Petition — General Motors Corp. v. Stewart
Supreme Court brief1977
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MAR 2 1977
In the MICHAEL RODAK, JR., CLERK |
Supreme Court of the United States
Ocroser Term, 1976
No 36-1209
GENERAL MOTORS CORPORATION,
Petitioner,
vs.
JOE STEWART, ROY TOLBERT, JO ANN KELSEY,
ISAIAH HATCHER, and ARTIS OSBORNE For
Themselves and For All Other Persons Similarly
Situated,
Respondents.
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
For the Seventh Circuit
MicHarLt A. WARNER
Patricia A. Branprw
69 West Washington Street
Suite 3200
Chicago, Illinois 60602
Frazer F’. Hivper
Evoene L. Hartwia
Louis H. Lrypeman, Jr.
General Motors Corporation
3044 West Grand Boulevard
Detroit, Michigan 48202
Counsel for the Petitioner,
GeneraL Motors Corporation
Of Counsel:
Porr, Batiarp, SHEPARD
& Fow.e
69 West Washington Street
Chicago, Illinois 60602
(312) 630-4200
The Scheffer Press, Inc—(312) 263-6850
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QUESTIONS PRESENTED ..00.0...........:ceceeeees ideatide
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A. The Undisputed Evidence On The Salaried
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B. The Undisputed Evidence On The Hourly
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C. The Opinion Of The United States Court Of
Appeals For The Seventh Circuit ....................
1. The Claim of Discrimination In Promo-
tions To Salaried Positions ................00006
2. The Claim of Discrimination In Promo-
tions To Hourly Clerk Positions ..............
RAIS SUS SIPC B SOREN CANT CORI RON Ee *
REASONS FOR GRANTING THE WRIT ................
I. The Court Of Appeals’ Reliance Upon A Falla-
cious Statistical Inference Conflicts With Griggs
v. Duke Power Co., The Decisions Of Other Cir-
cuits And The Mandate Of Title VIT .......0000...
II. The Court’s Finding Of Discrimination Based
Solely On Overall Work Force Statistics Con-
flicts With The Proper Application Of The
Limitations Provision Of Title VIT ......0.0..
6
10
13
il
PAGE
III. The Court Of Appeals’ Finding Of Discrimina-
tion Without Proof Of Indentifiable Victims
Conflicts With The Principles Of McDonnell
Douglas Corp. v. Green And The Fourth Circuit’s
Decision In Roman v. ESB, Ine. «0.0.0.0... eee 20
IV. The Failure Of The Courts Below To Address
The Evidence On The Manner In Which Fach
Salaried Vacaney Was Filled Conflicts With
Fundamental Principles On The Weight To Be
Accorded Rebuttal Evidence oo......cccccccccecccccesceeeeeee 21
V. The Standard Adopted By The Court Of Ap-
peals For Awarding Back Pay Is Contrary To
The Decisions Of This Court And Of Other
Courts Of Appeals And Would Result In An
Unconstitutional Deprivation Of Property .......... 23
SUPT <isaisiviciinshniilatibasaieeebeiaiclbsealaaieeiniiesdabiinniptiis 25
InpEx To ApDENDUM
Addendum A—
Percentage Of Blacks Placed In Salaried Posi-
ERRATA IY RELA Coot MAR Le ko en AO Ee Add. 1
Addendum B—
Analysis Of Salaried Vacancies Filled During
pS | ReaD Add. 3
Inpex To APPENDIX
Statutory Provisions—Title VII Of The Civil Rights
SE I. EE teniicsicceceevidialinnsiaittitndesinaainidedieinainieesieisiniinesaiiires App. 1
Opinion Of The United States Court Of Appeals For
The Seventh Cireuit, Entered October 4, 1976 ....App. 4
Order Of The United States Court Of Appeals For
The Seventh Cireuit Denying The Petition For Re-
hearing, Entered December 3, 1976 .........c.ccccss0-. App. 19
PAGE
Memorandum Opinion Of The United States District
Court For The Northern District Of Illinois, En-
Ey INI TTA. MITIIIS ‘crcsssssicieceriemnscenonpenonsinennpenmmsnnteine App. 20
Cases CITED
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ..
aki EL RTT EM Te 19, 25
IIIT. <ossaceisaiediscihienisivemapensennprensenastateesseanesieapenennnnanmnnieeimntines 25
East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975) .. 19
EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir.
ETEIEE cacssavetsssnensnnitienneuniisnrsienmncasenensimimnenpenianatanmnmnanentte 24
Griggs v. Duke Power Co., 401 U.S. 424 (1974) ........
sasnbeiilesidatiannipaiiniatinneetieitnmnnminnn, 7, 10, 13, 14, 15, 16, 18
Hairston v. McLean Trucking Co., 520 F.2d 226 (4th
I TID cecsestnerscsccnstionineinssesieincninesicnmmmnctemnnimanesenes 24
Hazelwood School District v. United States, No. 76-255
LAC CELA inne MS ENR A CN 11, 12, 13, 26
Hester v. Southern Railway Co., 497 F.2d 1374 (5th
SE: TFG cosentienennesenienicceneevessiaisemntieenmmmanmmenannemeeneen 16
International Brotherhood of Teamsters v. United
States; T.I.M.E.-D.C., Inc. v. United States, Nos.
GI, CHIE ccinssctiiciaissciensinestndccccnnininsmestioneseen 11, 12, 13, 26
International Union, Electrical Workers v. Robbins
& Myers, Inc., ...... US. ......, 50 L.Ed. 2d 427 (1976) .. 19
Lea v. Cone Mills Corp., 488 F.2d 86 (4th Cir. 1971) .. 24
Marlowe v. Fisher Body Division, General Motors
Corp., 489 F.2d 1057 (6th Cir. 1973) .....cccecceseseseseees 19
McDonnell Douglas Corp. v. Green, 411 U.S. 792
CIID cscxseccssecvsscssvessestsvensenosscssatenenensenscscesensnees 2, 8, 10, 20, 21, 22
iv
PAGE
Myers v. Gilman Paper Co., 544 F.2d 837 (5th Cir.
RTT) .<cvsc:scesescecesossnetnnnestsstiesiapsiesinininisenininnnnnnnnannnnnnEanE 24
Norman vy. Missouri Pacific Railroad, 497 F.2d 594
{lt A, | Re 24
Ochoa v. Monsanto Co., 473 F.2d 318 (5th Cir. 1973) .. 22
Olson v. Phileo-Ford, 531 F.2d 474 (10th Cir. 1976) .. 16
Pettway v. American Cast Iron Pipe Co., 494 F.2d
211 (GE Cie. 1976) ...cccwicrnisensninncccsasmam 25
Rodriguez v. East Texas Motor Freight, 505 F.2d 40
(SER Cir. 1G) ...ncscorsseesncesnsensnsionienitiasmiiaaiaaaane 21
Roman v. ESB, Ine.,, ........ ge ee , 14 FEP Cases
SEO (G0 Cp. BEGG) ...ccsccsrnsvsnsenensetsienenianiinanaaananae 17, 21
Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.
|b | I 16
Taylor v. Safeway Stores, Inc., 529 F.2d 263 (10th Cir.
ED TD) _ ...corecscosreceneoseeseseessesennessnniieseinasiainiiinnninnnnnnnnE 16
Teamsters Local Union 657 v. Rodriguez; Southern
Conference of Teamsters v. Rodriguez; East Texas
Motor Freight System, Irie. v. Rodriquez, Nos. 75-
GO), CO-TED, FOTO ccccnscssscevcssseseennennenmneaaneeeee 11, 13, 26
United States v. Georgia Power Co., 474 F.2d 906 (5th
COR. LFTB) <.10s0rcessscssessncensesnsensinesenuneiiennnisilnaininnnnnnnE 24
United States v. Hazelwood School District, 534 F.2d
et: ht A) | | ns 12
United States v. T.I.M.E.-D.C., Ine., 517 F.2d 299 (5th
CP. BGG) ...cnccssccossssesveesensessendnediuneiiiniissnannnnnnnnnnn 12, 21
United States v. United States Steel Corp., 520 F.2d
BOGS (SER Civ. 1GTB) ccececoccsorscssvnensnniiunsaanaeenenel 24, 25
Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th
CaP. BDTD) ....-cecesessussesnenennpisionsesincaimuniainnaianaen 19
Watkins vy. Steelworkers, 516 F.2d 41 (5th Cir. 1975) .. 21
Weber v. Kaiser Aluminum & Chemical Corp., 415 F.
Supp. 761 (ID. Lae. BPG) cnncsssssssunee 18
v
PAGE
Statutes Anp OTHER
AvuTHoRITIES CITED
SETI, IIITIEDD 1 sccsiscepsutensnssescsennesnessvconsssnsesessonvecssess 1
ET 3, 19
42 U.S.C. $2000€ ........ccsseseceessseseerssneseessnnecsesnnecsssnnacesnnaneseten 3
Gy BG, GEIR) ccccecccecccecccsvecccoscccceesecscsesscvesscsscscsevecesees 17
TIE... scssssspnsnnesnenensonsneeneonesnesenssosssees 1$°—— + <n
Affirmative Discrimination, (Basic Books, Inc., 1st Ed.
1975) Professor Nathan Glazer ...........cscscscsssesesenerenees 18
1976 BNA Daily Labor Report No. 227 ......ccccccesescseeseeees 11
Interpretive Memorandum Of Title VII Of H.R. 7152,
Submitted Jointly By Senators Clark And Case,
Floor Managers, 110 Cong. Rec. 7212 (1964) ........... 17-18
In THE
SUPREME COURT OF THE UNITED STATES
Octosper TrerRM, 1976
No.
GENERAL MOTORS CORPORATION,
Petitioner,
vs.
JOE STEWART, ROY TOLBERT, JO ANN KELSEY,
ISAIAH HATCHER, and ARTIS OSBORNE For
Themselves and For All Other Persons Similarly
Situated,
Respondents.
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
For the Seventh Circuit
Petitioner, General Motors Corporation, respectfully
prays that a Writ of Certiorari issue to review the judg-
ment of the United States Court of Appeals for the
Seventh Circuit entered in this case on October 4, 1976.
(Petition for Rehearing denied on December 3, 1976.)
OPINIONS BELOW
The opinion of the Court of Appeals is reported at
542 F.2d 445 and is reproduced in the Appendix hereto.
App. 4.
a
The District Court’s December 15, 1975 Decision and
Decree, as amended by a January 12, 1976 Order, is
reproduced in the Appendix hereto. App. 20.
JURISDICTION
The judgment of the Court of Appeals was entered on
October 4, 1976. Petitioner filed a Petition for Rehear-
ing which was denied on December 3, 1976. App. 19.
This Petition for Certiorari was filed within 90 days of
the latter date. This Court’s jurisdiction is invoked un-
der 28 U.S.C. §1254(1).
QUESTIONS PRESENTED
This case is a class action under Title VII of the Civil
Rights Act of 1964. The claims determined by the Court
of Appeals were that (1) the class of black hourly em-
ployees was discriminatorily denied promotions to salaried
positions and (2) the class was discriminatorily denied
promotions to the position of hourly clerk. The questions
presented for review are as follows:
1. In a Title VII class action, can a prima facie case
of racial discrimination be established solely by undif-
ferentiated work force statistics showing that blacks
were statistically underrepresented in higher rated posi-
tions, when the rate of promotion of blacks to the higher
rated positions exceeded the ratio of blacks to whites in
the work force during the period in question?
2. In a Title VII class action, can racial discrimina-
tion in promotions be found when there was no evidence
of any identifiable victims of discrimination who met the
standard of proof established by this Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)?
—
3. Can a prima facie case of racial discrimination in
promotions based solely on undifferentiated work force
statistics be rebutted by undisputed evidence that each
vacancy not filled by a black during the period in question
was filled by a white who was better qualified than any
member of the class?
4. Is a back pay standard which would permit a
monetary award to individuals who are not identifiable
victims of discrimination contrary to the remedial pro-
visions of Title VII and the Fifth Amendment guarantee
against the deprivation of property without due process?
STATUTORY PROVISIONS
Sections 703(a), (h) and (j) and 706(e) and (g) of
Title VII of the Civil Rights Act of 1964, as amended by
the Equal Employment Opportunity Act of 1972, 42 U.S.C.
§2000e-2(a), (h) and (j) and §2000e-5(e) and (g), are
reproduced in the Appendix hereto. App. 1.
STATEMENT OF THE CASE
This action was filed by five named plaintiffs under
Title VII of the Civil Rights Act of 1964 (42 U.S.C.
§2000e et seq.), and 42 U.S.C. §1981. The complaint
alleged that since 1969, the plaintiffs and a purported
class of similarly situated black hourly rated employees
were discriminatorily denied promotions to the position
of hourly clerk and to salaried positions at Petitioner’s
Broadview, Illinois Parts Division facility. Prior to trial, .
the District Court certified a class of approximately 120
black hourly employees solely for the purpose of seek-
ing prospective injunctive relief, but denied class certifi-
~
ae ae
cation on the claim for back pay. (Order of 1/17/75;
Memorandum Opinion, 3/27/75.)
A. The Undisputed Evidence On The Salaried Issue.
The Broadview facility is a warehousing operation
where automobile and truck parts are received both from
elsewhere in General Motors and outside sources, placed
in stock and then shipped to dealers as orders are re-
ceived. HKmployees are classified into either hourly rated
or salaried jobs.
The hourly work force is primarily responsible for
the physical handling of parts as they are received or
shipped to fill orders. From December, 1971, through
the date of trial, the number of hourly employees ranged
from 426 to 513.
From 1970 to the date of trial, there were from 96 to
100 salaried employees, filling approximately 25 different
salaried pos.tions. These included clerical positions such
as secretaries, key punch operators and clerks; skilled
office positions such as computer operators, order inter-
preters and traffic rate analysts; supervisory employees
such as foremen, general foremen and superintendent;
and managerial employees, including managers with re-
sponsibility over eight other Parts Division facilities in
the North Central Region.
Plaintiffs’ complaint alleged that three of the individual
plaintiffs and the class of black hourly employees were
denied advancement to salaried positions because of acts
of discrimination occurring since 1969. At trial the evi-
dence was limited to acts occurring and policies in effect
since January 1, 1969,
—
The District Court found that the named plaintiffs
“failed to indicate that they were more qualified than .. .
the individuals actually advanced during this period.” App.
37. No evidence was offered that any other member
of the class of black hourly employees was qualified for
but denied placement in any salaried vacancy which had
been filled by a white. Instead, the plaintiffs relied upon
generalized work force statistics showing that there was
a lower percentage of black employees as compared to
white employees in salaried positions.
In response to these work force statistics, it was es-
tablished without dispute that since January 1, 1969,
all five hourly employees promoted from hourly posi-
tions to salaried positions were black. Even taking ac-
count of outside hires, the rate of placement of blacks
in salaried vacancies for which hourly employees might
possibly have been qualified was:
1/1/69 to 8/31/73 (the date suit was filed) —6 blacks
out of 14 vacancies or 42.8%.
1/1/69 to 5/27/75 (the date of trial)—9 blacks out of
19 vacancies or 47.4%.’
Throughout the period from January 1, 1969 to the date
of trial blacks averaged approximately 25% of the hourly
work force.
Petitioner also presented detailed evidence regarding
the manner in which each vacancy was filled during the
period the Company was charged with discrimination
(1969 to the date of trial). This undisputed evidence,
‘ Reproduced in Addendum A hereto for the convenience
of the Court is the statistical summary on the Percentage
of Blacks Placed In Salaried Positions which was in-
cluded in Petitioner’s brief to the Court of Appeals.
— a
which is summarized in Addendum B hereto in the same
form as presented to the Court of Appeals, established
that each vacancy not filled by a black was filled only
after affirmative efforts to seek out qualified blacks failed
to locate a black with qualifications equal to or greater
than those of competing whites.’
B. The Undisputed Evidence On The Hourly Clerk Issue.
Plaintiffs also relied on underrepresentation statistics
in alleging that they and the class were discriminatorily
denied promotions to hourly clerk positions. In response
to this claim, it was established without dispute that 28 of
the 31 clerk positions were filled by offering the job to
the most senior employee in a lower rated job on the ap-
propriate shift. As for the three instances where a factor
other than seniority was determinative, it was undis-
puted that one of the three vacancies was filled by a black
and the controlling criterion was typing skills—a wholly
objective factor.
The only black employee who claimed at trial that he
had been discriminatorily denied a clerk’s position was
*In response to the suggestion that Petitioner used sub-
jective criteria which are susceptible to abuse, this evi-
dence also established that the only salaried vacancies
to which members of the class of black hourly employees
were not promoted were positions for which there were
no hourly employees—whether black or white—with the
requisite skills (e¢.g., Seeretary, Traffic Clerk and Cus-
tomer Contact Representatives). Where the absence of
skills or substantial prior salaried experience was not
necessarily disqualifying and subjective considerations may
have played a role (e.g., Level 3 Clerk, Plant Security
Officer and Foreman), 9 out of the 11 vacancies were filled
by black hourly employees or outside hires. Thus, blacks
benefitted from the challenged policies.
iota,
plaintiff Joe Stewart who contended that he should have
had the position held by R. Bures on the second shift
because Mr. Stewart had more seniority than Mr. Bures.
The District Court found, however, that Stewart was in
fact offered this vacancy, but declined it. App. 37. No
other employee claimed or proved that he was injured by
the alleged discriminatory practices.
C. The Opinion Of The United States Court Of Appeals
For The Seventh Circuit.
1. The Claim of Discrimination in Promotions to
Salaried Positions.
The Court of Appeals found a prima facie case of dis-
crimination based on the “statistical finding” of the Dis-
trict Court that 9% of the black employees, compared
with 21% of the white employees, were in salaried posi-
tions. App. 7. The Court of Appeals held that the
failure of the plaintiffs to demonstrate that individual
employees had been denied salaried positions because of
racial discrimination was immaterial because under Title
VII it is not necessary to “prove scienter by showing that
in individual cases General Motors consciously excluded
black employees from salaried positions simply because
of their race.” App. 7-8. Rather, the Court held that
it is the defendant’s burden to demonstrate that the
racial disparity was the product of non-discriminatory
factors, citing Griggs v. Duke Power Co., 401 U.S. 424
(1971). The Court of Appeals then held that the Company
failed to meet this burden because it utilized a “highly
subjective and loosely structured” promotion process which
“eould only reinforce the prejudices, unconscious or not,
which Congress in Title VII sought to eradicate. .. .”
App. 8-9.
= we
In reaching the foregoing conclusions, neither the Dis-
trict Court nor the Court. of Appeals addressed the Com-
pany’s contention that the only relevant statistics are
those on the rate of advancement since 1969 and that the
District Court’s conclusion is irreconcilable with this
Court’s holding in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Moreover, neither Court’s opinion
addressed the Company’s rebuttal evidence regarding the
manner in which each vacancy was filled.
2. The Claim of Discrimination in Promotions to
Hourly Clerk Positions.
The Court of Appeals also affirmed the District Court’s
finding that the statistical disparity in the clerk’s clas-
sification created a prima facie case of discrimination.
App. 6. The Court upheld the District Court’s re-
jection of the Company’s bona fide seniority system
defense because it found that the District Court’s find-
ing that “seniority often served only an ancillary role
in determining promotions to the position of hourly
clerk” is supported by the record. App. 6. Neither
the District Court nor the Court of Appeals, however,
addressed the issue of how such a finding of discrimina-
tion can be reconciled with the undisputed facts showing
that only three positions were filled on a basis other
than seniority and one of those was filled by a black, so
the statistical make-up of the hourly clerk’s position
could not possibly have resulted from a departure from
seniority.
3. The Remedy.
Based on its conclusions with respect to liability, the
Court of Appeals affirmed the District Court’s decree
which imposes detailed rules on the manner in which
—
future vacancies shall be filled. The Court of Appeals
also reversed the District Court’s decision not to award
back pay* and remanded the case with instructions to
determine back pay for the class.
In so ruling, the Court rejected the Company’s con-
tention that plaintiffs’ failure to show that any employee
was injured by the Company’s policies precluded a back
pay award, because such an argument “is nothing but
an attempt to relitigate whether discrimination occurred
at all. . . .” App. 11. Im setting out the mechanics
for the back pay proceeding for the salaried positions,
therefore, the Court ruled that it will not be necessary
to establish “in individual cases whether a particular per-
son would have been promoted but for racial discrimina-
tion,” even though such a method may generate “a wind-
fall for some employees.” App. 13. Instead, the Court
adopted a so-called “test period” approach under which
a sum based upon the difference in earnings of a white
“control group” and the class members will be divided
among the class without regard to whether the recipient
establishes individual injury. App. 15.
*As noted, prior to trial the District Court had cer-
tified the class of black hourly employees solely for the
purpose of prospective injunctive relief, but denied class
certification for the purpose of back pay, supra, pp. 3-4.
_ ae
REASONS FOR GRANTING THE WRIT
This case vividly illustrates the need for clarification
of the proper use in Title VII class actions of undifferen-
tiated work force statistics. Such statistics necessarily
reflect job placements occurring over the course of many
years. Their use to measure whether promotional deci-
sions made during a specific time frame discriminated
against blacks is wrong. This error is brought sharply
into focus in this case because of the failure of the courts
helow to give controlling weight to those statistics which
showed that during the period in question blacks were
advanced at a rate significantly in excess of their per-
centage in the work force. This error was compounded,
moreover, because liability was determined without proof
that there were any identifiable victims of discrimina-
tion.
As a result, the Court of Appeals’ decision is in con-
flict with principles previously enunciated by this Court
in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and with decisions of other circuits. Moreover, of crucial
significance, the effect of the Court’s reliance upon work
force statistical presumptions makes the achievement of
racial parity the paramount requirement of the law,
thus, undermining the mandate of Title VII to eliminate
preferential treatment because of race from employment
decisions.
Courts have repeatedly relied upon statistics in Title
VII cases but, as shown by the conflicting decisions dis-
cussed below, the proper role of statistics, indeed every
aspect of the standard of proof applicable to Title VII
—
class actions, is now in a state of conflict and confusion.*
It is now imperative, therefore, that this Court fully
articulate (1) whether and, if so, under what circum-
stances, statistics may be used to establish a prima facie
ease of discrimination in a Title VII class action, and
(2) what evidence is relevant to rebut that prima facie
case.
The importance of Supreme Court review of this
ease is highlighted by this Court’s grant of Certiorari in
T.1.M.E.-D.C., Rodriguez’ and Hazelwood School Distrvet.”
The predominant issue in 7..M.E.-D.C. and Rodriguez
is whether a seniority system which does not give full
eredit for company service perpetuates “past discrimina-
tion.” In that context, the relevance of “undifferentiated
statistical evidence” to prove the alleged “past discrimina-
tion” has been challenged by the Petitioners. In Hazel-
wood, the Petitioner has questioned the use of undifferen-
tiated work force statistics to support a claim of current
hiring discrimination. The present case presents the issue
* According to a recent publication of the Mqual _
ployment Opportunity Commission, there are now ~~
120 Court of Appeals decisions involving statistics in jo
bias cases (1976 BNA Daily Labor Report, No. 227, p. D-1).
See pp. 15-18, infra, for a discussion of some of these
decisions which have wrestled with the issue of the prope!
role of statistics in a Title VII class action.
‘International Brotherhood of Teamsters Vv. United
States: 7'.1.M.E.-D.C., Inc. v. United States, Nos. 13-636,
75-672: Teamsters Local Union 657 Vv. Rodriguez; South-
ern Conference of Teamsters v. Rodriguez; Kast 17 eras
Motor Freight System, Inc. v. Rodriguez, Nos. 15-691, (0-
715, 75-718.
¢ Hazelwood School District v. United States, No. 76-255.
=
of the relevance of undifferentiated work force statistics
to a claim that current promotional policies are discrim-
inatory. Because this case and the above cases all raise
related issues involving the use of statistics to estab-
lish a prima facie case of discrimination, the Court’s
decisions in those cases may have a bearing on the instant
case.
It is further submitted, however, that the record here-
in presents important additional issues which the Court
should consider. Thus, for example, in Hazelwood, the
finding of a prima facie case was substantiated by
proof of “specific discrimination against 16 black appli-
cants” and similar evidence existed in 7.1.M.E.-D.C.’ In
contrast, this case squarely presents the issue of whether
a prima facie case based solely on statistics can be sus-
tained where there is no evidence of specific discrimina-
tion against any individual. Moreover, unlike the three
cases now before the Court, this case presents a full
record on the rate of promotion and the manner in which
each vacancy was filled during the period at issue. Thus,
this case affords the Court the opportunity to examine
specific rebuttal evidence as it relates to asserted prima
facie cases of discrimination.
Review is requested, therefore, not only because of
the conflicts with other authorities created by the Court
of Appeals’ decision, but also beeause there is a complete
record in this case which raises with such clarity the full
range of issues on the applicable standards of proof in
"United States vy. Hazelwood School District, 534 F.2d
805, 811 (8th Cir. 1976); United States v. T.1.M.E.-D.C.,
O17 F.2d 299, 307, 314 (5th Cir. 1975).
—_— =
Title VII class actions which have yet to be resolved by
this Court.*
I. The Court Of Appeals’ Reliance Upon A Fallacious
Statistical Inference Conflicts With Griggs v. Duke
Power Co., The Decisions Of Other Circuits And The
Mandate Of Title VII.
The Court of Appeals found that a prima facie case of
discrimination was established because the Company had
not reached statistical parity in the percentage of blacks
in salaried positions (9%) as compared to the percentage
of whites in salaried positions (21%). The Court cited
Griggs v. Duke Power Co., 401 U.S. 424 (1971), in support
of this conclusion. App. 8.
In so concluding, the Court of Appeals totally misap-
plied the Griggs test. Griggs does not stand for the
proposition that policies can be presumed to be diserimi-
natory solely because of the absence of statistical parity
in the positions at issue. This Court stressed in Albemarle
Paper Co. v. Moody, 422 U.S. 405, 425 (1975), that the
burden of business justification under Griggs “arises, of
course, only after the complaining party or class has
made out a prima facie case of discrimination, 1.¢., has
shown that the tests in question select applicants for hire
* Because this case raises issues beyond those presented
in T.1.M.E.-D.C., Rodriguez and Hazelwood, Petitioner
submits that this Petition should be granted in the nor-
mal course. There is a possibility, however, that the
Court’s opinions in those cases may make the errors 1
the Court of Appeals’ decision herein sufficiently clear
that a remand in light of those decisions would be ap-
propriate. Petitioner requests alternatively, therefore,
that this Court defer ruling upon this Petition until the
T.1.M.E.-D.C., Rodriguez and Hazelwood cases have been
decided.
—_ wa
or promotion in a racial pattern significantly different
from that of the pool of applicants.” Thus, the Griggs
test focuses on the direct causal relationship between the
operation of a specific policy alleged to be discriminatory
and its effect on blacks—e., did the challenged policy
eliminate blacks from consideration at a substantially
greater rate than whites?
Here, the complaint charged Petitioner with discrimina-
tion since 1969. Thus, the test under Griggs is whether
the challenged promotional policies had an adverse impact
upon the class of black hourly employees since that date.
The undisputed facts before the District Court are that
all five employees promoted from hourly positions to
salaried positions from 1969 to the date of trial were
black. See Addendum B hereto. Moreover, even consider-
ing the rate at which all salaried vacancies for which
hourly employees might have contended they were quali-
fied were filled during the relevant period, including those
filled by outside hires, over 40% of such vacancies were
filled by blacks. See Addendum A hereto; supra, p. 5.
Throughout this period, blacks constituted only 25% of
the work force.
Because, under the Griggs test, these statistics estab-
lished that the challenged promotional policies and prac-
tices <lid not have a disparate impact upon blacks, no
prima facie case was shown. Or, put another way, the
statistics on the rate of placement during the relevant
period conclusively rebut any inference which initially
might have been raised by the overall work force statistics.
What the Court of Appeals failed to recognize was
that the overall work force statistics upon which it relied
reflected, more than any other factor, persons who entered
= =
the salaried ranks before 1969, many presumably before
Title VIL was even enacted. Plaintiffs did not contend
tat they were discriminatorily denied vacancies occurring
prior to 1969. Yet, the effect of the Court’s decision is
erroneously to presume that the current policies had a
discriminatory effect on the class of black hourly em-
ployees, solely because Petitioner had not reached statis-
tical parity in salaried positions prior to the date the
Company was charged with discrimination. Such a result
was not intended by this Court under the Griggs standard.
A similar statistical fallacy is inherent in the Court of
Appeals’ decision on the hourly clerk issue. There, the
determinative issue was whether the absence of blacks in
the clerk’s job was the result of the application of seniority
or for some discriminatory reason. The Court of Appeals
affirmed the finding of discrimination based on the District
Court’s finding that seniority was not followed in all
cases. But the undisputed evidence at trial established that
seniority was determinative in all but three instances
during the relevant period. One of these three promotions
(or 33%) went to a black, as compared to the 25% black
representation in the hourly work force. Thus, the statis-
tical disparity resulted from the application of seniority
and not from a departure from seniority in the three
instances noted.
Undifferentiated work force statistics have been relied
upon in a number of cases in other circuits, many of
which were cited by the Court of Appeals. Increasingly,
however, these same courts have recognized that the objec-
tives of Title VII are not served by the use of improper
statistical evidence and have adopted standards which
conflict with the decisions below.
==
For example, in Hester v. Southern Railway Co., 497
F.2d 1374, 1379-82 (5th Cir. 1974), the Fifth Cireuit
delineated the limitations on its holding in Rowe v. General
Motors Corp., 457 F.2d 348 (5th Cir. 1972), one of the
principal authorities relied upon by the Court of Appeals
in this case. In Hester, the Court held that tests and sub-
jective hiring criteria are not violative of Title VII per se
(497 F.2d at 1381) and rejected the District Court’s finding
of a statistical showing of discrimination based on work
force statistics because there was no showing that the
challenged criteria “operate to disqualify Negroes at a
substantially higher rate than whites” under the Griggs
standard.’ 497 F.2d at 1379-81.
In Olson v. Philco-Ford, 531 F.2d 474, 477 (10th Cir.
1976), the Court rejected the plaintiff’s contention of dis-
crimination in promotions, noting that “[t]he record con- °
tains no statistics bearing on promotions” and evidence
of work force percentages “in 1969” was irrelevant be-
cause those statistics bear “only on a particular time and
[have] nothing to do with promotions.”
In Taylor v. Safeway Stores, Inc., 524 F.2d 263, 272
(10th Cir. 1975), the Court stated that “statistical data
should be closely related to the specific issues presented”
and ruled that because the rate of hiring for a four-year
*The Court in Hester also noted that comparisons with
general population statistics are of questionable value
when considering employees for data typist positions where
typing is required because “the general population is not
presumptively qualified.” 497 F.2d at 1379, n. 6. It is
even more unreasonable to presume that the class of
hourly employees is presumptively qualified for the nu-
merous salaried positions involved in this case which
require substantial skills or extensive prior supervisory
and managerial experience, See Addendum B hereto.
= oo
period exceeded the percentage of blacks in the hiring
area, the plaintiffs failed to prove a prima facie case
that the challenged practice was discriminatory.
In the recent case of Roman v. ESB, Ince., ...... if :
14 FEP Cases 235, 242 (4th Cir. 1976), a majority of the
Court sitting en banc was critical of the reliance on “iso-
lated bits of statistical information ... divorced from
other and contrary statistics” and it refused to find a
statistical inference of discrimination for, among other
reasons, “the percentage of promotions received by black
employees was slightly larger than their percentage in
the work force.”
By relying upon generalized and irrelevant work force
statistics rather than requiring actual proof of discrimina-
tion, the Court of Appeals has, in effect, mandated that
statistical parity must be achieved for blacks, notwith-
standing the rights of others competing for the vacancies.
This is not what was intended by Title VII. Section 703()j)
of Title VII (42 U.S.C. §2000e-2(j)) expressly states that
“(njothing contained in this subchapter shall be inter-
preted to require any employer .. . to grant preferential
treatment to any individual or to any group... on account
of an imbalance which may exist with respect to the total
number or percentage of persons of any race. . . employed
by any employer . . . in comparison with the total number
or percentage of persons of such race... in any... area
or in the available work force in any... area.” (EHmphasis
added.) As this provision was explained in the legislative
history:
[T]here is no requirement in Title VII that an
employer maintain a racial balance in his work force.
On the contrary, any deliberate attempt to maintain
a racial balance, whatever such balance may be, would
——
involve a violation of Title VII because maintaining
such balance would require an employer to hire or to
refuse to hire on the basis of race. Interpretive
Memorandum of Title VII of H.R. 7152, Submitted
Jointly by Senators Clark and Case, Floor Managers,
110 Cong. Ree. 7212, 7213 (1964).
As Congress prophesied, an undue emphasis on whether
a racial balance exists in the work force presents em-
ployers with an impossible dilemma. The employer must
either resist what it views as demands for preferential
treatment and windfall damages, therefore, inviting litiga-
tion from the Government or minorities; or it must accede
to the demands, therefore, inviting litigation from the
victims of the preferential treatment.”
The purpose of Title VII is to determine whether there
are identifiable victims of discrimination who are entitled
to relief. “Discriminatory preference for any group,
minority or majority, is precisely and only what Congress
has proscribed.” Griggs v. Duke Power Co., 401 US. 424,
431 (1971). A reliance on irrelevant statistics instead of
the actual effect of the employer’s policies as represented
by this and other cases will only undermine, rather than
further, the intent of Title VII. Review and reversal of
this case is necessary to clarify the proper application
of the Griggs test and to insure that statistics are assigned
no more weight than is consistent with fairly and accu-
rately identifying the victims of discrimination.
*° See, e.g., Weber v. Kaiser Aluminum & Chemical Corp.,
415 F.Supp. 761 (E.D. La. 1976). Also, for a full discus-
sion on the adverse consequences of the statistical parity
approach adopted by this and other courts, see pp. 58-76,
Affirmative Discrimination (Basie Books, Inc., 1st Ed.
1975) by Professor Nathan Glazer of Harvard University.
—_—
’s Findi f Discrimination Based Solely
“On Overall Work Force Statistics Conflicts With The
Proper Application Of The Limitations Provision Of
Title VII.
The charge of discrimination relied upon by plaintiffs
to assert Title VII jurisdiction was filed in June, 1972.
App. 16. Section 706(e) of Title VII provides that the
charge must be filed within 300 days of the alleged viola-
tion. 42 U.S.C. §2000e-5(e). The scope of a class action
under Title VII can be no broader than that raised in the
EEOC charge. E.g., Bowe vy. Colgate-Palmolive Co., 416
F.2d 711, 720 (7th Cir. 1969). Therefore, any claim by the
plaintiffs or any class member that they were diserimina-
torily denied promotions prior to September, 1971 (300
days prior to June, 1972) is barred as outside the appli-
cable limitations period. E.g., International Umon, Elec-
trical Workers v. Robbins & Myers, Inc., ........ Saar .
50 L.Ed.2d 427 (1976); East v. Romine, Inc., 518 F.2d
332, 336-37 (5th Cir. 1975). Thus, the Court of Appeals’
finding of discrimination based on underrepresentation
statistics which, as discussed, could only have been the
result of events long prior to the limitations period cut-off
date is clearly erroneous."
4 Although the Court’s decision was based solely on Title
VII, plaintiffs also raised a claim under 42 U.S.C. “oe
at trial. The relevant limitations period for a Section 1 :
claim is five years prior to August 31, 1973—the date t -
suit was filed. Waters v. Wisconsin Steel Works, 427 F.2c
476, 488 (7th Cir. 1970). Thus, any claim of discrimination
for acts occurring outside of the Section 1981 period .
also barred. Marlowe v. Fisher Body Division, o_o
Motors Corporation, 489 F.2d 1057, 1063 (6th Cir. 197 ).
It was because of the Section 1981 limitation period r-
the parties went back in discovery and at trial from -
September, 1971 Title VIL cut-off date to January 1, 1969.
— 29) —
Neither Court below considered the Title VII limitation
provision. Review is, therefore, necessary to resolve the
conflict between the inference based on work force statis-
tics and traditional statute of limitations principles.
III. The Court Of Appeals’ Finding Of Discrimination
Without Proof Of Identifiable Victims Conflicts With
The Principles Of McDonnell Douglas Corp. v. Green
And The Fourth Circuit’s Decision In Roman v. ESB,
Inc.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973), this Court held that in an individual Title VII
ease the plaintiff must, at a minimum, show that he was
denied a job for which he was qualified. In this case, the
District Court found that the individual plaintiffs “failed
to indicate that they were more qualified for promotion
than . . . the individuals actually advanced during this
period” (i.e., the period 1969 to the present). App. 37.
Similarly, the claim of the only plaintiff who contended
that he was denied an hourly elerk’s position was expressly
discredited. App. 37. And there was no proof and no
finding that any other class member was discriminatorily
denied an hourly clerk or salaried vacancy.
The Court of Appeals ruled that it was irrelevant that
there was no “showing that in individual cases General
Motors consciously excluded black employees from salaried
positions because of their race.” App. 7-8. This conclusion
is simply irreconcilable with McDonnell Douglas. Because
there is no showing that any plaintiff or class member
was denied a promotion to a job for which he was quali-
fied, Petitioner is faced with the anomalous result that
plaintiffs and the members of the class are entitled to
relief, even though none of them would be entitled to relief
if they sued as individuals.
=
The Court of Appeals did not even discuss McDonnell
Douglas and other courts have summarily dismissed the
significance of that case as being directly concerned only
with the burden of proof in an individual case.”* In the
recent case of Roman v. ESB, Inc., ...... a , 14 FEP
Cases 235 (4th Cir. 1976), however, a majority of the
Fourth Circuit sitting en banc expressly held that no dis-
criminatory practice had been proven in a class action
because, despite the absence of statistical parity in certain
skilled jobs, there was no “showing of qualified black
applicants being available and not being hired or promoted
into these skilled jobs.” The Court cited McDonnell Douglas
in support of that holding.
The objective of Title VII is to identify victims of
discrimination entitled to relief, but when no such indi-
viduals have been identified it seems axiomatic that neither
individual nor class relief is appropriate. E.g., Watkins
v. United Steel Workers, 516 F.2d 41, 44-45 (Sth Cir.
1975). Review of this case is necessary, therefore, to estab-
lish that, if statistics are relevant at all, they cannot be
sufficient to prove discrimination in the absence of evidence
that individuals were, in fact, injured by the alleged dis-
criminatory policies.
IV. The Failure Of The Courts Below To Address The
Evidence On The Manner In Which Each Salaried
Vacancy Was Filled Conflicts With Fundamental
Principles On The Weight To Be Accorded Rebuttal
Evidence.
Assuming arguendo that the work force statistics relied
upon below did establish a prima facie case under Title
2 Eg., Rodriguez v. East Texas Motor Freight, 505
F.2d 40, 55 (Sth Cir. 1974) ; United States v. T.I.M E.-D.C.,
Inc., 517 F.2d 299, 315-16 (5th Cir. 1975).
_— om
VII, consideration must be given to the relevancy of and
weight to be accorded rebuttal evidence. At trial Peti-
tioner presented detailed evidence on the manner in which
each salaried vacancy was filled. (Summarized in Adden-
dum B hereto.) This evidence, none of which was disputed,
shows that every salaried vacancy not filled by a black
during the relevant period was filled by a white with
greater qualifications than any class member. None of this
evidence was addressed in either lower court opinion. It
is submitted, however, that the failure to give any weight
to this evidence is erroneous as a matter of law.
Statistics are only a composite of individual employ-
ment decisions, each with its own unique attributes and
variables. Thus, as recognized by this Court in McDonnell
Douglas, where it is possible to examine these individual
decisions on their own merit, statistics should not be con-
trolling.” Even if a prima facie case is established, there-
fore, the burden merely shifts to the employer to “articu-
late some legitimate, nondiscriminatory reason for the
employee’s rejection.” 411 U.S. at 802. Having advanced
such a reason, the burden shifts back to the plaintiffs to
show that the stated reason is pretextual. 411 U.S. at
804.
In this case, Petitioner established a “legitimate non-
discriminatory reason” why no class member could claim
‘In McDonnell Douglas, 411 U.S. 792, 805 n. 19 (1973),
this Court cautioned against undue reliance on statisties
as follows:
We caution that such general determinations, while
helpful, may not be in and of themselves controlling
as to an individual hiring decision, particularly in
the presence of an otherwise justifiable reason for
refusing to rehire.
See also, Ochoa v. Monsanto Co., 473 F.2d 318, 319-20 (5th
Cir. 1973).
=
discrimination with respect to any vacancy. No matter
how many presumptions are derived from whatever source,
a finding of discrimination cannot be sustained where
such evidence stands unrebutted. If not determinative of
the entire case, the evidence on specific vacancies should
at least have shifted the burden back to the plaintiffs to
produce individualized proof of discrimination with respect
to particular vacancies—a burden which they made no
effort to carry.
This Court has not had occasion to set out the standards
applicable to the proper evaluation of rebuttal evidence in
a Title VII class action. As evidenced by the failure of
both of the lower courts to address the manifestly relevant
rebuttal evidence presented in this case, however, review
is required in order to insure that fundamental principles
as to the weight to be accorded rebuttal evidence are
followed in Title VII class actions.
V. The Standard Adopted By The Court Of Appeals For
Awarding Back Pay Is Contrary To The Decisions Of
This Court And Of Other Courts Of Appeals And
Would Result In An Unconstitutional Deprivation Of
Property.
The Court of Appeals’ approach to the back pay issue
on the salaried claim parallels its approach to the liability
issue. Just as it held that it was unnecessary for plaintiffs
to show that “in individual cases General Motors con-
sciously excluded black employees from salaried positions
simply because of their race” in order to establish liability,
the Court of Appeals concluded that it was unnecessary
as a prerequisite to back pay to determine “whether a par-
ticular person would have been promoted but for racial
discrimination,” even though this “may generate a windfall
for some employees.” App. 13. Instead, the Court of
ii,
Appeals opted for a fluid recovery type of approach
whereby class members would receive a monetary award
from a fund generated by comparing the wages of the
class and a “control group” of whites. Such an approach
is contrary to the decisions of this Court and every other
Court of Appeals which has articulated standards on the
burden of proof for back pay awards.
The purpose of back pay is to make “persons whole
for mjuries suffered” because of employment discrimina-
tion. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421
(1975) (emphasis added). Other circuits have unanimously
held that back pay must be limited to actual damages and
must be proved with reasonable certainty. EEOC v. De-
troit Edison Co., 515 F.2d 301, 314-16 (6th Cir. 1975);
Norman v. Missouri Pacific Railroad, 497 F.2d 594, 597 (8th
Cir. 1974); United States v. Georgia Power Co., 474 F.2d
906, 921-22 (Sth Cir. 1973); Lea v. Cone Mills Corp., 438
F.2d 86, 87-88 (4th Cir. 1971). It is further accepted that
proof of back pay must be based on a showing that a
particular class member was qualified for and denied
a particular vacancy. Myers v. Gilman Paper Co., 544
F.2d 837, 853-54 (5th Cir. 1977); Hairston v. McLean
Trucking Co., 520 F.2d 226, 232 (4th Cir. 1975); EEOC v.
Detroit Edison Co., 515 F.2d 301, 316 (6th Cir. 1975);
Norman vy. Missouri Pacific Railroad, 497 F.2d 594, 597
(8th Cir. 1974).
None of the authorities cited by the Court of Appeals
has adopted its wage averaging formula. For example,
in United States vy. United States Steel Corp., 520 F.2d
1043 (Sth Cir. 1975), the Fifth Circuit first noted that
“(t]he key is to avoid .. . granting a windfall to the class
at the employer’s expense. .. .” 520 F.2d at 1055. The
—
Court then specifically rejected “the indiscriminate black-
white wage averaging approach advanced by the plain-
tiffs.” 520 F.2d at 1056. And although the Court of Appeals
cited the first decision in Bowe v. Colgate-Palmolive Co.,
416 F.2d 711, 721 (7th Cir. 1969), there is no authority in
that opinion for the type of wage averaging approach
directed in this case. Indeed, a second decision in the Bowe
case, 489 F.2d 896, 903 (7th Cir. 1973), expressly disap-
proved of the plaintiffs’ back pay proposal for “an allow-
ance based on the average earning rate of all male em-
ployees during the appropriate periods” as compared to
the female class members.
Finally, the constitutional infirmity inherent in anything
other than an insistence upon concrete, individual proof of
damage was stated by Judge Bell, concurring in Pettway
v. American Cast Iron Pipe Co., 494 F.2d 211, 267 (5th
Cir. 1974) :**
Damage awards must be individualized to avoid con-
stitutional problems which would arise in taking the
property of one for another without a showing of
loss to the particular recipient.
Accordingly, assuming arguendo that liability sufficient
to justify back pay was established, this Court should
review the standard for determining back pay adopted
by the Court of Appeals because it conflicts with authori-
ties of other circuits, the opinion of another panel in the
same circuit, and the Fifth Amendment guarantee against
the deprivation of property without due process.
Cited with approval in United States v. United States
Steel Corp., 520 F.2d 1043, 1056 (5th Cir. 1975).
= SS
CONCLUSION
For all of the foregoing reasons, it is respectfully
requested that this Petition for Writ of Certiorari be
granted. In the alternative, it is requested that action on
this petition be deferred for consideration of whether this
ease should be remanded to the court below for further
proceedings in light of this Court’s forthcoming decisions
in 7.1.M.E.-D.C., Rodriguez and Hazelwood School District,
swpra.**
Respectfully submitted,
MicHuage, A. WARNER
Patricia A. BRANDIN
Suite 3200
69 West Washington Street
Chicago, Illinois 60602
Frazer F’. Hicper
Evcene L. Hartwic
Louis H. Linpeman, Jr.
General Motors Corporation
3044 West Grand Boulevard
Detroit, Michigan 48202
Counsel for the Petitioner,
GENERAL Motors CorPoRATION
Of Counsel:
Poprz, BALLarp, SHeparp & FowLe
69 West Washington Street
Chicago, Illinois 60602
(312) 630-4200
** For a full discussion of these alternatives, see swpra,
pp. 11-13 and n. 8.
ADDENDUM
— Add. 1—
ADDENDUM A
Percentage of Blacks Placed in Salaried Positions
January 1, 1969 to January 1, 1969 to
August 31, 1973 May 27, 1975
Percent Percent
Blacks Total Of Blacks Blacks Total Of Blacks
A. 6 14 42.8% ) 19 47.4%
B? 8 22 36.7 % 11 34 32.4%
Cc 7 18 38.9% 10 28 35.7 %
D.* 7 16 43.8% 10 24 41.7%
*The statistics in Group A include all those employees
who filled entry level vacancies in salaried positions for
the period stated. These vacancies are represented by the
requisitions introduced into evidence by the plaintiffs as
Plaintiffs’ Group Exhibit 11, plus Frank Jones who was
promoted in 1969 prior to the introduction of the requisi-
tion system (Tr. 785). These are the only vacancies for
which hourly rated employees might arguably be qualified.
* The statistics in Group B include the Group A statis-
tics plus all other salaried positions which the evidence
shows were filled during the periods noted, including num-
erous non-entry vacancies for which the hourly employees
were not qualified because the positions required prior
related salaried experience and positions filled which, in
fact, did not result from vacancies for which hourly em-
ployees could be considered. In other words, these statis-
ties give the plaintiffs the benefit of all possible factual dis-
putes, and accordingly, are those statistics which under
any possible construction of the evidence are most favor-
able to the plaintiffs.
— Add. 2—
*The Group C statistics eliminate those positions from
the Group B statistics which, in fact, did not result from
vacancies for which other employees could be considered.
The positions eliminated are:
1. Those filled by F. Jones, W. Edwards, J. Begel and
M. Valentino in 1971 by recalling these employees
from layoff from salaried jobs (Tr. 713-714).
2. Those filled by D. Kannel and J. Weir in 1974 who
were transferred from Milwaukee when the duties
they were performing at Milwaukee were transferred
to Broadview (Tr. 673-674).
*The Group D statistics include all those included in
Group C except those persons placed in top management
positions of level 7 and above, .e., R. Rudolph, Area Per-
sonnel Director; H. Arnold, Area Traffic Manager; L.
Browning, General Manager, Broadview Facility; C. No-
votny, General Foreman. The plaintiffs could not possibly
contend that these positions, which require years of prior
related experience, could be filled by promotions directly
from the hourly work force.
— Add. 3—
ADDENDUM B
ANALYSIS OF SALARIED VACANCIES
FILLED DURING THE RELEVANT PERIOD
FROM 1/1/69 TO 5/75
The following is an analysis in summary form of the
manner in which the Company filled each salaried vacancy
during the period from January 1, 1969 to the date of
trial.
Date
Appointed Name Position Level Race
Leve. 3 Positions:
Clerical:
3/26/73 Y. Wallace Data Preparation
Operator 3 N
Mrs. Wallace was an outside hire for this position (PI.
Ex. 24).
5/1/73 J. Altheimer Clerk 3 N
Ms. Altheimer had filled a similar position for the Com-
pany in Flint, Michigan (PI. Gr. Ex. 11—Req. #83).
5/1/74 B. Johnson Clerk 3 N
Ms. Johnson was promoted to a salaried position from the
hourly ranks (Tr. 784; 527-528).
5/16/74 L. Lang Clerk 3 N
— Add. 4—
Ms. Lang was promoted to a salaried position from the
hourly ranks (Tr. 784; 527-528).
5/16/74 J. Walton Data Preparation
Operator 3 N
Ms. Walton was hired into this position (Tr. 678).
8/26/74 G. Hevia Data Preparation
Operator 3 Sp. Am.
Ms. Hevia was an outside hire for this position (Tr. 678).
Secretarial Positions:
6/10/71 K. Scheck Stenographer 3 C
In connection with filling this vacancy, the Company can-
vassed the hourly work force to determine if any em-
ployee had the necessary typing and stenographie skills,
requested minority employees to refer qualified candi-
dates, and contacted the Urban League and the Illinois
State Employment Service for minority referrals. Ms.
Scheck was hired because, despite the Company’s affir-
mative action efforts, she was the only qualified appli-
cant (Tr. 782-783).
3/22/71 J. Massie Stenographer 3 C
Ms. Massie was hired after the same affirmative action
efforts made in connection with the above vacancy were
taken and it was determined that she was the only appli-
cant with the necessary skills (Tr. 782-783).
3/1/73 G. Barbalace Stenographer 3 C
Mrs. Barbalace was hired only after the Company con-
tacted the Illinois State Employment Service and Opera-
tion Uplift for minority referrals and only after the
hourly work force was again canvassed to determine
— Add. 5—
if any hourly employee had the necessary skills. Mrs.
Barbalace had nine years of secretarial experience, three
years experience in a related industry, an impressive
work record and an educational background in business
(Tr. 676-677).
4/1/73 F. Muldoon Stenographer 3 C
Mrs. Muldoon was hired because she had proficient typing
and shorthand skills, prior experience with a transpor-
tation company, and was the most qualified of all the
applicants. Prior to her selection, the same affirmative
action efforts as were taken with the above vacancy were
made and failed to produce any qualified minority appli-
eant (Tr. 677-679).
Analysis: Blacks filed 5 of 6 or 83.5¢¢ of the Level 3
clerical positions for which no prior salaried experience
and little in the way of special skills are required. For
this reason, the Level 3 clerical positions are positions
that are often filled by hourly employees as is evidenced
by the fact that two of the Level 3 clerk positions were
filled by blacks from the hourly work force. In addition,
the one other of these positions not filled by a black was
filled by another minority group member to whom the
Company also has a commitment under its affirmative
action plan and Executive Order 11246 (Tr. 678-679).
In contrast to the clerical positions where there are min-
imal skill prerequisites, the Company has been unable
to fill secretarial positions from the hourly work force
because none of the hourly employees had the necessary
secretarial skills and experience. As is generally the case
with most employers, the secretarial positions were all
filled by outside applicants.
— Add. 6 —
LeveL 4 Posrtions:’
1969 F. Jones Senior Clerk 4 N
Mr. Jones was promoted from the hourly ranks (Tr. 785).
2/1/70 W. Poole Senior Clerk—
Traffic 4 C
Mr. Poole was transferred from the Level 4 position of
Order Interpreter at Broadview to staff the newly cre-
ated Mid-West Area Traffic Department (Pl. Gr. Ex. 11~—
Req. #1; Pl. ex. 24). This transfer at the same salaried
job level was necessary in view of the need for per-
sons experienced in office procedures to staff the Traffic
Department when it was first formed at Broadview.
1/4/71 J. Voeu Senior Clerk—
Traffic 4 C
In connection with this vacancy Mr. Rudolph canvassed
the hourly work force for candidates and specifically
requested members of the Concerned Black Workers at
Broadview to refer black employees. As a result of these
efforts, three black employees were considered for the
position (Tr. 399-405). Two of these employees, includ-
ing the one employee referred by the Concerned Black
‘In 1971, J. Begel was returned to his position as a
Level 4 Plant Security Officer from layoff (Tr. 713-714).
Three employees were returned from layoff to positions
in the Level 4—Senior Clerk classification: F. Jones,
W. Edwards and M. Valentino (Tr. 713-714). Since the
employees held these positions prior to layoff, they were
not considered to be “vacancies.” In 1974, Dennis Kannel
was transferred to Broadview as a Level 4 Order Inter-
preter when the Milwaukee parts facility was closed and
the work formerly performed at that location was trans-
ferred to Broadview (Tr. 673-674). Therefore, this posi-
tion was not considered to be a “vacancy.”
— Add. 7 —
Workers, declined consideration. The third—Lee Tucker
—was not selected because he had no traffie experience
and lacked typing skills (Tr. 402-405; 626-628). Mr.
Vocu was subsequently selected because he had numer-
ous years experience in the transportation field, some
advanced education in traffic and was a proficient typist
(Tr. 626-628).
8/7/72 R. Kos Senior Clerk—
Traffic 4 C
In connection with filling this vacancy, which involved
handling traffic claims, Mr. Price reviewed the minority
skills inventory to determine if there were any qualified
black hourly employees. Mr. Price also contacted Oper-
ation Uplift and the Illinois State Employment Service
for minority referrals. Though some minorities were
considered as a result of these affirmative action efforts,
none had sufficient qualifications. Mr. Kos was hired
because he was the most qualified applicant and had
prior experience with a transportation company where
he was the assistant office manager and supervisor of
the claims section (Tr. 674-676).
5/16/72 W. Butler Plant Security
Officer 4 N
Mr. Butler was promoted to this position from the hourly
ranks (Tr. 527-528; 784), after a number of other hourly
employees, including plaintiff Joe Stewart who declined
the position, were considered (Tr. 764-778).
5/1/74 C. Verpaele Order Interpreter 4 C
Ms. Verpaele was transferred from a Level 3—Senior
Clerk position to the Level 4 position of Order Inter-
preter (PI. Ex. 24). This transfer at the same salaried
— Add. 8—
job level assured that the employee selected was familiar
with office procedures and it also furthered the Com-
pany’s affirmative action goals with respect to females
under Executive Order 11246.
Analysis: Two of the six persons or 33% of those selected
for Level 4 positions during the relevant period were
black. The only category of Level 4 positions where
blacks were not selected was in Traffic Department Clerk
positions. These positions required prior traffic and/or
office experience due to the specialized nature of the
traffic function and no blacks could be found who pos-
sessed the requisite skills and experience.
LeveL 5 Positions:
9/1/73 T. Reilly Customer Contact
Representative 5 C
Mr. Reilly was promoted internally from the Level 4 sal-
aried position of Order Interpreter to Customer Contact
Representative, a position which required him to ecn-
tact dealers by phone and in person to help them solve
any problems they had in meeting their parts requ:re-
ments and consequently required familiarity with the
parts ordering procedures in the office at Broadview
(Tr. 210-212; Pl. Ex. 24). The position of Customer
Contact Representative is, thus, essentially an advanced
level Order Interpreter position. For this reason, it has
consistently been filled by promotion from the Order
Interpreter classification, and an hourly employee would
not be qualified for promotion directly to this position.
5/1/74 P. Micus Customer Contact
Representative 5 C
— Add. 9 —
Mr. Micus was promoted from the Level 4 position of
Order Interpreter to Contact Representative. As in the
ease of the position filled by Mr. Reilly, above, the Com-
pany followed its consistent policy of promoting from
the Order Interpreter classification (Tr. 65-66).
8/26/74 K. Pochynok Nurse ) C
In filling the nurse’s position, Mr. Price first canvassed
the hourly work force to insure that there were no quali-
fied nurses who would be overlooked. In addition, he
contacted the Illinois State Employment Service for mi-
nority referrals and placed an advertisement for the
position containing the clause that General Motors is
an equal opportunity employer. Ms. Pochynok was hired
because she was the applicant with the most impressive
credentials, experience, and background (Tr. 679-680).
Analysis: Both of the Level 5 Customer Contact Repre-
sentative positions were, of necessity, filled with per-
sons who had prior salaried experience as Order Inter-
preters, and not from the hourly ranks. Prior salaried
experience as an Order Interpreter is essential in filling
this classification because the Customer Contact Repre-
sentative is responsible for handling all of the dealers’
sophisticated and difficult parts orders. In order to per-
form this function, knowledge and familiarity with the
basic order department procedures is essential. With
respect to the Nurse position, an R.N. degree is an obvi-
ous job prerequisite and it is not surprising that the
hourly work force would not prove to be a viable source
of candidates for this position.
— Add. 10—
Leve. 6 Positions :?
Non-Supervisory Positions:
4/1/70 L. Blecha Senior Rate
Analyst 6 C
Mr. Blecha was transferred from the General Motors As-
sembly Division in Kansas City where he was a rate
analyst to staff the Traffic Department at Broadview
when the traffic function formerly performed by the As-
sembly Division was taken over by the Parts Division
(Tr. 618-620). This position essentially involved a trans-
fer of the function previously performed by Mr. Blecha
to the Broadview facility. Moreover, the Senior Rate
Analyst position requires extensive prior traffic experi-
ence (see Job Description, Jt. Ex. 4).
Supervisory Positions:
6/16/70 R. Smith Supervisor—Material
Handling 6 C
Mr. Smith was promoted from within the salaried ranks
from the Level 4 position of Order Interpreter to the
position of supervisor (Pl. Ex. 24). This was in accor-
dance with the Company’s established practice to re-
quire prior salaried job experience in the office, prefer-
ably in the Order Interpreter position, as a prerequisite
to Level 6 supervisory jobs (Tr. 189),
8/1/70 A. Wynn Supervisor—Material
Handling 6 N
*In 1974, J. Weir was transferred to the Broadview
facility as a Level 6—Supervisor—Material Handling from
the Milwaukee parts facility when that facility was closed
and the work previously performed there was transferred
to Broadview (Tr. 673-674). This position has not been
considered to be a “vacancy.”
— Add. 11 —
As in the case of Mr. Smith, Mr. Wynn was promoted
within the salaried ranks from the Level 4 position of
Order Interpreter to the position of supervisor (PI. Ex.
24; Tr. 739-741).
4/1/72 J. Price Labor Relations
Representative 6 N
Mr. Price was transferred to the Broadview facility from
the Detroit parts facility where he had prior related
experience as the assistant to the personnel director
(Tr. 650-651).
1/16/73 Y. Thurston Supervisor—Material
Handling 6 N
Mrs. Thurston was promoted to the position of supervisor
from the hourly ranks. Because this was a departure
from the usual progression in filling supervisor posi-
tions, Mrs. Thurston was given special training in the
office prior to being directly placed in a supervisor posi-
tion (Tr. 189, 527-528, 784).
Summary: Three of the five (60%) Level 6 positions were
filled by blacks. Three of the four Level 6 supervisory
positions filled during the relevant time period (757%)
were filled by blacks. (All of these positions were filled
prior to suit being filed.) Except for Mrs. Thurston, all
of the persons selected for these positions had prior
salaried experience with the Company. With respect to
the Senior Rate Analyst position, prior salaried experi-
ence was essential for the proper performance of a traf-
fic job at this level. It should be noted that in the super-
visory jobs where specific skills play less of a role in the
selection process than they do in most other salaried
positions and where subjective qualities such as leader-
— Add. 12-—
ship ability are important, the Company has a record of
promoting blacks at a much greater rate than their
representation in the hourly work force. This suggests
that to the extent subjective criteria and supervisor
recommendations may have entered into the selection
process, blacks have benefitted and have not, as plain-
tiffs claimed, suffered any adverse impact.
LeveL 7 Anp ABovE MANAGERIAL PosiTIONs:
Analysis: There was evidence at trial that a number A
Level 7 or above managerial positions were filled dur- |
ing the relevant period. These positions include (1)
R. Rudolph, Area Personnel Director, who was trans- APPEN DIX
ferred to Broadview in 1969 after nearly twenty years
experience with the Company in industrial relations
(Tr. 17-20, 515); (2) H. Arnold, Area Traffic Manager,
transferred in 1969 to head the newly-formed Mid-West
Area Traffic Department (Tr. 618-620; 789-790); (3)
H. Browning, Plant Manager, transferred from General
Motors, Richmond, Virginia (Pl. Ex. 24; Tr. 674); and
(4) C. Novotny, General Supervisor—Materia! Handling,
promoted from Level 6 Supervisor (Pl. Ex. 24). None
of these positions could conceivably have been filled by
an hourly employee because they all require extensive
prior supervisory and managerial experience.
— App. 1 —
APPENDIX
STATUTORY PROVISIONS
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
42 U.S.C. Section 2000€ et seq.
Section 2000e-2 [Sec. 703]. Discrimination Because Of
Race, Color, Religion, Sex, or National Origin
(a) It shall be an unlawful employment practice for
an employer— '
(1) to fail or refuse to hire or to discharge any indi-
vidual, 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; or .
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would de-
prive or tend to deprive any individyal of employment
opportunities or otherwise adversely affect his status as
an employee, because of such individual’s race, color,
religion, sex, or national origin. (As amended by P.L.
92-261, eff. March 24, 1972.)
(h) Notwithstanding any other provision of this sub-
chapter, it shall not be an unlawful employment practice for
an employer to apply different standards of compensa-
tion, or different terms, conditions, or privileges of em-
ployment pursuant to a bona fide seniority or merit sys-
tem, or a system which measures earnings by quantity
or quality of production or to employees who work in
different locations, provided that such differences are
— App. 2—
not the result of an intention to discriminate because
of race, color, religion, sex, or national origin, .. .
* * eo
(j) Nothing contained in this subchapter shall be inter-
preted to require any employer, employment agency, labor
organization or joint labor-management committee sub-
ject to this subchapter to grant preferential treatment to
any individual or to any group because of the race, color,
religion, sex, or national origin of such individual or group
on account of an imbalance which may exist with respect
to the total number or percentage of persons of any
race, color, religion, sex, or national origin employed
by any employer, referred or classified for employment
by any employment agency or labor organization, ad-
mitted to membership or classified by any labor organiza-
tion, or admitted to, or employed in, any apprenticeship
or other training program, in comparison with the total
number or percentage of persons of such race, color,
religion, sex, or national origin in any community, State,
section, or other area, or in the available work force
in any community, State, section, or other area. (As
amended by P.L. 92-261, eff. March 24, 1972.)
Section 2000e-5 [Sec. 706|. Prevention Of Unlawful Em-
ployment Practices
7 * *
(e) A charge under this section shal] be filed within
one hundred and eighty days after the alleged unlawful
employment practice occurred and notice of the charge
(including the date, place and circumstances of the al-
leged unlawful employment practice) shall be served upon
the person against whom such charge is made within
ten days thereafter, except that in a case of an unlawful
—A pp. 3—
employment practice with respect to which the person
aggrieved has initially instituted proceedings with a State
or local agency with authority to grant or seek relief
from such practice or to institute criminal proceedings
with respect thereto upon receiving notice thereof, such
charge shall be filed by or on behalf of the person ag-
grieved within three hundred days after the alleged un-
lawful employment practice occurred, or within thirty
days after receiving notice that the State or local agency
has terminated the proceedings under the State or local
law, whichever is earlier, and a copy of such charge
shall be filed by the Commission with the State or local
agency.
” * *
(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 af-
firmative action as may be appropriate, which may in-
clude, but is now limited to, reinstatement or hiring of
employees, with or without back pay (payable by the
employer, employment agency, or labor organization, as
the case may be, responsible for the unlawful employment
practice), or any other equitable relief as the court deems
appropriate. Back pay liability shall not aecrue from
a date more than two years prior to the filing of a
charge with the Commission. Interim earnings or amounts
earnable 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 hiring, reinstatement,
or promotion of an individual as an employee, or the
— App. 4—
payment to him of any back pay, if such individual was
refused admission, suspended, or expelled, or was re-
fused employment or advancement or was suspended or
discharged for any reason other than diserimination
on account of race, color, religion, sex, or national origin
or in violation of Section 2000e-3(a) of this title. (As
amended by P.L. No. 92-261, eff. March 24, 1972.)
In The
United States Court of Appeals
For The Seventh Circuit
Nos. 76-1079, 76-1080
Joe Stewart, et al.,
Plaintiffs-Appellees, Cross-Appellants,
v.
General Motors Corporation,
Defendant-A ppellant, Cross-A ppellee.
Appeals from the United States District Court for
the Northern District of Illinois, Eastern Division,
No. 73-C-2663
Bernard M. Decker, Judge.
Argued April 15, 1976—Decided October 4, 1976
Before Swygert and Sprecher, Circuit Judges, and
Campbell, Senior District Judge.
Swygert, Circuit Judge.
This action was brought under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.,
‘The Honorable William J. Campbell of the United
States District Court for the Northern District of Illinois
is sitting by designation.
— App. 5 —
and 42 U.S.C. § 1981, and concerns claims of racial
discrimination in hiring and promotion against General
Motors Corporation at its Broadview, Illinois Parts Dis-
tribution Center. Plaintiffs are black employees represent-
ing the class of black people who have been employed
at this facility in hourly rated positions since December
21, 1973. Plaintiffs claim that discrimination exists at
the Broadview plant with respect to: (1) promotions to
the position of hourly clerk, the most desirable of the
hourly rated jobs; and (2) promotions to salaried posi-
tions.
Charges were filed before the Equal Employment Op- .
portunities Commission (EEOC) in June 1972 and an ac-
tion was commenced in the District Court for the Northern
District of Illinois in August 1973. The district judge found
that defendant’s promotional practices violate section 703
of Title VII, 42 U.S.C. § 2000e-2. Accordingly, he
issued an injunction designed to prevent future racial
discrimination in promotions to the position of hourly
clerk and to salaried positions.
In reviewing the district court’s decision, we are
bound under Fed. R. Civ. P. 52(a) to accept findings
of fact unless they are clearly erroneous. Prince v. Packer
Mfg. Co., 419 F.2d 34, 36 (7th Cir. 1969). The statement
that discrimination exists for the purposes of establishing
liability under Title VII, however, is as much a conclusion
of law as a finding of fact. A distinction must be drawn
between subsidiary facts to which the ‘‘clearly erroneous”
standard applies, and the ultimate fact of discrimination
within the meaning of Title VII, which is the decisive
issue to be determined in this litigation. East v. Romine,
Inc., 518 F.2d 332, 338-39 (Sth Cir. 1975). Accordingly,
we will make an independent examination of whether
defendant’s conduct constitutes a violation of Title VII.
— App. 6—
I. Discrimination in Promotions to Hourly Clerk Posi-
tions
The district court found that the position of hourly
clerk is the the most desirable hourly job at the
Broadview plant, both because it is highly paid and be-
cause it is considered a stepping stone to salaried posi-
tions. It also found that at the time this action was
instituted, twenty-five percent of the workforce at the
Broadview plant was black, while none of the twenty-
seven hourly clerks were black. It then held as a matter
of law that under the circumstances of the case these
statistics created a prima facie case of discrimination
under Title VII. We agree with this conclusion. Where
statistical evidence demonstrates a discrepancy between
the racial composition of those promoted to a given job
and the pool of eligible applicants which is too great
to reasonably be the product of random distribution, the
burden should be placed on the employer to show that
this disparity is the product of nondiscriminatory factors.
See United States v. Local 169, United Brotherhood of
Carpenters, 457 F.2d 210, 214 (7th Cir.), cert. denied,
409 U.S. 851, 93 S.Ct. 63, 34 L.Ed.2d 94 (1972); Rowe
v. General Motors Corp., 457 F.2d 348, 358 (5th Cir. 1972).
Defendant advances as an affirmative defense that it
is utilizing a ‘‘bona fide seniority system,” expressly ex-
empted from liability under Title Vll by 42 U.S.C. 4
2000e-2(b), in filling hourly clerk vacancies. The dis-
trict court found as a fact, however, that seniority often
served only an ancillary role in determining promotions
to the position of hourly clerk. Despite defendant’s con-
tention that this finding is contrary to the evidence, our
examination of the record shows that it has ample sup-
port.
— App. 7 —
Since defendant has therefore failed to rebut the prima
facie case which plaintiffs’ statistical evidence makes
out, we hold that its promotiona] practices with respect
to the position of hourly clerk are discriminatory in viola-
tion of Title VII.
II. Discrimination in Promotions to Salaried Positions
Plaintiffs’ case that discrimination existed in_ pro-
motions to salaried positions is also based on statisti-
eal evidence. For example, prior to any legal pressure,
only two out of ninety-seven salaried jobs were held by
black people. As of the time of trial, twenty-one percent
of the white employees at Broadview, compared with
only nine percent of the black employees, held salaried
positions. Given that the district court’s statistical findings
are supported by substantial evidence, we agree that
the plaintiffs have again made out a prima facie case
of discrimination.
Unlike its argument in the case of promotions to the
position of hourly clerk, defendant does not contend that
it is relying on a bona fide seniority system in filling
vacancies for salaried jobs. Rather, it admits that promo-
tions to the salaried workforce are awarded on a subjec-
tive basis which is intended to recognize merit. It then
asserts that the district court’s finding of a Title VU
violation should be reversed because plaintiffs had failed
to meet their burden of demonstrating that individual
employees had been denied salaried positions because
of racial] discrimination.
Defendant’s argument misconceives the nature of what
must be proved to show discrimination under Title VIL.
For plaintiffs to prevail, it is not necessary that they
prove scienter by showing that in individual cases Gen-
— App. 8—
eral Motors consciously excluded black employees from
salaried positions simply because of their race. Rather,
they need only show ‘at black employees as a group
were promoted at a significantly lower rate than white
employees. At that point, as we stated earlier, the burden
would be on the defendant to demonstrate that racial
disparity was the product of nondiscriminatory factors.
The Supreme Court has defined this burden in the follow-
ing way:
The Act proscribes not only overt discrimination but
also practices‘ that are fair in form, but discrimina-
tory in operation. The touchstone is business necessi-
ty. If an employment practice which operates to ex-
clude Negroes cannot be shown to be related to job
performance, the practice is prohibited. Griggs v.
Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853,
28 L.Ed.2d 158 (1971).
General Motors has failed to meet this test. The district
court characterized the promotion process with respect
to salaried jobs as ‘‘highly subjective and loosely struc-
tured.’’ It noted that supervisory recommendations play
an important role in the promotion process, but that
no significant safeguards exist to ensure that the recom-
mendations are focused on the relevant issues in promo-
tion. Foremen asked to make recommendations have no
objective way of rating the employees whom they are
evaluating. Moreover, they are never given written guide-
lines delineating the criteria for which they are supposed
to be looking or describing the jobs for which they are
making recommendations. Finally, almost all of the fore-
men at the Broadview plant are white.
We hold that such a system of filling vacancies is
not job-related within the meanings of Griggs. The pro
— App. 9—
cess described, while perhaps intended only to recognize
merit, is highly susceptible to abuse. While some sub-
jectivity is inevitable in filling jobs of executive char-
acter, the total lack of objective standards at Broadview
could only reinforce the prejudices, unconscious or not,
which Congress in Title VII sought to eradicate as a
basis for employment. In condemning promotional sys-
tems wre employees of a minority race have been
excluded by a process in which objective standards are
lacking, we are in accord with a number of other courts.
See, e.g., Muller v. United States Steel Corp., 509 F.2d
923, 929 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct.
39, 46 L.Ed.2d 41 (1975); Pettway v. American Cast Iron
Pipe Co., 494 F.2d 211, 240 43 (5th Cir. 1974); United
States v. N. L. Industries, Inc., 479 F.2d 354, 368 (8th
Cir. 1973); Rowe v. General Motors, 457 F.2d 348, 358-
59 (5th Cir. 1972).
We therefore affirm the district court’s holding that
defendant’s promotional practices with respect to salaried
positions violate Title VII.
Ill. Remedies
A. The District Court’s Decree
The district court issued an injunction designed
to prevent future racial discrimination in employment
at the Broadview plant. We affirm all of the decree
except for subsection (A)(1)* calling for vacancies in
hourly positions to be filled by the employee with the
? Subsection (A)(1) states in pertinent part: Defendant
is hereby ordered to fill all vacancies in hourly positions
by offering the position to the employee with the highest
seniority status on the shift at Broadview on which the
vacancy ocoeurs.
— App. 10 —
highest seniority on the shift on which the vacancy occurs.
The record shows that while about two-thirds of the hourly
clerk’s jobs are on the day shift, about two-thirds of
the black hourly employees work on the night shift. There-
fore, a rule that seniority can only be used to obtain
a promotion within the same shift on which it was accrued
will have the effect of locking a majority of the black
employees who have suffered discrimination into an in-
ferior status. Accordingly, the decree should be modified
to call for vacancies in hourly clerk positions to be filled
by the employee with the greatest seniority, regardless
of on what shift he is working or accrued that seniority.
B. Backpay
1. General Principles
Though plaintiffs asked for backpay as a part of the
remedy to be imposed for a Title VII violation, the district
court never addressed this issue. Since we find this claim
to be meritorious, we remand this case to the district
court with instructions to award backpay within the con-
straints of the guidelines which we will lay down.
In Albemarle Paper Co. v. Moody, 422 U.S. 405,
421, 95 S.Ct. 2362, 2373, 45 L.Hd.2d 280 (1975), the
Supreme Court held that:
{GJiven a finding of unlawful discrimination, back-
pay should be denied only for reasons which, if applied
generally, would not frustrate the central statutory
purpose of eradicating discrimination throughout the
economy and making persons whole for injuries suf-
fered for past discrimination. (footnote omitted.)
In the absence of special factors, therefore, backpay is
to be awarded when a Title VII violation is found. Other-
wise, there would be little incentive for employers to
obey the statute; a recalcitrant employer could continue
— App. 11 —
plainly discriminatory practices until compelled to stop
by a federal court’s injunction without suffering any penal-
ty for his blatant disregard of the law. Albemarle, 422
U.S. at 417, 95 S.Ct. 2362. Moreover, backpay is necessary
in order to effectuate the statutory goal of compensating
the victimized employee and placing him in as good a
position as he would have been had he not been subject
to discrimination. See Albemarle, 422 U.S. at 418, 95 S.Ct.
2362; Pettway v. American Cast Iron Pipe Co., 494 F.2d
211, 252 (5th Cir. 1974).
The “special factors” which would prevent a_back-
pay award have been narrowly construed, and usual-
ly include only circumstances where state legislation is
in conflict with Title VII. They do not include the fact
that the employer lacked specific intent to discriminate
and therefore arguably was operating in good faith, or
that the computation of the award will be difficult. See
Pettway, 494 F.2d at 253-54, 260.
Defendant does not attempt to delineate any special
factors which might support suspension of a backpay
remedy in this case. Rather, it asserts that backpay
should not be awarded because “(t]he plaintiffs have
failed to show a single employee who can claim he was
injured by the Company’s policies.” This argument is
nothing but an attempt to relitigate whether discrimina-
tion occurred at all, and we must reject it. Since our
own examination of the record shows no special circum-
stances, we hold that the class which plaintiffs represent
is entitled to backpay and proceed to a discussion of
the mechanics of computing an appropriate award.
2. The Mechanics of the Award
The major difficulty in attempting to compute a
backpay award in a case such as this one is that
— App. 12 —
the subjectivity of defendant’s method of filling job vacan-
cies renders impossible anything like a precise calcula-
tion of the pecuniary effects of discrimination. In light
of the uncertainty which clouds the task before us, we
must set down three general rules: (1) unrealistic exacti-
tude is not required; (2) ambiguities in what an employee
or group of employees would have earned but for discrim-
ination should be resolved against the discriminating em-
ployer; (3) the district court, far closer to the facts
of the case than we can ever be, must be granted wide
discretion in resolving ambiguities. See Pettway, 494 F.2d
at 260-61; United States v. United States Steel Corp.,
520 F.2d 1043, 1050-55 (Sth Cir. 1975).
It is with these rules in mind that we will discuss
some of the problems that will face the district
court on remand. The first issue which must be clarified
is whether backpay should be awarded on an individual-
ized basis to particular employees or on a classwide
basis to be divided among the entire group which plain-
tiffs represent. Where possible, an individualized remedy
should be utilized because it will best compensate the
victims of discrimination without unfairly penalizing the
employer. See United States Steel, 520 F.2d at 1055. In
the case of the discrimination in regard to promotions
to the position of hourly clerk, it should be possible to
make individualized awards based on the seniority of
black employees. A black employee denied promotion
who can show that he had more plant seniority® than
a white employee given an hourly clerk’s job should
receive the difference in pay between what he did receive
* We wish to emphasize that total plant seniority, rather
than seniority on any one shift, should be utilized in
making this calculation.
— App. 13 —
and what he would have received as an hourly clerk.
While this method will not reconstruct what would have
happened in the absence of discrimination, since seniority
played only an ancillary role in determining who would
fill hourly clerk vacancies, it will do as fair a job as
any in compensating the victims of discrimination without
granting them a windfall. Moreover, defendant should
be estopped from objecting to such a remedy since it
claims that promotions to these positions were in fact
handled on the basis of seniority.
In determining the appropriate award to be made
to black employees who were unfairly denied promo-
tions to salaried positions, however, the utilization of
an individualized method of calculation is impossible. Be-
eause General Motors had no objective standards by
which to measure whether a given employee deserved
a promotion, deciding in individual cases whether a
particular person would have been promoted but for rac-
ial discrimination would lead the district court into a
“quagmire of hypothetical judgments,” see Pettway, 494
F.2d at 260, in which any supposed accuracy in result
would be purely imaginary.
Therefore, it is necessary to use a classwide procedure
in awarding backpay as compensation for defen lant’s
failure to promote black employees to salaried positions -
because of their race. While such a method may generate
a windfall for some employees who would have never
been promoted had vacancies been filled on a nonracial
basis and undercompensate the genuine victims of dis-
crimination by forcing them to share the award with
their undeserving brethren, it is the best that can be
done under the circumstances. In any event, as Judge
Tuttle has noted, “[a]ny method is simply a process
of conjectures.”’ Pettway, 494 F.2d at 261. Given a choice
— App. 14—
between no compensation for black employees who have
been illegally denied promotions and an approximate mea-
sure of damages, we choose the latter. Moreover, there
is precedent for such a choice both in this cireuit and
in others. See Bowe v. Colgate-Palmolive Co., 416 F.2d
71, 721 (7th Cir. 1969); Pettway, 494 F.2d at 259-61;
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364,
1375 (5th Cir. 1974); Robinson v. Lorillard Corp., 444
F.2d 791, 801-02 (4th Cir.), cert. dismissed, 404 U.S. 1006,
92 8.Ct. 573, 30 L.Ed.2d 655 (1971).
Once a decision is made to use a classwide rather
than an individualized remedy, the determination of
which employees are entitled to be included in the
class receiving backpay becomes crucial. The district
court should place an initial burden on an individual
employee to give a history of his employment at Broad-
view, ts list the jobs he was-denied because of discrimina-
tion and their pay rates, and to produce any evidence
showing that he was qualified for those jobs. An employee
attempting to make this showing should have access to
any of defendant’s records concerning the Broadview
plant which he requires. Once this showing has been
made, the burden shifts to General Motors to demonstrate
by clear and convincing evidence that the employee would
not have received those promotions because of factors
unrelated to discrimination. See Petiway, 494 F.2d at
259; Johnson v. Goodyear Tire & Rubber Co., 491 F.2d
at 1379-80.
The district court must then arrive at a method
for calculating the amount which the class, now defined,
is to receive. Courts confronting this issue have developed
a number of techniques to approximate the monetary
effects of discrimination. See Bowe v. Colgate-Palmolive
Co., 489 F.2d 896, 902 (7th Cir. 1973); United States Steel
— App. 15 —
Corp., 520 F.2d at 1055-56; United States v. Local 416,
Wire & Metal Lathers, 328 F.Supp. 429, 443-45 (S.D.N.Y.
1971) ; Stamps v. Detroit Edison Co., 365 F.Supp. 87, 121-22
(E.D.Mich. 1973), rev’d on other grounds sub nom., Equal
Employment Opportunity Commission v. Detroit Edison
Co., 515 F.2d 301 (6th Cir. 1975). We approve of the
use of some variation of the ‘‘test period” approach util-
ized by this court in Bowe. The district court should
trace over a period of time the history of a group of
white hourly employees which is comparable to the group
of black employees constituting the class receiving the
backpay award. By determining which members of the
control group achieved salaried status, how high within
the salaried ranks they rose, and what their increases
in salary were, it will be possible on remand to estimate
for that period the increment in salary which the black
hourly employees as a group would have earned had
they been permitted to advance to salaried positions.
This figure will serve as a benchmark for computation
of the actual award.*
The final step which must be taken in calculating
both the individualized awards on the basis of seniority
and the classwide award is to determine the appropriate
period of time for which backpay is to be granted.
Title VII contains an explicit statute of limitations
for backpay liability, see 42 U.S.C. § 2000e-5(g), pro-
viding that backpay shall only accrue for a_ period
beginning two years prior to the filing of a complaint
‘This figure should be adjusted to avoid double count-
ing of backpay accruing from denial of promotions to
the position of hourly clerk, which will already have
been accounted for in the individualized awards.
— App. 16—
before the EEOC.’ Since plaintiffs demonstrated an on-
going course of discriminatory conduct by defendant prior
to any action before the EEOC, the initial date of the
period for which backpay is to be awarded should be
set by the statute of limitations at exactly two years
prior to the filing of the complaint before the EEOC
in June 1972.° The termination date of this period will
be different for each type of backpay. Since the district
judge refused to stay pending this appeal the pertinent
parts of the decree dealing with promotions to the position
of hourly clerk, the termination date for the individualized
awards should be December 15, 1975, the date the decree
was entered. He did stay those parts of the decree provid-
ing injunctive relief with respect to promotions to sala-
ried positions, however, and the termination date for the
classwide award should therefore be the date on which
he vacates the stay after acknowledgement of the disposi-
tion of this appeal.
These dates will have different significance for the cal-
culation of the final awards, depending on whether an
individualized or a classwide procedure is being utilized.
In computing backpay for employees who were unfairly
denied promotion to the position of hourly clerk, the dis-
trict court should compare the employment record of
each hourly employee with company records to determine
°*This statute of limitations is effective for all actions
for which charges are filed before the EEOC after March
24, 1972.
*This is the date referred to by defendant. Plaintiffs
note that while two of the named plaintiffs filed charges
in June 1972, the third, Hatcher, did not do so until
May 1973. We hold that the filing by two of the named
plaintiffs in June 1972 was enough to satisfy 42 U.S.C.
§ 2000e-5(g).
— App. 17 —
whether that employee was entitled to promotion on
the basis of seniority during the period between June
1970 and December 15, 1975. If so, that employee should
receive the difference between what he was paid and
an hourly clerk’s salary for the period between the time
he should have been promoted and December 15, 1975.
In the computation of the classwide award, the
specific beginning and ending dates of the appropriate
period will be unimportant. Rather, the significant fact
is that the period will be approximately six and one-half
years long. The district court should reach a final figure
by multiplying the increment in salary which the white
control group earned during the test period by the ratio
of six and one-half years and the length of the test period.’
7A numerical example may help explain the process
by which we are directing the district court to proceed.
Suppose fifty black employees are admitted into the class
which suffered discrimination in obtaining promotions to
salaried positions. The district court should select a test
group of fifty white hourly employees and designate a
test period. Suppose it selects a test period of three
years and finds that the test group earned an increment
of $100,000 over that period by virtue of the promotion
of some of the members to salaried positions. Finally,
suppose the length of the backpay period, which cannot
be precisely ascertained until remand, turns out to be
exactly six and one-half years. The class of black employ-
ees would be entitled to an award of $100,000 multiplied
by 2.17, the quotient of six and one-half years divided
by three years, for a total of $217,000.
The district court might have to make further adjust-
ments if it could not find a group of white employees
exactly equal in number to the class of black employees
or if some black employees were not in the recipient
class for the full period between June 1970 and the revo-
cation of the stay.
— App. 18 —
The district court may employ the services of a
special master in performing the calculations which
we have outlined. See Pettway, 494 F.2d at 258. We would
urge the parties to avoid the need for appointment of
a special master, however, by negotiating an agreement
pursuant to the principles we have outlined. See Pettway,
494 F.2d at 258; Johnson v. Goodyear Tire & Rubber
CVo., 349 F.Supp. 3, 18 (S.D.Tex. 1972), aff'd in part
on other grounds, 491 F.2d 1364 (5th Cir. 1974).
The judgment of the district court is affirmed except
as noted in part III(A) of this opinion and the cause
is remanded for further proceedings consistent with part
III(B) of this opinion.
— App. 19 —
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
December 3, 1976.
Before
Hon. LUTHER M. SWYGERT, Circuit Judge
Hon. ROBERT A. SPRECHER, Circuit Judge
Hon. WILLIAM J. CAMPBELL, Sr. District Judge*
JOE STEWART, et al., .
Plaintiff s-A ppellees Appeal from the
Mig wane United States Dis-
hint ” trict Court for the
No. 76-1079 & 1080 vy. : Northern District
GENERAL MOTORS CORPORA- | Of Illinois, Eastern
TION, Division.
Defendant-A ppellant (73 C 2263)
Cross-A ppellee. ,
On consideration of the petition for rehearing and sug-
gestion that it be reheard in banc filed in the above-en-
titled cause, no judge in active service having requested
a vote thereon, nor any judge having voted to grant
the suggestion, and all of the members of the panel
having voted to deny a rehearing,
*The Honorable William J. Campbell, Senior District
Judge for the Northern District of Illinois is sitting by
designation.
— App. 20 —
IT IS ORDERED that the petition for rehearing in
the above-entitled cause be, and the same is hereby,
Denied.
NOTE: Judge Walter J. Cummings, Judge Wilbur F.
Pell, Jr., and Judge Philip W. Tone disqualified
themselves from any consideration of the mat-
ter.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOE STEWART, et al., "
Plaintiffs,
vs. - No. 73 C 2263
GENERAL MOTORS CORPORATION,
Defendant.
4
MEMORANDUM OPINION
This action, brought under Title VII of the Civil Rights
Act of 1964, concerns claims of racial discrimination
against General Motors Corporation at its Broadview
Parts Distribution facility. Plaintiffs Joe Stewart, Roy
Tolbert and Isaiah Hatcher are black employees at the
above plant and also represent the class defined by this
court as ‘‘All Negroes employed in hourly rated positions
by defendant General Motors Parts Division at its Broad-
view, Illinois Parts Distribution Center as of or since
December 21, 1973.”
— App. 21 —
The Broadview facility is essentially a warehousing
operation where parts are received both from company
and outside suppliers, placed in stock and then shipped
to dealers as orders are received. It also serves as head-
quarters for the Chicago Parts Distribution Center and
the North Central Region of the Parts Division. This
facility is the largest non-union facility operated by Gen-
eral Motors in the United States.
The present Title VII complaint focuses on promotion-
al procedures with respect to two types of positions:
(1) salaried jobs; (2) several jobs paid on an hourly
basis and labeled for convenience in this trial as ‘‘hourly
clerk”. Plaintiffs contend that General Motors’ practices
in filling these por.tions discriminate against them and
the class they represent.
The present suit was tried before this court from May
27 to June 2, 1975. Many witnesses testified and a sub-
stantial amount of documents and exhibits were submit-
ted. The court has also had the benefit of extensive
briefs and memoranda supplied by counsel.
After consideration of all these presentations, this
court finds that adequate evidence has been offered to
indicate that General Motors Corporation has in fact vio-
lated 42 U.S.C. § 2000e-2 of Title VII of the Civil
Rights Act of 1964 in its promotional practices at the
Broadview, Illinois plant.
I. Promotion to Hourly Clerk
It is contended by plaintiffs that the post of hourly
clerk serves as a stepping stone to advancement to the
salaried positions and supervisory roles. Statistical evi-
dence of promotional patterns at Broadview gives some
— App. 22 —
eredence to this charge,’ and in any case, the position
is a desirable one for its freedom from manual labor.
At the time of the filing of this lawsuit in August,
1973, approximately 25% of the plant work-force was Ne-
gro. Yet none of the twenty-seven hourly clerks was a
black. When viewed under the circumstances of this
case, this presents a prima facie case for violation of
Title VII.?
As the Fifth Cireuit declared in Rowe v. General
Motors Corp., 457 F.2d 348, 358 (5th Cir. 1972), with re-
spect to similar statistical evidence of G.M. promotional
patterns,
“(Figures of this kind, while not necessarily sat-
isfying the whole case, have critical, if not decisive,
significance—certainly, at least in putting on the em-
ployer the operational burden of demonstrating why,
‘Of the 39 workers whose hourly clerk positions termi-
nated between 1960 and 1973, 17 were promoted to the
salaried level positions at General Motors. The stepping
stone nature of the post is even more apparent if the
three workers who retired and the two who died and
the one who was discharged are eliminated from the
total.
*As of June, 1975 three of the thirty-one clerks were
blacks. These three all serve on the less desirable night
shift. All twenty day clerks are white. While evidence
of post-suit hiring practices need not be considered by
the court in finding a violation of Title VII, this court
notes that the current disparity (25% of the workforce
is black but blacks only constitute 9.6% of the hourly
clerks) would also constitute a prima facie case for find-
ing a violation of the act.
— App. 23 —
on acceptable reasons, the apparent disparity is not
the real one.”’
Other circuits, including the Seventh Cirevit, are in ac-
cord. Waters v. Wisconsin Steel Works of Int. Harvester
Co., 502 F.2d 1309, 1316-17 (7th Cir. 1974); Umited States
v. United Bro. of Carpenters & Joiners, Loc. 169, 457
F.2d 210, 214 (7th Cir. 1972); Rogers v. International Pa-
per Co., 510 F.2d 1340 (8th Cir. 1975); Muller v. U. S.
Steel Corp., 509 F.2d 923 (10th Cir. 1975).
General Motors seeks shelter from the impact of these
statistics under the umbrella of Section 703(h) of Title
VII, which provides the following defense:
“(Tjt shall not be unlawful employment prac-
tice for an employer to apply different standards
of compensation, or different terms, conditions, or
privileges of employment pursuant to a bona fide
seniority or merit system... .” (42 US.C. § 2000e-
2(h).)
Although the inconclusive legislative history indicates
that Congress left the deciphering of a “bona fide se-
niority system” to the courts, see Note, Last Hired, First
Fired, Layoffs and Title VII, 88 Harv.L.Rev. 1544, 1550
(1975), that term cannot be so stretched to cover the
limited seniority system in effect at Broadview.
The evidence indicates that seniority in fact has often
served only an ancillary role in determining promotions
to the position of hourly clerk.
Defendant’s 1973 Affirmative Action Program on its
face indicates that seniority serves primarily as the tie-
breaking factor when other criteria are inconclusive:
“All individuals employed on an hourly basis are
eligible for advancement to higher rated positions .. .
and when ability, merit, and capacity are equal, em-
ployes with the longest service are given prefer-
ence,’’
Testimony from Mr. Rudolph, the Broadview per-
sonnel director, confirms that this indeed was company
policy:
‘*By Mr. Meites:
“Q. Mr. Rudolph, to your knowledge, has the
company ever set forth as its stated policy that in
promoting, in determining what people to promote
from hourly positions—that in determining whom to
promote from hourly positions, the company follows
a policy substantially as follows: that employees
are promoted on the basis of ability, capacity and
merit, and only when those factors are equal is se-
niority considered?
‘‘A. That sounds similar to the statement that is
in there. I don’t know if it is word for word.
“‘Q. But that is the substance of the statement,
a statement of the company’s stated policy on pro-
motion, is that correct?
‘A. I believe that would be right, yes.’’ (Tr. 511)
Perhaps more significant than the expression of the
written goals is the testimony indicating that in fact
seniority has frequently been ignored in promotional de-
cisions. In at least three of seven recent instances, se-
niority has not been followed.
At times defendant sought to assert that senior black
workers had in fact declined unrecorded offers of promo-
tions to hourly clerk. It is at least questionable whether
these offers were in fact made, as demonstrated in the
following colloquy :
Mr. Meites: ‘‘But if, in fact, defendant followed
its record-keeping procedures, Exhibit 22 correctly
shows that Mr. Barksdale, although he had more
— App. 25 —
seniority than Mr. Bures, was not offered the job,
is that correct?”
Mr. Rudolph: ‘‘If that record does reflect the sit-
uation accurately, yes.”
Furthermore, even to the extent that seniority is util-
ized at Broadview, this court is concerned with the dis-
criminatory potential of certain company practices in
applying seniority. General Motors claims that since the
positions of power truck driver and maintenance men
were paid at the same level as clerks, a clerkship would
not be considered a promotion. Employees in those posi-
tions were not offered jobs as clerks unless they ex-
pressed an interest in a vacancy. But since vacancies
are not posted at Broadview, it would be difficult for
workers to be aware of the availability of a clerkship.
Yet it is clear that the hourly clerk position should
be viewed as more desirable than the other two jobs.
It is less physically onerous. And significantly, it is not
a dead end job, but one that has often proved to be
a stepping-stone to salaried and supervisory posts.
General Motors has emphasized that blacks fill 31.4%
of the other jobs paying at the hourly clerk rate. On
the first shift, 37.5% of the power-truck drivers and 33%
of the maintenance men are black, and 33% of the sec-
ond shift power truck drivers are also black. In these
positions the black workers are slightly over-represent-
ed.
But once in an ‘‘equivalent” job such as power-truck
driver or maintenance man, there is no ready means
for a worker to use his seniority to get into the clerical
posts. The black workers in these positions are of neces-
sity among those blacks with the greatest seniority, and
among those who would otherwise be most eligible for
the clerkships.
— App. 26 —
The equivalent pay given the maintenance men and
power-truck drivers in no manner makes up for the loss
of opportunity for entrance into the more desirable hour-
ly clerk jobs. The net effect of this G.M. practice is
to take many high seniority blacks out of the pool of
workers eligible to become clerks.
As noted above, General Motors now contends that the
hourly clerk positions are filled by the utilization of a
bona fide seniority system, and thereby seeks exemption
from the damning fact that no black worker was given
a clerkship prior to the institution of this action. But
at best General Motors can be said to have only used
an approximation of a seniority system.
General Motors has also emphasized its Affirmative
Action Programs which stress ability, merit, and capa-
city over pure seniority. However, it is conceded that
on at least sevaral occasions, clerkships were given
without any consideration of seniority. General Motors
cannot have it both ways. It cannot utilize a system
in which seniority may be freely replaced by largely
subjective factors, and then plead that the discrimina-
tory statistics should be ignored because seniority has
also been used in filling clerkships.’
The bona fides of a seniority system can be discovered
in the results it produces. “Obviously one characteristic
of a bona fide seniority system must be lack ef discrimi-
*In short the frequent substitution of subjective factors
for seniority forswears the bona fide seniority defense.
And by deciding promotions on the vague criterion of
‘‘ability, merit and capacity”, G.M. utilizes for clerk-
ships the same practices that this court finds, infra, to
have violated Title VII with respect to the salaried posi-
tions at Broadview.
— App. 27 —
nation.” Quarles v. Phillip Morris, Inc., 279 F.Supp. 505,
517 (E.D. Va. 1968).
This court has noted that there were no black hourly
clerks among a workforce one-quarter black prior to the
institution of legal action to redress this grievance. This
court has noted that in fact seniority has been bypassed
in three of the last seven promotions to hourly clerks.
And it further notes that official plant policy in fact
places ‘‘ability, merit and capacity’’ over seniority as
critical promotional factors. Yet, despite the avowed re-
liance on these factors, the defendant has made no effort
to canvass its workforce to learn of the specific abilities
and interests of its employees. And finally, the court
notes that General Motors’ policy excludes from consid-
eration for hourly clerkships a group of employees in-
cluding those blacks with the greatest seniority. Taken
together this fails to depict a bona fide seniority system.
Defendant relies on cases which hold that a seniority
system violates Title VII only if it is applied in a dis-
criminatory manner. Waters v. Wisconsin Steel Works
of Int. Harvester Co., 502 F.2d 1309, 1317 (7th Cir. 1974) ;
Jersey Centrai Power & Light Co. v. Local Union 327,
IBEW, 508 F.2d 687 (3d Cir. 1975); Swint v. Pullman-
Standard, 8 E.P.D. 5984 (N.D. Ala. 1974). Indeed the
Seventh Circuit has held in Waters that statistical dis-
parity in various job levels is permissible if it is the
result of a proper seniority system. But neither this hold-
ing nor the conclusion of the Third Circuit that
‘‘a facially neutral company-wide seniority system,
without more, is a bona fide seniority system and
will be sustained even though it may operate to the
disadvantage of females and minority groups as a
result of past employment practices,” Jersey Cen-
tral, supra, at 710,
— App. 28 —
bears on the instant fact pattern. For it is clear that
segregation at the hourly clerk level is not a mere result
of past employment practices.
The court in Jersey Central, supra, strongly relied on
by defendant, maintains that ‘‘the only evidence proba-
tive in a challenge to a plant-wide seniority system
would be evidence directed to its bona fide character.”
508 F.2d at 706. This court finds the requisite lack of
bona fides in the system described above, one where
no black was made an hourly clerk prior to the inception
of this action.
II. Promotion to Salaried Positions
The salaried positions at the Broadview plant reveal
a long-run under-representation that is as severe as in
the case of the hourly clerks. When the EEOC charges
were first brought, only five out of ninety-eight salaried
positions were held by blacks; by the time of the filing
of this suit, eight of one-hundred salaried employees
were Negro. The percentage of Negro salaried employ-
ees has increased during the course of the present
controversy. In 1970, prior to any legal pressure, there
were only blacks in two of ninety-seven salaried posi-
tions; by the end of 1974 twelve of ninety-two employees
on salary were black. However, all but two of these
blacks held positions in the lowest ranks of the salaried
positions.*
*Of course the post-filing changes in hiring, effected
while G.M. was under serious legal assaults, should not
be relied on in deciding the nature of G.M.’s conduct
prior to this action.
— App. 29 —
These statistics have been presented to the court in
many correlations, ratios, and formats in an effort to
induce a variety of conclusions. As pointed out by defen-
dant, it is evident that in recent years blacks have been
elevated to salaried levels at a rate somewhat greater
than that indicated by their percentage in the total work-
force. The portion of black employees in salaried posi-
tions has risen to 9%. The last five hourly employees
to be promoted to the salaried ranks have all been black.
On the other hand, it is also clear that significant
statistical imbalance remains. White employees are still
far more likely to hold salaried posts (21% v. 9%). The
addition of several more blacks at salaried positions is
not enough to be statistically significant. Moreover, at
the time of the suit, blacks held only 8% of all salaried
posts, in contrast to their 25% share of the work-force.
Thus, while there is statistical evidence that the rate
of black accession to the salaried levels has improved
during the period General Motors has defended this suit,
plaintiffs have made the necessary statistical showing
of discriminatory result for a prima facie case. Waters
v. Wisconsin Steel Works of Int. Harvester Co., supra;
Rowe v. General Motors Corp., supra, at 358.
Defendant does not attempt to argue that the discrep-
ancy in the ratio of black salaried personnel is due to
the reflection of past discriminatory employment prac-
tices in a bona fide seniority system. Indeed, seniority
plays no significant role in promotion to the salaried
levels, and thus is neither an issue nor a defense for
this part of the case.
The defendant has elaborated in some detail its stated
policy for filling salaried vacancies. When a vacancy
occurs, the company canvasses the work force for quali-
— App. 30 —
fied employees, reviews personnel files and the so-called
‘‘minority skills list’’, goes over employee-interest forms
and skills questionnaires, and solicits recommendations
from supervisors and management personnel. The final
decision lies with the plant manager, but his choice must
be approved by the EEO coordinator (presently a Negro)
and the head of the affirmative action program. General
Motors also does recruiting of minority employees in
local high schools and colleges, and maintains an “open
door” policy under which an employee is free to discuss
career objectives with management personnel.
It is also evident that the company does not make
any official announcement of vacancies to its workers.
It does not provide employees with any description of
available jobs nor any list of the qualifications and pre-
requisites for salaried posts. The company conducts no
regular rating system for its employees, and asserts that
there is no advantage given to those employees who
showed the initiative to fill out the special salaried posi-
tion application forms. The company seems to rely heav-
ily on supervisor recommendations. But the supervisors
are merely asked to identify hourly employees with spe-
cial skills, and are not asked to select particular em-
ployees with respect to specific positions. The criteria
used for determining promotability are at best vague
and ill-defined.
Taken as a whole the practices of General Motors in
filling salaried positions at Broadview are rife with sus-
ceptability to discriminatory practices. When this dis-
criminatory potential is viewed alongside the actual re-
sultant under-representation of Negroes in salaried posi-
tions, this court is compelled to find that General Motors
— App. 31 —
has violated Title VII by these practices. Griggs v. Duke
Power Co., 401 U.S. 424 (1971).
This court does not, nor need it, assert that it was
the intention of General Motors to foster discrimination
by these practices.
‘*Under the Act, practices, procedures, or tests neu-
tral on their face, or even neutral in terms of intent,
cannot be maintained if they operate to ‘freeze’ the
status quo of prior discriminatory employment prac-
tices.” Griggs v. Duke Power Co., supra, at 430.
But it does find that the company’s promotion policy
is tellingly similar, both in nature and in result, to its
system which was condemned by the Fifth Circuit in
Rowe v. General Motors, supra, at 358-59. There the court
stated :
“ ..[WJe think it clear that the promotion/transfer
procedures as applied violate Title VII in several
particulars which can be briefly capsulated:
(i) The foreman’s recommendation is the in-
dispensable single most important factor in the
promotion process.
(ii) Foremen are given no written instruc-
tions pertaining to the qualifications necessary
for promotion. (They are given nothing in writ-
ing telling them what to look for in making their
recommendations. )
(iii) Those standards which were determined
to be controlling are vague and subjective.
(iv) Hourly employees are not notified of pro-
motion opportunities nor are they notified of the
qualifications necessary to get jobs.
(v) There are no safeguards in the procedure
designed to avert discriminatory practices.”
— App. 32 —
Supervisory recommendations undeniably play a sig-
nificant role in the promotion process. Barry McBride,
the former plant manager, testified that it was the fore-
men who supplied the two or three critical names used
in the selection process. Foremen were asked to supply
the names of employees with ‘‘potential for promotion’’,
and were not limited to those employees directly under
their supervision.
This process can only be characterized as highly sub-
jective and loosely structured. There were no significant
safeguards to insure that the recommendations would
be focused on the relevant issues in promotion. The fore-
men had no purely objective ratings of the employees
to go by, since the company only undertook formal review
of the perf.rmance of supervisory workers. The foremen
were never given written guidelines to assist them in
their evaluation; indeed they were not informed of the
specific job for which they were making recommenda-
tions. They could hardly know what to look for since
they never knew the official job descriptions or personal
criteria used.
The courts lave regularly condemned this sort of sub-
jective supervisory recommendation. The Fifth Cireuit
has condemned ‘‘supervisory recommendations based on
esoteric standards never revealed to the discriminatees.’’
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 487,
444 (5th Cir. 1974). Likewise, the Tenth Circuit has found
objectionable the use of ‘‘hunch judgments rather than
specific criteria.” Muller v. U.S. Steel Corp., 509 F.2d
923, 929 (10th Cir. 1975). In this district, Judge Prentice
Marshall has noted “[witnesses for both sides] agreed
that supervisory ratings are not a fair measurement of
an employee’s suitability for promotion. Their view is
shared by the courts.’’ /nited States v. City of Chicago,
— App. 33 —
385 F.Supp. 543, 561 (N.D. Ill. 1974). See also U.S. v.
N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973).
In the context of the Broadview plant, the innate unfair-
ness of subjective supervisory recommendations is exacer-
bated by the discriminatory potential of the situation.
Until recently, all Broadview foremen were white; there
are still only two Negro foremen out of eighteen. In
Rowe v. General Motors Corp., supra, at 359, the court
commented :
«6 Wle. . .recognize that promotion/transfer
procedures which depend almost entirely upon the
subjective evaluation and favorable recommendation
of the immediate foreman are a ready mechanism
for discrimination against Blacks much of which can
be covertly concealed and, for that matter, not really
known to management. We and others have expressed
a skepticism that Black persons dependent directly
on decisive recommendations from Whites can expect
non-discriminatory action.”
It is not necessary for this court to find that white super-
visors are unavoidably biased in their recommendations
of black subordinates in order to note that in the present
situation, the outcome has been disproportionately few
recommendations. Nor is it necessary to resolve the dis-
pute between the parties as to whether foremen at Broad-
view have the power to totally veto a worker’s chances
for advancement. It is sufficient to observe that foremen
recommendations are a vital part of procedure that has
had inequitable consequences.’
“In a similar manner this court must condemn the ab-
sence of objective criteria for advancement into the sala-
°No evidence was presented of any situation in which
foremen recommendations were not followed.
— App. 34—
ried ranks. An employer has the prerogative to set his
own, non-discriminatory, standards for various positions
in his enterprise. But in the context of the Broadview
plant, “potential for promotion” does not represent any
meaningful criteria and easily becomes a subterfuge for
discrimination. As another court has noted:
‘‘There can be no question about the impropriety
of a promotional system dependent upon supervisory
recommendations uncontrolled by clearly delineated
and objective job criteria where the discriminatees
have demonstrated a conclusive case of discrimina-
tory job standards. Such a system is patently illegal
under Title VII.” Baxter v. Savannah Sugar Refining
Corp., supra, at 441 n.3.
“The Act imposes upon employers ... an affirmative
duty to devise and implement pertinent objective cri-
teria for determining what applicants for promotion
or transfer are qualified to fill particular vacancies.”
U.S. v. Jacksonville Terminal Co., 451 F.2d 418, 453
(5th Cir. 1971).
Defendant has cited cases where courts have correctly
recognized that some subjective evaluation may be neces-
sary in a promotional system. But these courts also ac-
knowledge the potential for abuse in subjective standards.
The existence of a discriminatory effect is the determina-
tive factor. “|S]ubjective hiring procedures are not vio-
lative of Title VII per se. Title VII comes into play
only when such practices result in discrimination.’’ Hester
v. Southern Railway Co., 497 F.2d 1374, 1381 (5th Cir.
1974); see also Rogers v. International Paper Co., 510
F.2d 1340, 1345 (8th Cir. 1975); Waters v. Furnco Constr.
Corp., 9 EPD 7042 (N.D. Ill. 1975). We have here both
the subjective procedures and the resulting discrimina-
tion.
— App. 35 —
By failing to post notices of job vacancies and providing
no effective channel through which ambitious employees
could seek advancement to salaried positions, General
Motors augmented the discriminatory impact of its selec-
tion process. It is conceded by the defendant that the
salaried position application forms were disregarded in
the hiring procedure. Without posting there remained no
way a worker could bring himself to the attention of
management with respect tc a specific slot at the oppor-
tune moment. The 1973 Affirmative Action program
committed the company to tre posting of specific sala-
ried openings, but for some reason this practice was
subsequently dropped.
This court finds that in the circumstances of this case,
the failure to post job opportunities has discriminatory
impact and violates Title VII. U.S. v. N. L. Industries,
Inc., 479 F.2d 354 (8th Cir. 1973); Rowe v. General
Motors Corp., supra, at 358:° Brown v. Gaston County
Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972).
Promotional practices such as the above which result
in the perpetuation of employment segregation can only
escape judicial condemnation upon a showing of business
urgency.
“When an employer adopts a system that neces-
sarily carries forward ‘the incidents of discrimination
into the present, his practice constitutes on-going dis-
* Defendant attempts to distinguish Rowe by asserting
that the 5th Cireuit did not compel the type of posting
system wherein promotion was limited to those workers
who specifically applied for the posted position. But this
court does not require of G.M. any more in the way
of posting than did the 5th Circuit; providing sufficient
information about the nature and availability of job vacan-
cies and the mechanics of application.
— App. 36 —
crimination, unless the incidents are limited to those
that safety and efficiency require.” Local 189, Umted
Papermakers & Paperworkers v. U.S., 416 F.2d 980,
994 (5th Cir. 1969).
‘‘'T]he business purpose must be sufficiently com-
pelling to override any racial impact; the challenged
practice must effectively carry out the business pur-
pose it is alleged to serve; and there must be avail-
able no acceptable alternative policies or practices
which would better accomplish the business purpose
advanced, or accoinplish it equally well with a lesser
differential racial impact.” Robinson v. Lorillard
Corp., 444 F.2d 791, 798 (4th Cir. 1971).
General Motors cannot hope to pass this ‘‘business pur-
pose” test.’ Posting of vacancies and job qualifications,
periodic objective employee review, specific criteria
sought in recommendations, ete., are all common business
practices, which would hardly cripple the operations of
the Broadview plant. If anything, given previous indica-
tions of employee discontent at this location, fairer and
more comprehensible hiring practices would do much
to improve morale.
"General Motors attempts to advance specious argu-
ments such as its insistence that posting would injure
plant morale by compelling supervisors to inform employ-
ees when they had been considered and rejected for a
promotion. Seemingly G.M. contends that workers are
more contented when kept in total ignorance of promotion-
al practices, job-advancement opportunities, and the con-
tents of their occupational records. This court cannot
accept the idea that employees prefer a system where
advancement descends as inexplicable manna from a be-
nevolent management.
— App. 37 —
III. The Individual Plaintiffs
While this court is satisfied that the evidence shows
that the promotional practices at Broadview have been
generally discriminatory in effect, the individual plaintiffs
Stewart, Hatcher and Tolbert have not offered sufficient
evidence that they suffered discrimination distinct from
the class which they represent.
Stewart and Hatcher did manifest to their superiors
an interest in promotions to the salaried ranks. But the
obstacles they encountered along the paths to such promo-
tions were no different than those which confronted all
other employees at Broadview. These plaintiffs have
stressed to the court their educational attainments, but
have failed to indicate that they were more qualified
for promotion than either the individuals actually ad-
vanced during this period, or all the other members of
their class who encountered similar discrimination.
Conflicting testimony was presented to the court as
to whether plaintiff Stewart was in fact offered a promo-
tion to hourly clerk. The weight of the evidence indicates
that this indeed was the case. While this does not undercut
the finding that the promotional practices at Broadview
are discriminatory, it does indicate that this particular
plaintiff is not entitled to any unique damages.
For these reasons, the court finds that plaintiffs Stewart,
Hatcher and Tolbert are entitled to share in the remedy
offered to the entire class that they represent, but do
not merit any special award.
— App. 38 —
IV. Remedy
In accordance with the above findings, it is hereby
Ordered, Adjudged and Decreed as follows:
Decree
(A) Hourly Positions
It is adjudged that defendant General Motors has failed
to utilize a bona fide seniority system at its Broadview
facility, and has discriminated against Negro hourly em-
ployees in determining promotions, and that defendant
has violated Title VII of the Civil Rights Act of 1964.
(1) Defendant is hereby ordered to fill all vacancies
in hourly positions by offering the position to the employee
with the highest seniority status on the shift at Broadview
on which the vacancy occurs. Defendant may designate
hourly positions which require special skills and which
shall be filled in accordance with the provisions of part
(B) of this decree.
(2) In determining the employee with the highest se-
niority status {for the purpose of filling the position
*The court considers it worthy of attention that the
present decree in effect does little more than require
General Motors to implement the carefully considered
promotional practices and bona fide seniority system
which the company has insisted to be its actual employ-
ment policy. The main additional thrust of the decree
is the requirement that General Motors follow certain
procedures which will assure that its promotional deci-
sions and practices are clearly perceived by all the mem-
bers of the plaintiff class, and are in accordance with
the professed policy.
— App. 39 —
of hourly clerk],* defendant is required to consider all
workers on the shift on which the vacancy occurs holding
positions at equivalent wage and employment levels to
the vacancy in question. Employees presently at such equi-
valent levels are to be offered any vacancy in accordance
with their individual seniority dates on the present se-
niority lists.
(3) Defendant is required to provide each employee
at Broadview complete descriptions of all hourly posi-
tions, including all specific skill prerequisites and other
employment criteria and the wage rate applicable.
(4) Defendant is required to inform each employee
of his seniority date and to inform upon request
each employee of his relative seniority status in the
total workforce and on the shift to which he is currently
assigned.
(5) Defendant is required to provide adequate notice
to all employees of all educational and training oppor-
tunities offered to enable workers to obtain the skill pre-
requisites for promotions at Broadview. This shall in-
clude the posting of notices of such opportunities in con-
spicuous places throughout the plant, and an annual
mailing to each employee which shall inform him of
his eligibility for these programs.
(6) Defendant is required to individually notify any
employee otherwise entitled to a promotion by reason
of seniority, who is passed over for lacking the requisite
skills for a vacancy, indicating the grounds for such
decision.
*The bracketed language was included as an amend-
ment to the decision by order of the Court dated January
12, 1976.
(7) Defendant is ordered to desist from the use of
‘‘home-made tests” for the determination of employee
qualifications. Any test utilized for such determination
shall be a standardized examination of professionally
recognized validity, and shall be administered by per-
sonnel adequately trained and qualified in the adminis-
tration of such tests.
(B) Salaried Positions and Skilled Hourly Positions
It is adjudged that the defendant has utilized methods
for the filling of salaried vacancies at its Broadview
facility which discriminate against Negro employees in
violation of Title VII of the Civil Rights Act of 1964.
(1) Defendant is hereby ordered to provide to all em-
ployees at Broadview complete written descriptions of
all salaried and skilled hourly positions, including all
specific skill prerequisites and other employment criter-
ia and the wage rate applicable, as well as the selection
procedures utilized.
(2) Defendant is ordered to post conspicuously
throughout the Broadview plant notices of salaried va-
cancies reasonably in advance of the time that consider-
ation of persons for these positions shall begin. Such
notices must contain a reasonably specific description
of the position, the responsibilities involved, the qualifi-
cations required, and the approximate rate of pay for
the position. The timing and other conditions of filing
shall assure that the hourly employee is given equal
consideration for the position with all other persons.
(3) Defendant shall also provide hourly employees
with salaried and skilled hourly position application
forms with respect to each salaried and skilled hourly
vacancy and shall designate where and when and with
whom the application shall be filed for particular open-
ings.
¥
— App. 41 —
(4) Defendant shall additionally provide employees
with forms whereby they can indicate in writing in ad-
vance of any vacancy their interest in and qualifications
for any of the positions described in the information dis-
tributed in accordance with paragraph (B) (1). Defend-
ant shall indicate on such forms that it is the responsibil-
ity of each employee to keep the personal information
on such applications current.
(5) Defendant shall consider for all vacancies in sal-
aried and skilled hourly positions all employees who
have submitted either the interest form or the salaried
application forms.
(6) Defendant shall not be limited in the filling of
these positions to the employees who submit the interest
form or the application forms as provided in paragraphs
(B) (3) and (4). Defendant shall be allowed to solicit
supervisory recommendations for qualified employees.
But such supervisory recommendations shall be permit-
ted only in response to requests specifically indicating
the nature of the position and the criteria of employ-
ment. Such supervisory recommendations shall be entered
upon standardized recommendation forms and shall be-
come part of the employee’s record.
(7) Defendant shall be required to provide for periodic
rating of all hourly employees upon specified and stan-
dardized criteria and scales of performance.
(8) All information regarding an employee’s perform-
ance, including periodic ratings, supervisory recommen-
dations, discipline and attendance records, shall be made
available upon request to the employee in question. De-
fendant shall promulgate procedures whereby an em-
ployee shal] be enabled to supplement his record with
clarifying materials of his own submission.
— App. 42 —
(9) Any hourly employee who submitted a salaried
or skilled hourly application for a specific position and
who did not receive such position shall be entitled to
receive from the defendant notification of the final dispo-
sition of the vacancy. Additionally, upon request the em-
ployee shall be given a brief statement justifying the
selection of the employee chosen for such vacancy.
(10) Defendant is required to adequately inform all
employees of all educational and training opportunities
offered to enable workers to obtain the skill prerequisites
for salaried and skilled hourly positions at Broadview.
This shall include the posting of notices of such oppor-
tunities in conspicuous places throughout the plant, and
an annual mailing to each employee which shall inform
him of his eligibility for these programs.
(C) General Matters “
(1) In order to facilitate the resolution of differences
and disputes that may arise under this decree, there
shall be established at the Broadview facility an EEO
Committee. The EEO Committee shall consist of three
representatives of management, three members of the
plaintiff class and a neutral member to be selected by
the members of the committee, or failing agreement,
designated by the court. All questions regarding the im-
plementation of this court’s decree and all written com-
plaints pursuant to paragraph (C) (2) of this decree
shall, before submission to the court, first be brought
before the EEO Committee which shall in an expeditious
fashion attempt to resolve such matters amicably and
informally. This court retains the ultimate jurisdiction
over the resolution of all disputes pursuant to this de-
cree, amd whenever any issue arises that cannot be re-
solved by this committee, any party shall have the right
— App. 43 —
to immediately refer said issue to the court or the
court’s designate for resolution.
The fees and expenses of the neutral member of the
EEO Committee shall be paid by defendant.
(2) Defendant is ordered to notify members of the
plaintiff class currently employed at the Broadview fa-
cility of their right to file with the company written
complaints as to procedures and practices respecting the
filling of employment vacancies subsequent to the date
of this decree. Such written complaints shall be pre-
served by defendant and submitted to this court as part
of its periodic report. Defendant shall be entitled to sub-
mit a written reply and explanation of its actions.
(3) Defendant is hereby ordered to submit periodic
reports to this court indicating the nature of its com-
pliance with and implementation of this decree. Such
reports shall be submitted twice annually at a minimum.
Said reports shall indicate and explain any deviation
from pure seniority in the filling of hourly positions not
designated as skilled hourly positions, and shall include
any written objections filed by members of this class
to the selection of salaried employees. Said reports shall
also include samples of all forms utilized in annual rat-
ings, solicitation of supervisory reports, and copies of
all materials mailed to the members of plaintiff class
in pursuance of this decree.
(4) Defendant shall mail to all members of the plain-
tiff class a copy of this opinion and decree.
(5) Defendant shall promptly and in good faith imple-
ment the provisions of this decree, with the effective
date of such compliance to be not later than 45 days
from the date of the final decree.
(6) Plaintiffs shall recover from defendant the costs
of this action, including reasonable attorney’s fees.
— App. 44—
Plaintiffs’ counsel shall submit a fee petition and bill
of costs within a reasonable time after the entry of this
decree.
(7) This court will retain jurisdiction until such time
as the defendant has changed its promotional practices
in the manner provided for in this decree.
ENTER:
/s/ Bernard M. Decker
United States District Judge
DATED: December 15, 1975.
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.