Petition — Nance v. Union Carbide Corp.
Supreme Court brief1977
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|. supreme Court, U. S.
FILED
| DEC 16 1976
MICHAEL RODAK, JR., CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1976
No. 26 824
WINIFRED S. NANCE,
Petitioner,
VS.
UNION CARBIDE CORPORATION, CONSUMER
PRODUCTS DIVISION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT BELTON
Post Office Box 6057
Station B, University Station
Nashville, Tennessee 37235
JONATHAN WALLAS
Suite 730
East Independence Plaza
951 South Independence Blvd.
Charlotte, North Carolina 28202
Attorneys for Petitioner
WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON, D. C. 20001
TABLE OF CONTENTS
IES IS eee aoe ae Ee
EES ES ee NR
, dd
Statutcry Provisions Involve gn
, cseindenimlipnmenteneisiniaietinhotaben
Reasons for Granting the Wriltt
I. The Petition Presents An Important Question
II.
III.
Of Federal Law Concerning the Relationship
Between the Class Action Procedures Under
Rule 23 of the Federal Rules of Civil Procedure
and the Remedial Authority of the Federal
Courts Under Section 706 (g) of Title VII ........
The Decision Below Conflicts With Decisions of
Other Courts of Appeals On the Same Matter..
The Decision Below Represents A Legally Insup-
portable Departure From the Doctrine of Stand-
— A ⅛˙— ̃ —˙————— ORS
r SAS ae a a RE Pe a
Appendix
Decison of the Court of Appeals
Judgment of the Court of Appeals
Order of the Court of Appeals Denying Petition
for Rehearing and Suggestion of Rehearing En
2 E
Findings of Fact and Conclusion of Law of the
r
Judgment of the District Court
Federal Rules of Civil Procedure, Rule 23
oo wo do do —
10
10
21a
CITATIONS
Cases
Albemarle Paper Co. v. Moody, 422 U.S. 405
69 — 10, 11,
American Pipe & Construction Co. v. Utah, 414
r basis
American Propeller & Mfg. Co. v. United States,
fie 2, a ee
Ass’n. of Data Processing Service Organizations,
Inc. v. Camp, 397 U.S. 150 (1970)
Baumgartner v. United States, 322 U.S. 665
— .
Carey v. Greyhound Bus Co., Inc., 500 F.2d 1372
1K — —ñ
Carter v. Butz, 479 F.2d 1084 (8rd Cir.), cert. de-
nied, 414 U.S. 1094, 1103 (1973) — . .
Craft v. Memphis Light, Gus and Water Division,
534 F. 2d 684 (6th Cir. 1976)
Danner v. Phillips Petroleum Co., 447 F.2d 159
ccc
Detroit Edison Co. v. EEOC, 515 F.2d 301 (6th
Cir. 1975), pet. for cert. pending, 44 U.S.L.W.
3150, 3214 (U.S. August 14, 1975) (No. 75-
00 ̃ 2 8
Doctor v. Seaboard Coast Line R. Co., 540 F. 2d
Gehen,, eee
East v. Romine, Inc., 518 F.2d 332 (5th Cir.
— ͥ————— ntiataiensiiadiesiammieiaeaaiimmaaia
Eisen v. Carlisle & Jacquelin Co., 417 U.S. 156
TK .
Franks v. Bowman Transportation Co., 424 U.S.
920 9 ————ůů————— 10, 11,
Gamble v. Birmingham S. R. R. Co., 514 F.2d 678
/ / xx
Graniteville Co. (Sibley Division) v. EEOC, 438
A bf ££ | YS | a een on
Gray v. Greyhound Lines, East, No. 75-1631 (U.S.
D.C. App., October 13, 1976), 12 EPD {] 11,211 ..
Page
12, 13
14, 16
11
12, 18
18
18
19
— ee ee ee
CITATIONS—Continued
Hackett v. McGuire Brothers, Inc., 445 F.2d 442
D,, .
Ihre v. Northern States Power Co., 459 F. 2d 566
(8th Cir.), vacated and remanded to dismiss as
moot, 409 U.S. 815 (1972) ee.
Love v. Pullman Co., 404 U.S. 522 (19717
Martinez v. Richardson, 472 F.2d 1121 (10th Cir.
— ͤͤͤ ͤ a iai tk hei Sa
Mohr v. Jordan, 370 F. Supp. 1149 (D. Md. 1974),
aff'd. No. 74-1496, (4th Cir., filed July 31,
REESE aaa neces ar weaken Me Se Oe
Pettway v. American Cast Iron Pipe Co., 411 F.2d
, rIraeiEr ser se or
Rogers v. EEOC, 454 F.2d 248 (5th Cir. 1971),
cert. denied, 406 U.S. 957 (1972) ⸗:· 7
Sanchez v. Standard Brands, Inc., 431 F.2d 455
% / ahaa igen
Sibbach v. Wilson & Co., 312 U.S. 1 (19417
Simon v. Eastern Kentucky Welfare Rights Or-
ganization, 96 S. Ct. 1917 (19760)
Sprogis v. United Air Lines, Inc., 444 F.2d 1194
(7th Cir.), cert. denied, 404 U.S. 991 (1971)
Sullivan v. Little Hunting Park, 396 U.S. 229
WW G ace ee
Tipler v. E. I. duPont de Nemours Co., 443 F.2d
ee, See
Trafficante v. Metropolitan Life Ins. Co., 409 U.S.
1 K AA 8
United States v. Forness, 125 F.2d 928 (2nd Cir.),
cert. denied, 316 U.S. 694 (1942) 8
Warth v. Seldin, 422 U.S. 490 (1975)
Waters v. Heublein, Inc., — F.2d ——, 45
U.S. L. W. 2260 (7th Cir. November 12, 1976)
Wells Benz, Inc. v. United States, 333 F. 2d 89 (9th
/ d aes le areas
Wilson v. Zarhadnick, 534 F.2d 55 (5th Cir.
1—è HH ie biatiealid
Page
19
16
17
16
16
17
19
18
13
18
14, 15
Iv
CITATIONS—Continued
Page
Constitutional Provision:
ee 18, 19
Statutes and Rules:
| x ————— . a 3%. ©
42 U.S.C. §§ 2000e et seg. [Title VII of the Civil
Rights Act of 196444 5, 11, 12, 18, 14, 15, 17
42 U.S.C. § 20000-2(a) (1!) ————————— 3,13
423 U.S.C. 6 20000-B(a) ( ——— 3, 19
E ——— 8
42 U.S.C. 5 2000e-5 (b) n 3, 17, 19
42 U.S.C. § 2000e-5(g) )) 4, 8, 10, 11, 13, 14, 15
Federal Rules of Civil Procedure
Rule 7 (e) — — — 14
Rule 23 6 4, 5, 9, 10, 11, 13, 14, 15, 16
1111111 7, 9, 21
Other Authorities:
Comptroller General: Report to Congress: The
Equal Employment Opportunity Commission
Has Made Limited Progress in Eliminating Em-
ployment Discrimination (19700 20
5 Wright & Miller, Federal Practice & Procedure
— ͤ ͤ — 14
— a ee
IN THE
Supreme Court of the United States
OCTOBER TERM, 1976
No.
WINIFRED S. NANCE,
vs.
UNION CARBIDE CORPORATION, CONSUMER
PRODUCTs DIVISION,
Respondent.
Petitioner,
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioner, Winifred S. Nance, respectfully prays that
a writ of certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the
Fourth Circuit entered in this proceeding on July 28,
1976, rehearing and rehearing en banc having been de-
nied September 23, 1976.
OPINIONS BELOW
The opinion and judgment of the Court of Appeals,
reported at 540 F.2d 718, are reprinted in the Appendix
infra at 1a-20a and 21a, respectively. The order of the
Court of Appeals denying Petitioner’s petition for re-
hearing is set out in the Appendix infra at 22a. The
Findings of Fact and Conclusions of Law of the United
States District Court for the Western District of North
Carolina, reported at 397 F. Supp. 436, are set out in
2
the Appendix infra at 23a-72a. The judgment of the
District Court, which is not reported, is set out in the
Appendix infra at 73a-81a.
JURISDICTION
The judgment of the Court of Appeals was entered
on July 28, 1976. Petitioner’s timely petition for re-
hearing and rehearing en banc was denied on September
23, 1976. This Court’s jurisdiction is invoked under 28
U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. Whether Rule 23 of the Federal Rules of Civil
Procedure can be applied as a matter of law to limit the
remedial authority of the district courts under § 706(g)
of Title VII to grant comprehensive “make whole” relief
to an individual employee who has been found to be a
victim of systemic and institutional employment discrim-
ination but who has opted not to seek class certification
under Rule 23?
2. Whether the Court of Appeals erred in its reliance
upon matters contained in letters from the district court
to counsel as the proper standard by which to review
the claims of an individual employee challenging systemic
and institutional employment discrimination?
STATUTORY PROVISIONS INVOLVED
Rules Enabling Act, 28 U.S.C. § 2072, as amended:
The Supreme Court shall have the power to pre-
scribe by general rules, the forms of process, writs,
pleadings, and motions, and the practice and pro-
cedure of the district courts and courts of appeals
of the United States in civil actions, including ad-
miralty and maritime cases, and appeals therein,
and the practice and procedure in proceedings for
the review or enforcement of orders of administra-
tive agencies, boards, commissions, and officers.
Such rules shall not abridge, enlarge or modify
any substantive right and shall preserve the right of
trial by jury as at common law and as declared by
the Seventh Amendment to the Constitution.
The pertinent sections of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seg., as amended,
provide:
Sections 703 (a) (1) and (a) (2) 42 U.S.C. § 2000e-
2 (a) (1) and 2(a) (2):
It shall be an unlawful employment practice for
an employer
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national
origin.
(2) to limit, segregate, or classify his employees
or applicants for employment in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such in-
dividual’s race, color, religion, sex, or national origin.
Section 706 (b), 42 U.S.C. § 2000e-5 (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, em-
ployment agency, labor organization, or joint labor-
management committee controlling apprenticehip or
other training or retraining, including on-the-job
training programs, has engaged in an unlawful em-
ployment practice, the Commission shall serve a
notice of the charge (including the date, place and
circumstances of the alleged unlawful employment
practice) on such employer, employment agency,
4
labor organization, or joint labor-management com-
mittee (hereafter referred to as the respondent“)
within ten days, and shall make an investigation
thereof. Charges shall be in writing under oath or
affirmation and shall contain such information and
be in such form as the Commission requires.
Section 706(g), 42 U.S.C. § 2000e-5 (g):
If the court finds that the respondent has inten-
tionally engaged in or is intentionally engaging in
an unlawful employment practice charged in the
complaint, the court may enjoin the respondent from
engaging in such unlawful employment practice, and
order such affirmative action as may be appropriate,
which may include, but is not limited to, reinstate-
ment or hiring of employees, with or without back
pay (payable by the employer, employment agency,
or labor organization, as the case may be, respon-
sible for the unlawful employment practice), or any
other equitable relief as the court deems appropriate.
Back pay liability shall not accrue from a date more
than two years prior to the filing of a charge with
the Commission. Interim earnings or amounts earn-
able with reasonable diligence by the person or per-
sons discriminated against shall operate to reduce
the back pay otherwise allowable. No order of the
court shall require the admission or reinstatement
of an individual as a member of a union, or the hir-
ing, 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 discharged for any reason other than discrimina-
tion on account of race, color, religion, sex, or na-
tional origin or in violation of section 704 (a).
FEDERAL RULES OF CIVIL PROCEDURE
The case involves the provisions of Rule 23, Federal
Rules of Civil Procedure, fully set out in the Appendix
infra at 82a-85a.
5
STATEMENT OF THE CASE
This action was filed in the United States District
Court for the Western District of North Carolina on
August 18, 1972 in which Petitioner, a female employee
of the Respondent, alleged discrimination based on sex
in employment as being in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 88 2000e et seg.
Petitioner alleged that the Respondent had engaged in
systemic and institutional practices of discrimination
_ based on sex prior to the effective date of Title VII
(July 2, 1965); that the effects of those practices were
continuing into the post-Act period; and that she was a
person aggrieved by these practices. Petitioner began
her employment with Respondent on July 8, 1952.
The district court ordered Petitioner to file a state-
ment on the class aspects of the case and on November
20, 1972, she filed the following statement:
This action was not brought as a class action
pursuant to Rule 23(a) (b) (2) of the Federal Rules
of Civil Procedure, when the action was initially
filed in Court on August 18, 1972. [Petitioner]
does not contemplate at this time seeking to amend
the Complaint to allege a class action, however,
[Petitioner] is of the opinion that whatever bene-
fits she may obtain in this action should inure to
the benefit of other similarly situated females of
the [Respondent] in the Mecklenburg County fa-
cilities of the [Respondent].
However, Petitioner filed her action as an individual
action and at no time sought class certification pursuant
to Rule 23 of the Federal Rules of Civil Procedure.
Respondent, relying upon the charges Petitioner filed
with the Equal Employment Opportunity (EEOC), chal-
lenged the standing of Petitioner to seek relief from
across-the-board sex based employment practices and
6.
moved the court to restrict Petitioner’s action to the
narrow question relating to the correctness of her sen-
iority date. The district court rejected this challenge after
reviewing the complete files from the District Office of
the EEOC. (64a-66a) The court found that Petitioner’s
claims of sex based discrimination in “promotions, job
classifications, and terms and conditions of employment“
were fully advanced before the EEOC and were con-
sidered or should have been considered by the EEOC?
prior to its issuance of notice of her right to seek relief
in the district court. (65a; 66a)
The trial began on March 12, 1974 and was adjourned
after eight days. Shortly after the adjournment, the
district judge sent several letters to counsel requesting
the submission of proposed findings of fact to help
1 Petitioner filed a number of charges with the EEOC between
March 30, 1970 and February 25, 1971. In a February 25, 1971
charge, which was the principal charge relied upon by the district
court to decide whether Petitioner had standing to raise broad based
claims of employment discrimination (64a), Petitioner alleged:
“I and other females allege discrimination in terms and con-
ditions of our employment because of sex in that,
1. Jobs are being changed so that they can be classified
as male jobs.
2. Males are recalled with less seniority in preference to
females with more seniority.
3. Females are denied an opportunity to use company
service date at times of lay-off.
4. Males have job rights and department rights over
women.
5. Males are allowed to quit and return and gain com-
pany service while females are denied.
6. Rules are being changed to deny females and favor
males.
7. Females are told if they accept a heavy job and can-
not perform, they will be discharged.
8. Routine inspection test does not pertain to the job
and never given the results of the test.”
7
“sharpen the issues” as an aid to the court in arriving
at an “orderly final decision.” ?
More than seven months after these letters, the trial
was resumed and concluded on December 11, 1974. There-
after, on April 28, 1975 the district court entered com-
prehensive and detailed Rule 52(a) findings of fact. The
On April 1, 1974, the district judge sent the following letter:
Gentlemen:
I have not yet been able to set a time to complete the taking
of evidence. It has occurred to me that we might save some
wheel spinning if we do a little skull work before the resump-
tion of hostilities.
With this in mind, and to sharpen the issues so that I can
tell what I am trying to decide, I shall be grateful if you
gentlemen will do the following: ‘
Plaintiffs are requested to draft proposed findings of fact
in brief form, including a simple statement of the facts on the
basis of which plaintiffs say that Mrs. Nance and others lost
seniority before 1967 because of sex. In other words, what
were the events which produced a loss of seniority and what
amount of seniority was thereby lost and why was it dis-
criminatory? Plaintiffs are further requested to indicate what
methods may be possible to remedy any residual effects of such
loss of seniority, if the court finds such loss to have occurred.
Defendants are requested to prepare proposed findings of
fact in favor of the defendants on all of the separate issues that
were raised at trial which do not have to do with the single
issue of loss of seniority.
If you will prepare and file this information by April 15th or
thereabout, I shall be grateful. It will help in winding up the
remaining testimony, and also in trying to arrive at an orderly
final decision.
On April 18, 1974, the district court sent the following letter:
Dear Mr. Ogletree:
* * * *
My April 1, 1974 letter may have been too broad in the last
paragraph on Page 1. Although I do not remember the testi-
mony very well, it seems to me there is probably evidence
which would suggest a change in past or in existing practices
about posting or not posting notices of vacancies and avail-
able promotions. Perhaps I should therefore have asked plain-
tiffs’ counsel to draft something on that subject, but I shall
be glad for you to tender something on that point also.
district court found that Petitioner had been a victim
of comprehensive and systemic sex based discriminatory
employment practices.“ (28a-64a) The practices found
to be unlawful included the seniority system (28a-33a) ;
lay-off and recall procedures (41a-43a); testing prac-
tices (43a-46a); supervisory selection procedures (48a-
49a); and a disguised form of sex stereotyped job clas-
sifications (34a-39a; 54a). None of these practices were
held to be supported or required by business necessity
(57a) nor protected under the bona fide occupation
qualification exception provided in 3 703 (e) of Title
VII, 42 U.S.C. § 2000e-2(e). (57a-58a)
In October, 1975, the district court entered a com-
prehensive judgment (73a-8la) under its authority in
706 (g) of Title VII, 42 U.S.C. § 2000e-5(g). The dis-
trict court deemed the judgment necessary “to remedy
the present and continuing discrimination based on sex
and to remedy the competitive seniority disadvantage to
[Petitioner] stemming from the [Respondent’s] practices
of maintaining segregated jobs and rosters, and promo-
tions, transfers, lay-offs and recall procedures based on
sex.” (58a-60a) Specific relief in the nature of back
pay was awarded only to Petitioner. (79a)
For example: The district court found that from 1956 until
November 18, 1969—more than four years after the effective date
of Title VI1I—Respondent maintained an open and declared policy
and practice of segregating its work force based on sex. (29a)
The first female foreman at the Respondent’s Charlotte plant was
not selected until shortly after the complaint was filed (48a);
and the court found that supervisory selection procedures were
based on “purely subjective standards [with] no safeguards in these
procedures designed to avert discrimination against females.”
(49a) Femarles were not allowed to take tests used by the
Respondent at least since 1952 for certain jobs designated male jobs
until five years after the effective date of Title VII; even then the
court found that these “old tests” had a disparate impact on females
and were not job related. (43a-46a) New tests were instituted
in 1971, but the court found these “new tests” invalid under de-
cisions of this Court and the EEOC guidelines. (54a; 59a)
On Respondent’s appeal, the Court of Appeals vacated
the judgment of the district court and limited Petitioner’s
relief to only a consideration of an adjustment of her
seniority date and the recognition of her right to back
pay, costs and attorneys’ fees. (la-20a) The Court of
Appeals held as a matter of law that a federal court is
without authority to award comprehensive injunctive re-
lief to an individual found to be a victim of discrimina-
tion prohibited by Title VII unless the action has been
properly certified as a class action under Rule 23 of the
Federal Rules of Civil Procedure. (2a-9a) In reliance
upon several letters that the district judge sent to coun-
sel requesting proposed findings prior to the entry of
Rule 52(a) findings the court below held also that cer-
tain of Petitioner’s allegations made in her EEOC charges
were not entitled to plenary consideration. The Rule
52(a) findings of broad based sex discriminatory prac-
tices of the Respondent other than Petitioner’s seniority
status were “briefly discussed” by the court below caly
because the parties had “devoted some parts of their
argument” to them. (9a-10a) Petitioner’s petition for
rehearing and rehearing en banc was denied on Sep-
* These letters are set out at n. 2, supra. In refusing to accord
plenary treatment to all of Petitioner’s claims, the court of appeals
held:
. . . It must be assumed from [the district judge’s letter of
April 1, 1976] that the trial judge found that, so far as her
individual claim was concerned, the [Petitioner] was only
“aggrieved” by her loss of seniority status, and he intended
to limit her relief to this single specific claim of discrimina-
tion. The testimony at trial, it is true, had churned up some
other issues not concerned with broad, continuing sex dis-
crimination on [Respondent’s] part, but issues involving prac-
tices long since abandoned by the [Respondent]. These ad-
ditional issues, the trial court seemingly regarded as wanting
in substance, according to his joint letter to counsel to which
we have previously referred. Since, however, both parties have
devoted some parts of their argument to these other issues,
we shall briefly discuss them.
(10a).
10
tember 23, 1976 except for correction of a factual mis-
take. (22a)
REASONS FOR GRANTING THE WRIT
The Petition Presents An Important Question of Fed-
eral Law Concerning the Relationship Between the Class
Action Procedures Under Rule 23 of the Federal Rules
of Civil Procedure and the Remedial Authority of Fed-
eral Courts Under Section 706(g) of Title VII
The critical issues of employment discrimination law
at present involve remedies. This Court has decided
several significant Title VII cases over the past several
Terms involving the scope of the remedial authority of
the federal courts under § 706(g) of Title VII, 42 U.S.C.
§ 2000e-5(g). These cases were race discrimination cases
that had been certified as class actions under Rule 23
of the Federal Rules of Civil Procedure. Franks v.
Bowman Transportation Co., 424 U.S. 747 (1976) ; Albe-
marle Paper Co. v. Moody, 422 U.S. 405 (1975). This
case brings before the Court an important question of
federal law involving the authority of the federal courts
to award “make whole” injunctive relief to an individual
plaintiff who has been found to be a victim of past and
continuing systemic employment discrimination but who
has opted not to pursue the action as a class action under
Rule 23. That question is: Upon a finding of systemic
and institutional employment discrimination as the find-
ings of the district court herein so clearly demonstrate,
is an individual who has been found to be a victim of
that discrimination entitled to injunctive relief under
706 (g) of Title VII that affirmatively disestablishes
that system, even though the action is not brought as a
class action under Rule 23 and even though the dises-
tablishment of the offending system would also operate,
of necessity, in favor of other similarly situated persons?
4
‘
'
:
|
:
11
The decision of the Court of Appeals interposes a
general prohibtion on the authority of federal courts to
award comprehensive and necessary relief to individual
victims of employment discrimination. The court found
a barrier neither in the s.atutory language nor the legis-
lative history of Title VII nor in the findings of fact
made by the district court, but in the provisions of
Rule 23 of the Federal Rules of Civil Procedure. If the
decision is correct, no federal court would have the au-
thority to grant effective relief from systemic and in-
stitutional employment discrimination to an individual
victim unless the case is certified as a class action® or
brought as a “pattern and practices” case by the EEOC.*
The principle announced below is inconsistent with the
remedial purposes of Title VII and with the construc-
tion of § 706(g) of the Act established by this Court in
Franks v. Bowman Transportation Co., 424 U.S. 747
(1976) and Albemarle Paper Co., 422 U.S. 405 (1975).
The decision below also abridges Petitioner’s substantive
rights under Title VII in contravention of the Rules
Enabling Act, 28 U.S.C. § 2072, as amended.
This Court has emphatically confirmed the Congres-
sional mandate in § 706 (g) that gives federal courts
plenary remedial power to make victims of unlawful
discrimination whole because the attainment of this ob-
jective requires that persons aggrieved by the conse
quences of the unlawful employment practice be, so far
‘Efforts to obtain class certification under Rule 23 can add
troublesome roadblocks to persons already aggrieved by employ-
ment discrimination as is illustrated in the Fourth Circuit’s opin-
ion in Doctor v. Seaboard Coast Line R. Co., 540 F.2d 699, 704-710
(4th Cir. 1976); see also Hisen v. Carlisle & Jacquelin, 417 U.S
156 (1973).
*§ 707, 42 U.S.C. § 2000e-6; see Detroit Edison Co. v. EEOC, 515
F. 2d 301, 310-312 (6th Cir. 1975), pet. for cert. pending, 44 U.S.L.W.
3150, 3214 (U.S. August 14, 1975) (No. 75-393) (EEOC not sub-
ject to class action rules under Rule 23).
12
as possible, restored to a position where they would have
been were it not for the unlawful discrimination. Thus
this Court has established a remedial standard that ef-
fective relief in Title VII cases can be denied “only for
reasons which, if applied generally, would not frustrate
the central statutory purposes of eradicating discrimina-
tion throughout the economy and making persons whole
for injuries suffered through past discrimination.” Franks
v. Bowman Transportation Co., supra at 771; Albemarle
Paper Co. v. Moody, supra at 421.
The construction of 706(g) established by this Court
is premised on Congressional recognition that unlawful
systemic and institutional employment discrimination re-
quires substantial modification or abolition of all of the
systemic features that create or perpetuate these prac-
tices because,
Employment discrimination as viewed today is
a... complex and pervasive phenomenon. Experts
familiar with the subject now generally describe the
problem in terms of ‘systems’ and ‘effects’ rather
than simply intentional wrongs, and the literature
on the subject is replete with discussions of, for ex-
ample, the mechanics of seniority and lines of pro-
gression, perpetuation of the present effects of pre-
Act discrimination through various institutional de-
vices, and testing and validation requirements.
Franks v. Bowman Transportation Co., supra at 764 n.
21, citing, S. Rep. No. 92-415, p. 5.
The Court of Appeals did not disturb the ultimate
finding’ of the district court that Respondent had en-
The Court of Appeals ruled that,
It is conceded by the [Respondent] that in the pre-Act
period, the jobs in certain departments were reserved exclu-
sively for male employees and that in periods of layoff only
qualified male employees could bid on the jobs in these depart-
ments. Such a system obviously gave the male employee a pre-
ferred opportunity to protect his ‘company service’ over the
— — —
„„
5
A
1
13
gaged in discrimination made unlawful under § 703 (a)
of Title VII thus requiring a grant of relief under § 706
(g). Nevertheless, the Court of Appeals denied complete
relief on the basis that comprehensive and systemic re-
lief is available only upon a showing that an individual
plaintiff has sought and was granted class certification
pursuant to Rule 23 of the Federal Rules of Civil Proce-
dure. (4a-9a)
The Court of Appeals’ theory of borrowing Rule 23
to limit the authority of the district courts is incom-
patible not only with the obligation of the federal courts
under § 706 (g) as construed by this Court in Franks,
supra and Moody, supra, but that theory abridges Peti-
tioner’s substantive rights under Title VII in contraven-
tion of the Enabiing Act, 28 U.S.C. § 2072, as amended,
in 1966. The Enabling Act of 1934 gives this Court the
authority to prescribe the Federal Rules of Civil Proce-
dure. An important proviso in the Enabling Act is that
the rules so prescribed “shall not abridge, enlarge, nor
modify substantive rights” in the guise of regulating
procedure. 28 U.S.C. § 2072; American Pipe & Construc-
tion Co. v. Utah, 414 U.S. 538, 556 (1974); Sibbach v.
Wilson & Co., 312 U.S. 1, 11 (1941). The principal pur-
pose of Rule 23 is to provide a procedure for efficient
and economical litigation designed to avoid multiplicity
of activity where class action designation is found to be
superior to other methods for the fair and efficient ad-
female employee. This more extensive opportunity in bidding
for vacancies during layoffs on part of male employees was a
discrimination against female employees, and because that dis-
crimination was carried over in the operation of the post-Act
system. To such extent as the [Petitioner] was prejudiced
thereby in the computation of her, company service, or seniority
rights, she is entitled to relief.
(18a) See Baumgartner v. United States, 322 U.S. 665, 671 (1944);
East v. Romine, Inc., 518 F.2d 332, 338-339 (5th Cir. 1975) on
distinction between “ultimate fact” and “subsidiary fact” for pur-
poses of appellate review.
14
judication of the controversy. American Pipe & Construc-
tion Co. v. Utah, 414 U.S. 588, 551, 553 (1974).
Rule 23 is a procedural device of judicial administra-
tion. The relief to be awarded in any Title VII case—
class action or individual—is substantive rather than
administrative. Thus the decision of the court below
holding that Rule 23 limits the remedial authority of
federal courts provided in § 706 of Title VII is reminis-
cent of the days when the substantive rights of parties
were decided on the basis of procedural technicalities.
See Rule 7(c) of the Federal Rules of Civil Procedure;
5 Wright & Miller, Federal Practice and Procedure
§ 1181 (1969).
II
The Decision Below Conflicts With Decisions Of Other
Courts of Appeals on the Same Matter
The decision below holding that Rule 23 limits the
authority of the federal court to grant systemic relief to
individual victims of employment discrimination conflicts
with decisions of other courts. In Carey v. Greyhound
Bus Co., Inc., 500 F.2d 1872 (5th Cir. 1974), the Fifth
Circuit held that a single employee found to have suf-
fered from a violation of Title VII is entitled to “make
whole” relief requiring the abolition of the offending
discriminatory system even if a district court, under
correct standards, decides that class certification under
Rule 23 is inappropriate:
. . Carey also seeks to have provisions of the
collective bargaining agreement declared discrimina-
tory and defendant enjoined from applying them.
If the class action is allowed, this question becomes
moot. If class action is denied, plaintiff’s point would
be well taken, and he should be afforded abolition
of the system—not just the prevention of its applic-
ability to him.
500 F.2d at 1381.
—— ete ** ä—— 8
— te aioe
:
:
|
15
In Sprogis v. United Air Lines, Inc., 444 F.2d 1194
(7th Cir.), cert. denied, 404 U.S. 991 (1971), the Sev-
enth Circuit held that, Rule 23 notwithstanding, § 706
(g) of Title VII grants federal courts plenary power to
enter a judgment in an action brought as an individual
action that affords class wide relief to other similarly
situated employees. 444 F.2d at 1201-1202. Sprogis is
bottomed on the recognition that Title VII protects im-
portant substantive rights and that a Title VII suit is
necessarily a class action as the evil sought to be reme-
died is discrimination on the basis of class characteristics,
e. g., sex. The Seventh Circuit accorded the necessary
recognition to the fact that federal courts have a special
responsibility in the public interest to devise remedies
which effecutate the policies of Title VII as well as to
afford private relief to the individual employee institut-
ing the complaint.
In Tipler v. E. I. duPont de Nemours Co., 443 F.2d
125 (6th Cir. 1971), the Sixth Circuit held that although
a Title VII action is not labeled a class action, it is per-
force a sort of class action for fellow employees simi-
larly situation. Thus the Sixth Circuit held that if an
individual plaintiff is successful in establishing a viola-
tion of the Act, the relief would inure to the benefit of
fellow employees by providing relief against a wide range
of past and present discriminatory employment prac-
tices. 443 F.2d at 130.
The conflict between the circuit courts is not limited
to Title VII cases. In an analogous line of cases, courts
have denied class certification on the ground that in cases
in which injunctive relief is sought, such relief to the
extent granted, will inure to the benefit of others simi-
larly situated. The ruling in these cases is based upon
the notion that no useful purpose would be served by
certifying the action as a class action because the legality
or non-legality of the challenged rules and regulations
16
can be determined to be constitutional or unconstitu-
tional regardless of whether the action is treated as an
individual action or as a class action. Craft v. Memphis
Light, Gas and Water Division, 534 F.2d 684, 686 (6th
Cir. 1976) ; Ihrke v. Northern States Power Co., 459 F.
566, 572 (8th Cir.), vacated and remanded to dismiss as
moot, 409 U.S. 815 (1972); Carter v. Butz, 479 F.2d
1084, 1089 (3rd Cir.), cert. denied, 414 U.S. 1094, 1103
(1973) ; Martinez v. Richardson, 472 F.2d 1121, 1126-27
(10th Cir. 1973).
The conflict between the circuits on whether Rule 23
limits the remedial authority of the federal court is not
likely to be resolved by future cases in the courts of
appeals. For example, in a case decided prior to Carey
v. Greyhound Bus Co., Inc., supra, the Fifth Circuit held
in a Title VII sex discrimination case that Rule 23 pro-
hibits a court from entering relief in an individual case
that inures to other similarly situated females unless
the action is a certified Rule 23 class action. Danner v.
Phillips Petroleum Co., 447 F.2d 159, 164 (5th Cir.
1971). But in a case decided subsequent to Carey, supra,
the Fifth Circuit held in a plaintiff-prisoner case that
Rule 23 prohibits a court from granting injunctive re-
lief that requires a state to provide access to legal mate-
rials unless a class action is pleaded in the complaint.
Wilson v. Zarhadnick, 534 F.2d 55 (5th Cir. 1976).
Similarly, the Fourth Circuit affirmed without opinion
a decision of a lower court which had denied class action
certification on the ground that the injunctive relief
would inure to the benefit of others similarly situated
even absent Rule 23 class certification. Mohr v. Jordan,
370 F. Supp. 1149, 1151 n. 3 (D. Md. 1974), aff'd. (No.
74-1496, 4th Cir., filed July 31, 1974). However, in the
instant case, the Fourth Circuit ruled that an individual
plaintiff is not entitled to broad injunctive relief unless
class certification is granted.
—
ee aE, Vata
—
17
The conflict among the circuits on this question justi-
fies the grant of certiorari to review the judgment below.
III
The Decision Below Represents A Legally Insupportable
Departure From the Doctrine of Standing
The Court of Appeals summarily rejected practically
all of Petitioner’s claims of employment discrimination
for two reasons. First, the court failed to apply the ap-
propriate standing test to the allegations made by Pe-
titioner in charges that she had filed with the EEOC.
Secondly, the court focused upon a letter, see n. 2, supra,
that the district judge sent to counsel—rather than the
charges Petitioner had filed with the EEOC—as the basis
upon which to determine what claims of Petitioner were
entitled to plenary judicial consideration. (9a-10a) The
decision below thus raises important constitutional, statu-
tory and policy considerations growing out of the bona
fide efforts of “laymen, unassisted by trained lawyers,” “
to invoke the jurisdiction of the federal courts to seek
vindication of their rights under Title VII.
1. The Appropriate Standing Test: A person claim-
ing to be aggrieved by a violation of Title VII may not
invoke the jurisdiction of a federal court until he has
first unsuccessfully pursued certain avenues of potential
administrative relief which must be initiated with the
filing of a charge with the EEOC. § 706, 42 U.S.C.
§ 2000e-5; Love v. Pullman Co., 404 U.S. 522 (1971).
The courts have thus adopted a rule that a complaint
filed in the federal courts under Title VII may allege
and raise issues of employment discrimination “like or
related” to the claims contained in the charge filed with
the EEOC and/or growing out of such allegation during
See Love v. Pullman Co., 404 U.S. 522, 527 (1971); Pett Vv
American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969). N
18
the pendency of the charge before the EEOC. E. g.,
Gamble v. Birmingham Southern R.R. Co., 514 F. 2d
678, 689 (5th Cir. 1975); Graniteville Co. (Sibley Di-
vision) v. EEOC, 438 F.2d 32, 38 (4th Cir. 1971);
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463
(5th Cir. 1970). The “like and related“ doctrine is thus
rooted in traditional notions of standing.
The law of standing has two aspects. As a constitu-
tional doctrine, founded in the restrictions imposed on
the judicial power by Article III of the Constitution, the
standing rules impart justiciability: whether the plain-
tiff has made out a “case or controversy” within the
meaning of Article III. Warth v. Seldin, 422 U.S. 490,
498 (1975) In sum, when plaintiff’s standing is brought
into issue the relevant inquiry is whether, assuming
justiciability, the plaintiff has shown injury to himself
that is likely to be redressed by a favorable decision,
Simon v. Eastern Kentucky Welfare Rights Organiza-
tion, 96 S.Ct. 1917, 1925, 1926 (1976) or “injury in
fact.” Ass’n. of Data Processing Service Organizations,
Inc. v. Camp, 397 U.S. 150, 152 (1970). In addition
to its constitutionally based requirement, the standing
doctrine incorporates a prudential limitation on the ju-
dicial power by demanding that the interest of the plain-
tiff, regardless of its nature in the absolute, at least be
arguably within the zone of interests to be protected
or regulated by the statutory framework within which
his claim arises. Simon v. Eastern Kentucky Welfare
Rights Organization, supra at 1924; Ass’n. of Data Proc-
essing Service Organizations, Inc. v. Camp, 317 U.S. at
153.
In some statutory schemes, Congress has itself de-
termined that standing should be granted to anyone who
satisfies the constitutional requirements. Sullivan v. Little
Hunting Park, 396 U.S. 229, 237 (1969); cf. Franks
v. Bowman Transportation Co., supra at 752-757. Title
PONE Senora wen we Ne ete a acne lei ilies
RAR Re ae
a eee eee eed
|
)
19
VII is such a statute. The use in § 706 (b), 42 U.S.C.
§ 2000e-5(b) of the language “a person claiming to be
aggrieved” shows a Congressional intention to define
standing as broadly as is permitted by Article III of
the Constitution. Gray v. Greyhound Lines, East, No.
75-1631 (U.S.D.C. App., October 13, 1976), 12 EPD
11,211; Hackett v. McGuire Brothers, Inc., 445 F.2d
442, 446 (3rd Cir. 1971) ; Waters v. Heublein, Inc., ——
F.2d —— (7th Cir., November 12, 1976), 45 U.S.L.W.
2260. See also Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205 (1972) citing with approval Hackett v.
McGuire Bros., Inc., supra. Petitioner made claims that
she is a person aggrieved within the meaning of § 706
(b) and the allegations that she made in her charges
filed with the EEOC and in her complaint filed in the
district court were broad based claims of systemic,
across-the-board allegations of sex discrimination which
the district court found caused her “injury in fact”. See
n. 3 supra. The allegations asserted by the Petitioner
in her charges are interests clearly within the scope of
Title VII’s protection against sex discrimination in
“terms, conditions, or privileges of employment.” § 703
(a) (2), 42 U.S.C. § 2000e-2(a) (2). Indeed, if such ma-
ters as supervisory selection procedures, weight lifting
limitations, posting of job notices, assignment of work,
ete., were not consider2d “terms, conditions or privileges
of employment,” it would be difficult to give that language
any meaning at all. Gray v. Greyhound Lines, East,
supra at 5582. In Rogers v. EEOC, 454 F.2d 234, 238
(5th Cir, 1971), cert. denied, 406 U.S. 957 (1972), the
court held that the language in § 703 of Title VII, 42
U.S.C. § 2000e-2
. evinces a Congressional intention to define
discrimination in the broadest possible terms. Con-
gress chose neither to enumerate specific discrimin-
atory practices, nor to elucidate in extenso the
parameters of such nefarious activities. Rather, it
20
pursued the path of wisdom by being unconstric-
tive, knowing that constant change in the order of
the day and that seemingly reasonable practices of
the present can easily become the injustices of the
morrow. Time was when employment discrimination
tended to be viewed as a series of isolated and dis-
tinguishable events, manifesting itself, for example,
in an employer’s practices of hiring, firing, and pro-
moting. But today employment discrimination is a
far more complex and pervasive phenomenon, as the
nuances and subleties of discriminatory employment
practices are no longer confined to bread and butter
issues. (emphasis supplied)
The standard adopted by the court below to determine
Petitioner’s standing was not the substantive “like and
related” constitutionally based standard but rather a
standard apparently fashioned for this case and premised
upon a procedural trial practice of the district court
in requesting counsel to submit proposed finding designed
to facilitate a final disposition. The standard adopted
by the court below is no standard at all when measured
against well established principles of standing. The de-
cision, if allowed to stand, will have a severe adverse
impact not only upon the efforts of individual plaintiffs
claiming to be aggrieved, cf. Doctor v. Seaboard Coast
Line R. Co., 540 F.2d 641 (4th Cir. 1976), but also
upon the effectiveness of the EEOC to carrying out its
mandate under Title VII.“
2. Reliance Upon Letter to Counsel: Finally, the
procedure used by the court below to test the sufficiency
of the decision made by the district court is open to seri-
ous question. The record shows clearly that the district
„The comptroller general has issued a report showing that as of
June 30, 1975, the EEOC had a backlog of charges that totaled
123,340, some of which dated back to fiscal year 1968. Comp-
troller General: Report to the Congress: The Equal Employment
Opportunity Commission Has Made Limited Progress in Eliminat-
ing Employment Discrimination, at 9 (1976).
See SS ae
Paes a
— —
21
court carefully reviewed the charges filed by the Peti-
tioner with the EEOC and found not only that all of the
claims were properly before the EEOC (64a-66a) but
also that Petitioner was a victim of all of these claims.
The refusal of the court below to respect those facts and
those findings and the action of the Fourth Circuit re-
viewing the record de novo and in making its own find-
ings as to the discrimination to which Petitioner was
and was not subject cannot be justified. It is a well
established rule that an appellate court cannot refer to
extraneous matters or opinions for the purpose of im-
peaching Rule 52(a) findings.“ American Propeller &
Mfg. Co. v. United States, 300 U.S. 475, 479 and n. 2
(1937) ; Wells Benz, Inc. v. United States, 333 F.2d 89,
93-94 (9th Cir. 1964); United States v. Forness, 125
F.2d 928, 942 (2nd Cir.), cert. denied, 316 U.S. 694
(1942).
10
. it is well settled that an appellate court may not refer
to a memorandum opinion for the purpose of impeaching find-
ings .... and the same rule, in our estimation applies with
particular force to oral observations and comments. ‘Often a
strong impression that, on the basis of the evidence, the facts
are thus-and-so gives way when it comes to expressing that
impression on paper.’
Wells Benz, Inc. v. United States, 333 F.2d 89, 94 ;
(citations omitted.) (9th Cir. 1964)
22
CONCLUSION
The Court should grant a writ of certiorari to review
the judgment and opinion of the Court of Appeals.
Respectfully submitted,
ROBERT BELTON
Post Office Box 6057
Station B, University Station
Nashville, Tennessee 37235
JONATHAN WALLAS
Suite 730
East Independence Plaza
951 South Independence Blvd.
Charlotte, North Carolina 28202
Attorneys for Petitioner
rrr hh
APPENDIX
— — ——
la
DECISION OF THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NANCE
V.
UNION CARBIDE CORP.
Before BUTZNER, RUSSELL and WIDENER, Circuit Judges
Decided July 28, 1976
RUSSELL, CIRCUIT JUDGE:
This appeal arises out of an action charging sex dis-
crimination in employment rights under Title VII. After
trial, the District Court granted both individual and
broad class relief. The defendant has appealed. We
modify the decree and remand for entry of decree as
hereinafter indicated.
The plaintiff is a female employee at the Charlotte,
North Carolina battery plant of the defendant. Her em-
ployment began in 1952 and has been continuous since,
save for layoffs. Following a layoff in January, 1970,
she filed with the Equal Employment Opportunity Com-
mission over a period of some eleven months a suc-
cession of five charges alleging sex discrimination. All
1 Hereafter referred to as EEOC.
2a
arose basically out of her layoff. Following receipt from
the EEOC of a “suit letter,” this judicial action was
begun, and after trial, resulted in the judgment from
which this appeal is taken.“
A preliminary issue, earnestly pressed by the defendant
and briefed by both parties, is whether this action is to be
treated as a class action or as an individual action.
Concededly it was brought as an individual action.* This
individual character of the action was not merely af-
firmed in the complaint as filed, it was so stipulated
categorically in the record by the plaintiff herself at an
early stage of the proceedings. This stipulation resulted
from a motion by the defendant for a more definite state-
ment by the plaintiff, setting forth the persons or class,
if any, the plaintiff sought to represent. By this motion
the defendant manifestly sought to establish definitely and
finally whether the plaintiff intended to make any claim
that her action was a class action. The motion was
denied by the Court on the express condition “that the
plaintiff would] plead or file stipulations with regard
to the class action aspects of the case, indicating more
specifically the make-up of the class and the identity of
the plaintiffs.” By way of answer to such order, the
plaintiff filed of record a stipulation to the effect that
she did “not contemplate at this time seeking to amend
the complaint to allege a class action, however, the plain-
tiff is of the opinion that whatever benefits she may
obtain in this action should inure to the benefit of other
similar situated females” at the Charlotte plant.’
18 397 F. Supp. 436.
2 See Katz v. Carte Blanche Corporation (3d Cir. 1974) 496 F. 2d
747, 760, cert. denied 419 U.S. 885 (1974):
“* * * the plaintiff, not the judicial system, controls whether
or not to ask for class action treatment.” (Emphasis added)
* The latter part of this statement represents, as we understand
it, an expression of plaintiff’s counsel’s opinion that any legal issue
3a
At no time after the entry of this stipulation did the
plaintiff seek to convert her individual action into a class
action; she made no motion to amend her complaint to
state a class action; she at no point endeavored to de-
clare “specifically the make-up of the class and the iden-
tity of the plaintiffs” she would represent as a class rep-
resentative; in sum, she did nothing thereafter to comply
with or satisfy the requirements for both alleging and
establishing a right to proceed as a class action under
Rule 23. Moreover, in a formal order, entered on Jan-
uary 24, 1974, on the eve of the commencement of trial
in March of that year, and some eighteen months after
this action was commenced, the District Court sustained
the plaintiff's objections to certain interrogatories sub-
mitted by the defendant because of, as the Court put it,
“representations of Plaintiff’s counsel that this suit was
brought and remains an individual action and not a
class action and that back pay is not sought for, and
cannot extend as a result of this suit to anyone other
than the named plaintiff.“ Nor did the District Court
ever hold a hearing on class certification under Rule
23 or enter an order of class certification or set forth
any definition of class or classes of which plaintiff was
declared a representative or make any provision for no-
tice to any identified class, all as contemplated under
decided favorably to the plaintiff in this suit against the defendant
may be availed of by way of collateral estoppel in any individual
suit instituted or tried subsequently by one asserting the same
seniority claim as the plaintiff against the defendant. Katz v.
Carte Blanche Corporation, supra, at 762; Bradford v. Peoples
Natural Gas Company (W. D. Pa. 1973) 60 F.R.D. 432, 436.
This order creates another difficulty in possibly considering
this as a class action. Such order, entered on the eve of trial and
circumscribing defendant’s right of discovery on the assumption
the action was purely an individual one, would put the defend-
ant at a likely disadvantage at trial, if thereafter, without notice
to the defendant, the action were converted into a class action.
Such possible prejudice under such circumstances to the defendant
would make treatment of the action as a class action inequitable.
4a
Rule 23. The issue thus is whether, in these circum-
stances, and in the face of two express “representa-
tions” by the plaintiff to the Court that her action was
strictly an individual action, and in the absence of any
order of any class certification by the Court itself, this
action can fairly be declared a class action in compliance
with Rule 23.
Despite the fact that Title VII actions often are de-
scribed as “inherently class suits“ and that the require-
ments of Rule 23 “must be read liberally in the context
of suits brought under Title VII and Section 1981, .
the plaintiff in such an action, in order to establish the
right to proceed as a class representative, “must [like
any other plaintiff] establish that the action meets the
requirements of Rule 23(a) ;’ employee discrimination
suits do not represent exemptions from the terms of
such Rule.“ Rule 23 contemplates that every plaintiff, in
order to qualify for class treatment thereunder, will seek
“class relief in the complaint,“ and in the absence
of such an allegation, class treatment is generally con-
sidered inappropriate. An express ruling to this effect
was made in Danner v. Phillips Petroleum Co. (Sth
Cir. 1971) 447 F. 2d 159, a case very similar in its
facts to the one under review here. In Danner, the
plaintiff, a female, contended that, under the defend-
ant’s seniority practices, female employees were discrimi-
nated against in favor of male employees and that, as a
result of such discriminatory seniority system, she had
5 Rodriguez v. East Texas Motor Freight (5th Cir. 1974) 505
F. 2d 40, at 50 (U.S. Appeal Pending).
$ .: Senter v. General Motors Corp. (6th Cir. 1976) 532 F. 2d
wa 4 — v. Crown Zellerbach Corp. (5th Cir. 1968) 398
F. 2d 496, 499; Pointer v. Sampson (D.C.D. 1974) 62 F.R.D. 689,
696; Kinsey v. Legg, Mason & Company, Inc. (D.C.D. 1973) 60
F.RD. 91, 99.
Rodrigues v. East Texas Motor Freight, supra, 505 F. 2d at 50.
ee Bs
5a
been laid off in violation of the terms of Title VII. She,
as has the plaintiff here, filed her action under Title VII
as an individual action. In holding “that class action
relief must be predicated upon a proper class action
complaint satisfying all the requirements of Rule 23,” *
the Court said, at p. 164:
“* * * none of the Rule 23 prerequisites have been
satisfied. Mrs. Danner sued as an individual plain-
tiff; she established a prima facie case of sex dis-
crimination against herself by proving that she had
been discharged in a plant economy move because
she possessed no seniority or bidding rights, and
that no women in the plant had such rights. She
showed further that the work she was doing was
substantially similar to the work of men in the plant
who had seniority and bidding rights, and that she
was replaced by men who possessed those rights.
Mrs. Danner, however, never took up the banner
of women’s liberation for all the female employees
in the Phillips plant. This, of course, does not mean
that female employees of Phillips may not take ad-
vantage of Mrs. Danner’s judicial victory in the
future, or, indeed, that they may not join together
in a class action against Phillips if they feel one is
justified. But if they decide to bring a class action,
i, must be brought and identified as such, and the
predicate for class action relief must be carefully
laid. In the meantime, Mrs. Danner’s victory is for
her alone to taste and enjoy.”
A similar result was reached in Washington v. Safe-
way Corporation (10th Cir. 1972) 467 F. 2d 945, 947,
and by us in Carracter v. Morgan (4th Cir. 1973) 491
F. 2d 458, 459. In fact, in the latter case, the plain-
tiffs had indicated in their complaint that they were su-
ing both individually and as representatives of a class
but, in the absence of any certification or identification
* 447 F. 2d at 164, n. 10.
6a
of the class before a decision on the merits,’ it was held
„that class treatment was inappropriate, the Court stat-
ing:
“Because of plaintiffs’ failure to bring to the at-
tention of the trial court, at any time, the matter
of the determination of whether the action would
be maintained as a class action, and also because of
lack of notice to any class of the proposed final
order, we are of opinion that the district court was
correct in its actions and the opinion below ought
to be affirmed. No determination was ever made at
any time that the action be maintained as a class
action. F.R.Civ.P. 23 (e) (1). No notice was ever
given. F.R.Civ.P. 23(e).””
® guage of Rule 23(c) makes it quite clear that the deter-
3 class status is * made before the decision on the
merits.” See Peritz v. Liberty Loan Corporation (7th Cir. 1975)
523 F. 2d 349, 354; cf. Indianapolis School Comm'rs v. Jacobs
(1975) 420 U.S. 128, and Jimenez v. Weinberger (7th Cir. 1975)
523 F. 2d 689, U.S. Appeal Pending.
10 The reasoning in Carracter is confirmed substantially, it
would seem, by the later decision in Indianapolis School Comm'rs.
v. Jacobs (1975) 420 U.S. 128. In that case the action was clearly
declared a class action in the complaint but no order was entered
certifying it as a class action. The plaintiff prevailed both in the
District Court and in the Court of Appeals as if on a class action
but, during oral argument in the Supreme Court, it developed that
the action was moot as to the individual plaintiff. Since, in the
absence of actual certification as a class action, the action remained,
in the opinion of the Court, but an individual action, the mootness
of the individual claim rendered the case subject to dismissal. The
Supreme Court accordingly vacated the judgment, stating at p. 130:
In Franks v. Bowman Transportation Company, Inc. (1976) ——
US. ——., 44 LW 4356, slip opinion p. 5, n.6, the Court explained
the ruling in Jacobs, decided a few weeks ago, thus:
“In Board of School Commissioners v. Jacobs, supra, the
named plaintiffs no longer possessed a personal stake in the out-
come at the time the case reached this Court for review. As
7a
Nor do Senter v. General Motors Corp., supra, and
Bing v. Roadway Express, Inc. (5th Cir. 1973) 485 F.
2d 441, relied on by the plaintiff in support of the class
relief granted herein by the District Court, support her
contention. In Senter, the Court at the outset emphasized
that there was “no question but that the suit [involved
there] was filed as a class action and it proceeded to
trial as a class action” and then added that “Appellant
had] identified the suit as a class action in his opening
remarks at trial and Appellee [had] responded by freely
admitting that the suit had been filed as a class ac-
tion.” In that context, where, as the Court went on to
comment, “all the parties had] proceeded on the as-
sumption that the action was a class action,” the Court
concluded, citing Bing v. Roadway Express, Inc. (5th
Cir. 1973) 485 F. 2d 441, 446-47, that the action was
not improperly treated as a class action. Bing, in its
pertinent facts and ruling, was not substantially different
from Senter. In Bing, lilt was apparent, the Court
said, from the beginning that Bing intended his suit
to be a class action;” he had clearly proclaimed it as
such in his complaint; and, “all parties to the action
knew [throughout trial] of its class nature and acquiesced
in it.“ These factual differences—the treatment as a
class action from the filing of the complaint throughout
the proceedings with the knowledge and “acquiescence”
of all parties—were the circumstances which distinguished
Bing and Senter from Danner.“ They are similarly dis-
tinguishable from this case.
the action had not been properly certified as a class action by
the District Court, we held it moot.”
522 F. 2d at 521-22.
* 485 F. 2d at 446.
The distinction between Bing and Danner was restated in the
subsequent case of Rodriquez v. East Texas Motor Freight, supra,
where Judge Wisdom, after stating that, “[w]hen class relief is
8a
The plaintiff contends, however, that because she filed
broad interrogatories that could be construed as relevant
to a class action, the defendant was given proper notice
that the plaintiff intended to proceed as a class action,
and that, though no motion for certification was ever
made or an order granting certification entered, the
defendant was put on notice that plaintiff was proceed-
ing by. way of a class action. To accept such an argu-
ment would make a nullity of Rule 23 and the procedure
it mandates. Moreover, the plaintiff had stipulated and
entered representations on the record, not once but twice,
as we have already said, that she was not proceeding
by way of a class action. She had unequivocally declared
in such record that if she intended her action to be a
class action, she would amend her complaint to evidence
such intention. She at no time made such motion to
amend. Entitled to rely on the plaintiff’s positive dis-
claimers of any intention to proceed by way of a class
action—disclaimers appearing in formal representations
to the Court—the defendant was not obligated to read
every interrogatory filed by the plaintiff to determine
whether it indicated an unexpressed but implied inten-
tion on the part of the plaintiff to disavow her previous
disclaimers and to assert a right to proceed as a class
action. Furthermore, we do not perceive in the inter-
rogatories any unmistakable sign or notice that the plain-
tiff contemplated a class action.“ And this is particularly
so, since, even on the eve of trial, the plaintiff was rep-
sought in the complaint, * * * the court should liberally apply the
— of Rule 23 (a),“ explained Danner as holding that
class action relief must be predicated upon a proper class action
complaint satisfying all the requirements of Rule 23.’” 505 F. 2d
at 50 and n. 11.
%* The prerogative of designating the action as a class action
rested entirely with the plaintiff, see note 2.
15 Those interrogatories had at least some peripheral connection
with the plaintiff's individual charges.
a ee a ee
resenting unequivocally to the Court, in opposition to
defendant’s interrogatories, that she was not prosecuting
a class action and was not seeking class relief, and the
District Court, in reliance on that representation, had
entered its order of January 24, 1974, denying in part
defendant’s right to answers to its interrogatories. Even
if it could be thought that plaintiff’s interrogatories gave
some implied notice that she sought class relief, that im-
plication would have been nullified by the representation
made to the trial court, as stated in the order of January
24.
On this record, then, we find no warrant for treating
this case as anything more than what the plaintiff her-
self has designated it, to wit, an individual action, lim-
ited as it is to plaintiff’s individual claim or claims. It
is perhaps not too much to add that, by failing to amend
her complaint to seek class relief, and by failing to take
any steps either in her pleadings or in positions taken
during trial, to comply with Rule 23, and by her several
representations to the trial court, the plaintiff herself
has “precluded any class certification in this case.“
The real issue in this case is accordingly the validity
of plaintiff’s individual claim. In that connection, it
should be noted that the plaintiff’s claim revolves basi-
cally around her “company service” status, the computa-
tion of which resulted, she alleged, in her layoff in 1970.
It was this layoff that precipitated her initial complaint
to the EEOC, and it was this layoff which was the sole
claim stated by the plaintiff in the first four charges she
filed with the EEOC—as a matter of fact, it was not
until some eleven months after the filing of her initial
charge that she raised any other claim or claims. Nor
was the trial judge apparently impressed at trial with
10 Peritz v. Liberty Loan Corporation (7th Cir. 1975) 523 F. 2d
349 at 354.
10a
these additional claims, belatedly set up by the plaintiff
in her fifth amended charge. In a joint letter to counsel
for the parties, the trial judge indicated his proposed
disposition of the case and, incident thereto, he requested
counsel for the plaintiff to “draft proposed findings of
fact in brief form” dealing exclusively with loss of sen-
iority “before 1965” and “what methods may be possible
to remedy any residual effects of such loss of seniority,
if the court finds such loss to have occurred,” and re-
quested counsel for the defendant in turn “to prepare
proposed findings of fact in favor of the defendant(s] on
all of the separate issues that were raised at the trial
which do not have to do with the single issue of loss of
seniority.” It must be assumed from his statements in
this letter that the trial judge found that, so far as her
individual claim was concerned, the plaintiff was only
“aggrieved” by her loss of seniority status, and he in-
tended to limit her relief to this single specific claim of
discrimination. The testimony at trial, it is true, had
churned up some other issues, issues not concerned with
broad, continuing sex discrimination on defendant’s part,
but issues involving practices long since abandoned by
the defendant. These additional issues, the trial court
seemingly regarded as wanting in substance, according
to his joint letter to counsel to which we have previously
referred. Since, however, both parties have devoted some
parts of their argument to these other issues, we shall
briefly discuss them.
The first of these additional claims dealt with the
weight and hours-of-labor qualifications for certain jobs
in defendant’s plant. These qualifications are invalid
under the Act, according to the plaintiff's contention.
17 Some days later the trial judge wrote that there “is probably
evidence which would suggest a change in past or in existing prac-
tices about posiing or not posting notices of vacancies and available
promotions.”
.
e
e.
11a
The defendant does not seriously argue otherwise. Any
layoffs suffered by the plaintiff because of the unavail-
ability of certain jobs for bidding by her occurred in the
pre-Act period. These restrictions, however, had no ad-
verse effect on the plaintiff and her seniority rights.
Continuously from the effective date of the Act until her
layoff in January, 1970, she was employed, suffering
layoffs and earning an uninterrupted “company service”
record for such period in the computation of her seniority
Following the enactment of Title VII and in anticipation of its
effective date, the defendant, according to the record, sought to
amend its employment rules to conform. There was uncertainty at
the time even on the part of the EEOC itself whether Title VII
overrode state weight and hours-of-labor statutes regulating the
employment of females. There was a general feeling, shared at
least tentatively by the EEOC, that Title VII did not invalidate such
laws. The weight and hours-of-labor regulations adopted by the
defendant and inaugurated, it was asserted, represented the de-
fendant’s attempt to satisfy the requirements of both the federal
and state law. There was some inconsistency, however, because the
defendaut operated plants in both Ohio and North Carolina; and it
sought, according to its contention, to develop regulations which
would comply with the laws of either state and thus to have uni-
form employment rules in all plants. These rules so adopted were
thought to comply with the formal guidelines or regulations issued
in 1965 by the EEOC itself, which specifically provided that “re-
strictions on lifting weights will not be deemed in conflict with
Title VII except where the limit is set at an unreasonably low level
which could not endanger women; and that hours-of-labor statutes
would be considered ordinarily “as a basis for application of the
bona fide occupational qualification exception.” 29 C. F. R. § 1604.1(c).
In late 1968, however, the EEOC reversed its position on these two
points and it was because of this change in the position of EEOC
and the decision in Bowe v. Colgate-Palmolive Company (7th Cir.
1969) 416 F. 2d 711, that the defendant claims it abandoned in
1969 its employment rules on weight and hours-of-work require-
ments for female employees. The changes in the regulations of the
EEOC between 1965 and late 1968 are fully discussed in Note, 61
Cornell L.Rev. 460 at 465-7 (1976) ; Williams v. General Foods Corp.
(7th Cir. 1974) 492 F. 2d 399, 402-3; Kober v. Westinghouse Elec-
trie Corporation (3d Cir. 1973) 480 F. 2d 240, 243-5; Vogel v. Trans
World Airlines (M. D. Mo. 1970) 346 F. Supp. 805, 809-11. See, also,
§ 2000e-12, 42 U.S.C.
12a
and fringe benefit rights.“ Moreover, all designations
of any such jobs as male jobs and all weight qualifications
therefor were discontinued entirely early in 1969, after
the opinion in Bowe v. Colgate-Palmolive Company (7th
Cir. 1969) 416 F. 2d 711, and the change in the regula-
tions by the EEOC and before plaintiff’s layoff in Jan-
uary, 1970. Nor is there the slightest suggestion in the
record or reason to believe that there is any threat that
such qualifications, abandoned by the defendant in 1969,
will be reinstituted. In fact, as the evidence clearly
reveals, the defendant has been attentive to any changes
in either the regulations or the construction of the law
and alert to conform its practices to such changes.
The plaintiff made some point, too, that she had not
been considered for promotion to a supervisory position.
She offered no real proof of her qualification for such
promotion nor did she suggest in her testimony that she
had ever applied for promotion. Such evidence as there
is in the record on this point is represented by the ex-
planation offered by the defendant why the plaintiff
had not been given consideration for a supervisory posi-
tion. This explanation consisted of undisputed testimony,
concurred in by the plaintiff herself, that the plaintiff
was unable to work amicably with her fellow employees
and had been embroiled in difficulties with them. This
was a perfectly valid reason for not considering plaintiff
for a supervisory position. There is nothing in the record
that would justify an inference that the reason was
pretensive or pretextual; nor did the trial court find that
it was pretensive. The defendant accordingly met any
% There is another reason for finding this claim without merit.
At the time of her layoff in January, 1970, the plaintiff was offered
a substantial number of “heavy” jobs. She refused and refused
by her own explanation because she doubted her ability to perform
these jobs. It would thus appear unlikely that, had a “heavy”
job been open to her between 1965 and 1970, the plaintiff would
have accepted one.
——— pda Nila on 6 ate ol noe
—
blew
CRSA Bis
13a
burden that may have rested on it for sustaining its
failure to promote the plaintiff. Cf., McDonnell Douglas
Corp. v. Green (1973) 411 U.S. 792, 803-4. Nor did the
plaintiff apparently consider that she had been treated
unfairly or discriminately in this particular, for she did
not in any one of her five charges assign this as a com-
plaint. It is highly questionable under these circum-
stances that this issue was properly before the Court.”
We have recently held that a suit under Title VII “may
encompass only the ‘discrimination stated in the charge
itself or developed in the course of a reasonable investiga-
tion of that charge.“ King v. Seaboard Coast Line Rail-
road Company (4th Cir. 1976) —— F. 2d ——, slip
opinion p. 3 (decided April 29, 1976).
The final peripheral issue concerns a test required by
the defendant of employees seeking certain specialized
work in three departments at defendants’ plant. This test
was inaugurated in 1970. Until 1970 all persons em-
ployed in these departments were required to take two
other tests. These earlier tests, however, were discon-
tinued in 1970 in favor of a new simplified mechanical
aptitude test. This new test, which was required of all
employees seeking to transfer to these departments after
1970, did not have any “discriminatory impact” on fe-
male applicants; on the contrary, the testimony shows
20 In Oatis v. Crown Zellerbach Corp. (5th Cir. 1968) 398 F. 2d
496, 499, the Court said:
“We thus hold that a class action is permissible under Title
VII of the Civil Rights Act of 1964 within the following limits.
First, the class action must, as it does here, meet the require-
ments of Rule 23(a) and (b) (2). Next, the issues that may be
raised by plaintiff in such a class action are those issues that
he has standing to raise (i.e., the issues as to which he is
aggrieved, see § 706(a), supra), and that he has raised in the
charge filed with the EEOC pursuant to § 706(a).”
See, also, Equal Employment Opportunity Commission v. General
Electric (4th Cir. 1976) — F. 2d ——.
l4a
that percentage-wise more females passed the test than
males. And at the time of trial the employees in at
leas: one of these departments had more female em-
ployees than male employees. In that situation, there
was no obligation on the defendant to validate this new
test. The burden of establishing the job-relatedness of a
test arises “only after the complaining party or class
has made out a prima facie case of discrimination, i.e.,
has shown that the tests in question select applicants
for hire or promotion in a racial pattern significantly
different from that of the pool of applicants.” Albemarle
Paper Co. v. Moody (1975) 422 U.S. 405, 425. The
trial court, however, found the new test improper be-
cause the then existing employees in those departments
had not been required, as a condition of retaining their
jobs, to take the new, less exacting tests. If the exist-
ing employees had been given their jobs without any
21 This was recognized by the trial court, which, in a colloquy
with plaintiff’s counsel, stated that “unless the test as administered
shows that women flunk more than men, there is no question pre-
sented about the testing.”
See, also Cooper and Sobol, Seniority and Testing Under Fair
Employment Laws, 82 Harv. L. Rev. 1598, 1659. The authors add
(p. 1660) :
“Psychologists have criticized this test by claiming that it will
not predict job performance, but there is evidence that the
criticism may be inaccurate. More important, this criticism is
not relevant to the equal employment issue. So long as the test
does not prefer whites over blacks or any other protected
minority group, it does not violate equal employment require-
ments. If an employer hired every fifth applicant on a random
basis, his selection procedure would be arbitrary and might
not relate well to job performance, but it would not deny equal
employment opportunity * * *.”
This is so because the Act itself very specifically declares that a
party is only entitled to relief if his discharge or layoff or loss of
any right was because of “discrimination on account of race, color,
religion, sex, or national origin * * *.” § 2000e-5(9), 42 U.S.C.
Cf., Washington v. Davis (1976) —— U.S. ——, 44 LW 4789, for
comparison of rule under due process and under Title VII.
ee
15
testing or after taking less stringent“ tests, we would
find this argument appealing, but all these employees
had secured their positions after successfully completing
two tests, considerably more exacting and broader in
scope than the test presently required (i.e., the simplified
mechanical test). It would obviously be unfair to impose
on these employees, who had qualified for their jobs by
taking both the Modified Alpha and Bennett Mechanical
Tests, to condition their continued right to their jobs on
their taking the new simplified mechanical test. Nor
do the guidelines established by the EEOC require
such unfair treatment. These guidelines expressly pro-
vide that only when older employees have qualified]
under less stringent selection standards [as] previously
enforced “will the validity of the new tests depend on
whether these older employees have qualified under the
new tests. 29 C.F.R. § 1607.11. Such guidelines, while
not binding on the courts, are to be given great def-
erence.” We find them reasonable and fair and consonant
with the purposes of Title VII, et seg. Since obviously
the new test was “less stringent” than the earlier tests,
under which these employees qualified for their jobs, there
was no basis in the record for holding that unless such
employees again qualified by taking the new test, no
subsequent applicant for employment on such jobs could
be required to take the new test, which admittedly had
no discriminatory impact. *
We come now to the plaintiff’s individual claim that
the layoff in 1970 resulted from an improper deduction
in her “company service” record of time lost due to
alleged sex-discriminatory layoffs in the pre-Act period
of her employment. Under the defendant’s seniority sys-
tem, “company service” is an employee’s period of em-
ployment, less layoffs. Such “company service” fixes the
22 Griggs v. Duke Power Co. (1971) 401 U.S. 424, 433-4.
16a
priority rights of employees in bidding for other job
vacancies in cases of layoff and in qualifying for cer-
tain fringe benefits. It is obviously of great value to
an employee; it has been well characterized as an em-
ployee’s “personal investment in a job.“ Plaintiff's
claim is that the defendant, by following a discrimina-
tory practice of limiting female employment to certain
job classifications, narrowed the opportunity of its female
employees to bid on an equal basis with male employees
for job vacancies in the plant, thereby causing a female
employee to suffer generally more layoff time than a
comparably qualified male employee. To illustrate the
effect of such practice in her case, she points out that
she has suffered five layoffs between 1952 and July 2,
1965, whereas males employed subsequent to the plain-
tiff suffered no layoff time prior to January, 1970. These
layoffs of the plaintiff changed the beginning date of
her “company service” from 1952 to 1955, and it was
this latter date she was required to use in bidding for
job vacancies.
The defendant does not dispute the method of calcu-
lating “company service” as claimed by the plaintiff. It
does suggest that all of plaintiff’s layoffs prior to Janu-
ary, 1970, took place before July 2, 1965, the effective
date of Title VII and that such layoffs, whether discrimi-
natory or not, were not illegal at the time. It does not
follow, however, that, though they occurred before the
effective date of the Act, these layoffs may not result in
a violation of the Act if they have an adverse effect on
the employee’s seniority rights after the Act became ef-
fective. The bellwether authority in this area is the oft-
23 For a pertinent statement of the importance of such standing,
see Franks v. Bowman Transportation Co., Inc., supra, at pp. 16-19,
slip opinion.
24 Note, Remedies: Retroactive Seniority—The Courts as Per-
sonnel Director, 29 Okla. L. Rev. 215 (1976).
17a
cited case of Quarles v. Philip Morris, Incorporated (E. D.
Va. 1968) 279 F. Supp. 505, 517-8. That case held (a)
that only a bona fide seniority system was protected
under the Act, (b) that “one characteristic of a bona
fide seniority system must be lack of discrimination,” and
(c) that a seniority system, however neutral facially, is
not a bona fide seniority system if it “has its genesis in
racial [or sex] discrimination,” whether pre-Act or post-
Act.“ Accordingly, Quarles established that any seniority
system which carried over into the post-Act period the
effects of a pre-Act discriminatory job assignment policy
disadvantaging a black [or a female] in seniority rights
was not a bona fide seniority system under the Act and
had to be adjusted to remedy that disadvantage. This
decision has been consistently followed by this Circuit *
and its ruling has been adopted in repeated decisions of
other Circuits since“ and has been approved by the legal
20 [bid., 517.
26 United States v. Chesapeake and Ohio Railway Company (4th
Cir. 1972) 471 F. 2d 582, 587-8, cert. denied 411 U.S. 939 (1973);
Brown v. Gaston County Dyeing Machine Company (4th Cir.
1972) 457 F. 2d 1377, 1382, cert. denied 409 U.S. 982 (1972):
Robinson v. Lorillard Corporation (4th Cir. 1971) 444 F. 2d 791,
795, cert. dismissed 404 U.S. 1006, 1007; United States v. Dillon
‘Supply Company (4th Cir. 1970) 420 F. 2d 800, 803-4; United
States v. Continental Can Company (E.D.Va. 1970) 319 F. Supp.
161, 166.
27 United States v. T.1.M.E.-D.C. (5th Cir. 1975) 517 F. 2d 299,
315, U.S. Appeal Pending; United States v. Navajo Freight Lines
(9th Cir. 1975) 525 F. 2d 1318, 1324-25; Pettway v. American Cast
Iron Pipe Company (5th Cir. 1974) 494 F. 2d 211, 224; United
States v. N.L. Industries, Inc. (8th Cir. 1973) 479 F. 2d 354, 360-1,
where many of the authorities are cited; United States v. Inter-
national Bro. of Elec. Wkrs., L.No. 38 (6th Cir. 1970) 428 F. 2d
144, 150, cert. denied 400 U.S. 943 (1970); Jones v. Lee Way
Motor Freight, Inc. (10th Cir. 1970) 431 F. 2d 245, 248, cert. denied
401 U.S. 954 (1971); United States v. Bethlehem Steel Corporation
(2d Cir. 1971) 446 F. 2d 652, 660-1; Schaefer v. lannian (E.D.Mich.
1975) 394 F. Supp. 1136, 1142. Cf., however, Jersey Cen. Pow.
E LI. Co. v. Local Un. $27, etc. of I. B. F. W. (3d Cir. 1975) 508 F. 2d
18a
writers.“ It is conceded by the defendant that in the
pre-Act period, the jobs in certain departments were re-
served exclusively for male employees and that in periods
of layoff only qualified male employees could bid on the
jobs in these departments. Such a system obviously gave
the male employee a preferred opportunity to protect
his “company service” over the female employee. This
more extensive opportunity in bidding for vacancies dur-
ing layoffs on the part of male employees was a discrimi-
nation against female employees, and because that dis-
crimination was carried over in the operation of the
post-Act seniority system it tainted such post-Act system.
To such extent as the plaintiff was prejudiced thereby in
the computation of her “company service” or seniority
rights, she is entitled to relief. This the District Court
correctly concluded.
The plaintiff is accordingly entitled to a judgment
requiring an adjustment in her “company service” status
sufficient to remove the adverse effect of any pre-Act
discriminatory layoffs. The District Court left for fur-
ther determination the extent of such adjustment and
the plaintiff’s right, if any, to back pay.” The District
687, 706-7, U.S. Appeal Pending; and Waters v Wisconsin Steel
Works of Int. Harvester Co. (7th Cir. 1974) 502 F. 2d 1309, 1319-
20, U.S. Appeal Pending.
28 See, Cooper & Sobol, supra, at pp. 1617, et seq.; and Sheeran,
Title VII and Layoffs Under “Last Hired, First Fired“ Seniority
Rule, 26 Case West. Res. L. Rev. 409, 449, et seq. (1976).
20 In her representation to the District Court, as set forth in the
District Court’s order of January 24, 1974, to which reference has
heretofore been made, the plaintiff disclaimed any intention of
claiming back pay. In making such concession she may have been
considering whether such a claim had any reasonable basis in the
record. After all, at the time of her layoff in 1970 and again in 1973,
the plaintiff had been offered a large number of jobs in the plant,
some of them at least being jobs theretofore classified as “heavy”
jobs. She refused all such proffers. She would justify her refusal
of those which might be classified as “heavy” on the ground that
—— 2
19a
Court, however, did not confine its ruling to plaintiff’s
individual claims, but proceeded as if it were dealing
with a class action, despite the representations in the
record and the limitation in discovery imposed on the
defendant by the ruling that the action was purely an
individual suit, to grant relief which required a general
re-arrangement of the defendant’s entire seniority sys-
tem, as applied to both male and female employees, in-
cluding new rules for determining vacancies and super-
visory promotions, even though it is well settled that a
finding of either racial or sex discrimination in the es-
tablishment or operation of a seniority system, even in
a class action, requires that such seniority system “be
modified only as it applies to those employees who were
previously subjected to discrimination, only to the extent
necessary to remove the elements perpetuating that dis-
crimination, and only for a limited period of time. Such
she was told that, if she chose one of such jobs and was unable to
do the job, she would be “fired.” We have been pointed to no evi-
dence where she justified her refusal of the offer of those jobs
which were not classified as “heavy.” So far as the rule with refer-
ence to “heavy” jobs of which she complained, it did not appear
to be disputed that the rule, both for male and female employees,
was that an employee who took such a job and failed to perform
satisfactorily would be fired. In imposing such a standard on the
plaintiff in connection with her right to bid for so-called “heavy”
jobs, the defendant was imposing no different standard than that
it imposed on male employees. See, Williams v. American Saint
Gobain Corp., Okmulgee, Okl. (10th Cir. 1971) 447 F. 2d 561, 568.
Assuming this to be true, there would seem to be no impropriety on
grounds of sex discrimination in the requirement, the exaction
of which the plaintiff claims as an excuse for refusing these job
offers. Whether such offers of other jobs, some “heavy” and some
not, as well as her formal representation that she did not seek
back pay, operated as a bar to a right to back pay we leave, as
we have said, to further proceedings in the District Court. See
§ 2000e-5(g), 42 U.S.C.: “Interim earnings or amounts earnable
with reasonable diligence by the person or persons discriminated
against shall operate to reduce the back pay otherwise allow-
able. * * *” See, also, Williams v. American Saint Gobain Corp. at
pp. 567-8, and United States v. Bethlehem Steel Corporation (2d
Cir. 1971) 446 F. 2d 652, 665-6.
a system should be allowed to apply unabated to all em-
ployees, black and white, against whom the employer did
not discriminate.” Stevenson v. International Paper Co.,
Mobile, Alabama (5th Cir. 1975) 516 F. 2d 103, 118.“
The additional relief provided in the District Court’s
order, going beyond that to which plaintiff was properly
entitled, was inappropriate and the order of the District
Court should be modified to eliminate such provisions and
terms. What we have said would apply to the inappro-
priate injunction against weight and hours-of-work rules
of the defendant, such rules having been abandoned in
1969 and there being no reasonable basis to assume that
they will ever be reinstituted.
The judgment below should accordingly be modified to
include relief only in plaintiff’s seniority rights as rep-
resented by the calculation of her “company service”
records to such extent as she may show she was preju-
diced as a result of defendant’s policy of reserving cer-
tain jobs for male employees in the pre-Act period, and
all other relief granted in the order of the District Court
herein, should be vacated, other than a recognition of
the right of the plaintiff to costs and an award of attor-
neys’ fees. The cause is accordingly remanded for the
entry of a decree in accordance with the foregoing and
for such other proceedings as may be consistent here-
with.
REMANDED FOR ENTRY OF DECREE
IN ACCORDANCE WITH FOREGOING.
8° This conclusion is supported by the recent case of Franks v.
Bowman Transportation Compery, Inc., supra, 44 LW 4356, 4363-5,
where the Supreme Court con.irued Title VII to allow seniority
relief, in a class action, only for identifiable victims of the illegal
hiring discrimination.
2la
JUDGMENT OF THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NANCE
* * V.
o
UNION CARBIDE CORP.
*
Appeal From the United States Distriet Court
For the Western Distriet of
North Carolina
Before BUTZNER, RUSSELL and WIDENER, Circuit Judges
(Filed July 28, 1976)
APPEAL FROM the United States District Court for
the Western District of North Carolina.
THIS CAUSE came on to be heard on the record from
the United States District Court for the Western Dis-
trict of North Carolina, and was argued by counsel.
ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the cause is
remanded to the United States District Court for the
Western District of North Carolina, at Charlotte, for the
entry of a decree in accordance with the foregoing and
for such other proceedings as may be consistent here-
with.
22a
OPINION AND ORDER OF THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DENYING PETITION FOR REHEARING
NANCE
v.
UNION CARBIDE CORP.
(Decided September 23, 1976)
RUSSELL, CIRCUIT JUDGE:
Upon consideration of the petition for rehearing by
the appellee, it is
ORDERED, That the first six lines, and the words
“After all” on line 7, of footnote 29, on page 30 of the
Slip Opinion be deleted; and that the following “as well
as her formal representation that she did not seek back
pay,” appearing in the first and second lines of the same
footnote 29 on page 31 of the Slip Opinion, be deleted.
The original opinion is reaffirmed in all other respects,
and
The suggestion for en banc consideration fails, no
judge having asked that the court be polled.
...en N
War ee ee
q SN Por
23a
FINDINGS OF FACT AND CONCLUSIONS OF LAW
OF THE
UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
NANCE
V.
UNION CARBIDE CORP.
(Filed April 28, 1975)
McMILLAN, District Judge.
Winifred S. Nance, the plaintiff, a white female, filed
this suit on August 18, 1972, against Union Carbide
Corporation of Charlotte, North Carolina, alleging that
she was subjected to discrimination because of her sex
in the matter of employment, classification, promotion
and other incidents of employment. The complaint al-
leged violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. 5 2000e et seq. This matter came on
for a hearing in March, 1974 and December, 1974 and
the Court, after consideration of the evidence, enters
Findings of Fact and Conclusions of Law as follows:
FINDINGS OF FACT
1. Plaintiff, Winifred S. Nance, is a female citizen
of the United States and the State of North Carolina,
residing in Charlotte, Mecklenburg County, North Caro-
24a
lina. The plaintiff has been employed by the defendant
at its Charlotte piant since July 8, 1952.
2. The defendant, Union Carbide Corporation (de-
fendant” or Company“), is a corporation organized
under the laws of the State of New York and does busi-
ness in all fifty states, including the State of North
Carolina. The defendant maintains its corporate head-
quarters in New York City, New York.
3. The defendant operates a battery manufacturing
facility in Charlotte, Mecklenburg County, North Caro-
lina (“Charlotte plant“).
4. The majority of the work performed ( 80-90 % )
at the Charlotte plant is pursuant to contracts with var-
ious federal agencies and the majority of these contracts
are with the Department of the Army.
5. The hourly paid work force at the Charlotte plant
is organized into approximately sixteen (16) depart-
ments. The departments and a general description of
the work performed in each are as follows:
By virtue of the fact that the majority of the work performed
by the defendant at its Charlotte plant is pursuant to contracts
with the federal government, the defendant is subject to Execu-
tive Order 11246 and the Regulations implementing this Order. See
Local 189, United Papermakers and Paperworkers v. United States,
416 F.2d 980, 984, n.3 (5th Cir. 1969), cert. denied, 397 U.S. 919,
90 S.Ct. 926, 25 L.Ed.2d 100 (1969). Executive Order 11246 is a
federal regulation that requires all employers subject to this Order
not to discriminate against its employees or applicants for employ-
ment because of race, color, religion, sex or national origin. Execu-
tive Order 11246 became effective on October 24, 1965. 30 F. R.
12319; 3 C. F. R. 339. This Order was amended by Executive Order
11375, signed on October 13, 1967, which became effective in part
on November 12, 1967, and in part on October 14, 1968, by sub-
stituting the word “religion” for “creed” as a prohibited basis
of discrimination, and by adding sex as a prohibited type of dis-
crimination. 32 F.R. 14303.
nee EIEN i Mie A ink Th ROS eee
25a
Department 107: Blends proper amounts of ingre-
dient into mixes to be used in the manufacture of
Magnesium and LeClanche cells.
Department 161: Produces magnesium cells to be used
in the manufacture of magnesium batteries.
Department 208: Produces LeClanche flat cells by the
non-refrigerated method and ties into appropriate stacks
for subsequent use in scheduled LeClanche battery types.
Department 209: Produces LeClanche flat cells by the
refrigerated method and ties into appropriate stacks for
subsequent use in scheduled LeClanche battery types.
Department 210: Repairs cell stacks rejected at test-
ing in the battery finishing department.
Department 215: Produces LeClanche round cells to
be used in the manufacture of LeClanche batteries.
Department 225: Assembles all required parts into
finished batteries.
Department 235: Manufactures parts to be used in
the production of cells and finished batteries.
Department 300: Cleans-up plant and machinery.
Department 304: Provides employee relations depart-
ment duties, such as pick-up and delivery mail; picks-up
machinery parts; operates the canteen and operates the
cash register in the cafeteria.
Department 311: Cooks, serves meals and cleans-up
cafeteria.
Department 327: Provides upkeep of the plant build-
ing and services, installs, repairs, builds and maintains
plant equipment.
Department 342: Warehousing-shipping-receiving, and
supplying parts for the manufacturing departments as
requested.
Department 354: Provides production line inspection
of all operations.
Department 355: Sets up and checks on all inspec-
tion procedures within an assigned area.
Department 440: Machine operator adjuster.
6. There are over 160 different job classifications in
the 16 departments at the Charlotte plant. The over-
whelming majority of these job classifications are un-
skilled jobs.
7. The wage rate of each job is determined by the
job class to which it is assigned. Unskilled jobs are
designated as job classes 1 through 12 with job class 1
with the lowest rate and job class 12 with the highest
rate. Skilled jobs are separately designated as job classes
1 through 7 and are some of the highest paying jobs
at the Charlotte plant.
8. The majority of the female employees as of July
2, 1965, and August 8, 1972, were employed in unskilled
job classes 1-7. All of the female employees in job class
9 were employed in departments 225 and 355; these de-
partments have been two of the departments in which
females have been employed.
9. Many of the jobs designated as “heavy” jobs do
not, in fact, have a weight lifting (or exerted force
factor) of 30 pounds or more. For example, the oiler’s
position in department 327 has an average exerted force
of 15 pounds 50% of the time during the course of an
eight-hour working day; outside warehouse operator in
department 342 has an average exerted force of 2 pounds
75% of the time and 30 pounds 5% of the time; round
cell machine operator/adjuster in department 440 has an
average exerted force of 18 pounds 33% of the time and
a maximum force of only 70 pounds 1% of the time; and
process repair in department 225 has an average exerted
force of 5 pounds 25% of the time (or 10 pounds 10%
of the time) and only 85 pounds 1% of the time.
27a
10. On July 2, 1965 (the effective date of Title VII),
July 2, 1970, and August 18, 1972 (the date the com-
plaint was filed in this Court) the staffing of the various
departments by sex at the Charlotte plant was as follows:
Department 7-2-65 7-2-70 8-18-72
M F M F M F
161 — — — — 4 7
107 6 — 1 — 3 —
208 23 49 8 19 6 17
209 18 37 11 29 6 17
210 — — — 3 1 5
215 — — — — — —
225 74 57 37 65 50 77
235 19 5 15 2 11 1
300 14 — 9 2 5 8
304 — — 1 — — 1
311 2 3 1 4 1 4
320 — — 2 — 2 —
327 36 — 39 — 44 —
342 10 — 10 — 12 —
354 — 38 — 31 — 29
355 17 2 12 3 11 7
440 9 — 7 — 7 —
Totals 228 191 156 158 163 173
11. An analysis of the work force by sex as set forth
in Finding No. 10 above shows the following:
(a) As of July 2, 1965, there were 419 hourly paid
employees at the Charlotte plant; of these 228 were males
and 191 were females. Of the 191 females, 181 or ap-
proximately 95% of the females were employed in only
four (4) of the sixteen (16) departments (208, 209, 225
and 354). Only 115 or 50% of the males were employed
in these same four departments. There were no males
in department 354 and no females were employed in
department 327 (skilled trades department).
(b) As of July 2, 1970 (five years after the effective
date of Title VII), there were 314 employees; of these
156 were males and 158 were females. Of the 158 fe-
males 144 or approximately 91% were employed in only
28a
four (4) of the sixteen (16) departments (208, 209, 225,
354) and 56 or approximately 36% of the males were
employed in these same four departments. There were
no males in department 354 and no females in depart-
ment 327. ä
(e) As of August 18, 1972 (date complaint filed),
there were 336 employees, of these 163 were males and
173 were females. Of the 173 females, 140 or approxi-
mately 181% were employed in only four (4) of the
sixteen departments (208, 209, 225 and 354), whereas
only 62 or 38% of the males were employed in these
same four departments. There were no males in depart-
ment 354 and no females in department 327.
12. An analysis of Plaintiff’s Exhibits 19(A) through
19 (J) (Labor Reports) shows that the overwhelming
majority of the females were employed in only four (4)
of the sixteen (16) departments (208, 209, 225 and 354)
The percentages of females in these four (4) depart-
ments ranged from about 96% as of June 1, 1965, to
about 78% as of June 1, 1973.
13. The defendant does not maintain lines of progres-
sion within the departments. Promotions, demotions,
transfers, layoffs and recalls are governed by “company
service credit” which is the seniority standard.
14. Company service, i. e., seniority, is the length of
time an employee has been employed at the Charlotte
plant from his or her most recent date of hire minus any
and all times during which the employee has been on
lay-off because of a reduction in the work force. For
example, the plaintiff, originally employed on July 8,
1952, has a company service date of July 21, 1956 for
job progression and lay-off purposes. Plaintiff’s seniority
standing has been reduced by approximately four years
because of five lay-offs she was forced to take before
July 2, 1965, and the several times she has been laid off
29a
peed July 2, 1965 (January 23, 1970 and April 18,
15. From 1956, when the Charlotte plant re-opened,
until November 18, 1969—more than four years after
the effective date of Title VII—the defendant maintained
an open and declared policy and practice of segregating
its work force based on sex.
16. The job assignment policy set forth in the 1959
employee handbook provided that:
For the purpose of job placement, increases and
reduction in force, the following related job groups
have been established:
(1) All female jobs and (2) all male jobs, except
as may be included in other special groups as ma-
chine shop, routine inspection, mail service em-
ployees, female service employees, ete.
J ob assignment procedures [i. e., promotions, demo-
tions, lay-offs and recalls] shall be applied within
each job group separately and action resulting there-
from shall be limited to each such group. (Brackets
supplied).
17. The job assignment policy set forth in the 1964
employee handbook provided that:
For the purpose of job placement, increases and re-
ductions in force, the following related job groups
have been established:
(1) — female jobs except those ineluded in Group
#2.
(2) Female employees—Control Laboratory.
(3) All male jobs except those included in Groups
#4, 5 and 6.
(4) Machine Shop.
(5) 440 Department.
30a
(6) Male employees—Control Laboratory.
Job Assignment procedures shall be applied within
each such group separately and action resulting
therefrom shall be limited to each such group.
18. The number of jobs limited to males was almost
twice the number of jobs available to females.’
19. Prior to June 23, 1965, separate male and female
seniority rosters were maintained. Males were hired
into, promoted to, and laid off from those jobs limited to
males and were credited with company service (senior-
ity)* only as to the male jobs. The same practice was
followed with respect to the jobs limited to females.
20. Prior to July 2, 1965, female employees were al-
lowed to perform male jobs if they so requested; however,
if females took male jobs, they were not allowed to qual-
ify for the jobs, nor could they keep the jobs to avoid
lay-offs because of the defendant’s strict policy and prac-
tice of laying off employees based on the sex-segregated
seniority rosters.
21. One result (but an important result for purposes
of this case) of the separate male and female job classifi-
cations and seniority rosters set out in Findings 15, 16,
17, 18 and 19, supra, was that it was possible, and in-
deed did occur, that female employees would be laid off
on the basis of their company service as compared to
other females, while male employees with less company
service and/or even later dates of original hire were re-
tained. Whenever this situation did occur, the junior
2 Defendant, in answers to interrogatories (Plaintiff's Exhibit
2(B)), identified approximately 97 jobs (including the trainees
II and I and the A and B classifications in department 327) as
exclusively reserved for males, and approximately 47 jobs as ex-
clusively reserved for females.
See Finding No. 14, supra.
— — — -
—
31a
males who were retained gained company service and
the females who were laid off lost company service.
22. The result set out in Findings No. 21 is exactly
the situation of what has happened to the plaintiff. The
plaintiff was initially hired at the Charlotte plant on
July 8, 1952. Between July 8, 1952 and August 20, 1973
she was laid off seven (7) times, thereby losing company
service of about four years. A summary of plaintiff’s
lay-offs is as follows:
Hired 7-2-52 Original company service (CS)
date of 7-2-52
Laid off 12-13-53
Rehired ° 5-2-55 Adjusted CS 11-14-53
Laid off 7-15-55
Rehired 9-28-55 Adjusted CS 1-25-54
Laid off 2-24-61
Rehired 8-21-61 Adjusted CS 7-21-54
Laid off 9-28-62
Rehired 2-11-63 Adjusted CS 12-3-54
Laid off 4-3-64
Rehired 1-25-65 Adjusted CS 9-25-55
Laid off 1-23-70
Rehired 7-20-70 Adjusted CS 3-20-56
Laid off 4-18-73
Rehired 8-20-73 Adjusted CS 7-21-56
23. All of the lay-offs in which plaintiff was involved
prior to 1965 were the result of the sex segregated policies
*The opposite result could also occur, and did. But see Bowe
v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969), reversing
in part, 272 F.Supp. 332, 344-345 (N.D.Ind. 1967) where the dis-
trict court found that the sex segregated seniority system there
ae had a similar effect on males and females as in the in-
8 case.
5 Recall from lay-off is referred to as a “rehire”.
32a
of the defendant; none of these lay-offs were the result
of pregnancy leaves.
24. The following males have original hire dates sub-
sequent to that of the plaintiff and none of them have
been laid off at any time, ineluding the January, 1970,
and the April, 1973 lay-offs in which plaintiff was in-
volved. Each has as his company service date his date
of original hire; thus each has a competitive advantage
as to seniority standing for job progression and protec-
tion from lay-offs superior to that of the plaintiff:“
Date of Most Company
Name Recent Hire Service
George Hall 2-6-56 2-6-56
Bonner David Twitty 1-11-56 1-11-56
Carroll J. Stokes 1-2-56 1-2-56
Willard Paige 11-28-55 11-28-55
Hallbrook McCraw 11-14-55 11-14-55
Craig Barbee 10-31-55 10-31-55
Marvin Sutton 10-31-55 10-31-55
Bobby Joe McCorkle 10-31-55 10-31-55
Howard Morris 10-26-55 10-26-55
25. The following table shows the average time lost
from company service credit (“company seniority” as
currently defined by the defendant) of males and fe-
males within the same year of hire as of the week end-
ing November 26, 1972:
* Other male employees who were initially employed after the
plaintiff and who have a superior competitive seniority standing
are set forth in Laslie’s deposition (Plaintiff’s Exhibit 9(A)), and
Plaintiff's Exhibit 36(B), which shows hire dates and company
service dates of male and female employees.
33a
Average Time Lost By Males and Females Between Year of Hire
and Week Ending November 26, 1972.7
MALE FEMALE
(Average) (Average)
Year of Hire
Months Days Months Days
1952 10 26 66 20
1953 14 4 (no hires shown)
1954 (no hires shown) (no hires shown)
1955 5 69 3
1956 1 26 85 17
1957 15 6 (no hires shown)
1958 13 10 122 14
1959 (no hires shown) (no hires shown)
1960 7 25 (no hires shown)
1961 11 20 50
1962 10 16 (no hires shown)
1963 10 18 (no hires shown)
1964 8 15 (no hires shown)
1965 9 20 24 3
1966 15 16 25 18
1967 18 12 25 1
1968 25 19 31 27
1969 27 13 (no hires shown)
1970 10 6 16 7
1971 8 7 10 29
The table is based on Plaintiff's Exhibit 3608). The table was
prepared by the plaintiff as follows: First, the difference in months
and days between hire date and company service date as of No-
vember 26, 1972 was determined. This total was computed for each
male hired in the same year and divided by that number. The same
procedure was used for females. Each month was assumed to be
30 days with the exception of those employees who had a hire date
or service date that falls on the 31st of the month. For example,
entry No. 316, p. 12 of Plaintiff's Exhibit 36(B), Leazer—1578,
male, hire date 12-31-58, continuous service date 12-31-58. Frac-
tions of days equaling .5 and below were dropped and fractions of
days exceeding 5 were added to the total; e.g., 20.42 days was
entered as 20 days and 19.55 days was entered as 20 days.
34a
26. In June, 1965, just over a week before the effective
day of Title VII (July 2, 1965), the defendant adopted
a twenty-five (25) pounds weight limitation policy. This
policy was announced to employees at he Charlotte plant
on June 23, 1965, by the plant manager. The pertinent
portion of that policy is as follows:
Beginning July 2, 1965, in order to comply with the
effective date of the new Civil Rights Act, we will
consider men and women, based on Company Serv-
ice, for any job opening for which they can meet the
qualifications. Only in cases where State or Federal
law place restrictions on use of females will a job
be considered as a “Male job” only. Generally, for
instance, most state laws prohibit the employment of
females in plants on the following occupations or
capacities: “freight handling, trucking, or the fre-
quency or repeated lifting of weights over 25
pounds”. The State of North Carolina leaves the
weight factor to the judgment of management. In
order that our plants may have a consistent policy,
we have adopted the 25 pound maximum weight
limitation. North Carolina does have a law re-
stricting all female employees to a maximum of a
nine hour day in a manufacturing plant. We will,
of course, have to comply with this and use this law
in determining whether or not a job will be male or
female. In addition, the duties of such job as jani-
tor or matron may require limiting them to male
and female employees.
This makes it necessary to abolish our present prac-
tice of having separate male and female employee
seniority groups other than those jobs requiring
specific skills, such as machine shop, 440 depart-
ment, and Routine Process Inspector.
In the future job placement procedures, as well as
laying-off and rehiring employees, will be handled
35a
on the basis of length of service* regardless of
whether it is male or female, except in such in-
stances where the job requires males only or females
only. (Emphasis supplied).
27. The State of North Carolina does not have (and
never did have at any time material to this case) a law
imposing a weight limitation on jobs females could per-
form, and the decision to adopt a weight lifting require-
ment was based on federal court decisions from other
jurisdictions.
28. The twenty-five pounds weight limitation policy
adopted by the defendant in June, 1965, was a new policy
and jobs as either male jobs or female jobs. Jobs requir-
ing lifting or an exerted force“ of twenty-five pounds or
less were considered female jobs and jobs requiring ex-
erted force of twenty-five pounds or more were considered
male jobs. See Finding 9, supra.
29. The defendant, at or about the same time that it
adopted the weight lifting requirement, abandoned its
sex segregated jobs and rosters and classified the jobs
as “male” or “either”. The jobs classified as “either”
were open to males and females whereas the jobs classi-
fied as “male” were limited solely to males. All of the
jobs previously reserved for females were opened to males;
however, only a few jobs previously reserved for males
were opened to females.
30. The restriction on jobs designated as “male jobs”
instituted in June, 1965, remained in effect until No-
Length of service” is the same thing as company service. See
Finding No. 14, supra.
*The terms “weight lifting” and “exerted force” may be used
interchangeably herein, but both terms will have the same meaning
whenever used. The term “exerted force” is the term used in the job
analyses (Plaintiff's Exhibit 24(A)), whereas the term “exerted
force (or lifting)” may be used in the job descriptions (Plaintiff's
Exhibit 24(B) ).
vember 18, 1969, and female employees were not con-
sidered for these jobs and were not given the oppor-
tunity to demonstrate their ability to perform these un-
der any circumstances.
31. In addition to the weight restriction to carve out
certain jobs for males, the defendant also relied on
N.C.G.S. § 95-17 which limited the number of hours an
employer could employ a female person to not more than
forty-eight hours a week, or nine hours in any one day,
or no more than six days in any period of seven con-
secutive days. However, between July 2, 1965, and No-
vember 18, 1969, when the defendant of its own accord
eliminated the restriction on the number of hours a
female could work in any one week, the work schedules
established at the Charlotte plant were so arranged such
that if females were allowed to qualify for male jobs,
the defendant would not have been in violation of
N.C.G.S. § 95-17.
32. As a result of the policies and practices set out
in Findings 28 and 29, the plaintiff, between July 2,
1965, and November 18, 1969, was denied the oppor-
tunity to qualify for certain jobs reserved for males be-
cause of her sex on the basis of the defendant’s stereo-
typed characterization of the sexes without regard to
plaintiff’s individual preferences and ability.
33. On November 18, 1969, a notice was posted on
the bulletin boards at the Charlotte plant announcing
the adoption of a new policy. The pertinent portions of
that November 18, 1969, notice are as follows:
From a plant standpoint we will be guided by these
new decisions, and put into effect the following
changes immediately:
1. All restrictions regarding the nwmber of hours a
woman can work in any one day or week are
eliminated.
37a
2. — offering procedures will be handled as fol-
ows:
a. Jobs having weight lifting requirements of
thirty pounds or less, which are referred to as
“Light” jobs will be offered according to the
present regular job placement procedures. (This
represents no change).
b. Jobs requiring lifting of over thirty pounds,
or comparable exerted force, referred to as
“heavy” jobs, will be offered to men in accord-
ance with present procedure. However, any fe-
male may request any “Heavy” job and will be
considered, in line with her company service
credit, for such opening. Naturally all qualifi-
cations for and requirements of the job would
have to be satisfactorily met.
3. In case of a reduction-in-force, a female em-
ployee will not be forced into a “heavy” job, and
may elect lay-off if that is the only job available.
The practice of not forcing a female employee to
take “heavy” jobs will also be followed on any re-
duction within any department or related group.
(Emphasis in the original).
34. The thirty-pound weight limitation adopted in No-
vember, 1969, as was the twenty-five pound limitation
adopted in June, 1965, was based on court decisions and
was used to distinguish between male and female jobs.”
10 Several months before the November 1969 announcement, a
memorandum from the defendant’s Rocky River, Ohio, Divisional
Headquarters was sent to the plant manager at the Charlotte plant
stating, inter alia:
Subject: Weight Limitations—Female Employees
Several months ago a study was made to determine the effect
of allowing women to lift more than 25 pounds at our plants
and warehouses. The study was precipitated by recent Federal
Court decisions which ruled that the use of 30 and 35 pound
weight limitations in establishing female jobs is considered
to be reasonable and fair. These court cases were brought
38a
35. The notice of the policy change announced in No-
vember, 1969, provided that female employees had to re-
quest heavy jobs. The intendment of this notice was that
if females did not specifically request “heavy” jobs, they
would not be considered for the “heavy” jobs. Although
Moffitt, the then Charlotte plant manager, testified that a
decision was made at the corporate level that the part of
the November, 1969 policy providing that females had to
specifically request heavy jobs would not be enforced,
he also testified that his corporate decision was never
formally announced to the employees.
36. Male employees were automatically considered for
heavy jobs as a result of the November, 1969 policy
change; they did not have to specifically request these
jobs. In addition, male employees were eligible for all
jobs previously reserved for females as a result of the
policy adopted by the defendant in June, 1965. Finding
No. 29, supra.
87. The decision to institute a weight-lifting limita-
tion for female jobs at the Charlotte plant was made at
the defendant’s Divisional Headquarters in Rocky River,
Ohio. The weight-lifting requirement was made appli-
cable to the Charlotte plant because the defendant wanted
the policy to be consistent at all of its plants. The de-
fendant’s weight lifting limitation policy was based on
the Ohio statute, R. C. § 4107.43, which prohibited the
employment of females in jobs requiring frequent or
repeated lifting in excess of 25 pounds.
about by female employees who questioned a company’s right to
set a maximum weight limit on the weight females could lift.
In view of this development and the fact that questions had
been asked by a few of our hourly female employees about this
matter, we felt we should reconsider our long-standing position
of limiting female employees to a 25 pound maximum. After
considering all factors we feel we can increase the maximum
lifting limitations to 30 pounds and be within what would be
considered to be a fair standard. (Emphasis supplied).
39a
88. In 1972 the Ohio Supreme Court in Jones Metal
Products Co. v. Walker, 29 Ohio St.2d 173, 281 N.E.2d
1 (1972) ruled that R.C. § 4107.43 was pre-empted by
Title VII under the Supremacy Clause of the Constitu-
tion and that it could not be enforced in Ohio for that
reason. The United States District Court for the South-
ern District of Ohio reached the same results on March
24, 1971 in Ridinger v. General Motors Corp., 325 F.
Supp. 1089, 1093-1097, and the Sixth Circuit in General
Electric Co. v. Hughes, 454 F.2d 730 (1972) affirmed
the granting of an injunction against appropriate officials
of Ohio in the enforcement of R.C. § 4107.43.
59. The policy announced in the November 18, 1969,
notice remained in effect until shortly before the J anuary
19, 1973, lay-off. In January, 1973, the defendant no-
tified the employees that beginning with the job moves
associated with the January 19, 1973, lay-off, men would
be offered the opportunity to accept lay-off rather than
being forced to take a “heavy” job.
40. The defendant’s thirty-pound weight limitation
policy has not been eliminated; it remains in full force
and effect, notwithstanding the fact that the defendant
in November, 1969, eliminated its policy of not allowing
females to work on certain jobs because of defendant’s
alleged reliance on N.C.G.S. § 95-17 ( Finding No. 31,
supra), even though the Attorney General of North
Carolina issued an opinion on November 25, 1969 (40
N. C. A. G. 363) stating that N.C.G.S. § 95-17 would be
enforced, and notwithstanding Finding No. 38, supra.
41. The policies and procedures for filling vacancies
at the Charlotte plant are as follows:
* Both the procedures for filling job vacancies and for reduction
in the work force (lay-offs) involve all kinds of modifications and
priorities. Compare Plaintiff’s Exhibit 3(B), pp. 59-73; Plaintiff’s
Exhibit 3(D), pp. 65-83, and Plaintiff’s Exhibit 3( E), pp. 68-80.
Officials of the Company have recognized that these procedures are
4
40a
(a) Employees within the particular department
where the vacancy occurs are given first preference.
This preference is, in effect, departmental seniority.
(See Plaintiff’s Exhibit 17 which is an announce-
ment made to employees on January 13, 1970, where-
in it was stated. . . our regular job-filling pro-
cedure has always recognized departmental rights”. )
(b) Second preference is given to employees in other
departments who have, prior to the time the vacancy
occurs, submitted a written request for a transfer
to the department in which the vacancy occurs, and
the desired shift must be indicated on the request
for a departmental transfer.”
(c) A request for departmental transfer is valid
only until the employee has accepted, refused or is
laid off.
complicated. Shore, plant manager, so testified. (See also Plain-
tiff’s Exhibit 9A. Laslie, p. 71, “It is complicated“; Plaintiff's
Exhibit 11, Humphreys, p. 52). A more apt description is con-
fusing”. The Court will not attempt to summarize all of the modi-
fications and priorities for the reason that most of the more detailed
modifications and priorities probably will be eliminated as a result
of the modifications that will be ordered.
The Company has abandoned its practice with respect to the use
of “home department” in determining the priorities for filling
vacancies. However, reference to “home department” was still used
in setting forth the vacancy filling procedures in the 1973 Employee
Handbook. Presumably, the Company will delete the reference
to “home department” in the next printing of the handbook.
12 The defendant has a separate form which is used in connection
with a job change within a particular department. Requests for
departmental transfers are filed with the Head of Employee Rela-
tions; requests for job changes within departments are filed with
the departmental supervisor.
If an employee does not specifically request a transfer to de-
partment 327 (skilled trades) on the request for departmental
transfer, generally the employee will not be considered for vacancies
in 327.
The 1973 Employee Handbook provided that an employee could
not specify a specific job in the request for departmental transfer.
4la
(d) Notices of vacancies are not posted and em-
ployees must rely on word-of-mouth information
about vacancies.
(e) The only reason advanced by the defendant for
not posting vacancies is that it has never been the
policy of the company to do so.
(f) A regular job vacancy is defined as a job open-
ing which is expected to exceed or does exceed two
(2) weeks duration and does not result from dis-
ability, scheduled vacation, leave of absence or loan
of the regular job holder. All other vacancies are
temporary vacancies, including job openings of reg-
ular employees who are absent due to disability not
to exceed 26 weeks.
(g) The significance of defining a temporary va-
cancy so as to include job openings due to dis-
ability is that employees who cover the jobs during
the period of disability assume the company service
standing of the disabled employees and assume all
of the job rights of the absent employee.
42. The policy of the defendant to give first preference
to employees in the department in which vacancies occur
puts female employees at a competitive disadvantage
vis-a-vis their male counterparts because the overwhelm-
ing majority of the female employees are in only four
of the sixteen departments. See Findings 10, 11 and 12,
supra.
43. The lay-off procedures presently in effect at the
Charlotte plant as of January 13, 1970, are set forth in
Exhibit A attached hereto.
44. The lay-off procedures set forth in Exhibit A at-
tached hereto are the same procedures used in the April
18, 1973 lay-off, except that males were given the op-
tion of refusing to take “heavy” jobs.
42a
45. In addition to the lay-off procedure set forth in
Exhibit A hereto, the following practices are applicable
to lay-offs:
(a) Lay-offs are based on company service.
(b) None of the lists of employees to be laid off
(original or final) are posted.
(c) Jobs to be operated during lay-off are not posted
and employees are notified of whatever jobs may be
available to them by word of mouth.
(d) Job rights of absent disabled employees are
exercised by less senior employees who are per-
forming the jobs of the absent disabled employees.
See also Findings 42 and 43, supra.
(e) Prior to the April, 1973, lay-off, employees in
department 327 (skilled jobs), 355 (routine or
process inspectors) and 440 (machine adjusters)
were not subject to the lay-off procedures applicable
to other employees. The jobs in these departments
are some of the highest paying, nonsalaried positions
at the Charlotte plant. Traditionally, the positions
in these departments have been reserved for male
employees. See Finding No. 7, supra. Employees
entering into these departments are required to pass
several tests. See Findings Nos. 49 and 59 infra.
However, female employees were not permitted to
take these tests until late 1970.
(f) Male employees in departments 327, 355 and
440 who were laid off out of these departments
had a choice of either accepting lay-off from the
department, or if they had enough company serv-
ice and had been upgraded from one of the produc-
tion departments, they could “bump down” into pro-
duction to avoid lay-off.
(g) In April, 1973, the special protection given to
employees in departments 355 and 440 was elimin-
ated and jobs in these departments were subject to
48a
regular lay-off procedures. The special protection
for male employees in department 327 was not re-
moved and employees in this department continue
to enjoy special protection.
46. Prior to recalling any employees from lay-off, em-
ployees then in the plant are given first preference to
available job vacancies. One of the officials of the Com-
pany described the effect of the longstanding policy and
practice by stating that.. . when we were going to
increase our production the first thing that we would
do is that we would re-arrange the plant and therefore,
as a rule the more desirable jobs are taken by those
people wno are in the plant and the less desirable jobs
are left for new people being hired or people being called
back from layoffs.”
47. The defendant does not have any standardized
procedure for advising employees on lay-off of the avail-
ability of job openings. In some instances employees are
notified by telephone; in other instances they are notified
by letter simply stating that jobs are available without
specifying what jobs are available; yet in other instances,
employees are notified by letter that jobs are available
and the available jobs are listed.
48. Ninety-five percent (95%) of the female employees
who have been laid off have returned as compared to
sixty to seventy percent (60-70%) of the males who
have returned from lay-off."
49. Between 1950 and 1952 the defendant adopted
the Test of Mechanical Comprehension (“Bennett Me-
chanical”) and the Modified Alpha Examination, Form
1 The high rate of return of females from lay-offs formed the
basis for the defendant to conclude in its 1973-74 Affirmative Ac-
tion Plan that the Charlotte plant has been a desirable place for
women to work and that the defendant had experienced no diffi-
culty in obtaining female employees with requisite skills to fill
jobs.
44a
9, that persons interested in jobs in departments 327,
355 and 440 were required to successfully pass before
they were considered for these jobs.“ Incumbent male
employees already in these departments at the time tests
were instituted were not required to take or pass these
tests in order to retain their jobs.
50. Female employees were not allowed to take the
Modified Alpha and the Bennett Mechanical until late
1970.*°
51. Between 1965 and August, 1970 (before any fe-
males were permitted to take the tests), over 100 males
were permitted to take the Modified Alpha and the Ben-
nett Mechanical; of these, more than twenty (20) had
scores sufficient to qualify them for consideration for
employment in either 327, 355 or 440. (See Plaintiff’s
Exhibit 33, e. g., Entries Nos. 3, 4, 9, 13, 14, 15, 16, 30,
33, 38, 39, 40). Many others had scores sufficient to
qualify them for jobs in at least one of the departments.
52. Of the fourteen (14) females who took the Ben-
nett, only three had scores sufficient to qualify them
for jobs in department 327 (Id., Entries Nos. 131, 139,
157, and 159). Moreover, defendant’s own expert wit-
ness testified that males tend to score higher than fe-
males on the Bennett.
14 Different passing scores on each test were established for each
department:
Mechanical
Department Alpha Comprehension
440 75 33
327 85 35
355 100 30
1 The plaintiff testified that she was not aware of the tests until
shortly before she first took the tests in 1970. The Plaintiff's
Exhibit 33, which was compiled from Plaintiff’s Exhibit Nos. 14c
and 156 which are documents showing the test scores of employees,
males and females, who took the Bennett Mechanical and the Modi-
fied Alpha.
45a
53. Of the females who took both the Bennett and
the Modified Alpha, only one (1) scored sufficiently to
qualify her for a position in either of the three de-
partments (/d., Entry No. 131).
54. Of the 132 males and the 17 females who took
the Bennett Mechanical between 1965 and December, 1970
(when test discontinued), the average (mean) score for
females was 25.44 and for men 34.02—a difference of
8.58 points. A larger percentage of males than females
received scores exceeding the passing or cut-off levels on
the Bennett necessary for consideration for promotion
to vacancies in departments 327, 355 and 440. The high-
est cut-off score for obtaining a job was 35 (department
327). Fifty-seven percent (57%) of the males but only
twenty-four percent (24%) of the females who took the
Bennett scored above 35. The lowest cut-off score for
a job was 30 (department 355). Sixty-seven percent
(67%) of the males and only forty-one percent (41%)
of the females scored above 30. This Finding is based
on Plaintiff’s Exhibit 33).
55. On the Modified Alpha, a general intelligence test,
females who took the test had a mean score of 76.97
and males had a mean score of 79.56 (Id.)
56. Defendant’s own testing expert testified on direct
examination that females tend to score less well on the
Bennett than do males.
57. In December, 1970, the defendant stopped using
the Bennett Mechanical and the Modified Alpha and on
June 30, 1971, and so notified its employees. The deci-
sion to discontinue these tests was made by the then
plant manager, Moffett.
58. The Modified Alpha and Bennett Mechanical were
never validated (i. e., shown to be job related) because
it was determined by the defendant that the size of the
46a
sample at the Charlotte plant would not be large enough
to be statistically significant.
59. On July 30, 1971, one month after the employees
had been notified that the modified Alpha and Bennett
Mechanical had been discontinued, the defendant substi-
tuted new test requirements for departments 355 and
440; and on September 8, 1972, new test requirements
were substituted for department 327.
60. A passing score of 70% was established for the
new tests. The 70% passing score was established based
on the experience as a teacher of one of the officials at
the Charlotte plant.“
61. No validation studies were conducted with re-
spect to the new tests.
62. Incumbent employees (all males in departments
355 and 440) were not required to take the new tests in
order to retain their jobs and were thus “grandfathered”
into their positions in these departments on the basis
of tests which the defendant has not demonstrated to
be job related.“
16 The official was unable to state whether an employee making a
score of 65 on these tests might be able to successfully perform
on the jobs in question.
„There were over sixty (60) males in departments 327, 355 and
440 as of July 2, 1965 as compared to two (2) females (See Finding
No. 8, supra). See Griggs v. Duke Power Co., 420 F.2d 1225, 1247
(4th Cir. 1970) (dissent by Sobleoff, J.).
18 The EEOC, “Guidelines on Employment Selection Procedures”,
provide in Section 1607.11 that:
The principle of disparate or unequal treatment must be dis-
tinguished from the concepts of test validation. A test or
other employee selection standard—even though validated
against job performance in accordance with the guidelines in
this part—cannot be imposed upon any individual or class
protected by Title VII where other employees, applicants or
members have not been subjected to that standard, Disparate
treatment, for example, occurs where members of a minority or
47a
63. The defendant compiles two com service
rosters—one showing the standing of — by de-
partment and another roster showing the plant- wide com-
pany service standing. If an employee wants to know his
departmental standing he must ask his departmental
foreman if the employee wants to know his plant-wide
standing he must go to the Employee Relations Depart-
ment. Neither of these rosters has ever been posted.”
64. The defendant maintains and compiles job descrip-
tions and job evaluations. If an employee has any ques-
tions about whether the work he is asked to perform is
covered in his job, he has an opportunity to see the job
description; however, he is not given the opportunity
to see the job evaluation. The job evaluations are more
detailed than the job descriptions setting forth such
factors as exerted force, training time, rate of pay and
other items.“
sex group have been denied the same employment, promoti
transfer or membership opportunities — oy SS
available to other employees or applicants. Those employees or
applicants who have been denied equal treatment, because of
prior discriminatory practices or policies, must at least be
afforded the same opportunities as had existed for other em-
ployees or applicants during the period of discrimination.
Thus, no new test or other employee selection standard can be
imposed upon a class of individuals protected by Title VII who
but for prior discrimination, would have been granted the
opportunity to qualify under less stringent selection standards
previously in force. (Emphasis supplied).
#® Seniority rosters are computerized and are readily available.
0 All or substantially all of the job descripti
— contain the Sillewtng pasageen Job descriptions and job evalua-
“The description of this job covers only a general i
the duties of the job. Due to the varied 44 of 1. A =
eration, it is impossible to include in detail all of the miscel-
laneous tasks that the job may require from day to day. In
every instance, the operator is expected to produce a full
eight-hour’s task and that the supervisor, when possible, will
endeavor to provide a full eight-hour’s work.”
48a
65. Even though the job evaluations may have both
an average and a maximum weight lifting or exerted
force factor, the job descriptions which are shown to the
employees state only the maximum weight lifting or
exerted force element.
66. The defendant never had a female foreman at
the Charlotte plant until shortly after the complaint
was filed on August 18, 1972.“ Foreman is a salaried
position.
67. The procedure for selecting foremen (forepersons)
is as follows: Whenever a vacancy for additional per-
sonnel occurs, the Plant Manager, the Head of Employee
Relations, and the General Foreman, each makes in-
dividual lists of candidates. Each then rates each of the
candidates as their first, second and third choices. The
respective lists of candidates are then compared and the
names of candidates with the most first choice votes are
submitted to divisional headquarters in Rocky River,
Ohio. Three names are generally submitted to divisional
headquarters for a final decision.
68. Frances Black was the first female foreman at the
Charlotte plant.
69. Frances Black was employed on January 3, 1967,
as a secretary to the Head of Industrial Engineering and
held that position until she was promoted to foreman on
September 1, 1972. At the time of her promotion to
foreman her salary increased from $7,140 to $9,000
yearly.
70. The defendant has hired or promoted more than
20 persons as foremen or salaried personnel since July
2, 1965; of these, only three have been females.”
21 The defendant had several females who were classified as lines-
men during World War II; however, they were hourly-paid em-
ployees whereas foremen are salaried personnel (PX 9A, Laslie,
pp. 49, 52).
22 Frances Black, Johnnie Covington and Carol Betzold.
49a
71. None of the female employees promoted to or as-
signed to foreman or supervisory positions after 1965
were formerly hourly paid employees, whereas a number
of the males promoted after this date were formerly
hourly paid employees.
72. The procedures used by the defendant for the selec-
tion of foremen and salaried personnel are based on
purely subjective standards and there are no safeguards
in these procedures designed to avert discrimination
against females in selecting foremen and other salaried
personnel.“
73. As a Federal Government Contractor, the defend-
ant has an obligation to prepare and execute affirmative
action programs. See n. 1 supra. Notwithstanding the
defendant’s commitment and obligation to the principle
of the affirmative action programs, no efforts were made,
nor were any programs established, nor were any de-
tailed analyses of defendant’s female work force made
until the defendant prepared its 1973-74 Affirmative
Action Program.
74. Although the defendant stated in its 1971 Affirma-
tive Action Program that an in-depth analysis of its
— practices had been made, it simply had not been
one.
75. There has never been a labor organization to rep-
resent employees at the Charlotte plant.
76. On or about August 22, 1972, shortly after the
complaint was filed in this court, the defendant posted
a notice on the bulletin board about the filing of the
complaint. The notice stated, among other things, that
the company had expected a ruling from EEOC that no
discrimination was involved prior to the time that the
complaint was filed, and that prior to the filing of the
See Rowe v. General Motors Corp., 457 358-359
(5th Cir, 1972). 7 a
50a
complaint in federal court, the company believed that
the employment discrimination claim asserted by the
plaintiff was more of a personal matter between the
company and the plaintiff. The defendant says that
notice of the complaint was posted because of media cover-
age of the filing of the case and the number of questions
raised by other employees concerning the filing of the
case. The Court finds no impropriety in the posting of
the notice.
77. On January 31, 1973 plaintiff accepted a con-
nector’s job.“ Although the plaintiff had worked as a
connector before this date and was considered a qualified
connector, she had never performed this particular job
which she was assigned in January, 1973. Plaintiff was
advised that she would have six days to qualify; how-
ever, she was not given any instructions or training prior
to the assignment. During the six days qualifying period
Jimmy Smith was assigned to plaintiff as back up help,
to catch those connections missed by the plaintiff. Jimmy
Smith had never before been assigned to do this par-
ticular connection on a regular basis when the line was
running. Three days after the plaintiff had been on this
connection, she requested and received some assistance
from Jessie Teeter because she did not believe that she
was “catching on” as quickly as she should. At no time
during plaintiff's qualifying period did her foreman or
supervisor advise her that she was not making sufficient
progress or that her reject rate was higher than the
established standards, even though both her departmental
foreman (C. R. Garner) and her immediate foreman
(Clyde Williams) testified that they observed through-
out the qualifying period that the plaintiff was not per-
forming at a satisfactory pace. Plaintiff was never ad-
vised by her supervisor and foreman that she was not
24 A connector’s duties are to connect wires to a battery with the
use of a soldering iron.
5la
performing satisfactorily until the actual date of her
disqualification.
78. On February 9, 1973, plaintiff was notified that
she was disqualified as a connector. She was given a
choice of “giving up” the job or being disqualified. Dur-
ing the qualification period plaintiff was earning $3.65
per hour; when she was disqualified, she was assigned
to a job at a rate of $3.00 per hour.
79. Plaintiff filed a grievance protesting her disquali-
fication. During the process she discussed the matter
with Florence Laslie, Head of Employee Relations. Laslie
advised plaintiff at one point that if piaintiff were willing
to state that she was “nervous and upset” during the
six-day qualification period, the disqualification would
be removed from her record and plaintiff would be eligible
for future connecting jobs.
80. At the time plaintiff was disqualified in February,
1973, the defendant had a policy that if an employee
is disqualified as a connector, the only circumstances
under which an employee can return to that classifica-
tion is if there is a major change in the operation of the
job or if there are extenuating circumstances approved
by the plant management allowing the person to return
to the classification.
81. Notwithstanding the practice set out in Finding
80, supra, plaintiff was assigned a different connecting
job in the socket department to cover for an employee
absent because of illness.
82. When plaintiff was recalled from lay-off, she was
advised by John Vann, then Head of Employee Rela-
tions, of a number of jobs available to her; however,
it was only after plaintiff specifically inquired about a
connecting job that she was advised of the availability
of this position. She was then advised by Vann that
the rate of pay for connecting was $3.80 per hour; how-
52a
ever when she returned to work from recall to a con-
necting position she was given a learner’s rate of $3.65
per hour, and had to qualify for the position again.
CONCLUSIONS OF LAW
1. The Court has jurisdiction under Section 706(f)
(1), of the Civil Rights Act of 1964, 42 U.S.C. Section
2000e-5(f) (1). (Ruling of the Court made during the
trial).
2. The defendant Union Carbide Corporation is an
employer within the meaning of Section 701(b) of Title
VII, 42 U.S.C. Section 2000e(b) and is engaged in an
industry affecting commerce within the meaning of 42
U.S.C. Section 2000e(b).
3. The plaintiff has complied with the procedural re-
quirements of Sections 706(b), (e) and (f)(1) of Title
VII, 42 U.S.C. Sections 2000e-5 (b), (e) and (f) (1).
4. The relevant time period for determining defend-
ant’s liability and plaintiff’s entitlement to relief is at
and before the suit was filed. While the defendant’s
more recent practices may have a bearing on the question
of relief, they do not affect the determination whether
the defendant previously violated Title VII. United
States v. International Brotherhood of Electrical Workers,
Local 38, 428 F.2d 144, 151 (6th Cir. 1970), cert. denied,
400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970);
United States v. Dillon Supply Co., 429 F.2d 800 (4th
Cir. 1970) ; United States v. Chesareake & Ohio Ry. Co.,
471 F.2d 582 (4th Cir. 1972); cert. denied sub nom.,
Local 268 Broth. of R. R. Trainmen v. United States,
411 U.S. 939, 93 S.Ct. 1893, 36 L.Ed.2d 401 (1973);
United States v. Central Motor Lines, Inc., 338 F. Supp.
532, 556 (W.D.N.C. 1971).
5. Statistics carry much weight in cases brought un-
der Title VII of the Civil Rights Act of 1964. Brown
53a
v. Gaston County Dyeing Machine Co., 457 F.2d 1377,
1382 (4th Cir. 1972), cert. denied, 409 U.S. 982, 93
S.Ct. 319, 34 L.Ed.2d 246 (1972); McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 805, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973); United States v. Central Motor
Lines, Inc., 338 F.Supp. 532, 556 (W.D.N.C. 1971) ;
Young v. Edgcomb Steel Co., 363 F.Supp. 961 (M. D. N. C.
1973), reversed on issue not here involved, 499 F.2d 97
(Ath Cir. 1974).
The statisties in this case which reflect that the over-
whelming majority of females, including the plaintiff, in
the Charlotte plant are employed in only four (4) out of
the sixteen (16) departments, establish a prima facie
showing that the defendant has discriminated against
its female employees because of sex. Wetzel v. Liberty
Mutual Insurance Co., 372 F.Supp. 1146, 1154 (W.D.
Pa. 1974); Bowe v. Colgate Palmolive Co., 416 F.2d
711 (7th Cir. 1969), affirming in part and reversing in
part, 272 F.Supp. 332 (S.D. Ind. 1967) ; Parham v. South-
western Bell Telephone Co., 483 F.2d 421 (8th Cir. 1970).
6. The statistics and other evidence further establish
that at the defendant’s Charlotte plant females were, as
recently as August, 1972, totally excluded from all jobs
in Departments 327 and 440.
7. The prima facie case of discrimination in violation
of Section 703 (a), 42 U.S.C. Section 2000e-2 a) estab-
lished by the statistics is confirmed by evidence that the
defendant has engaged in the following discriminatory
employment practices:
A. In June, 1965, the defendant, although abandon-
ing its separate seniority rosters and job classifications
based on sex, established categories designated “male” or
“either”. Females were not considered under any cir-
cumstances for those jobs designated as male jobs.
54a
B. In June, 1965, the defendant established a twenty-
five (25) pound weight limitation, the effect of which
was to continue the male and female job classifications
which existed prior to that date.
C. In November, 1969, the defendant adopted a policy
of designating jobs as either “heavy” or “light”. The
defendant also increased its twenty-five (25) pound
weight limitation to thirty (30) pounds. The thirty (30)
pounds weight limitation and the designation of jobs as
either “heavy” or light“ had the effect of distinguishing
jobs at the Charlotte plant as either male or female.
Females were not considered for jobs designated heavy
unless they specifically requested such a job.
D. Female employees were not allowed to take any
tests administered for entry into departments 327, 355
and 440 prior to August, 1970; and when the defendant
abandoned the Modified Alpha and the Bennett Mechani-
cal because it could not demonstrate that these tests were
job related, the employees in these departments, all of
whom were males, were not required to take the new
tests instituted in 1971 as a prerequisite to retaining
their jobs. The new tests instituted in 1971, and which
are presently in use, have not been shown to be job re-
lated under the EEOC, “Guidelines on Employee Selec-
tion Procedures”. 29 C. F. R. Section 1607.1-14, 29 C. F. R.
1607; 35 Fed. Reg. 1233 (Aug. 1, 1970).
E. The weight limitation policies established by the
defendant are based on sterotyped characterization of
females and males because of sex.
8. Title VII of the Civil Rights Act of 1964 was de-
signed “to achieve equality of employment opportunities
and remove barriers that have operated in the past to
favor an identifiable group of . . . employees over other
employees. Under the Act, practices, procedures, or tests
neutral on their face, and even neutral in terms of intent
55a
cannot be maintained if they operate to ‘freeze’ the status
quo of prior discrimination practice“. Griggs v. Duke
Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 853, 28
L. Ed. 2d 158 (1971); Collins v. Union Carbide Corp.,
371 F.Supp. 260, 264-265 (S. D. Tex. 1974); Bowe v.
Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969) and
489 F.2d 896 (7th Cir. 1973); Danner v. Phillips Pe-
troleum Co., 447 F. 2d 159 (5th Cir. 1971); Quarles v.
Philip Morris, Inc., 279 F.Supp. 505 (E. D. Va. 1968).
9. Where, as in this case, a company has in the past
operated a sexually segregated system of employment in
which assignments to particular job classifications and
departments were restricted on the basis of sex, the con-
tinued reliance on a seniority system (i. e., company
service) which gives male employees a competitive ad-
vantage over female employees in terms of promotions,
transfers, lay-offs and recalls, perpetuates the effects of
past discrimination and constitutes a present pattern or
practice of impermissible discrimination against female
employees, depriving them of employment opportunities
and adversely affecting their status as employees because
of their sex within the meaning of Section 703(a) (2),
42 U.S.C. Section 2000e-2(a)(2). Bowe v. Colgate-
Palmolive, supra; Ostapowicz v. Johnson Bronze Co., 369
F.Supp. 522 (W.D.Pa. 1973); Danner v. Phillips Petro-
leum, 447 F.2d 159 (5th Cir. 1971), affirming 3 EPD
7 8336 (W.D.Tex., May 18, 1970); Diaz v. Pan Ameri-
ean World Airways, Inc., 442 F.2d 385 (5th Cir. 1971),
cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267
(1971); Chrapliwy v. Uniroyal, Inc., 6 FEP Cases 98
(N.D.Ind., July 5, 1973), and 7 FEP Cases 343 (N.D.
Ind., February 27, 1974). See also, Robinson v. Lorillard
Corp., 444 F.2d 791 (4th Cir. 1971); United States v.
Chesapeake & Ohio Ry. Co., 471 F.2d 582 (4th Cir.
1972); Rock v. Norfolk & Western Ry. Co., 473 F.2d
56a
1344 (4th Cir. 1973), cert. denied, sub. nom. United
Transportation Union, Lodge No. 550 v. Rock, 412 U.S.
933, 93 S.Ct. 2754, 37 L.Ed.2d 161 (1973); United
States v. Central Motor Lines, 338 F.Supp. 532 (W..
N. C. 1971); Hairston v. McLean Trucking Co., 62
F. R. D. 651-669 (M. D. N. C. 1973); Russell v. The Ameri-
can Tobacco Co., 374 F.Supp. 286 (M. D. N. C. 1973);
Young v. Edgeomb Steel Co., 363 F.Supp. 961 (M. D. N. C.
1973), reversed on ground here not relevant, 499 F. 2d 97
(Ath Cir. 1974).
10. Where, as in this case, a company has in the past
operated a sexually segregated system of employment in
which assignment to, lay-off from, and recall to job clas-
sifications were done on the basis of sex, the adoption
of a job allocation procedure which distinguishes between
“light” and “heavy” jobs constitutes an unlawful em-
ployment practice where it operates as a disguised form
of classification by sex, and creates unreasonable ob-
stacles to the advancement by females into jobs which
females would reasonably be expected to perform. EEOC,
“Guidelines on Discrimination Because of Sex”, 29 C. F. R.
1604.3(a) and (b); Laffey v. Northwest Airlines, Inc.,
366 F.Supp. 763 (D.D.C. 1970), order entered 374 F.
Supp. 1382 (D.D.C., April 3, 1974); Rinehart v. West-
inghouse Electric Corp., 4 EPD f 7520 (N. D. Ohio, Au-
gust 11, 1970); Cheatwood v. South Central Bell T. &
T. Co., 303 F.Supp. 754 (N. D. Ala. 1969); Bowe v.
Colgate-Palmolive Co., supra; Trivett v. Tri-State Con-
tainer Corp., 368 F.Supp. 137 (E. D. Tenn. 1973); Tay-
lor v. Goodyear Tire & Rubber Co., 6 FEP Cases 50, 57
—— Ala., July 31, 1972) (jobs designated heavy and
ight).
11. Where, as in this case, a company has historically
classified its employees on the basis of sex, it is impermis-
sible for the company to rely on word-of-mouth notice
of job vacancies. Brown v. Gaston County Dyeing Ma-
57a
chine Co., 457 F.2d, supra, at 1383; United States v.
Dillon Supply Co., 429 F.2d 800, 802 (4th Cir. 1970).
12. The question whether the defendant discouraged
its female employees, including the plaintiff, from accept-
ing heavy jobs in 1970 and thereafter is immaterial to
the issue whether the defendant practiced discrimination
in its employment practices from and after July 2, 1965.
Wetzel v. Liberty Mutual Ins. Co., 372 F.Supp. 1146,
1154 (W.D. Pa. 1974).
13. Under Title VII, 42 U.S.C. Section 2000e-7, re-
liance on state laws cannot justify discriminatory prac-
tices where such laws conflict with federal laws. Schaef-
fer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002, 1005
(9th Cir. 1972) (state law on work week for women) ;
Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1225-
1227 (9th Cir. 1971).
14. Only if a challenged practice is found to be es-
sential to overriding, legitimate, non-sexual business pur-
pose, such as safety and efficiency, can the practice in
question be allowed to stand. Robinson v. Lorillard Corp.,
444 F.2d 791, 797-798 (4th Cir. 1971) (there must be
no acceptable alternative which would better accomplish
the business purpose) ; Griggs v. Duke Power Co., supra;
Wetzel v. Liberty Mutual Ins. Co., supra. The defend-
ant has failed to show that the practices here challenged
are supported or required by business necessity.
15. In order to rely on the bona fide occupation qual-
ification exception set forth in Section 703(e), 42 U.S.C.
Section 2000e-2(e) with respect to its weight lifting
policy, the defendant has the burden of proving by a pre-
ponderance of the evidence that all or substantially all
females would be unable to perform safely and efficiently
the duties of the jobs involved. Weeks v. Southern Bell
T. & T. Co., 408 F.2d 228, 232 (5th Cir. 1969) ; Bowe v.
Colgate-Palmolive Co., 416 F.2d supra, at 717-719; Spro-
58a
gis v. United Air Lines, Inc., 444 F.2d 1194, 1199 (7th
Cir. 1971) ; EEOC Guidelines on Discrimination Because
of Sex, 29 C.F.R. Section 1604.3(b). The defendant has
not met this burden.
16. Where an employer has engaged in a pervasive
practice of discrimination on account of sex, affirmative
and mandatory relief is required in order to insure full
enjoyment of the right to equal employment opportunities.
In ordering relief, a court should not parrot the Act,
but should offer affirmative relief which is appropriate
to insure the full enjoyment of employment rights.
United States v. Dillon Supply Co., 429 F.2d 800, 804
(4th Cir. 1970); Local 53, Asbestos Workers v. Vogler,
407 F.2d 1047, 1052-1053 (5th Cir. 1969).
17. In such cases the court has not merely the power
but the duty to render a decree which will as far as
possible eliminate the discriminatory effects as well as
bar like discrimination in the future. Louisiana v. United
States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709
(1965); Rosen v. Public Service Electric and Gas Co.,
477 F.2d 90, 95-96 (3rd Cir. 1973) (sex discrimination).
18. In order to remedy the present and continuing
discrimination based on sex and to remedy the competi-
tive seniority disadvantage to the plaintiff stemming from
the defendant’s pre-1965 practices of maintaining segre-
gated jobs and rosters, and promotions, transfers, lay-
offs and recall procedures based on sex:
A. There must be a modification of reliance on com-
pany service seniority and departmental preference in
defendant’s vacancy filling procedure.
B. The defendant will be required to institute a sen-
iority system based on revised senioiity dates for pur-
poses of promotions, departmental transfers, lay-offs and
recalls. Collins v. Union Carbide Corp., 371 F.Supp. 260,
266-268 (S.D. Tex. 1974); Bowe v. Colgate Palmolive
59a
Co., 489 F.2d 896 (7th Cir. 1973), affirming, 6 FEP
Cases 1123 (S.D. Ind. 1972); Watkins v. United States
Steel Workers of America, AFL-CIO, 369 F.Supp. 1221
(E.D. La. 1974); United States v. Central Motor Lines,
Inc., 338 F.Supp. 532, 560 (W.D.N.C. 1971) ; Chrapliwy
v. Uniroyal, supra; Danner v. Phillips Petroleum Co.,
supra; Guthrie v. Colonial Bakery Co., 6 FEP Cases 663
(N.D. Ga., March 8, 1973).
C. The defendant will also be required to post in
conspicuous places throughout the Charlotte plant notice
of all vacancies and rosters showing such revised sen-
iority standing of all employees. Young v. Edgcomb
Steel Co., 363 F.Supp. supra, at 972 (M.D. N.C. 1973),
reversed on issue here not relevant, 499 F.2d 97 (4th Cir.
1974). Guthrie v. Colonial Bakery Co., 6 FEP Cases
662, 665 (N.D. Ga., March 8, 1973).
D. The defendant will be enjoined from giving first
preference to employees in the plant when vacancies oc-
eur during the periods when a reduction in the work
force is in effect, and all vacancies at all times will be
offered to employees on the basis of the revised date of
seniority. Guthrie v. Colonial Bakery Co., 6 FEP Cases
662 (N.D. Ga., March 8, 1973); Bowe v. Colgate-Pal-
molive Co., 489 F.2d 896 (7th Cir. 1973).
E. The defendant will be enjoined from requiring
the plaintiff to successfully pass any tests currently used
for jobs in departments 327, 355 and 440 because her
male counterparts in these departments were not re-
quired to take these tests. Griggs v. Duke Power Co..
420 F.2d 1225, 1231 (4th Cir. 1970) (see also dissent
by Sobeloff, J., 420 F.2d at 1247); Ostapowicz v. John-
son Bronze Co., 369 F.Supp. 522, 539 (W.D. Pa. 1973) ;
NAACP v. Beecher, 504 F.2d 1017 (Ist Cir. 1974).
Russell v. American Tobacco Co., 374 F.Supp. 286 (M.D.
N.C. 1973); Young v. Edgecomb Steel Co., 363 F.Supp.
961 (M.D. N.C. 1978).
60a
F. The defendant’s weight lifting limitation policy
should be discontinued. Weeks v. Southern Bell T. & T.,
supra; Schaeffer v. San Diego Yellow Cab, supra; EEOC
Guidelines on Discrimination Because of Sex, 29 C. F. R.
1604.4.
19. Where employment discrimination has been clearly
demonstrated, employees who have been victims of that
discrimination must be compensated if economic loss can
be established. Johnson v. Goodyear Tire & Rubber Co.,
491 F.2d 1364 (5th Cir. 1974) ; United States v. Georgia
Power Co., 474 F.2d 906, 921 (5th Cir. 1973); Moody
v. Albemarle Paper Co., 474 F.2d 134 (4th Cir. 1973);
Rosen v. Puvlic Service Electric and Gas Co., 477 F.2d
90, 95-96 (3rd Cir. 1973).
20. The statistics showing the foreman and super-
visory work force by sex and the defendant’s reliance on
subjective criteria for the selection of its supervisory
work force demonstrate that defendant has discriminated
against its female employees in the selection of its su-
pervisory personnel. Rowe v. General Motors Corp., 457
F.2d 348 (5th Cir. 1972) ; Gilmore v. Kansas City Termi-
nal Ry., 509 F.2d 48 (8th Cir. 1975); Brown v. Gaston
County Dyeing Machine Co., 457 F.2d 1877, 1382-1385
(4th Cir. 1972).
21. The defendant has intentionally engaged in the
unlawful employment practices described herein within
the meaning of Section 706(g) of the Civil Rights Act
of 1964, 42 U.S.C. Section 2000e-5(g). Griggs v. Duke
Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158
(1971); Robinson v. Lorillard Corp., 444 F.2d 791 (4th
Cir. 1971); Schaeffer v. San Diego Yellow Cabs, Inc.,
462 F.2d 1002, 1006 (9th Cir. 1972).
22. Plaintiff is entitled to recover her costs and reason-
able attorneys’ fees as part of her costs.
6la
23. The clerk is requested to set this case for a con-
ference among court and counsel to try to arrive at a
method of establishing appropriate revised seniority dates
for the plaintiff and other female employees, and to
draft an appropriate order.
EXHIBIT A TO FINDINGS OF FACT
RULES GOVERNING THE LAYOFF ON
JANUARY 23, 1970, AT THE CHARLOTTE PLANT
1. Determine the level of operation needed to meet the
demand for batteries.
2. Determine the number of employees needed to op-
erate at this level and make staffing sheets accord-
ingly.
3. Determine the excess number of employees in the
plant. This becomes the number of employees to be
laid off.
4. Departmental Foremen announced the layoff and ex-
plained the effect on this layoff of the new court
ruling governing weight restrictions for women. One
member from the Plant Manager’s Department or
Employee Relations Department attended the de-
partmental meetings to help answer questions.
5. Make a temporary layoff list by listing the youngest
employee in the plant according to company service
until the prescribed number for layoff is reached.
6. On paper, remove the laid off employees from the
departments.
7. On the basis of the new requirements, determine the
employees to remain in each department and the
employees to be set aside on the surplus list.
8. The surplus employees from each department com-
prise the plant wide surplus list.
10.
11.
12.
13.
14.
15.
62a
The jobs left unfilled by the removal of che em-
ployees on layoff become the job opening list.
After laid off and surplus employees are removed
from the departments, rearrangements are made
within each department.
Those remaining in the departments may turn down
jobs within their department. The opening created
will be filled by offering it to those employees from
that department on the surplus list. If no one wants
the opening, the youngest employee in terms of com-
pany service from that department will be forced to
take the opening. An employee who elects to go on
the surplus list loses his home department rights
unless it is a case of a woman being offered a heavy
job. 7
After all departments have completed their respec-
tive rearrangements, the resulting job openings are
offered in accordance with company service to those
employees who are on the surplus list or who have in
requests.
Men on the list may take light jobs if they have
enough company service to get them. If only heavy
openings are left, men are required to take them.
Women can take heavy or light openings if their
company service warrants. However, women can-
not be forced to take heavy openings.
The point is reached where there are only heavy
openings available and only women are left to take
them and they refuse. The youngest employees in
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.