Petition — Mitchell v. Mid-Continent Spring Co.

Supreme

FEB 7

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No. 28-1233

JANE MITCHELL - - - - ~- Petitioner

versus

MID-CONTINENT SPRING COMPANY

OF KENTUCKY - - - - - Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

JAMES C. HICKEY

HIRAM ELY, Ill

EWEN, MACKENZIE & PEDEN, P.S.C.

_———. 2100 Commonwealth Building

Louisville, Kentucky 40202

JACK GREENBERG

ERIC SCHNAPPER

PATRICK O. PATTERSON

Suite 2030

10 Columbus Circle

New York, New York 10019

| Counsel for Petitioner Jane Mitchell

WESTERFIELD-BONTE CO., 619 W. KENTUCKY—?P.O. BOX 3251, LOUISVILLE, KY.

Court, U. &

FILED

SORE JR. CLERK

1979

Se

INDEX

ee eee o ah ahs 6085s 60545400600 8%

eT TEAL SG hiseapeswhitccdvosscsees.

PEG ob eA psec vddwesedvedenescvee

Question poamaned EEE aie) ROE a sy

Ss ic ivacicccsccvcciceeses

Reasons for Granting the Writ ....................

I. The Sixth Circuit’s Rejection of Affirmative In-

junctive Relief Is Inconsistent With the De-

cisions of This Court and of Other Cireuits ....

Il. The Decision Below, Denying Any Relief to

Iil.

Proven Victims of Discrimination Unless the

Amount of Back Pay Can Be Calculated Indi-

vidually for Each Victim, Conflicts With the

Decisions of This Court and of Four Other Cir-

ED A SSS OE ES ae ee re

The Court Below Has Misapplied the Teamsters

Decision to the Factual Setting of This Case ...

The Sixth Circuit’s Decision Emasculates the

Counsel Fee Provision of Title VII ............

ay -F w

11

15

TABLE OF CITATIONS

Cases: PAGE

Albermarle Paper Co. v. Moody, 422 U. S. 405

eit ch vi dahotnhs <evahwhebabwe te 8, 10, 13-14

Alexander v. Gardner-Denver Co., 415 U. S. 36, 44

re ect te Whines s tense e.owklleees decks 14

Allen v. Amalgamated Transit Union Local 788, 554

Bs ry ee SLD obs ox cea pate edeenees 18

Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F.

2d 1017, 1026-28 (1st Cir. 1974), cert. denied, 421

RR Oe ar ee 10

Carter v. Gallagher, 452 F. 2d 315, 238-31 (8th Cir.

en banc), cert. denied, 406 U. 8. 950 (1972) .... 11

Christiansburg Garment Co. v. EEOC, 434 U. S. 412,

SIUM Go AUNT se Sede Eos oe ets WE tind ae Gache 4s. 19

City of Los Angeles v. Manhart, 435, U.S. ........ 14

Evams v. Sheraton Park Hotei, 164 U. S. App. D.C.

86, 96-97, 503 F’. 2d 177, 187-88 (D.C. Cir. 1974) 18

Franks v. Bowman Transportation Co., 424 U. S.

NEE sae od évake bu ka keadiae ab cakes’ 8, 9,13

Fountila v. Carter, 571 F. 2d 487, 496 (9th Cir.

SN cals Buk iran s id dx0a CAE MARA AER Cede e505 18

Firefighters Institute for Racial Equality v. City of

St. Lowis, 18 FEP Cases 1983, 1987 (8th Cir.

DUS ath tinh eins Jews robebekcbsNnithes Vannes 11

Johnson v. Georgia Highway Express, Inc., 488 F.

2d 714, 717-20 (5th Cir. 1974), cert. denied, 423

eS fDi PS Prryc re rere: ce 18, 19

Hairston v. R & R Apartments, 510 F.. 2d 1090, 1093

oH yt we ps ae 18

Hutto v. Finney, 57 L. Ed. 2d 522, 536-40 (1978) ... 19

King v. Greenblatt, 560 F. 2d 1024, 1026 (1st Cir.

1977), cert. denied, 98 S. Ct. 3146 (1978) ....... 18

Love v. Puliman Co., 569 F. 2d 1074, 1077 (10th Cir.

RT ES re eer SuAseeenee 12

Morrow v. Dillard, 580 F. 2d 1284, 1294 (5th Cir.

eV Cis rE LER es ae RMA KM ke os 11

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

AN hs anh CAM SORA LANES eek ANOS 19, 20

N.A.A.C.P.v. Allen, 493 F. 2d 614, 618-22 (5th Cir.

WTR) vvccvccccvccccstuanscscccccvceceecsoce 10

iii

PAGE

Pettway v. American Cast Iron Pipe Co., 494 F. 2d

bee | ere ere 12

Prate v. Freeman, 17 F .E.P. Cases 1572, 1576 (2nd

CN Ok ti See Pane Gh lweatks d's bach Es 0% 18

Regents of the University of California v. Bakke,

fe SS 6 fe ere ere 11

Rodriguez v. Taylor, 569 F. 2d 1231, 1247 (3rd Cir.

1977), cert. denied, 436 U. S. 913 (1978) ....... 18

Sledge v. J. P. Stevens Co., 18 FEP Cases 261, 275

SEE, SEE Vochnwon asec va tucawkbeed cess 11

Stewart v. General Motors Corp., 542 F. 2d at 445,

GE? kc vek Cub bak mbub ae as CAcenbsodaw one kbase 12

United States v. International Brotherhood of

Teamsters, 431 U. 8. 324, 341-42 (1977) ..10, 13, 15, 16

United States v. City of Chicago, 549 F. 2d 415, 436-

37 (7th Cir. 1977) cert. denied, 434 U. S. 875

SC ia tad cena dhs sacs ObUeEhiaaesckoukas’ 10-11

United States v. Ironworkers Local 86, 443 F. 2d

544, 553-54 (9th Cir.) cert. denied, 404 U. S. 984

CRED a ee wb cdth die radiews eeadneled ua oth cares 11

United States v. N.L. Industries, Inc., 479 F. 2d 354,

I I Se pe 14

United States v. Wood Lathers Local 46, 471 F. 2d

408, 413-16 (2d Cir.) cert. denied, 412 U. S. 939

SE Ahad wite dws ceicarntche Coed Gh battewh 10

United Steelworkers v. Weber, No. 78-432 ........ 11

Walston v. School Board of City of Suffolk, 566 F.

Ue EE SUT ok Was bons bas un cashes theedven eet 18, 19

Wells v. Meyer’s Bakery, 561 F. 2d 1268, 1274-75

Ce GE, MED wes pen. cs sone vnee Sin kneneeae Ba 12

Statutes:

ee eS seek wee ees ed neeeeetet 2

Ge Te SU: OF BOR. oc ce ccneccccnsccces 2

Other Authorities:

Administrative Office of the United States Courts,

1978 Annual Report of the Director at 88 ...... 14-15

S. Rep. No. 92-415, 92d Cong., Ist Sess. 5 (1971)... 19

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 9 (1976) 19

INDEX TO APPENDIX

Appendix A—Decision and Opinion of the Sixth Cir-

cuit Court of Appeals rendered September 8, 1978. .

Appendix B—Findings of Fact and Conclusions of

Law entered by District Court on November 26, 1974

Appendix C—Judgment entered by the District Court

on Ootobor 14, 1BTG. 2... cccccceccccccscecsscses

Appendix D—Judgment entered by the Sixth Circuit

Court of Appeals on September 8, 1978...........

Appendix E—Order of Sixth Cireuit Court of Appeals

denying petition for rehearing, entered November

©, TOUS cn vvccacucacckdasuues econ taney ase

Appendix F—Labor Relations Reporter, October 2,

1978, Vol. 99, No. 9, 99 Analysis 17, “Availability of

Back Pay for Class of Non-Applicant Discrimi-

madees” . .vccucccenccavacesccuenueeipeasenwane se

PAGE

la

22a

33a

37a

38a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

JANE MITCHELL - ~ - - - Petitioner

Vv.

Min-ContTINENT SPRING CoMPANY OF

KENTUCKY - - - - - Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

The petitioner, Jane Mitchell, respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Appeals for

the Sixth Circuit.

OPINIONS BELOW:

The opinion of the Court of Appeals( app. A, infra,

p. la) appears at 583 F. 2d 275. The opinion of the

District Court (app. B, infra, pp. 22a) was entered on

November 26, 1974, and is unreported. The Judgment

of the District Court (app. C, infra, pp. 33a) was

entered on October 14, 1976, and is also unreported.

JURISDICTION

The judgment of the Court of Appeals (app. D,

infra, p. 37a) was entered on September 8, 1978, and

rehearing and hearing en bane was denied on Novem-

ber 9, 1978 (app. E, infra, p. 38a). The jurisdiction of

this court is invoked under 28 U.S.C. §1254(1).

STATUTES INVOLVED

The relevant portion of Section 706(g) of Title VIT

of the Civil Rights Act of 1964, 42 U.S.C. §2000e-5(g),

in effect at the time this litigation commenced in 1971

is set forth below:

‘‘(g¢) If the court finds 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 prac-

tice, and order such affirmative action as may be

appropriate, which may include 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). Interim

earnings or amounts earnable with reasonable dili-

gence by the person or persons discriminated

against shall operate to reduce the back pay other-

wise allowable . ad

Section 706(k) of Title VII is as follows:

‘‘(k) Attorney’s fee. In any action or proceeding

under this title [42 U.S.C. §§2000e et seq.] the

court, in its discretion, may allow the prevailing

party, other than the Commission or the United

States, a reasonable attorney’s fee as part of the

costs, and the Commission and the United States

shall be liable for costs the same as a private

person,”’

QUESTIONS PRESENTED

1. Where an employer has engaged in a ten year

practice of intentional discrimination in the hiring and

promotion of employees, must injunctive relief be

limited, as the court of appeals held, to a general pro-

hibition against future discrimination, or may a dis-

trict court grant affirmative relief designed to restore

victims to their rightful places and require specific

hiring and promotion levels to assure that intentional

violations do not recur ?

2. If ina Title VII class action it is impossible to

calculate with precision the injury suffered by each

class member, may the district court assess the total

class back pay against the defendant and allocate it in

an equitable manner among the class members, or must

the court, as the Sixth Circuit held, deny all monetary

‘relief ?

3. Should United States v. International Brother-

hood of Teamsters, 431 U.S. 324 (1977), be extended to

require the victims of sex discrimination to explain

why they did not apply for vacancies which were not

disclosed to female employees in a plant in which there

was no procedure for bidding on such jobs?

4. Did the court of appeals correctly hold that in

a Title VII class action a reasonable attorneys’ fee

4

cannot be awarded for legal services resulting in class

injunctive relief unless the plaintiff also wins a sub-

stantial class back pay award ?

STATEMENT OF THE CASE

This employment discrimination class action was

filed in 1971 and is making its second appearance be-

fore this court.

Following a trial in November, 1974, the District

Court entered Findings of Fact and Conclusions of

Law (App. B, infra) which held that the exclusive

assignment of female new hires to Mid-Continent’s

lowest paying job classification, the subsequent limita-

tion of females to this one classification, the mainte-

nance of separate seniority rosters on the basis of sex,

and a different shift transfer policy for female em-

ployees violated Title VII. These unlawful policies

and practices had been in effect on July 2, 1965, and

continued to the time of trial in spite of investigations

by the U. 8S. Department of Labor and the U. 8S. Equal

Employment Opportunity Commission in 1969.

The Court of Appeals for the Sixth Circuit affirmed

the liability holding in favor of the class of female em-

ployees, but reversed the class back pay award, all the

affirmative class relief, and the award of attorneys’

fees for class representation (App. A, infra.) A brief

review of the relevant facts and history will set the

case in proper perspective:

Initial hiring and assignment decisions were made

by Mid-Continent’s plant superintendent. No special-

ized skills were required for any production jobs. All

5

new hires, male and female, had the same qualifications.

Mid-Continent was a non-union company and did not

post job vacancies. It had no formal procedure for

transfer or promotion, and followed the segregated

seniority rosters only when it suited them. All com-

pany employment decisions were subjective and based

on sex stereotypes. From July 2, 1965, to the time of

trial in November, 1974, there were 418 male job open-

ings and opportunities for female employees. Only one

female employee was ever assigned to a male job and

that was brought about by an investigation by the U. 8.

Department of Labor in July, 1969. The only employee

who had the temerity to question Mid-Continent’s

sexual caste policies and practices, Jane Mitchell, was

fired by the company on August 11, 1969.

The District Court found that a female employee

with knowledge of Mid-Continent’s policies and prac-

tices could hardly be expected to make a meaningless

and futile request to be transferred to a male job. The

Court also found that affirmative relief would be re-

quired to insure equal job opportunities at the Mid-

Continent plant for present female employees and to

insure that future hires would be assigned on a non-

discriminatory basis (App. .B, infra,.pp. 29a-31a).

The Court appointed Special Master determined,

and the District Court confirmed, that individual testi-

mony concerning what would have happened if Mid-

Continent had complied with Title VII beginning on

July 2, 1965, and if there had been an atmosphere of

equal employment opportunity rather than defiance of

Title VII at Mid-Continent, would not be helpful in

6

resolving the quagmire of hypothetical judgments. He

stated in his report to the Court as follows:

‘Considering the size of the class in this case, (340

women), the time period involved (almost 10

years), the imprecise effect of the discrimination

(the seniority policies, for example), and the im-

possibility of determination of what each claim-

ant’s position would have been but for the dis-

crimination, the Special Master has determined

that a formula of comparability and a class-wide

approach is the only practical method of determin-

ing economic loss and back pay due in this case.”’

The class wide approach and formula of compar-

ability devised by the Special Master and confirmed by

the District Court resulted in back pay awards for 238

members of the class totalling $225,885 (a large part

of this was interest) for the entire 10-year period of

discrimination. Further, the District Court provided

the following affirmative relief in the Judgment:

(c) For a period of five years from the date of this

final Judgment and permanent injunction defend-

ant shall assign at least 3344% of all male new

hires to machine operator positions in Secondary

and Grinding, and shall assign at least 3344% of

all female new hires to the previously all male job

classifications in defendant’s plant (App. C, infra,

pp. 34a-35a)

Mid-Continent obtained a stay of this modest af-

firmative relief on October 26, 1976, and the Court of

Appeals for the Sixth Circuit reversed it along with

the conservative class back pay award on September

7

8, 1978. The Court further vacated the award of at-

torneys’ fees. These decisions by the Sixth Circuit

have raised important questions concerning the future

effectiveness of Title VII in eradicating employment

discrimination and the determination of the Courts to

provide relief to the victims.

REASONS FOR GRANTING THE WRIT

I. The Sixth Circuit’s Rejection of Affirmative Injunctive

Relief Is Inconsistent With the Decisions of This Court

and of Other Circuits.

The district court, acting on a record showing a

decade of knowing and intentional violation of federal

law, sought to fashion an injunctive remedy that would

fully carry out the purposes of Title VII. .The trial

court directed that tue company for a period of five

years give its present female employees priority in

filling vacancies in previously all-male positions and

that at least one-third of the employees transferred or

promoted to such positions be female; it also required

that for the same period one-third of all newly-hired

females be assigned to previously all-male jobs and

that one-third of all newly-hired males be assigned to

previously all-female jobs (infra, pp. 34a-35a). The

district court explained that such affirmative injunc-

tive relief was ‘‘essential to remedy the continuing con-

sequences of past discrimination . . .” (infra, p.

31a).

The court of appeals reversed, holding that it was

improper to afford any injunctive relief whatever, other

than a general prohibition against discrimination. It

8

based this order on a single fact, that in the two years

after the initial finding of liability the company had

hired two female employees into previously all-male

jobs. It reasoned that this demonstrated ‘“‘that all

jobs were, in fact, open to females’’ (infra, p. 21a)

and thus rendered improper the district court’s detailed

decree.

The decision of the court of appeals is squarely in-

consistent with the decision of this Court in Franks v.

Bowman Transportation Co., 424 U. S. 747 (1976).

Franks held that in fashioning injunctive relief in a

Title VII case the district court has a ‘‘duty to render

a decree which will so far as possible eliminate the

discriminatory effects of the past as well as bar like

discrimination in the future.”’ 424 U. 8S. at 770.

Similarly, Albermarle Paper Co. v. Moody, 422 U. S.

405 (1975), requires the district courts to fashion ‘‘the

most complete relief possible.’’ 422 U.S. at 421.

With regard to the company’s present female em-

ployees, some affirmative relief was clearly necessary

if they were to have a reasonable opportunity to reach

the positions they would have occupied but for the

company’s past discrimination. Franks, supra, 424

U. 8. at 768. It would have perpetuated the effect of

past discrimination to require female employees to

compete for vacancies with men who have greater

experience as a result of past discrimination, or who

were not Mid-Continent employees when the present

female employees were excluded from positions be-

cause of their sex. Certainly the district judge could

have given a particular woman absolute priority for a

ee

9

particular job from which she had been unlawfully

excluded. In this case the virulence and longevity of

of the company’s violation precluded such precise

calculations of each employee’s rightful place; in these

circumstances the order devised by the district court

was reasonably directed toward placing women em-

ployees in their rightful places. See 424 U.S. at 770.

The district court was also correct in requiring for

a period of five years that a third of all transfers or

promotions to previously all-male jobs be granted to

present female employees, and that a third of all newly-

hired employees of either sex be assigned to jobs

previously restricted to the other sex. The court did

not require Mid-Continent to hire any particular num-

ber of men or women. In view of the evidence that

company officials had for over nine years knowingly

violated federal law, the district court was not obligated

to assume the company would obey an injunction cast

in the same general terms as the federal statute; that

history clearly justified a far more specific preventive

order. On appeal the company did not complain that

there were insufficient vacancies in previously all-male

or all-female jobs, or that it could not find qualified

women; it objected, rather, that a male applicant might

refuse an assignment ‘‘if his male ego is offended by

working with a group of the opposite sex.’”'

The sole ground on which this aspect of the district

court’s finding of liability, and while the question of

injunctive relief was still pending before the district

court, two women had succeeded in moving into previ-

‘Brief for Appellants, No, 77-3009, 6th Cir., p. 42.

10

ously all-male positions. The Sixth Cireuit made no

findings as to how newly hired men and women had

been assigned during that period. The two transfers

were taken as conclusive proof that the company was

no longer discriminating in initial assignment, thus

precluding any specific relief in that area. Whether

those transfers, made under the gun of federal litiga-

tion, were to be accorded any significance was a matter

for resolution by the district court; in refusing to credit

such eleventh hour changes the district court was well

within the broad remedial authority accorded by

Albemarle to produce ‘‘a ‘just result’ in the light of the

circumstances peculiar to the case,’’ 422 U.S. at 424,

and it was acting in accordance with this Court’s ad-

monition that an employer’s “‘later changes in its

hiring and promotion policies could be of little com-

fort to the victims of the earlier post-Act disérimina-

tion, and could not erase its obligation to afford relief

to those who suffered because of it.’? United States v.

International Brotherhood Of Teamsters, 431 U. 8S.

324, 341-42 (1977). Cf. Albemarle Paper Co. v. Moody,

supra, 422 U.S. at 413-23.

Other circuits have held in similar circumstances

that the district courts have wide latitude in fashioning

affirmative relief to remedy discrimination in employ-

ment. Boston Chapter, N.A.A.C.P., Inc. v. Beecher,

504 F. 2d 1017, 1026-28 (1st Cir. 1974), cert. denied,

421 U. 8. 910 (1975), United States v. Wood Lathers

Local 46, 471 F. 2d 408, 413-16 (2d Cir.), cert. denied,

412 U. S. 939 (1973) ; N.A.A.C.P. v. Allen, 493 F. 2d

614, 618-22 (5th Cir. 1974); United States v. City of

11

Chicago, 549 F. 2d 415, 486-37 (7th Cir. 1977), cert.

denied, 434 U. S. 875 (1978) ; Carter v. Gallagher, 452

F. 2d 315, 328-31 (8th Cir. en banc), cert. denied, 406

U. S. 950 (1972); United States v. Ironworkers Local

86, 443 F. 2d 544, 553-54 (9th Cir.) cert. denied, 404

U. 8S. 984 (1971). Following this Court’s decision in

Regents of the University of Califorma v. Bakke, 57

L. Ed. 2d 750 (1978), a conflict has developed between

the view of the Fifth and Eighth Circuits that the deci-

sion should be viewed as ‘‘reaffirming the equitable

power of federal courts to remedy the effects of un-

constitutional acts through race-conscious means,’”

and the view of the Fourth Circuit that the Bakke

decision ‘‘indicates that the imposition of hiring quotas

in Title VII cases is still an open question.’* This

question may well be resolved by the Court’s decision

in United Steelworkers v. Weber, No. 78-432, and Peti-

tioner suggests that the Court may wish to defer acting

on this petition pending the decision in that case.

II. The Decision Below, Denying Any Relief to Proven

Victims of Discrimination Unless the Amount of Back

Pay Can Be Calculated Individually for Each Victim,

Conflicts With the Decisions of This Court and of Four

Other Circuits.

The district court adopted a classwide approach to

the problem of calculating back pay awards where the

employer’s past unlawful conduct has made precise

2Mecrrow v. Dillard, 580 F. 2d 1284, 1294 (5th Cir. 1978) ; Fire-

fighters Institute for Racial Equality v. City of St. Lowis, 18 FEP

Cases 1083, 1087 (8th Cir. 1978).

3Sledge v. J. P. Stevens Co., 18 FEP Cases 261, 275 (4th Cir.

1978).

12

individual determinations impossible. The court of

appeals rejected this approach, holding as follows:

If it is true that individual determinations are

impossible, the class action aspects of this case

should forthwith be dismissed. No individual

should ever be permitted to recover damages in a

ease which he or she finds it is impossible to prove

(infra, p. 16a).

Four other circuits, ‘‘[g]iven a choice between no

compensation for black employees who have been il-

legally denied promotions and an approximate measure

of damages,’’ have chosen the latter. Stewart v.

General Motors Corp., 542 F. 2d 445, 453 (7th Cir.

1976), cert. denied, 433 U. 8. 919 (1977). The choice

of the court below conflicts with that made by the

Fifth,* Seventh, Kighth,*® and Tenth’ Circuits and with

4Pettway v. American Cast Iron Pipe Co., 494 F. 2d 211, 260-63

(5th Cir. 1974) (‘‘when the class size or the ambiguity of promotion

or hiring practices or the multiple effects of discriminatory practices

or the illegal practices continued over an extended period of time

calls forth the quagmire of hypothetical judgment .. ., a class-

wide approach to the measure of back pay is necessitated’’).

5Stewart v. General Motors Corp., supra., 542 F. 2d at 452-53

(‘‘the utilization of an individualized calculation is impossible.

Because 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 racial discrimination would lead the district court

into a ‘quagmire of hypothetical judgment,’ . . . in which any sup-

posed accuracy in result would be purely imaginary’’).

®Wells v. Meyer’s Bakery, 561 F. 2d 1268, 1274-75 (8th Cir.

1977) (following the Seventh Circuit’s decision in Stewart in light

of this Court’s decision in Teamsters).

TLove v. Pullman Co., 569 F. 2d 1074, 1077 (10th Cir. 1978)

(in view of the impossibility of individual determinations, ‘‘the use

of averages derived from the separate classifications is a reasonable

basis for a back pay formula’’).

13

this Court’s recognition that in fashioning Title VII

remedies the ‘‘ process of recreating the past will neces-

sarily involve a degree of approximation and impreci-

sion.’”? United States v. Teamsters, supra, 431 U. S.

at 372.

The Sixth Circuit’s decision is also inconsistent

with decisions of this Court holding that, once a class-

wide Title VII violation has been established, each

potential victim of the proven discrimination is pre-

sumptively entitled to relief; the burden is then on the

employer to prove that such potential victims were

denied employment opportunities for lawful reasons.

United States v. Teamsters, supra, 431 U.S. at 359-62

and n. 45; Franks v. Bowman Transportation Co.,

supra, 424 U. 8S. at 772-73. The decision below has

deprived the class members of the relief to which they

are presumptively entitled without requiring the em-

ployer to come forward with any of the evidence neces-

sary to rebut that presumption.

Moreover, this Court has held that:

given a finding of unlawful discrimination, back

pay should be denied only for reasons which, if

applied generally, would not frustrate the central

statutory purposes of eradicating discrimination

throughout the economy and making persons whole

for injuries suffered through past discrimination.

The courts of appeals must maintain a consistent

and principled application of the back pay provi-

sion, consonant with the twin statutory objectives,

while at the same time recognizing that the trial

court will often have the keener appreciation of

those facts and circumtances peculiar to particu-

14

lar cases. Albemarle Paper Co. v. Moody, supra,

422 U.S. at 421-22 (footnote omitted). See also,

City of Los Angeles v. Manhart, 435 U. S.

General application of the Sixth Circuit’s reason

for denying back pay in this case would frustrate the

purposes of Title VII. The prospect of a back pay

award should act as ‘‘the spur of catalyst which causes

employers and unions to self-examine and to self-

evaluate their employment practices and to endeavor

to eliminate, so far as possible, the last vestiges of an

unfortunate and ignominious page in this country’s

history.’’ Albermarle Paper Co. v. Moody, supra, 422

U. S. at 417-18, quoting United States v. N. L. Indus-

tries, Inc., 479 F. 2d 354, 379 (8th Cir. 1973). The

back pay remedy as construed by the Sixth Circuit

would have the opposite effect: employers and unions

would have an incentive to increase and prolong their

discrimination against minorities and women because

such conduct would make it more difficult to calenlate

individual back pay awards with precision; careful

destruction of potentially incriminating personnel rec-

ords would provide additional protection against mone-

tary liability. The Sixth Circuit’s role, requiring dis-

missal of class claims wherever an employer has

succeeded in making individualized determinations im-

possible, would undermine the congressional purpose

to eliminate discrimination through ‘‘cooperation and

voluntary compliance,’ Alexander v. Gardner-Denver

Co., 415 U. S. 36, 44 (1974), and would result in a

corresponding increase in the already heavy load of

Title VII cases being filed in the federal courts. See

15

Administrative Office of the United States Courts,

1978 Annual Report of the Director at 88.

Many of the cases filed under Title VII involve

“complex and pervasive’’ issues of ‘‘systemic’’ and

‘‘institutional’’ discrimination® by state and federal

government agencies as well as by large corporate em-

ployers. If the district courts are to manage this vol-

ume of complex cases in a way which furthers the

purposes of Title VII, they must not be burdened

with requirements of unrealistic exactitude in making

individualized remedial determinations for hundreds

or thousands of claimants in every case; rather, they

must be allowed to adopt reasonable, flexible ap-

proaches to the problem of fashioning relief for the

identified victims of proven discrimination.

III. The Court Below Has Misapplied the Teamsters

Decision to the Factual Setting of This Case.

The Sixth Circuit acknowledged that the respond-

ent’s ‘‘system of sex-segregated job classifications and

assignments was aggravated by the absence, until May,

1974 (three years after this action was filed), of any

company-wide posting of job vacancies, and of any

procedure by which employees could formally bid on

higher-paying jobs’’ (infra, p. 8a). However, rely-

ing on this Court’s decision in United States v. Team-

sters, supra, the court below held that in order to be

identified as a potential victim of this system who

therefore would be presumptively entitled to back pay,

8See S. Rep. No. 92-415, 92d Cong., Ist Sess. 5 (1971).

16

each female employee would be required to prove either

that she had applied for a male-only job or that she

would have applied but for the defendant’s unlawful

practices (infra, pp. 17a-19a).

Such a requirement may be-appropriate where an

employer has a formal process by which employees

may express an interest in transfer or promotion to a

higher-paying job. In Teamsters, the Court indicated

that employees could file ‘‘both an initial and a followup

application.’’ 431 U.S. at 368. But the Sixth Circuit

has mechanically applied the Teamsters formulation

of the burden on non-applicants in that case to a fac-

tual setting in which all female employees were neces-

sarily non-applicants because there was no way for

them to learn of vacancies for which they might apply

and there was in any .vent no procedure for them to

bid on any such vacancies. In these circumstances all

female employees were the potential victims of the

respondent’s discriminatory practices, and accordingly

all female employees should be presumptively entitled -

to relief.

IV. The Sixth Circuit’s Decision Emasculates the Counsel

Fee Provision of Title VII

After ruling for plaintiff on the merits, the district

court awarded a counsel fee of $75,000 to plaintiffs’

attorneys (infra, p. 35a). This fee covered approx-

imately 750 hours of work on a case which had been in

litigation for over five years, including extensive dis-

covery, an earlier appeal to the Sixth Circuit, a petition

for certiorari, a trial, and proceedings before a special

17

master. The bulk of these hours were spent on the

liability phase of the case.

The Court of Appeals upheld the finding of class

wide liability and the individual back pay award, but

remanded the class back pay award and severely

limited the class injunctive relief (infra, p. 3a). In

its first opinion, however, the Sixth Circuit flatly for-

bade any award for the liability phase of the class

action claim regardless of what occurred on remand:

After the Court has determined the claims of

each individual member of the class, the Court

shall then determine the reasonable value of the

legal services and expenses incurred in such repre-

sentation on the remand. Because of our reversal

of the judgment with respect to the class action

aspects of the case, no allowance can be made for

legal services and expenses incurred for prior

representation of the class. (infra, p. 21a).

On petition for rehearing, the Court of Appeals

issued a different restriction on any counsel fee:

After determining the allowance to be made to

plaintiff for attorney’s fees in representing her

individually, the District Court shall separately

determine the reasonable value of the legal services

rendered to, and expenses incurred by, the plain-

tiff in obtaining the injunction and in establishing

the illegality of the company’s challenged prac-

tices. In making that determination the Court

shall consider the amount finally allowed to the

class. In other words, if the recovery by the class

is in only a small amount, an award such as was

18

previously made by the District Court could not

be supported. (infra, p. 38a)

Thus, the amount of the class back pay award is to

place a ceiling on the counsel fee, regardless of the

need for or value of the legal services that resulted in

the granting of injunctive relief. Even if the liability

phase alone required $75,000 worth of legal services,

an issue the Sixth Circuit did not consider, and even if

the injunctive relief was worth millions of dollars to

the class members, a $75,000 award would be ‘‘ex-

cessive.”’

This rule is squarely contrary to the uniform prac-

tice in other Circuits which have followed Johnson v.

Georgia Highway Express, Inc., 488 F. 2d 714, 717-20

(5th Cir. 1974), cert. denied, 423 U. 8. 864 (1975), in

considering ‘‘the amount involved and the results ob-

tained’’ as only one of many factors determining coun-

sel fee awards in civil rights cases.° These circuits

recognize that, where a Title VII action has corrected

‘across-the-board discrimination affecting a large

class of an employer’s employees the attorney’s fee

award should reflect the relief granted,’’ id. at 718, and

that sole reliance on the amount of monetary recovery

*Evans v, Sheraton Park Hotel, 164 U. 8. App. D. C. 86, 96-97,

503 F. 2d 177, 187-88 (D. C. Cir. 1974) ; King v. Greenblatt, 560

F. 2d 1024, 1026 (1st Cir., 1977), cert. denied, 98 S. Ct. 3146

(1978) ; Prate v. Freedman, 17 F.E.P. Cases 1572, 1576 (2nd Cir.,

1978) ; Rodriguez v. Taylor, 569 F, 2d 1281, 1247 (3rd Cir., 1977),

cert. denied, 436 U. S. 913 (1978) ; Walston v. School Board of City

of Suffolk, 566 F. 2d 1201, 1204-05 (4th Cir. 1977); Hairston v.

R & R Apartments, 510 F. 2d 1090, 1093 n. 3 (7th Cir. 1975) ; Allen

v. Amalgamated Transit Union Local 788, 554 F. 2d 876, 884 (8th

Cir.), cert. denied, 434 U. S. 891 (1977) ; Fountila v. Carter, 571

F, 2d 487, 496 (9th Cir., 1978).

19

renders a counsel fee award inadequate. Walston v.

School Board of City of Suffolk, supra, 566 F. 2d at

1204. Congress, in enacting the Civil Rights attorneys’

fee awards Act of 1976, Pub. L.N. 94-559; 42 U.S.C.

§1988, specifically approved the Johnson standards and

noted its intention ‘‘that the amount of fees . . . be

governed by the same standards which prevail in other

types of equally complex Federal litigation, such as

anti-trust cases and not be reduced because the rights

involved may be non-pecuniary in nature.’’ S. Rep.

No. 94-1011, 94th Cong., 2d Sess. 6 (1976); see also,

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 9 (1976).

In Newman v. Piggie Park Enterprises, Inc., 390

U.S. 400 (1968), this Court held that under Title IT of

the 1964 Civil Rights Act reasonable counsel fees must

be awarded to a prevailing plaintiff ‘‘unless special

circumstances would render such an award unjust.’’

390 U. S. at 403. The Court has recognized that this

standard is equally applicable to cases brought under

Title VII. Christiansburg Garment Co. v. EEOC, 484

U. S. 412, 417 (1978). The fact that fees are sought

for winning injunctive relief, rather than for obtaining

a large monetary award, is not such a ‘‘special circum-

stance.’’ On the contrary, only injunctive relief had

been obtained in Newman, id., and a grant of injunctive

relief was the sole basis for the fee award upheld by

this Court in Hutto v. Finney, 57 L. Ed. 2d 522, 536-40

(1978). If in Title VII actions in the Sixth Circuit

substantial counsel fees cannot be awarded unless there

is also a large back pay recovery, plaintiffs wil! be

forced to defer litigation until the size of the accrued

20

claim is large, and ‘‘few aggrieved parties would be in

a position to advance the public interest by invoking

the injunctive powers of the federal courts.’’ Newman

v. Piggie Park Enterprises, 390 U.S. at 402.

CONCLUSION

For the reasons stated the writ should be granted.

Respectfully submitted,

JAMES C. HICKEY

Hiram Ety, III

EWEN, MacKENZzIE & Pepen, P.S.C.

2100 Commonwealth Building

Louisville, Kentucky 40202

JACK GREENBERG ‘

Eric SCHNAPPER

Patrick OQ, PATTERSON

Suite 2030

10 Columbus Circle

New York, New York 10019

Counsel for Petitioner

21

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

JANE MITCHELL . - . ~ ° ° Petitioner

v.

Mip-ContTInent Sprina CoMPANy OF

Kentucky - - - - - =- Respondent

CERTIFICATE OF SERVICE

1 hereby certify that all parties required to be served

with the Petition for Writ of Certiorari have been served

as follows:

I certify that I have served three copies of the Petition

for Writ of Certiorari upon the respondent by causing the

same to be deposited in envelopes at the United States Post

Office, Louisville, Kentucky, with air mail, first-class post-

age pre-paid, addressed to Thomas M. Hanna, Esq., 1153

Pierre Laclede Building, Forsyth at Hanley, St. Louis,

Missouri 63105.

February 7th, 1979.

James C. Hickry

Ewen, Mackenziz & Pepen, P.S.C.

2100 Commonwealth Building

Louisville, Kentucky 40202

Attorney for Petitioner

SS

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 77-3009

Jane MircoHenn - - - - ~- _ Plaintiff-Appellee

v.

Mip-ContTINnENtT Spring CoMPANY

or Kentucky - - - ~- Defendant-Appellant

Appeal from United States District Court

for the Western District of Kentucky,

Paducah Division.

OPINION—Decided and Filed September 8, 1978.

Before: Puruuires, Chief Judge, Weick and CELEBREZZE,

Cireuit Judges. ;

Wercx, Circuit Judge. This class action was brought in

the District Court by plaintiff-appellee, Mrs. Jane Mitchell

(Mitchell), against defendant-appellant, Mid-Continent

Spring Company of Kentucky (Mid-Continent), a corpora-

tion, her employer, alleging sex discrimination against her

and on account of her discharge for engaging in protected

activity, in violation of § 703(a) of Title VII of the Civil

2a

Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and requesting

equitable relief.

The suit was brought in Mitchell’s own behalf and in be-

half of the class of all females employed by Mid-Continent

on or after July 2, 1965, the effective date of the Act, all of

whom, she alleged, were discriminated against with respect

to wages and job assignments. The District Court certified

the Class, as prayed for.

Following a bench trial the District Court found in favor

of Mitchell and her class, in all respects. The issue of back

pay was referred to a Special Master, who recommended

that Michell recover on her individual claim $24,528.86 in

back pay, and that an additional $222,885 be divided among

all members of the plaintiff class, according to a formula

and certain qualifying criteria. The Court accepted these

recommendations and entered judgment therefor, and or-

dered Mitchell reinstated if she desired; and, in addition,

the Court awarded Mitchell and the class a total of $75,000

in attorneys’ fees, plus expenses of $2,427.32. Finally, the

Court ordered relief against further discrimination and

imposed an affirmative action plan, including the imposition

of a quota of 33-1/3% of all new female employees to be as-

signed to formerly male job classifications, for the next five

years, and 33-1/3% of all newly hired males to be assigned

to formerly female job classifications, for the next five

1The original complaint in this case was filed on April 12, 1971.

On November 16, 1971 the District Court granted summary judg-

ment for defendant on the ground that plaintiff’s charge had not

been referred to the Kentucky Human Rights Commission, as re-

quired by 42 U.S.C. § 2000e-5(b). On appeal this Court vacated

the judgment and remanded with instruction to retain jurisdiction

long enough to permit such resort to available state remedies.

Mitchell v. Mid-Continent Spring Co. of Ky., 466 F. 2d 24 (6th Cir.

1972), cert. denied, 410 U. S. 928 (1973). In her amended com-

plaint, styled ‘‘Second Amended Complaint,’’ plaintiff alleged ex-

haustion of all such remedies, and this is no longer an issue in the

appeal.

3a

years. Mid-Continent was also required to make reports

to plaintiff’s attorneys.

For the reasons that follow, we are of the view that the

judgment of the District Court should be affirmed only with

respect to relief granted plaintiff Mitchell, individually, and

the injunction against further discrimination. We reverse

the judgment with respect to the issue of class-wide liability

for back pay, totaling $222,885, the affirmative action plan

involving quotas, and the award of attorneys’ fees plus

expenses,

I

Mitchell was first employed by Mid-Continent on August

6, 1962. In early 1969 she contacted the Wage and Hour

Division of the United States Department of Labor, alleg-

ing that the Company discriminated against female pro-

duction workers. An investigation was made during the

period of July 2-18, 1969, by Compliance Officer Herbert L.

Livingston. At the conclusion of his investigation Living-

ston advised Louis Langhi, President of Mid-Continent,

that although no violations of the Equal Pay Act had been

found to exist, the Company’s practice of assigning higher-

paying jobs exclusively to males (which will be discussed

further, below) appeared in his opinion to be in violation

of Title VII. Livingston recommended that Langhi contact

the EEOC for assistance in bringing the company into

compliance,

Langhi became incapacitated subsequently in 1971, be-

cause of brain surgery which left him virtually unable to

speak, and partially paralyzed. His wife then assumed

control of the company.

On or about July 29, 1969 Mitchell mailed a letter of com-

plaint to the Cleveland Regional Office of the EXOC. This

letter constituted a charge of discrimination under EEOC

guidelines. 29 C.F.R. § 1601.11(b). The EEOC replied on

August 1, enclosing two blank EEOC charge forms, one for

4a

plaintiff’s use, and one for the possible use of employee,

Louise McGehee, who had been promoted from her lower-

paying machine operator position to a higher-paying inspec-

tion position, immediately after the Wage and Hour in-

vestigation.

On August 7 Mitchell approached McGehee, while in the

company parking lot, before working hours, and asked her if

she would like to make a complaint. McGehee refused, and

reported to her foreman, Clyde Warren, that Mitchell had

asked her to sign a complaint regarding wages, which com-

plaint was to be sent to the federal government.

On August 11, 1969, Jane Mitchell was instructed to

come to the office of Ward Mitchell (no relation to Jane),

the company’s plant superintendent. Clyde Warren and

others were present at the meeting. There was discussion

about the Government papers that Mitchell had been circu-

lating, after which Ward Mitchell took from his desk drawer

Jane Mitchell’s final paycheck, which was already prepared.

In Mitchell’s words, he said, “I’m going to tell you, you are

a good worker, but you’re a trouble maker .... I’m going

to have to let you go.” (App. 154). :

On August 14 Jane Mitchell made a second complaint to

the EEOC, charging a retaliatory discharge. She was

granted leave by the EEOC to file this suit.

On the basis of this evidence the District Court found

that Mitchell was fired in retaliation for having engaged in

protected activity, in violation of § 704(a) of Title VII,

42 U.S.C. § 2000e-3(a).2 She was awarded back pay of

*Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), provides:

(a) It shall be an unlawful employment practice for an

employer to discriminate against any of his employees or ap-

plicants for employment, for an employment agency, or joint

labor-management committee controlling apprenticeship or

other training or retraining, including on-the-job training pro-

grams, to discriminate against any individual, or for a labor

(Footnote continued on following page)

5a

$24,528.86, and, if she so desired, was ordered reinstated

in her previous employment with full seniority and benefits.*

On appeal Mid-Continent asserts two justifications for

Mitchell’s discharge. First, Mid-Continent claims that

Mitchell violated the company’s rule against solicitation on

company property. The District Court specifically rejected

this defense on the ground that the employee handbook is-

sued by the company did not list this offense as one justify-

ing immediate discharge, and no employee had ever been

discharged for violation thereof. Further, the rule applied

only to solicitations during business hours; and the solicita-

tion of McGehee took place before business hours.

Second, Mid-Continent cited past instances of boisterous

behavior and misconduct, including disputes with other em-

ployees, on Mitchell’s part. The last such incident, however,

took place at least a year prior to the discharge, and Mit-

chell had continued to receive regular pay increases during

her entire tenure. No negative remarks had been entered

on her personnel record.

Section 704(a) has been construed broadly to prohibit

“discrimination against applicants or employees for at-

tempting to protest or correct allegedly discriminatory con-

ditions of employment.” McDonnell Douglas Corp v. Green,

411 U.S. 792, 796 (1973). Mitchell’s action in filing a charge

(Footnote continued from preceding page)

organization to discriminate against any member thereof or

applicant for membership, because he has opposed any practice

made an unlawful employment practice by this subchapter, or

because he has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing un-

der this subchapter.

In the alternative, the District Court found the defendant liable

under the analogous section of the Fair Labor Standards Act. § 15

(a) (3), 29 U.S.C. § 215(a) (3). Because liability under Title VII

adequately supports the Court’s judgment, it is unnecessary for us

to consider this portion of the Court’s conclusions.

®No contention has been made by the Company on appeal with

respect to the amount of back pay awarded to Mitchell.

6a

with the EEOC was plainly protected by this section. See

Hicks v. ABT Assoc., Inc., 572 F. 2d 960, 968-69 (3d Cir.

1978) ; Pettway v. American Cast Iron Pipe Co., 411 F. 2d

998, 1004-07 (5th Cir. 1969).

We hold that the District Court’s findings of fact sup-

porting Mitchell’s individual claim are supported by sub-

stantial evidence and are not clearly erroneous. We there-

fore affirm this portion of the judgment.

II

Mid-Continent is a manufacturer of precision springs.

The plant contains fifteen departments, each headed by a

foreman, and each department consists of a separate job

category. The manufacturing process begins when wire of

the proper specification is sent to the coiling department,

where the machines are “set up” to produce springs accord-

ing to customer specifications. After coiling, the springs

are tempered by heat-treatment and then tested. At this

point the springs are sent to other various departments for

further processing: to Secondary Operations for sizing on

a “kick press,” if needed; to the grinding room; to “hopper-

looper,” where loops are placed on the ends of the springs;

to “four-slide,” where angles are formed in the springs;

to torsion, which further coils springs and attaches “legs” ;

or to the paint department.

In both Secondary and Grinding operations the work is

light, and the female machine operators in these depart-

ments remain seated while working. In Secondary, the

female workers operate kick presses, and in Grinding they

load and unload grinding machines, both relatively unskilled

tasks. In the other departments, however, the work is

heavier and is more difficult. In the set-up functions, work-

ers are required to make precise, mathematical computa-

tions and adjustments with complex machinery in accord-

ance with both blueprints and written specifications. These

7a

functions require skill and training, which many women

either do not possess or do not desire to undertake. Other

positions require various amounts of lifting of heavy coils

of wire and quantities of springs, exposure to high tempera-

tures, and untidy work conditions. These departments also -

require employees to work during the second or night shift

when necessary to fill customers’ orders. Married women

who have young children, or who live in the country, did not

like the night shift.

Consequently, employees who perform these more diffi-

cult j..0s are higher paid than are machine operators in the

Secondary and Grinding departments. These more diffi-

cult jobs have been performed traditionally by men em-

ployed by the company. As of August 6, 1973, machine

operators started at $2.10 per hour and reached a maximum,

of $2.35 per hour after eighteen months. Set-up jobs, on

the other hand, paid $2.20 per hour to start, and reached a

maximum of $2.95 per hour after four years. The remain-

ing job classifications at Mid-Continent were also higher-

paid than machine operators, starting at $2.20 per hour and

reaching $2.75 per hour after four years.

The record shows, and the District Court found as fact,

that between July 2, 1965 and the time of the judgment, no

female had ever been assigned to set-up, or to .any other of

the higher-paying positions.* On the other hand, no male

had ever been assigned to the machine operator classifica-

‘Finding of Fact No. 15, App. 35, reads as follows:

Males have been employed and assigned exclusively since

July 2, 1965, to the following job classifications: maintenance,

inspection, torsion set-up, grinding set-up, coiler set-up, kick

press set-up, four slide set-up, sample and heavy bench, hopper-

looper set-up, truck drivers, shipping, warehouse and receiving,

welghman, and janitor. On November 19, 1973, there were 95

men and no women employed in these classifications.

8a

tions in Secondary and Grinding.® Further, no male had

ever been transferred to the lower-paying positions, and

only two machine operators had ever been promoted, under

circumstances to be discussed below.

Mid-Continent did permit employee, Louise McGehee,

to transfer from her machine operator position to the for-

merly-all-male inspection function; she was the first female

ever to make such a transfer. This promotion occurred in

July, 1969, subsequent to the investigation by the Wage and

Hour Division. McGehee testified (App. 27) that she ap-

plied for the job when she heard “a rumor in the plant” that

the company was looking for a female to fill it.

Aside from McGehee, only one other female transferred

from the machine operator classification to any other posi-

tion between July 2, 1965 and the date of the judgment.

This transfer occurred on May 3, 1973, after commence-

ment of this litigation, when Velma Ezell became a clerk in

Mid-Continent’s shipping department.

This system of sex-segregated job classifications and as-

signments was aggravated by the absence, until May, 1974,

of any company-wide posting of job vacancies, and of any

procedure by which employees could formally bid on higher-

paying jobs.

Finally, Mid-Continent maintained a discriminatory

practice and policy with respect to shift transfers. Set-up

employees, according to plant superintendent Ward Mit-

chell, were hired for both the day and night shifts (App.

503), and a transfer between shifts was “[p]Jermissible if

they want to,” subject to the needs of the company (App.

5Finding of Fact No. 14, App. 35, reads as follows:

The E.E.0.C. investigation and the record in this case re-

veal that females were employed and assigned exclusively to the

machine operator classification in secondary operations and

grinding from July 2, 1965 to the present. No males have ever

been assigned to that classification. On November 19, 1973,

there were 124 female machine operators employed by Mid-

Continent.

9a

817). Female employees in Secondary and Grinding, how-

ever, were not permitted to transfer between the day and

the night shifts (App. 502; see App. 789-92). Ward Mit-

chell acknowledged that the rationale for affording the male

employees this more liberal policy was that “there was a

shortage of men. However, females were easy to hire.”

(App. 819).

The consequence of this policy was that a shift change

by a female was tantamount to a resignation and a rehire.

In fact, two females, Casada and Stranger, actually did lose

all seniority when they transferred, at their own request,

from the night to the day shift. (App. 303, 316, 499-501).

The District Court found as fact that the company’s policy

was to consider transfer requests by males if they suited the

company’s needs but not to so consider the requests by fe-

males. Finding of Fact No. 20, App. 36.

A further consequence of the transfer policy was that

the seniority records of female employees were divided into

®There was, however, evidence at trial that the two females in

question had subsequently been granted full seniority. (App.

303-04, 315-16, 501). This evidence does not affect the Court’s

finding of a company policy of discouraging transfers by females.

Also asserted by Mitchell to be relevant to this issue is the testi-

mony of employee Icie Lawrence. Lawrence was first hired on the

night shift in November, 1958. She testfied that she forfeited four-

teen months’ seniority in January, 1960, when she began work on

the day shift in Secondary Operations. Her testimony was as fol-

lows (App. 301-02) :

Q. Did you ever in the time that you were at Mid-Conti-

nent transfer between night and day or day and night shifts?

A. Well, I went to work the fifth day of November in ’58

and I worked those two months in that year. Then, twelve

months in ’59 and then I went back on—I quit the last day,

working day in December of ’59 and then I went back on Mon-

day morning, first work day, and I asked ’em to come on days

{Emphasis added. |

The obvious import of this testimony is that Lawrence lost her

seniority because she quit, not because of a discriminatory transfer

policy.

10a

separate day and night lists, while the records of males

were not so divided. Finally, separate male and female

seniority lists were kept which had the effect of segregating

employees for seniority purposes, not by shift or by de-

partment, but by gender. The District Court found this

system to be contrary to the EEOC guidelines set forth in

29 C.F.R. § 1604.3."

On the basis of the preceding evidence the District Court

found as fact:

“(f]emale production employees were and are re-

stricted and limited to the machinery operator classi-

fication, a base rate job, while men work in generally

higher paying job classifications and have and can

transfer [sic] to higher paying job classifications.”

Finding of Fact No. 18, App. 36.

The Court concluded that the practice of steering fe-

males into the lowest-paying positions constituted discrim-

ination and segregation on the basis of sex in violation of

§ 703(a) of Title VII, 42 U.S.C. § 2000e-2(a).6 The com-

TAlthough not binding on the courts, EEOC guidelines consti-

tute an interpretation of Title VII by the agency charged with its

enforcement and are entitled to great deference. Albemarle Paper

Co. v. Moody, 422 U. S. 405, 431 (1975).

8Section 703(a) of Title VII, 42 U.S.C. 2000e-2(a) provides:

(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 privi-

leges of employment, because of such individual’s race, color,

religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or ap-

plicants for employment in any way which would deprive

or tend to deprive any individual of employment oppor-

tunities or otherwise adversely affect his status as an em-

ployee, because of such individual’s race, color, religion, sex,

or national origin.

lia

pany’s discriminatory shift-transfer and seniority policies

were held to be further violations.

We affirm these holdings as supported by substantial

evidence. They are supported by the testimony of the Com-

pany’s own plant superintendent, Ward Mitchell. Ward

Mitchell made all hiring and assignment decisions. (App.

783, 786). He stated that he assigned females only to lower

paying positions because “that’s the type of work that’s

open for them to do.” (App. 787). The only justification

asserted for this attitude was that the other positions re-

quired lifting. (App. 787, 794-95). However, no tests were

made of job applicants’ physical strength (App. 788, 795)

and no studies were made of the weight-lifting, skill, in-

telligence or dexterity requirements of any job in the plant.

(App. 827). Neither specialized skills nor pre-employment

training was required for any production job. (App. 788).

Rather than tests applicants or impose requirements,

Ward Mitchell simply believed that only men could success-

fully perform the Company’s highest-paying jobs and that

the females were not interested in these jobs. (App. 795-97,

826). In an answer to an interrogatory the Company ad-

mitted that sex was not a bona fide occupational qualifica-

tion for any job in the plant within the meaning of Title VII.

(App. 334-35).

In spite of this admission and in spite of the absence of

any evidence of an actual lifting requirement, the Company

maintains that it was merely being protective of its female

employees, and argues that its “overprotective attitude”

should not be held to constitute discrimination. Ward Mit-

chell also testified that he “never had one of the women in

our plant down there come to me and want to get on the

machines—not one.”

This argument has been consistently rejected and is

without merit. Even a bona fide lifting requirement cannot

be implemented by the blanket exclusion of all females.

12a

Bowe v. Colgate-Palmolive Co., 416 F. 2d 711, 718 (7th Cir.

1969). Rather, it may be implemented only by a valid test

measuring strength directly. Dothard v. Rawlinson, 433

U.S. 321, 332 (1977). Regardless of the difficulty of meas-

uring individual characteristics, Title VII prohibits the use

of popular stereotypes or even statistical data to “at-

tribut[e] general group characteristics to each individual

member of the group.” Manhart v. City of Los Angeles,

553 F. 2d 581, 586, 590-91 (9th Cir. 1976), vacated and re-

manded on other grounds, 956 S. Ct. 1370 (1978). Accord,

Phillips v. Martin Marietta Corp., 400 U. S. 542, 544, (1971)

(Marshall, J., concurring).

The unlawful restriction of female applicants and em-

ployees to its lowest-paying positions, the Company’s dif-

ferential shift-transfer policy and its consequent mainten-

ance of separate seniority lists constitute violations of Title

VII. These policies placed burdens on females that males

were not required to suffer. Cf. Nashville Gas Co. v. Satty,

434 U.S. 136, 141-42 (1977) ; Palmer v. General Mills, Inc.,

513 F. 2d 1040, 1043 (6th Cir. 1975).

The Company also contends that the intent requirement

of Title VII has not been proven, on the ground that there is

no evidence that any females applied for promotions or even

desired to work in higher-paying positions and therefore the

Company never had occasion to “discriminate.” We find

this argument to be without merit for it misses the point.

The standard of this Circuit under Title VII is that females

must have equal employment opportunities, not merely that

their applications, if any, be processed fairly. Senter v.

General Motors Corp., 532 F. 2d 511, 529 n.58 (6th Cir.) cert.

denied, 429 U. S. 870 (1976); Palmer v. General Mills, Inc.,

513 F. 2d 1040, 1043 (6th Cir. 1975) ; Head v. Timken Roller

Bearing Co., 486 F. 2d 870, 878 (6th Cir. 1973).

In Dothard v. Rawlinson, 433 U.S. at 330, the Supreme

Court cautioned against the argument that a finding of un-

13a

lawful discrimination must be based on the impact of de-

fendant’s (Company’s) practices on actual applicants,

stating:

The application process might not adequately reflect the

actual potential applicant pool, since otherwise quali-

fied people might be discouraged from applying because

of a self-recognized inability to meet the very standards

challenged as being discriminatory. See Teamsters v:

United States, 431 U. S. 324, 365-367. A potential ap-

plicant could easily determine her height and weight

and conclude that to make an application would be

futile.

In our case the District Court found on the basis of sub-

stantial evidence, that defendant (Company) exhibited the

requisite disregard for the consequences of its acts to satisfy

Title VII. Conclusions of Law Nos. 13, 14, App. 40. See

Dothard v. Rawlinson, 433 U.S. at 328 & n. 11; International

Brotherhood of Teamsters v. United States, 431 U. 8S. 324,

335 n.15 (1977).

Ill

Our agreement with the District Court on the liability

issue, that a discriminatory system existed, does not con-

clude the matter, for the extent of the Company’s liability

for back pay to the class must yet be determined. At the

time the complaint was filed, Section 706(g) of the Act, 42

U.S.C. § 2000e-5(g) read as follows: -

(g) If the court finds that the respondent has in-

tentionally engaged in or is intentionally engaging in

an unlawful employment practice charged in the com-

plaint, the court may enjoin the respondent from en-

gaging in such unlawful employment practice, and order

such affirmative action as may be appropriate, which

l4a

may include reinstatement or hiring of employees, with

or without back pay ... .®

The District Court, after finding liability in its order of

November 26, 1974, turned to the issue of back pay, stating:

“Each female production employee at Mid-Continent from

July 2, 1965 to the present, must now be given an oppor-

tunity to describe the harmful effect of discrimination on

her individual employment position.” Conclusion of Law

No. 18, App. 41. On January 20, 1975, the Court appointed

a Special Master to determine the back pay of each class

member and provided guidelines, ordering, inter alia:

5. The Special Master shall devise a formula for

computing the difference in wages earned by members

of the class listed in Guideline 1 [all female employees

. who have been employed at any time from July

2, 1965 to the present time”], and male employees with

the same or substantially the same date of hire by Mid-

Continent. These differences . . . plus interest at

6% per annum shall be charted for each member of the

class. . . . [Guideline 5, App. 46.]

9. The Special Master should keep in mind that the

defendant has the burden of establishing by clear and

convincing evidence, that the particular class member

would not have earned the wages, even if Mid-Continent

had not limited and segregated female employees . . .

[Guideline 9, App. 47.]

Pursuant to these guidelines, the Special Master devised

the following formula for calculating the back pay due each

class member:

*Although on its face § 706(g) appears to contemplate that back

pay will be awarded only as an adjunct to reinstatement or hiring,

this section has been interpreted to permit the back pay remedy

to stand alone. Albemarle Peper Co. v. Moody, 422 U. 8. 405,

415-16 (1975).

15a

(1) The differential between the average wage for fe-

males and the average wage for males for each year from

1967 through 1974 was determined from actual pay records

of employees who worked the entire year, and conservative

figures were estimated for 1965 and 1966.

(2) It was assumed that in the absence of discrimina-

tion, 25% of the “male” jobs existing in any year would have

been held by females. The figure of 25% is the percentage

of females in the local work force in Christian County, Ken-

tucky according to the 1970 Census.’° The number of jobs

thus assumed to belong to females was multiplied by the

male-female wage differential, to arrive at the total amount

“lost” to the plaintiff class each year.

(3) A list of eligible class members was compiled for

each of the ten years at issue, consisting of all females who

worked for the Company for at least six months during the

given year. If a female worked a total of six months dur-

ing two consecutive years, she was included in the year in

which she worked the greater period of time. Thus, 92 of

the 340 class members were excluded, leaving 238 persons

eligible for back pay.

(4) The total amount of wages “lost” by females in each

year was equally divided among all the eligible class mem-

bers for that year.

The result of this computation (before minor adjust-

ments) was that the maximum award for a female working

the entire ten-year yeriod was $2,631.40 and the maximum

award for any one year was $312.25. The total award was

$222,885, the average award amounting to $1,026.20.

The Special Master then discussed the burden of proof

required to be borne by each individual member of the plan-

10This assumption was unfounded. The fact that women com-

prise 25% of the work force in the county where Mid-Continent’s

plant is located is no evidence that 25% of the jobs at Mid-Continent

which have been held by men between 1965 and 1974 would have

been held by women.

16a

tiff class, in order to qualify for a share in the award thus

calculated, pursuant to Conclusion of Law No. 18, App. 41.

The Special Master described that burden as “very light”

and stated, quoting Pettway v. American Cast Iron Pipe Co.,

494 F’. 2d 211, 259-62 (5th Cir. 1974), that “[t]here is no way

of determining which jobs the class members would have bid

on and have obtained if discriminatory testing, seniority,

posting and bidding system [sic] had not been in

existence.” Id. at 260. In such a situation, involving a

“quagmire of hypothetical judgment”, id., the Special Mas-

ter found that “a classwide approach to the measure of back

pay is necessitated”, id. at 261. This decision was based on

the large number of class members (340), the total length of

time involved (ten years) and the difficulty of isolating the

effects of the various discriminatory assignment, seniority

and transfer policies.11 The Special Master, with the ap-

proval of the District Court, concluded as follows:

[The initial burden has been met by all those fe-

male employees who were shown by company records

to have been hired during the period involved and sub-

11In her brief, Mitchell states, at page 20:

It is now totally impossible to determine in any way what

individual female employees and new hires would have done

and otherwise what would have happened if Mid-Continent had

begun on the effective date of the Act, July 2, 1965, to assign

males hires (there were 418) as machine operators and female

hires to all other job classifications on a completely non-dis-

criminatory basis.

This is a frank admission that it is impossible for the individual

class member to have her case determined without the use of a

nebulous formula, based in part on supposition, such as was devised

by the Special Master and approved by the District Court. The

amicus brief of the EEOC, under ‘‘Issues Presented’’, at 2, asserts

the propriety of the use of the formula ‘‘in light of the impossibility

of individual determinations in this case’’.

If it is true that individual determinations are impossible, the

class action aspects of this case should forthwith be dismissed. No

individual should ever be permitted to recover damages in a case

which he or she finds it is impossible to prove.

oe

17a

sequently frozen into the female job classification for

more than six months. In other words, those 238 class

members determined to be eligible for sharing in one or

all of the ten funds herein have met the initial burden of

proof and it is now incumbent upon the defendant to

show by convincing evidence that other factors would

have prevented [sic] the economic loss determined here-

in regardless of the defendant’s discriminatory employ-

ment practices. [App. 58.]

In taking this approach, the District Court did not have

the benefit of the decision of the Supreme Court in Interna-

tional Brotherhood of Teamsters v. United States, 431 U.S.

324 (1977). This decision acknowledged that “{a] consist-

ently enforced discriminatory policy can surely deter job

applications from those who are aware of it and are unwill-

ing to submit themselves to the humiliation of explicit and

certain rejection.” Id. at 365. Nevertheless, the Court, with

respect to non-applicants held:

Individual nonapplicants must be given an oppor-

tunity to undertake their difficult task of proving that

they should be treated as applicants and therefore are

presumptively entitled to relief accordingly.

[Id. at 364.]

A nonapplicant must show that he was a potential

victim of unlawful discrimination. Because he is neces-

sarily claiming that he was deterred from applying for

the job by the employer’s discriminatory practices, his

is the not always easy burden of proving thaf\he would

have applied for the job had it not been for those prac-

tices. . . . [Jd. at 367-68. ]

[T]he Government [plaintiff] must carry its burden

of proof, with respect to each specific individual, at the

remedial hearings to be conducted by the District Court

on remand. [Jd. at 371.]

18a

In our case, the burden of proof was erroneously im-

posed on Mid-Continent by the Special Master and District

Court. There was indeed evidence that some of Mid-Con-

tinent’s female employees desired better jobs but were de-

terred by their belief that making an application would be a

“useless act serving only to affirm a discriminatee’s know]l-

edge that the job he wanted was unavailable to him,” (431

U. S. at 367). There was testimony by several witnesses

(App. 630-717) that the general assumption among Mid-

Continent employees and management was that females

were to keep in their place. Some females complained that

they were subjected to harassment and disrespect by male

employees, (e¢.g., App. 682-83, 714-17) and believed that if

they applied for better jobs they would either be fired out-

right or be trained inadequately and then fired for incom-

petence.

On the basis of this evidence, the District Court found

that “[a] female employee with knowledge of Mid-Conti-

nent’s policies and practices could hardly be expected to

make a meaningless and futile request to be transferred to

a male job.” Finding of Fact No. 16, App. 40. All of this,

however, relates to the issue of liability and has no bearing

on the remedy.

This showing was insufficient under Teamsters and the

judgment must therefore be reversed. On remand, the Dis-

trict Court must determine the application for a job as-

serted by each individual class member. It will have the

guidance of the Supreme Court’s extensive discussion (431

U.S. at 367-72) of the manner in which class members’ bur-

dens must be carried (stating in part):

The task remaining for the District Court on re-

mand will not be a simple one. Initially, the court will

have to make a substantial number of individual deter-

minations in deciding which of the minority employees

a eee

a enn. ee

19a

were actual victims of the company’s discriminatory

practices. After the victims have been identified, the

Court must, as nearly as possible, “ ‘recreate the condi-

tions and relationships that would have been had there

been no’” unlawful discrimination. Franks [v. Bow-

man Transportation Co.|, 494 U. S. at 769. 431 at

371-72.

At the evidentiary hearing on the remand, the Company

will have the right to question the fitness of any applicant

to perform the job which she seeks or to show that it has

other persons it desires to hire who can better perform the

work.

IV

In its conclusions of law entered November 22, 1974, the

District Court held (App. 42):

20. The Court is aware that affirmative relief will

be required to insure equal job opportunities at the Mid-

Continent plant for present female employees and to in-

sure that future hires will be assigned on a non-discrim-

inatory basis. 42 U.S.C. § 2000e-5(g). Castro v.

Beecher, 459 F. 2d 725 (CA 1, 1972).

21. The Court is further aware that affirmative ac-

tion on the part of Mid-Continent is essential to remedy

the continuing consequences of past discrimination, and

to insure that all employees understand that Mid-Con-

tinent is henceforth committed to equality of employ-

ment opportunity without regard to the sex of the

employee.

Accordingly, the Court in its judgment of October 14,

1976 (App. 121-23), properly enjoined Mid-Continent from

further discriminatory classifications and practices. The

Court went further, however, and ordered an affirmative

action plan as well. The Court ordered that for five years

20a

all vacancies in previously all-male positions were to be first

offered to current female employees in order of seniority,

and at least one-third of those persons transferring into

such positions were to be female. Also, for a period of five

years one-third of all newly-hired females were to be as-

signed to previously all-male jobs, and one-third of all newly-

hired males were to be assigned to previously all-female

jobs. This plan was stayed by the District Court pending

appeal,

We reverse this portion of the judgment, finding nothing

in the record to justify such affirmative relief. Indeed, the

Court’s 1974 conclusion that affirmative action would be

necessary is undercut by the subsequent findings of its

Special Master. On May 13, 1976, in denying back pay for

1975 and succeeding years, the Special Master stated (App.

97) ;

The evidence presented at the hearing before the

Special Master indicates that the defendant made sev-

eral more bonafide [sic] offers for job transfers to

female employees during 1975 and 1976 [in addition to

those in 1974], and that female employees began to bid

on these jobs during 1975. Currently, two female em-

ployees are working in what were formerly male jobs.

The Special Master has determined that the “residual

effects” of the company’s prior practices and policies

diminshed greatly in 1975 as female employees began

to realize that formerly male jobs were, in fact, open to

them, [Emphasis added. ]

The Special Master added that although no injunction had

at that time been issued by the District Court, it was the

Special Master’s belief that the Court’s 1974 findings

against the defendant “may have had some effect” in elim-

inating the residual effects of defendant’s prior discrimina-

tion. (App. 97).

<a. Ree en SS Om

ee

Pi i ne tt

21a

In view of the eventual issuance of the injunctive relief

and the finding that all jobs were, in fact, open to females,

we see no factual justification for the imposition of the

affirmative action plan.

V

We also vacaie the allowance of attorneys’ fees of

$75,000 and expenses in the amount of $2,427.32. On re-

mand, the Court shall first determine at an evidentiary hear-

ing the fair and reasonable value of the attorneys’ services

and expenses that should be allowed for legal services in

representing Mitchell individually.

After the Court has determined the claims of each indi-

vidual member of the class, the Court shall then determine

the reasonable value of the legal services and expenses in-

curred in such representation on the remand. Because of

our reversal of the judgment with respect to the class

action aspects of the case, no allowance can be made for

legal services and expenses incurred for prior representa-

tion of the class. The issue as to whether any modification

of the injunction should be made can also be determined on

the remand.

The judgement of the District Court is affirmed in part,

reversed in part, and vacated in part, as hereinbefore or-

dered, and is remanded with instructions to conduct further

proceedings consistent with this opinion. Costs in connec-

tion with Mitchell’s individual claim are to be assessed

against Mid-Continent as well as costs incurred by it.

22a

APPENDIX B

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

Civil Action No. 2164-P

Jane MitcHELL - - - - - - ~- Plantiff

v.

Mip-Continent Spring CoMPany

or Kentucky - - - - = - Defendant

FINDINGS OF FACT AND CONCLUSIONS OF LAW—

Entered November 26, 1974

FINDINGS OF FACT

The Court finds:

1. This action was filed on April 12, 1971, and is brought

under the provisions of Title VII of the 1964 Federal Civil

Rights Act, 42 U.S.C. §§ 2000e, et. seq., and pursuant to 28

U.S.C. §§ 1331(a) and 1343 (3). It arises out of charges

filed with the United States Equal Employment Oppor-

tunity Commission by the plaintiff, Jane Mitchell, alleging

discrimination in employment on account of sex by the de-

fendant, Mid-Continent Spring Company of Kentucky, and

retaliation against her for engaging in activity protected by

the provisions of 42 U.S.C. § 2000e-3(a) and 29 U.S.C.

§ 215(a) (3).

ee ree ew gene te De

ee

Se ee ee

23a

2. Plaintiff, Jane Mitchell, is a female citizen of the

United States and the Commonwealth of Kentucky and re-

sides at Route #3, Princeton, Kentucky. She was employed

by the defendant, Mid-Continent Spring Company of Ken-

tucky, on August 6, 1962, and was discharged from her em-

ployment with the company on August 11, 1969.

3. Defendant, Mid-Continent Spring Company of Ken-

tucky, operates a plant at Hopkinsville, Kentucky, which

manufactures coil springs for use as component parts in a

variety of products manufactured by a variety of industries.

4. In the early summer in 1969, Jane Mitchell (then un-

beknown to her employer) contacted the U. S. Department

of Labor to complain about discrimination against female

production employees in defendant’s plant. An investiga-

tion of defendant’s plant was made by Herbert L. Living-

ston, Compliance Officer for the Ware-Hour Division, U. S.

Department of Labor, during the period from July 2, 1969,

to July 18, 1969.

5. The company, i.e., the owner, Louis Langhi, was ad-

vised by Mr. Livingston that the investigation disclosed no

violations of the Equal Pay Provisions of the Fair Labor

Standards Act, but did disclose the jobs were classified as

male and female jobs, and that female rates of pay were

lower than male rates of pay. Mr. Livingston recom-

mended to the company that it contact the United States

Equal Employment Opportunity Commission for assistance

in bringing the plant into compliance with Title VII of the

1964 Federal Civil Rights Act, 42 U.S.C. § 2000e, et. seq.

6. On or about July 29, 1969, Jane Mitchell, mailed a

letter to the Cleveland Regional Office of the EEOC al-

leging that female production employees were unlawfully

discriminated against by defendant at its Hopkinsville plant.

7. On August 1, 1969, the Cleveland Regional Office of

the EEOC mailed a letter to Jane Mitchell confirming a

telephone conversation of that date and referring to her

24a

previous letter. The letter requested Jane Mitchell to fill

out an EEOC chargé form and further enclose an EEOC

charge form for consideration by a fellow employee, Louise

McGehee.

8. On or about August 7, 1969, Jane Mitchell ap-

proached Louise McGehee some 20 minutes prior to working

time and asked her if she were interested in filing a charge

with the U. S. Government concerning the unequal wages

she was then receiving on her new job with Mid-Continent

as an inspector. Louise McGehee reported this conversa-

tion to Clyde Warren, the assistant Plant Superintendent,

and later discussed the conversation with Ward Mitchell,

Plant Superintendent.

9. On August 11, 1969, Jane Mitchell was summoned to

the office of Ward Mitchell, and was summarily discharged

from her employment. Although Ward Mitchell and per-

haps Clyde Warren attempted to get Jane Mitchell to dis-

close the full extent of her activities, I find they already

knew enough to suspect that she was cooperating with either

the Department of Labor or the EEOC, or was assisting

those agencies. Her final pay check had bern previously

prepared and was presented to her. At the very least,

Ward Mitchell indicates that it was his suspicion that Jane

Mitchell was attempting to get Louise McGehee to sign

some paper complaining about wages. Perhaps good and

sufficient other reasons to fire Jane Mitchell for other

causes existed, but at the time in question when she was

fired, she was engaged in a protected activity under the law

of the United States, which places the burden upon this

Court to hold that she was improperly and unlawfully dis-

charged under the facts then existing.

10. The company contends that Jane Mitchell was dis-

charged for violating a no solicitation rule, but the employee

handbook does not make this a dischargeable offense, and

no other employee before or since has ever been discharged

25a

for this claimed violation of a company rule, such problem

of solicitation not having arisen.

11. On August 7, 1969, Jane Mitchell, mailed a signed

and notarized EEOC charge form elaborating on her letter

charge of July 29, 1969, to the Cleveland Regional Office of

the EEOC,

12. On August 14, 1969, Jane Mitchell mailed a signed

and notarized EEOC charge form alleging that her dis-

charge of August 11, 1969, was retaliation for engaging in

activity protected by Section 704(a) of Title VII of the 1964

Federal (ivil Rights Act.

13. On October 29, 1969, William K. Edelen, an investi-

gator for the EEOC, investigated the charges filed by Jane

Mitchell.

14. The EEOC investigation and the record in this case

reveal that females were employed and assigned exclusively

to the machine operator classification in secondary opera-

tions and grinding from July 2, 1965, to the present. No

males have ever been assigned to that classification. On

November 19, 1973, there were 124 female machine oper-

ators employed by Mid-Continent.

15. Males have been employed and assigned exclusively

since July 2, 1965, to the following job classifications: main-

tenance, inspection, torsion set-up, grinding set-up, coiler

set-up, kick press set-up, four slide set-up, sample and heavy

bench, hopper-looper set-up, truck drivers, shipping, ware-

house and receiving, weighman, and janitor. On November

19, 1973, there were 95 men and no women employed in these

classifications.

16. No male employee has ever been transferred to the

machine operator classification in secondary operations or

grinding.

17. Following the investigation of the plant by Herbert

L. Livingston, in July 1969, one machine operator, Louise

McGehee, was transferred to inspection. On May 8, 1973,

26a

Velma Ezell became a shipping clerk in the shipping de-

partment. From July 2, 1965 to the present no other female

employee has ever transferred from the machine operator

classification to any other production job classification.

18. Female production employees were and are re-

stricted and limited to the machinery operator classifica-

tion, a base rate job, while men work in generally higher

paying job classifications and have and can transfer to

higher paying job classifications.

19. Defendant maintains separate seniority lists on the

basis of the sex of the employees. Layoffs are made on the

basis of the employee’s seniority on these separate seniority

lists.

20. Females were and are required to forfeit their ac-

cumulated seniority when transferring between the day and

night shifts. Male employees could and can transfer shifts

without loss of seniority. Male shift transfers are for the

convenience of the employer, while female shift transfers

are not.

CONCLUSIONS OF THE LAW

1. This action arises under Title VII of the Federal

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. and

28 U.S.C. §§ 1331(a) and 1343(3), and the Court has juris-

diction of the subject matter and of the parties.

2. This action was properly instituted and is properly

maintainable as a class action under the provisions of Rule

23(b)(2) of the Federal Rules of Civil Procedure. The

identifiable members of the class are all female employees

of the defendant, Mid-Continent Spring Company of Ken-

tucky, who have been employed at any time from July 2,

1965, to the present time. All females who may hereafter

work for Mid-Continent are appropriately considered mem-

bers of the class for purposes of declaratory and injunctive

relief, which makes joinder of all members of the class im-

possible and impractical.

a ee a

27a

3. This action involves questions of law and fact com-

mon to all members of the class and the claim of plantiff is

typical of the claims of the class, and such plaintiff is repre-

sentative of and has and will fairly and adequately protect

the interests of the class.

4, Prosecution of separate actions by individual mem-

bers of the class would create risks of inconsistent or vary-

ing adjudications with respect to individual members of the

class which could establish an incompatible standard of

conduct for defendants. As a practical matter, any such

adjudications would be dispositive of the interests of the

other members of the class not parties thereto and would

impede or substantially impair their ability to protect their

interests. In addition, defendants have in the past acted

or have refused to act on grounds generally applicable to

the class involved herein, thereby making injunctive or cor-

responding relief with respect to the class as a whole

appropriate.

5. Jane Mitchell filed a charge alleging unlawful dis-

crimination because of sex at defendant’s plant with the

United States Equal Employment Opportunity Commission

on or about July 29, 1969. 29 C.F.R. § 1601.11(b), 31 F.R,

10269, July 29, 1966.

6. Jane Mitchell was fired by defendant on August 11,

1969, in retaliation for having engaged in protected activity,

in violation of 29 U.S.C. § 215(a)(3) and/or 42 U.S.C.

§ 2000e-3(a). ,

7. Female production employees at defendant’s plant

have been exclusively assigned and limited to the machine

operator classification in secondary operations and grind-

ing, base rate job classifications, in violation of the clear

and express language of 42 U.S.C. § 2000e-2(a) which is as

follows :

28a

Section 703(a) provides:

“Tt 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 indi-

vidual with respect to his compensation, terms, condi-

tions, or privileges of employment, because of such

individual’s race, color, religion, sex, or natural origin;

or

(2) to limit, segregate, or classify his employees in any

way which would deprive or tend to deprive any indi-

vidual of employment opportunities or otherwise ad-

versely affect his status as an employee, because of such

individual’s race, color, religion, sex or national origin.”

8. Mid-Continent’s policy of denying women, considered

generically, the opportunity to qualify for and hold jobs

other than machine operator results in a descrimination be-

cause of sex under Section 703(a)(1). It also constitutes a

limitation unon, segregation of, or classification of the com-

pany’s employees in a way which would deprive or tend to

deprive an individual of employment opportunities because

of such individual’s sex, within the meaning of subsection

(2) of the quoted section.

9. Mid-Continent further maintained separate seniority

lists on the basis of the sex of the employee. This violates

29 C.F.R. § 1604.3.

10. Refusal to allow female employees to transfer shifts

without loss of seniority while allowing male employees to

do so, is a further discrimination against female production

employees which violates 42 U.S.C. § 2000e-(a).

11. The finding of the above described discriminatory

practices, plus Mid-Continent’s admission that sex is not a

bona fide occupational qualification for any job in the plant

29a

under Section 703(e) of Title VII, 42 U.S.C. §2000e-2(e) (1),

has established liability on the defendant, Mid-Continent

Spring Company of Kentucky, for the class of female em-

ployees represented by Jane Mitchell.

12. The fiinding of unlawful discrimination and the

clear intent of Congress that the grant of authority under

Title VII should be broadly read and applied mandate an

award of back pay unless exceptional circumstances are

present. Head v. Timken Roller Bearing Company, 486

F, 2d 870, 876 (CA6, 1973).

13. There are no exceptional circumstances in this case.

The complete record in this action establishes a disregard

of at least the spirit of the act on the part of Mid-Continent.

14. Mid-Continent argues that the Court does not have

jurisdiction to fully remedy the violations of law which the

Court has found. The only jurisdictional test which a com-

plaint must meet is set forth in Tipler v. DuPont, 332 F. 2d

125, 131 (CA6, 1971) ;

“Rather, the complaint in the judicial proceeding is

only limited to the scope of the EEOC investigation

reasonably expected to grow out of the charge of dis-

crimination.”

15. Mid-Continent argues that it did not intentionally

violate Title VII. At the very least, the actions of Mid-

Continent from July 2, 1965, to the present, have displayed

a reckless regard for the consequences.

“But Congress directed the thrust of the act to the

consequences of employment practices, not simply the

motivation.” Griggs v. Duke Power Co., 401 U.S. 424,

432, 28 L Ed 2d 158, 165, 91 S Ct. 849 (1971).

16. Mid-Continent says female employees should have

asked to be promoted and transferred. A female employee

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with knowledge of Mid-Continent’s policies and practices

could hardly be expected to make a meaningless and futile

request to be transferred toa male job. U.S.v. N. L. Indus-

tries, Inc., 479 F’. 2d 354, 369 (CA8, 1973).

The Act, after all, places the responsibility for equal

employment opportunity on the employer and not on the

employees. Section 703(a), 42 U.S.C. ¢ 2000e-2(a).

See Sabala v. Western Gillette, Inc., 371 F. Supp, 385,

7 FEP Cases 443, 448 (S. D. Tex., 1974).

17. This action was filed on April 12, 1971, and was

pending in court on March 24, 1972, the effective date of

. the 1972 amendments to Title VII. Back wages and benefits

to the class are payable from July 2, 1965, to the date of

the final judgment to be entered herein. U. 9. v. Georgia

Power Co., 474 F. 2d 906, 922 (CA5, 1973) ; Johnson v. Good-

year, 491 F’. 2d 1364, 1378 (CA5, 1974) ; Pettway v. American

Cast Iron Pipe, 494 F. 2d 211, 258 (CA5, 1974); Garner v.

Stephens, 460 F. 2d 1144 (CA6, 1972); and Kentucky-Ten-

nessee Light and Power Company v. Moats, 290 Ky. 690,

162 S. W. 2d 526 (1942).

18. Once unlawful discrimination against a class of em-

ployees has been established, a presumption for back pay

arises in favor of the class members. (Each female pro-

duction employee at Mid-Continent from July 2, 1965, to

the present, must now be given an opportunity to describe

the harmful effect of discrimination on her individual em-

ployment position.) Of course, unrealistic exactitude in

computing awards is not required and all uncertainties

should be resolved against discriminating employer, Pett-

way v. American Cast Iron Pipe Company, 494 F. 2d 211

(CA5, 1974), but not to punish the defendant, but to com-

pensate those who were in fact victims of discrminiation.

U.S. v. Georgia Power, 474 F. 2d 906 (1973).

19. Jane Mitchell will be immediately re-employed by

Mid-Continent if she so desires, and the Master hereinafter

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appointed will establish the total amount of her wages she

would have reasonably earned from August 11, 1969, to this

date, less actual earnings during that period, and from this

amount fixed by the Master the Court will fix her award

hereunder for lost wages, giving regard however in miti-

gation, for what the Court considers to have been her

truculent action at the time of her discharge in failure to

apprise and give notice to her employer as to what her

actual activity was in the solicitation of Mrs. MeGehee; and

she will be given an opportunity along with all other mem-

bers of the Class to establish entitlement to any back pay

because of systematic discriminatory policies and practices

of Mid-Continent.

20. The Court is aware that affirmative relief will be re-

quired to insure equal job opportunities at the Mid-Conti-

nent plant for present female employees and to insure that

future hires will be assigned on a non-discriminatory basis.

42 U.S.C. § 2000e-5(g). Castro v. Beecher, 459 F. 2d 725

(CA1, 1972).

21. The Court is further aware that affirmative action

on the part of Mid-Continent is essential to remedy the con-

tinuing consequences of past discrimination, and to insure

that all employees understand that Mid-Continent is hence-

forth committed to equality of employment opportunity

without regard to the sex of the employee.

22. In view of the complexities involved in achieving

the appropriate remedy and relief for Jane Mitchell and

the class she represents, the parties shall within 30 days of

the date of this order, submit to the Court their proposal

for remedy and relief, and proposed guidelines for a Special

Master to be appointed by the Court.

23. The plaintiff is entitled to recover from the defend-

ant her costs, including a reasonable attorney’s fee. A

determination of the fee will be deferred until such time as

the Court has determined the appropriate remedy and re-

32a

lief. Within 21 days following the report of the Special

Master, counsel for plaintiff and the class shall submit their

affidavits and memoranda of law concerning appropriate

fee, if the parties have not agreed upon the fee. Defendant

will have 14 days thereafter within which to serve and file

any desired response.

November 26, 1974

(s) James F. Gordon

United States District Judge

Copies to:

Counsel of record.

33a

APPENDIX C

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

Civil Action No. 2164-P(G)

Jane MitcHern - - - - ~- _ Platntiff-Appellee

v.

Mip-ConTINENT SprRinG CoMPANY

or Kentucky - - - - - Defendant-Appellant

JUDGMENT—Entered October 14, 1976

This cause having come before the Court for trial on

November 18 and 19, 1974, and the Court having entered

Findings of Fact and Conclusions of Law on November 26,

1974, the Court appointed Special Master having made his

Final Advisory Report on August 30, 1976, and the Court

being otherwise sufficiently advised.

Ir Is Heresy OrnDERED AND ApDJuDGED that the exclusive

assignment, segregation, and limitation of female produc-

tion employees of defendant, Mid-Continent Spring Com-

pany of Kentucky, to base rate machine operator positions

since July 2, 1965, violates 42 U.S.C. § 2000e-2(a).

Ir Is FurrHer ORDERED AND ApDJupcED that the mainte-

nance of separate seniority lists and standards on the basis

34a

of the sex of the employees since July 2, 1965, violates 42

U.S.C. § 2000e-2(a).

Ir Is FurTHER ORDERED AND ADJuDGED that the defend-

ant, Mid-Continent Spring Company of Kentucky, be en-

joined and prohibited from:

(a) Maintaining, directly or indirectly, separate job

classifications, wage rates and departments on the basis of

the sex of the employees;

(b) Assigning any newly hired employees to a par-

ticular position solely upon the basis of the sex of said

person; except as is necessary to carry out the affirmative

action portion of this injunction required to remedy the

present day effects of defendants unlawful practices;

(c) Maintaining, directly or indirectly, separate sen-

iority lists, provisions, or standards on the basis of the sex

of the employees;

(d) Causing any employee to be laid off, refused recall,

or in any way disadvantaged in the terms, conditions, or

privileges of employment because of such employee’s sex.

Ir 1s FuRTHER ORDERDED AND ADJupDGED that the defend-

ant, Mid-Continent Spring Company of Kentucky shall:

(a) Provide the Plaintiff, Jane Mitchell, with the same

seniority and benefits which she would have had if she had

not been unlawfully terminated on August 11, 1969.

(b) For a period of five years from the date of this

final judgment and permanent injunction, defendant shall

maintain a priority pool of female employees in the order

of their original date of hire, who shall be given the oppor-

tunity to transfer to job vacancies in all job classifications

in defendant’s plant in said order of seniority. Transfers

into previously all male job classifications shall be at least

33-1/3% female, unless all female employees in the plant

reject the opportunity to transfer to a particular position.

(c) Fora period of five years from the date of this final

judgment and permanent injunction, defendant shall assign

35a

at least 33-1/3% of all male new hires to machine operator

position in Secondary and Grinding, and shall assign at

least 33-1/3% of all female new hires to the previously all

male job classifications in defendant’s plant.

Ir Is FurtHER ORDERED AND ADJuDGED that the defend-

ant, Mid-Continent Spring Company of Kentucky shall:

(a) Pay a total of $24,528.86 to the plaintiff, Jane Mit-

chell, as back pay for her claim of unlawful termination.

Payment to her shall be made in the net amount after de-

ductions required by law.

(b) Pay a total of $222,885.00 to the persons and class

members listed on Exhibit A attached hereto and incor-

porated herein by reference. The respective gross amounts

(before the applicable tax withholdings) to be paid to each

such person also appears on said Exhibit A and payment

to each such person shall be made only in the net amount

after deductions required by law.

(c) Pay a total of $75,000.00 to counsel for the plain-

tiff, Jane Mitchell and her class, James C. Hickey and James

W. Owens, as reasonable attorneys’ fees in accordance with

Section 706(k) of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-5(k).

This Court shall remove this matter from its active

docket but retain jurisdiction of this action for a period of

five years from the date of this final judgment and per-

manent injunction to insure the implementation of the terms

of this Permanent Injunction, should plaintiff on motion re-

quest its reinstatement to active docket status for such

purpose.

Every six months during the period of five years afore-

said, defendant shall report to plaintiff’s counsel the names

and sex of all transfers and new hires, with the job classi-

fication to which they were transferred or assigned. If all

female employees reject transfer to a particular job classi-

fication, this should be reported to counsel as well.

36a

This is a final judgment and there is no just reason for

delaying its entry.

October 12, 1976

Copies to:

Counsel of record.

(s) James F. Gordon

Senior United States District Judge

37a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 77-3009

Jane Mircoenn - - - - - Plaintiff-Appellee

v.

Mip-ConTINENT SpRinG CoMPANY

or Kentucky - - - - - Defendant-Appellant

JUDGMENT—Fiied September 8, 1978

Before; Puruurps, Chief Judge, WEIck and CELEBREZZE,

Circuit Judges.

Appa from the United States District Court for the

Western District of Kentucky.

Tuis Cause came on to be heard on the record from the

United States District Court for the Western District of

Kentucky and was argued by counsel.

On ConsimpERATION WHEREOF, It is now here ordered and

adjudged by the Court that the judgment of the said District

Court in this cause be and the same is hereby is affirmed is

part, reversed in part, vacated in part and the cause re-

manded for further proceedings with instructions.

It is further ordered that Plaintiff-Appellee recover

from Defendant-Appellant the costs on appeal, as itemized

below, and that execution therefor issue out of said District

Court if necessary.

Entered By Order of The Court

(s) John P. Hehman

Clerk

38a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 77-3009

Jane Mircuenn - - - - ~- Plaintiff-Appellee

v.

Min-ConTINENT Sprinc CoMPaNny

Or Kentucky - - - - ~- ‘Defendant-Appellant

ORDER—Filed November 9, 1978

Before: Pups, Chief Judge, Weick and CeLEBREzzzE,

Circuit Judges,

No active Judge of this Court having requested that a

vote be taken on appellee’s suggestion that her petition for

rehearing be heard en banc, the petition for rehearing was

referred to the panel for disposition.

Upon consideration, we hereby modify our opinion only

in the respect herein stated. After determining the allow-

ance to be made to plaintiff for attorney’s fees in represent-

ing her individually, the District Court shall separately

determine the reasonable value of the legal services ren-

dered to, and expenses incurred by, the plaintiff in obtaining

the injunction and in establishing the illegality of the com-

pany’s challenged practices. In making that determination

the Court shall consider the amount finally allowed to the

class. In other words, if the recovery by the class is in only

eee ——

39a

a small amount, an award such as was previously made by

the District Court, could not be supported.

In all other respects, our opinion is hereby ratified, ap-

proved and confirmed. The petition for rehearing is accord-

ingly denied.

Entered By Order of The Court

(s) John P. Hehman

Clerk

40a

APPENDIX F

—_—--

LABOR RELATIONS REPORTER

October 2, 1978, Vol. 99, No. 9, 99 Analysis 17

Availability of Back Pay For Class of

Non-Applicant Discriminatees

DEVELOPMENT: Back pay for members of a class

of female employees who were deterred by an employer’s

discriminatory practices from seeking better jobs with the

employer must be determined on an individual basis and

not through the use of a formula, the U. S. Court of Appeals

at Cincinnati decides, reversing a federal district court.

(Mitchell v. Mid-Continent Spring Co., CA6, 1978, 17 FEP

Cases 1594.)

Facts of Case

The employer employed women as machine operators in

its grinding and secondary operations departments, but it

would not employ them in other jobs in those departments.

Although it permitted one woman to transfer from a ma-

chine operator position to an inspector position, this oc-

curred after investigation by the Wage and Hour Divi-

sion of the Labor Department. A second woman was given

a transfer after filing of this lawsuit.

The effect of the employer’s system of sex-segregated

job classifications and assignments was aggravated by the

absence of company-wide posting of job vacancies and of

any formal bidding procedure. In addition, the employer

discriminated in shift transfers; set-up employees, all men,

were hired for both the day and night shifts, and a transfer

between shifts was permiticd, but women in the secondary

and grinding departments were not permitted to transfer

between shifts. Consequently, a shift change by a female

employee was tantamount to a resignation and a rehire with

machen i Sit.

4la

loss of seniority. The employer also kept separate male and

female seniority lists, which had the effect of segregating

employees for seniority purposes on the basis of gender.

The district court ruled that the employer’s practice of

steering women into its lowest-paying positions and refus-

ing to let them work in other job classifications and shifts

violated Title VII of the Civil Rights Act of 1964. The

appeals court agrees. It says that the employer “placed

burdens on females that males were not required to suffer.”

The district court said that the women were entitled to

back pay measured by the difference between what female

employees earned from the effective date of Title VII to the

present and what male employees earned in the same period.

A special master devised a formula for calculating the

back pay due each class member. He took the following

steps:

—First, he determined the differential between the

average wage for women and the average wage for men for

each year from 1967 through 1974 from actual pay records

of employees who worked the entire year, and he estimated

“conservative” figures for 1965 and 1966.

— Then, he assumed that because the percentage of fe-

males in the local work force in 1970 was 25 percent, 25 per-

cent of the “male” jobs existing in any one year would have

been held by women; he multiplied the number of jobs as-

sumed to belong to women by the male-female wage differ-

ential to arrive at the total amount “lost” to the female

employees in each year.

—Next, the special master compiled a list of eligible

class members for each of the 10 years at issue, the list con-

sisting of all women who worked for the employer for at

least six months during the given year; a woman who

worked a total of six months during two consecutive years

was included in the year in which she worked the greater

period of time.

42a

—Finally, the total amount of wages “lost” by female

employees in each year was divided equally among all the

eligible class members for that year.

The special master pointed out that there was no way to

tell which jobs the women would have bid on and obtained

in the absence of discrimination. In view of the large num-

ber of class members (340), the total length of time involved

(10 years), and the difficulty of isolating the effects of the

various discriminatory assignment, seniority, and transfer

policies, the special master took a classwide approach to the

measure of back pay. He held that 238 class members had

met their burden by showing that they had been hired dur-

ing the period involved and subsequently been frozen into

the female job classification for more than six months. The

burden was now on the employer, he stated, to show by con-

vineing evidence that other factors would have caused the

economic loss regardless of its discriminatory practices.

The district court agreed.

Appeals Court’s Decision

In finding that the burden of proof was imposed erro-

neously on the employer, the appeals court points out that

the district court did not have the benefit of the U. S. Su-

preme Court’s decision in Teamsters v. U. 8. (1977, 14 FEP

Cases 1514). The Supreme Court held that while nonappli-

cants are entitled to an opportunity to prove that they

should be treated as applicants, theirs is “the not always

easy burden of proving that [they] would have applied for

the job had it not been for [the employer’s discriminatory ]

practices,”

The appeals court takes note of evidence that some of the

employer’s female employees desired better jobs but were

deterred by their belief that making an application would be

a useless act and that they might be discharged if they ap-

plied for better jobs. It says that the district court must

43a

“determine the application for a job asserted by each class

member.” The appeals court point out that the Teamsters

decision requires the district court first to decide which of

the women were actual victims of the discriminatory prac-

tices and then to recreate, as nearly as possible, the condi-

tions and relationships that would have existed had there

been no discrimination. It adds that at the evidentiary

hearing, the employer will have the right to question the

fitness of any applicant to perform the jobs she seeks or to

show that it has other persons it desires to hire who can

better perform the work.

The court takes note of statements by the individual

bringing the action and by the EEOC that it ‘s impossible

to make individual determinations. It declares:

“Tf it is true that individual determinations are impos-

sible, the class action aspects of this case should forthwith

be dismissed. No individual should ever be permitted to

recover damages in a case which he or she finds it is impos-

sible to prove.”

BACKGROUND: The classwide approach to the award

of backpay was developed by courts to make it possible to

award relief and yet avoid the “quagmire of hypothetical

judgments” in large class actions covering long periods of

time. (See Pettway v. American Cast Iron Pipe Co., CA 5,

1974, 7 FEP Cases 1115, 1153-1156.)

The New Orleans, Chicago, St. Louis, and Denver ap-

peals courts have approved or ordered classwide approaches

to the determination of back pay. (Sabala v. Western Gul-

lette, Inc., CA 5, 1975, 11 FEP Cases 98, vacated, U S SupCt,

1977, 14 FEP Cases 1686; Stewart v. General Motors Corp.,

CA 7, 13 FEP Cases 1035, 1040-1042, cert. denied US SupCt,

15 FEP Cases 31; Wells v. Meyer’s Bakery, CA 8, 1977, 15

FEP Cases 930; Love v. Pullman Co., CA 10, 1978, 16 FEP

Cases 745, affirming DC Colo, 1976, 13 FEP Cases 423, 428-

433).

44a

Other decisions in which classwide formulas were .

adopted or regarded favorably include Bowe v. Palmolive

Co., CA 7, 1973, 6 FEP Cases 1132; Stamps v. Detroit

Edison Co., DC EMich, 1973, 6 FEP Cases 612, modified

CA 6, 1975, 10 FEP Cases 239, 1063; Head v. Timken

Roller Bearing Co., DC SOhio, 1974, 7 FEP Cases 987;

U.S. v. U. S. Steel Corp., CA 5, 1975, 11 FEP Cases 553, 563;

and Senter v. General Motors Corp., DC SOhio, 1974, 11

FEP Cases 1068, affirmed CA 6, 12 FEP Cases 451.

For the most part, these decisions did not distinguish

actual applicants from persons who were presumed to be

interested but who were deterred from applying. Many of

them presumed that nonapplicants who showed that they

were members of the class discriminated against were en-

titled to relief as of the date that they were qualified for the

job in question. (See Johnson v. Goodyear Tire & Rubber

Co., CA 5, 1974, 7 FEP Cases 627, 634.)

Thus, in the Stewart case, the Chicago appeals court

found that a classwide approach was necessary for cam-

pensating black employees for the employer’s failure to

promote them to salaried positions because of their race,

even though such an approach “may generate a windfall for

some employees who would have never been promoted had

vacancies been filled on a nonracial basis and under-compen-

sate the genuine victims of discrimination by forcing them

to share the award with their undeserving brethren.” See

also White v. Carolina Paperboard Corp., CA 4, 1977, 16

FEP Cases 44.

SIGNIFICANCE: This decision raises the question of

how the Supreme Court’s Teamsters decision is to be recon-

ciled with its earlier ruling in Albemarle Paper Co. v.

Moody. (1975, 10 FEP Cases 1181).

The Court said in Albemarle that “given a finding of

unlawful discrimination, backpay should be denied only for

reasons which, if applied generally, would not frustrate the

45a

central statutory purposes of eradicating discrimination

throughout the economy and making persons whole for in-

juries suffered through past discrimination.” The Team-

sters decision requires nonapplicant discriminatees to come

forward and establish that they would have sought a job or

a promotion at the time of the discrimination. The Su-

preme Court did not lay down any rule as to how a nonappli-

cant could prove his putative applicant status, but is sug-

gested that evidence of an informal inquiry, an expression

of interest, or even unexpressed desire might be sufficient.

The Teamsters discision does not appear to indicate how

relief may be granted to rejected applicants and nonappli-

cants who establish their claim. However, the Cincinnati

appeals court suggests that the Teamsters decision pre-

cludes the use of a back-pay formula for these persons, as

well as for nonapplicants who do not establish an entitle-

ment to relief. If the Cincinnati court is correct in finding

that the Teamsters decision requires individual back-pay

determinations, then the question arises as to whether an

employer may escape back-pay liability altogether when its

conduct renders individual calculation impossible.