Reply Brief — Townsend v. Nassau County Medical Center

Iy THE DEC 87 1977

Supreme Court of the United

Fi RODAK, JR., CLERK

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Octoser Term, 1977

No. 77-718

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Marcaret TOwNSEND,

Petitioner,

—against—

Nassau County Mepicat CENTER, e? al.,

Respondents.

PETITIONER’S REPLY IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

Cuartes J. McEviry

Susan T. KivEwer

Community Legal Assistance

Corporation

73 Main Street

Hempstead, New York 11550

Barsara A. Morris

Joan Bertin Lowy

National Employment Law Project, Inc.

423 West 118th Street

New York, New York 10027

JACK GREENBERG

Eric ScHNAPPER

Suite 2030

10 Columbus Circle

New York, New York 10019

Attorneys for Petitioner

In THE

Supreme Court of the United States

Octroper Term, 1977

No. 77-718

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MarGaret TOWNSEND,

Petitioner,

—against—

Nassau County Mepicat Center, et al.,

Respondents.

a oe

PETITIONER’S REPLY IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

Certiorari is sought in this case on the ground that. the

Second Circuit held that unrebutted census data is insuf-

ficient to establish a prima facie case of diseriminatory im-

pact under Title VII, a holding squarely contrary to the

rule in three other cireuits and to Dothard v. Rawlinson,

97 S.Ct. 2720 (June 27, 1977). Respondents do not dispute

our characterization of the decision below or of Dothard,

and do not discuss the decisions of the Fifth, Eighth and

Ninth Circuits. Respondents suggest instead a number

of alternative arguments in support of the decision below;

each of these arguments has already been rejected by prior

decisions of this Court.

Frankly conceding that “petitioner performs her work

in the blood bank laboratory in a competent manner,” ’ re-

1 Brief for Respondents in Opposition to Petition for a Writ of

Certiorari (hereinafter “Brief in Opposition’), p. 4.

2

spondents urge that her dismissal for lack of a college

degree was nonetheless proper because such a degree re-

quirement is necessary to choose among new applicants.

Regardless of whether the degree requirement could be

validated for such new applicants under Griggs v. Duke

Power Co., 401 U.S. 424 (1971), and its progeny none of

those cases sanction the use of a job requirement to dis-

miss or reject an employee or applicant who is in fact

qualified. On the contrary, Albemarle Paper Co. v. Moody,

422 U.S. 405, 426, 436 (1975) makes clear that even a job-

related requirement cannot be used if there is another

method of selecting qualified personnel “without a similarly

undesirable racial effect.” In this case, of course, just such

an alternative to the college degree requirement exists for

determining whether petitioner is competent to do the job

at issue—her decade of exemplary performance at that

very job.

Respondents’ argument that the human risks involved

justify the challenged requirement is misdirected. Respon-

dents do not argue that petitioner herself poses any risks

to her patients but in fact concede that she has more than

satisfactorily performed all duties required of her since

1965, and that she continues to perform satisfactorily the

duties of a Medical Technologist I, albeit at a lower salary.”

Imposition of formal indicia of competence in no way

serves to protect the public from increased risks. Its only

effect is to lower petitioner’s status and salary, a result

wholly ineonsistent with one of the purposes of Title VII,

i.€.:

? Brief in Opposition, p. 4.

3

. . . that childhood deficiencies in the education and

background of minority citizens, resulting from forces

beyond their control, not be allowed to work a cumula-

tive and invidious burden on such citizens for the re-

mainder of their lives. McDonnell Douglas Co-». v.

Green, 411 U.S. 792, 806 (1973).

Respondents contend for the first time in this case that

petitioner’s statistical showing regarding the numbers of

black and white college graduates was inadequate because

there was no evidence regarding the race of persons hold-

ing Bachelor of Science degrees. In Dothard this Court ex-

pressly rejected a similar suggestion:

The plaintiffs in a case such as this are not requifed

to exhaust every possible source of evidence, if the

evidence actually presented on its face conspicuously

demonstrates a job requirement’s grossly discrimina-

tory impact. If the employer discerns fallacies or de-

ficiencies in the data offered by the plaintiff, he is

free to adduce countervailing evidence of his own.

In this case no such effort was made. 97 8.Ct. at 2727.

So far as we have been able to establish, no data exist

as to the numbers of blacks and whites with Bachelor of

Science degrees. Moreover, while a distinction based on a

graduate’s actual course of study may be appropriate for

certain jobs, a distinction based on whether the graduate’s

degree is titled “Bachelor of Science” is palpably irrational

in view of the fact that some schools, such as Harvard

and Wellesley, give a Bachelor of Arts degree to biology

and chemistry majors, while others, as the Massachusetts

Institute of Technology, give a Bachelor of Science degree

to English and humanities majors.

4

Respondents also urge that a job requirement cannot

be unlawful under Title VII if some whites* too cannot

meet the requirement. But in Griggs the high school re-

quirement was one that could not be met by 66% of the

whites, and in Dothard the height and weight requirements

could not be met by 3% of adult males. Moreover, nothing

in Title VII requires an employer to continue to apply

to white or male applicants job requirements which can-

not be applied to blacks or women, and the order of the

district court in this ease forbidding application of the

degree requirement to petitioner left respondents free to

cease using that requirement in other instances.

Respectfully submitted,

Cuartes J. McEvity

Susan T. KLvEWwER

Community Legal Assistance

Corporation

73 Main Street

Hempstead, New York 11550

e

* Respondents assert here, as in the court below, that three whites

were also fired for want of a college degree. Brief in Opposition,

pp. 4-5. The Second Circuit accepted this essertion, p. 26a. The

record contains no evidence that whites were in fact dismissed,

as Mrs. Townsend was. However, even if that fact were true,

it is statistically insignificant and may only be demonstrative of

respondents’ overwhelmingly white workforce.

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Barspara A. Morris

Joan Bertin Lowy

National Employment Law Project, Inc.

423 West 118th Street

New York, New York 10027

JACK GREENBERG

Eric SCHNAPPER

Suite 2030

10 Columbus Circle

New York, New York 10019

Attorneys for Petitioner

On the Petition:

JERRY CASEL

Le1r RUBINSTEIN

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