth facts pertaining to
such pattern or practice, and (3) requesting such relief, includ-
ing an application for a permanent or temporary injunction, re-
straining order or other order against the person or persons re-
sponsible for such pattern or practice, as he deems necessary
to insure the full enjoyment of the rights herein described.

(b) The district courts of the United States shall have and
shall exercise jurisdiction of proceedings instituted pursuant to

— A-110 —

this section, and in any such proceeding the Attorney General
may file with the clerk of such court a request that a court
of three judges be convened to hear and determine the case.
Such request by the Attorney General shall be accompanied by
a certificate that, in his opinion, the case is of general public
importance. A copy of the certificate and request for a three-
judge court shall be immediately furnished by such clerk to the
chief judge of the circuit (or in his absence, the presiding cir-
cuit judge of the circuit) in which the case is pending. Upon
receipt of such request it shall be the duty of the chief judge of
the circuit or the presiding circuit judge, as the case may be,
to designate immediately three judges in such circuit, of whom
at least one shall be a circuit judge and another of whom shall
be a district judge of the court in which the proceeding was in-
stituted, to hear and determine such case, and it shall be the
duty of the judges so designated to assign the case for hearing
at the earliest practicable date, to participate in the hearing and
determination thereof, and to cause the case to be in every
way expedited. An appeal from the final judgment of such
court will lie to the Supreme Court.

In the event the Attorney General fails to file such a request
in any such proceeding, it shall be the duty of the chief judge
of the district (or in his absence, the acting chief judge) in which
the case is pending immediately to designate a judge in such
district to hear and determine the case. In the event that no
judge in the district is available to hear and determine the case,
the chief judge of the district, or the acting chief judge, as the
case may be, shall certify this fact to the chief judge of the
circuit (or in his absence, the acting chief judge) who shall then

designate a district or circuit judge of the circuit to hear and
determine the case.

It shall be the duty of the judge designated pursuant to this
section to assign the case for hearing at the earliest practicable
date and to cause the case to be in every way expedited.

— A-1l11 —

CIVIL RIGHTS ACT OF 1964, 42 U.S.C. §§ 2000e-
5 AND 6 INCLUDING 1972 AMENDMENTS

§ 2000e-5. Enforcement provisions—Power of Commission to
prevent unlawful employment practices

(a) The Commission is empowered, as hereinafter provided, to
prevent any person from engaging in any unlawful employment
practice as set forth in section 2000e-2 or 2000e-3 of this title.

iation, oa persuasion for elimination of unlawful
prohibition on disclosure of informal endeavors to end unlawful

ee eS eee ae proceedings; penalties
or disclosure of information; time a
able cause

(b) Whenever a charge is filed by or on behalf of a person
claiming to be aggrieved, or by a member of the Commission,
alleging that an employer, employment agency, labor organiza-
tion, or joint labor-management committee controlling appren-
ticeship or other training or retraining, including on-the-job
training programs, has engaged in an unlawful employment prac-
tice, the Commission shall serve a notice of the charge (includ-
ing the date, place and circumstances of the alleged unlawful
employment practice) on such employer, employment agency,
labor organization, or joint labor-management committee (here-
inafter referred to as the “respondent”) within ten days, and
shall make an investigation thereof. Charges shall be in writ-
ing under oath or affirmation and shall contain such informa-
tion and be in such form as the Commission requires. Charges
shall not be made public by the Commission. If the Commission
determines after such investigation that there is not reasonable
cause to believe that the charge is true, it shall dismiss the

— A-112 —

charge and promptly notify the person claimirg to be aggrieved
and the respondent of its action. In determining whether rea-
sonable cause exists, the Commission shall accord substantial
weight to final findings and orders made by State or local au-
thorities in proceedings commenced under State or local law
pursuant to the requirements of subsections (c) and (d) of this
section. If the Commission determines after such investigation
that there is reasonable cause to believe that the charge is true,
the Commission shall endeavor to eliminate any such alleged
unlawful employment practice by informal methods of confer-
ence, conciliation, and persuasion. Nothing said or done during
and as a part of such informal endeavors may be made public
by the Commission, its officers or employees, or used as evi-
dence in a subsequent proceeding without the written consent
of the persons concerned. Any person who makes publi. in-
formation in violation of this subsection shall be fined not more
than $1,000 or imprisoned for not more than one year, or both.
The Commission shall make its determination on reasonable
cause as promptly as possible and, so far as practicable, not later
than one hundred and twenty days from the filing cf the charge
or, where applicable under subsection (c) and (d) of this section,
from the date upon which the Commission is authorized to take
action with respect to the charge.

State or local enforcement proceedings; notification of State or
local authority; time for filing charges with Commission;
commencement of proceedings

(c) In the case of an alleged uniawful employment practice
occurring in a State, or political subdivision of a State, which
has a State or local law prohibiting the unlawful employment
practice alleged and establishing or authorizing a State or local
authority to grant or seek relief from such practice or to institute
criminal proceedings with respect thereto upon receiving no-
tice thereof, no charge may be filed under subsection (b) of this
section by the person aggrieved before the expiration of sixty

— A-113 —

days after proceedings have been commenced under the State or
local law, unless such proceedings have been earlier terminated,
provided that such sixty-day period shall be extended to one hun-
dred and twenty days during the first year after the effective date
of such State or local law. If any requirement for the commence-
ment of such proceedings is imposed by a State or local authority
other than a requirement of the filing of a written and signed
statement of the facts upon which the proceeding is based, the
proceeding shall be deemed to have been commenced for the
purposes of this subsection at the time such statement is sent by
registered mail to the appropriate State or local authority.

Same; notification of State or local authority; time
for action on charges by Commission

(d) In the case of any charge filed by a member of the Com-
mission alleging an unlawful employment practice occurring in
a State or political subdivision of a State which has a State or
local law prohibiting the practice alleged and establishing or au-
thorizing a State or local authority to grant or seek relief from
such practice or to institute criminal proceedings with respect
thereto upon receiving notice thereof, the Commission shall, be-
fore taking any action with respect to such charge, notify the
appropriate State or local officials and, upon request, afford them
a reasonable time, but not less than sixty days (provided that
such sixty-day period shall be extended to one hundred and
twenty days during the first year after the effective day of such
State or local law), unless a shorter period is requested, to act
under such State or local law to remedy the practice alleged.

Time for filing charges; time for service of notice of charge

on respondent; filing of charge by Commission with
State or local agency

(e) A charge under this section shall be filed within one
hundred and eighty days after the alleged unlawful employment

—_

practice occurred and notice of the charge (including the date,
place and circumstances of the alleged unlawful employment
practice) shall be served upon the person against whom such
charge is made within ten days thereafter, except that in a case
of an unlawful employment practice with respect to which the
person aggrieved has initially instituted proceedings with a State
or local agency with authority to grant or seek relief from such
practice or to institute criminal proceedings with respect thereto
upon receiving notice thereof, such charge shall be filed by or
on behalf of the person aggrieved within three hundred days
after the alleged unlawful employment practice occurred, or
within thirty days after receiving notice that the State or local
agency has terminated the proceedings under the State or local
law, whichever is earlier, and a copy of such charge shall be
filed by the Commission with the State or local agency.

Civil action by Commission, Attorney General, or person aggrieved;
preconditions; procedure; appointment of attorney; payment of
fees, costs, or security; intervention; stay of Federal proceed-
ings; action for appropriate temporary or preliminary relief
pending final disposition of charge; jurisdiction and venue of
United States courts; designation of judge to hear and deter-
mine case; assignment of case for hearing; expedition of case;
appointment of master

(f)(1) If within thirty days after a charge is filed with the
Commission or within thirty days after expiration of any period
of reference under subsection (c) or (d) of this section, the Com-
mission has been unable to secure from the respondent a concili-
ation agreement acceptable to the Commission, the Commission
may bring a civil action against any respondent not a govern-
ment, governmental agency, or political subdivision named in
the charge. In the case of a respondent which is a government,
governmental agency, or political subdivision, if the Commis-
sion has been unable to secure from the respondent a concili-
ation agreement acceptable to the Commission, the Commission
shall take no further action and shall refer the case to the At-

— A-115 —

torney General who may bring a civil action against such re-
spondent in the appropriate United States district court. The
person or persons aggrieved shall have the right to intervene in

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2252%3A1. Public record. Not legal advice.