Petition — Libbey-Owens-Ford Co. v. Eirhart

Supreme Court brief1980

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‘9 1801 di MAY 12 1980

S sninlaRindetateaniel Aes

Yeu MICHAEL RODAK, JR, CLERN

In Tue

Supreme Court of the Anited States

Octoser Term, 1979

LIBBEY-OWENS-FORD COMPANY,

Petitioner,

vs.

SHERRY EIRHART and EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ROBERT 8S. SODERSTROM

JAMES P. DeNARDO

McKENNA, STORER, ROWE,

WHITE & FARRUG

135 South LaSalle Street

Chicago, Illinois 60603

(312) 558-3900

Attorneys for Libbey-Owens-Ford Company,

Counsel of Record for Petitioner.

Dated: May 12, 1980

Midwest Law Printing Co., Chicago 60601, FInancial 6-3988

INDEX

PAGE

A TE ON sch oii ccinicd ns nhrenscetanpimnnsivcemnelinidieinisablaedsa 2

Pil i) ty yt silecdabagesiionids 2

QUESTIONS PRESENTED ....... 3

CONSTITUTIONAL AND STATUTORY PROVI-

SACI TIVO V BD osccncccncccnccoseeseness

STATEMENT OF THE CASE ....W002......

REASONS FOR GRANTING THE WRIT OF CER-

TIORAR ........... jean acuivnhiuiiitnlga iia idicandiaa lb

The Court Of Appeals Has Decided An Important

Question Of Federal Law Which Has Not Been,

But Should Be, Settled By The United States Su-

preme Court. That Question Is: Does A Consent

Order Entered In A Title VII Action Between An

Employer And The EEOC, Such As The February

3, 1971 Consent Order, Constitute An Interpreta-

tion Or Opinion Of The EEOC And, Therefore,

Provide The Employer Immunity Under See. 713

CRN Ge OE, SOIT aovcciccisdnssi cicada danse ceriaictis.

The Consent Order Of February 3, 1971 Is An In-

terpretation Or Opinion Of The EEOC Under Title

VII, See. 713(b), And Therefore Provides LOF

With Immunity. on

A. The Consent Order Is An Interpretation Or

NO acitdadstaicecicinsoias

B. The Consent Order Is Of The EEOC. ..............

C. The Consent Order Provides LOF With Im-

munity.

a3.

The Court Of Appeals Has Decided That A Con-

sent Order, Such As The Consent Order Of Feb-

ruary 3, 1971, Cannot Be Deemed To Be An

‘‘Opinion’’ Of The Governmental Agency That

The Actions Directed In The Consent Order Are

In Conformance With The Statute Under Which

The Action Was Brought Because A Consent Order

Is A Compromise And Product Of Bargaining Skill

Between Two Parties. This Decision Is Contrary

To The Holdings Of This Court In U.S. v. Armour

& Co., 402 U.S. 673 (1971) And U.S. v. ITT Con-

tinental Baking Co., 420 U.S. 223 (1975). ................ 19

The Court Of Appeals, By Ruling That A Consent

Order, Such As The Consent Order Of February

3, 1971, Does Not Provide Immunity Under Title

VII, See. 713(b) Either Against A Claimant Who

Was Not A Party Or In Privity With A Party

To The Consent Order Or Outside The Geographi-

cal Area Described Therein, Has Decided An Im-

portant Federal Question In Conflict With This

Court’s Decision In Albemarle Paper Co. v.

Moody, 422 U.S. 405 (1975) And The Affirmance

By The Third Circuit In EEOC v. American Tel.

& Tel. Co. 22

EE RTE 26

APPENDIX:

A—Opinion of the United States Court of Appeals

for the Seventh Circuit la

B—Opinion of the United States District Court for

the Northern District of Illinois 10a

TABLE OF AUTHORITIES

Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct.

2362 (1975) ............---- = 3, 22, 23, 24, 25

EEOC v. American Tel. & Tel., 419 F.Supp. 1022 (E.D.

Pa. 1976), aff’d, 556 F.2d 167 (3rd Cir. 1977), cert.

eo Bk renee ener

alti 3, 12, 138, 15, 16, 22, 23, 24, 25

Local 189, United Papermakers & Paperworkers v.

United States, 416 F.2d 980 (5th Cir. 1969), cert.

GUM, TT TET, DE CAND wicrirtctcincivieccesisnetssestoniens 14, 15

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.

1971), cert. denied, 404 U.S. 1006 (1971) -....0.00020...... 14, 15

Securities d Exchange Commission v. Thermodynamics,

Inc., 319 F.Supp. 1380 (D.C. Colo. 1970), aff’d, 464

F.2d 457 (10th Cir. 1972), cert. denied, 410 U.S. 927

CII ctnadiseisicicescita eccansahasasasrnniecedteardcasbeonotdaasanaleddameceisaedaiaabiate 12

Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th

Cir. 1971), cert. denied, 404 U.S. 991 (1971) ............ 14, 15

United States v. Armour & Co., 402 U.S. 673, 91 S.

i HE 2 | 5 FRReeedenr nee nl AEs ee SOE eT 3, 19, 20, 21

United States v. Atlantic Refining Company, 360 U.S.

Me Fe; Rena eteceeet et MMe Ae Oe 18

United States v. ITT Continental Baking Co., 420 U.S.

Pet EAs DOI GENE siccnnsctceicexsatinndiinesninsonstoncs 3, 19, 20, 21

United States v. Libbey-Owens-Ford Co., Inc., et al.,

3 E.P.D. See. 8052 (1971), 3 E.P.D. See. 8122 (1971),

Overruling Objections To Consent Decree ..................

LRT ATTA RINT OVO AS Eo EIR EO S,:7, 8, 12, 13, 16

Yott v. North American Rockwell Corp., 428 F.Supp.

FOR CR SR SEED Sheehan cdiedelns 14

Statutes and Regulations

Title VII, Civil Rights Act of 1964, 42 U.S.C.:

§2000e et seq. (1976) ie .... 4,8

§705, 78 Stat. 258-259 (1964) .................. 4, 6,17

§707, 42 U.S.C. $2000e-6 (1976) ............... .. 4, 6, 8, 17

§713, 42 U.S.C. §2000e-12 (1976) ......

aS ee eed 4, 9, 10, 11, 12, 13, 14, 18, 22, 23, 25

29 C.F.R. §1601.30, 30 Fed. Reg. 8409 (1965) ...... 5, 13, 14, 24

29 C.F.R. $1601.33, 44 Fed. Reg. 4430 (1979) ............ 5, 13, 24

29 C.F.R. §1608 et seq., 44 Fed. Reg. 4422 (1979) ............ 13

Other Authorities

EEOC, Legislative History of Titles VIII and XI of

Civil Rights Act of 1964 17

Equal Employment Compliance Manual (1978), Cal-

laghan and Company, Equal Employment Compliance

Update, Vol. 3, No. 7, p. 70, March 1980 .............0...... 21, 22

In THE

Supreme Court of the Gnited States

Ocroser Term, 1979

LIBBEY-OWENS-FORD COMPANY,

Petitioner,

vs.

SHERRY EIRHART and EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Seventh Circuit entered in the

above-entitled case on February 12, 1980 (no Petition for

Rehearing was filed).

—

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit (A. la-9a) is reported in 22 FEP

Cases 13. The opinion of the United States District

Court for the Northern District of Illinois, Eastern

Division (A. 10a-22a) is reported at 482 F.Supp. 357

(N.D. Ill. E.D. 1979).

JURISDICTION

The judgment of the Court of Appeals was entered on

February 12, 1980, and this Petition for Writ of

Certiorari was filed within 90 days of that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Does a consent order entered in a Title VII action

between an employer and the EEOC, such as the

February 3, 1971 Consent Order entered in the case of

United States v. Libbey-Owens-Ford Company, Inc., et

al., 3 E.P.D. Sec. 8052 (1971), 3 E.P.D. Sec. 8122 (1971,

Overruling Objections To Consent Decree), constitute an

interpretation or opinion of the EEOC and, therefore,

provide the employer immunity under Sec. 713(b) of

Title VII?

2. May a Court of Appeals decide that a consent

order entered into between a governmental agency and

a defendant cannot be an opinion of the governmental

agency that the actions directed in the consent order are

in conformance with the statute under which the action

was brought, contrary to this Court’s decisions in U.S. v.

Armour & Co., 402 U.S. 673 (1971) and U.S. v. I.T.T.

Continental Baking Co., 420 U.S. 223 (1975)?

3. May a Court of Appeals decide that a consent

order constituting an interpretation or opinion of the

EEOC under Sec. 713(b) of Title VII does not provide

immunity against all claimants or outside of the

geographical area described therein, contrary to this

Court’s decision in Albemarle Paper Co. v. Moody, 422

U.S. 405 (1975), and the affirmance by the Third Circuit

in FEOC v. American Tel. & Tel. Co., 419 F.Supp. 1022

(E.D. Pa. 1976), affd, 556 F.2d 167 (3rd Cir. 1977), cert.

denied, 438 U.S. 915 (1978)?

a wn

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 713(b) of Title VII, Civil Rights Act of 1964,

42 U.S.C. § 2000e-12(b) (1976), provides, in pertinent

part:

In any action or proceeding based on any alleged

unlawful employment practice, no person shall be

subject to any liability or punishment for or on

account of (1) the commission by such person of an

unlawful employment practice if he pleads and

proves that the act or omission complained of was

in good faith, in conformity with, and in reliance on

any written interpretation or opinion of the Com-

mission, . . . Such a defense, if established, shall be

a bar to the action or proceeding ....

Section 705 of Title VII, Civil Rights Act of 1964, 42

U.S.C. § 2000e-4 (1964), provided in pertinent part:

Equal Employment Opportunity Commission.

(g) Powers of Commission.

The Commission shall have power—

(6) to refer matters to the Attorney General with

recommendations for intervention in a civil action

brought by an aggrieved party under section 2000e-

5 of this title, or for the institution of a civil action

by the Attorney General under section 2000e-6 of

this title. and to advise, consult, and assist the

Attorney General on such matters.

Section 707 of Title VII, Civil Rights Act of 1964, 42

U.S.C. § 2000e-6(d) (1972), provides:

(d) Upon the transfer of functions provided for in

subsection (c) of this section, in all suits commenced

—5—

pursuant to this section prior to the date of such

transfer, proceedings shall continue without abate-

ment, all court orders and decrees shall remain in

effect, and the Commission shall be substituted as a

party for the United States of America, the

Attorney General, or the Acting Attorney General,

as appropriate.

29 C.F.R. Sec. 1601.30, 30 Fed. Reg. 8409 (1965),

provided:

Only (a) a letter entitled “opinion letter” and signed

by the General Counsel on behalf of the Commission

or (b) matter published and so designated in the

FEDERAL REGISTER may be considered a “written

interpretation or opinion of the Commission” within

the meaning of section 713 of Title VII.

29 C.F.R. Sec. 1601.33, 44 Fed. Reg. 4430 (1979),

provides:

Section 1601.33 Issuance of interpretation or

opinion.

Only the following may be relied upon as a

“written interpretation or opinion of the Com-

mission” within the meaning of Section 713 of Title

VII:

(a) A letter entitled “opinion letter” and

signed by the General Counsel on behalf of the

Commission, or

(b) Matter published and specifically desig-

nated as such in the FEDERAL REGISTER,

including the Commission’s Guidelines on Af-

firmative Action, or

able cause, issued under the circumstances

described in § 1608.10(a) or (b) of the Com-

mission’s Guidelines on Affirmative Action, 29

C.F.R. Part 1608, when such determination

contains a statement that it is a “written

interpretation or opinion of the Commission.”

—t—

STATEMENT OF THE CASE

On March 12, 1968, the Equal Employment Oppor-

tunity Commission (EEOC) commenced an investigation

of Libbey-Owens-Ford’s (LOF) Toledo Plant 8 based

upon a charge of sexual discrimination in hiring and

seniority practices contained in collective bargaining

agreements between LOF and the United Glass and

Ceramic Workers of North America, AFL-CIO-CLC

Union. After conducting its investigation, the EEOC

began conciliation proceedings with LOF. On February

4, 1970, during the course of this conciliation and

pursuant to the requirement of the Office of Federal

Contract Compliance Programs (OFCCP), LOF began

utilizing written minimum physical and non-physical

hiring standards in its Toledo, Ohio facilities, including a

height standard of 5’4” and a weight standard of 130

lbs. The conciliation between the EEOC and LOF was

subsequently terminated, and on March 13 and March

19, 1970, the EEOC notified LOF that the EEOC had

referred the matter to the U.S. Department of Justice

with a recommendation for the institution of a civil

action under Sec. 707 of Title VII of the Civil Rights Act

of 1964. This referral from the EEOC to the USS.

Department of Justice (U.S. Attorney General) was

made pursuant to the EEOC’s power, granted under

Sec. 705(¢)6) of Title VII of the Civil Rights Act of

1964, to refer matters to the Attorney General for the

institution of a civil action by the Attorney General

under Sec. 707 of the Civil Rights Act as well as to

advise, consult and assist the Attorney General on such

matters.

a ae

Following investigation of LOF’s Plant 8, the U.S.

Department of Justice, on July 20, 1970, filed a

complaint against LOF in the United States District

Court for the Northern District of Ohio, Western

Division, alleging that LOF had a discriminatory policy

with regard to hiring women in its Toledo, Ohio

facilities based upon the collective bargaining agree-

ments. During the course of this litigation, LOF’s

minimum physical and non-physical hiring standards,

including the 5’4” height standard and 130 lbs. weight

standard, were submitted to and approved by the U.S.

Department of Justice, except that the minimum weight

standard was lowered to 110 lbs. at the direction of the

U.S. Department of Justice. In December, 1970 these

same minimum physical and non-physical hiring stand-

ards were put into effect in LOF’s Ottawa, Illinois

facility. These same minimum physical and non-physical

hiring standards were then incorporated by the parties

into a Consent Order on February 3, 1971. The Consent

Order, in paragraph XI A, specifically directs that the

minimum physical and non-physical requirements for

entry level jobs which were in writing as of February 4,

1970 shall continue to be applicable to both males and

females seeking employment with LOF, except that the

minimum weight requirement shall be 110 lbs. On

February 3, 1971, the District Court found that the

Consent Order was valid and entered it as the Order of

the Court. U.S. v. Libbey-Owens-Ford Co., Inc., et al., 3

E.P.D. Sec. 8052 (1971) and 3 E.P.D. Sec. 8122 (1971,

Overruling Objections To Consent Decree).

Following the entry of the February 3, 1971 Consent

Order, the EEOC investigated two charges of dis-

crimination brought against LOF based upon its use of

the 5’4” minimum height standard. In response to both

—s—

charges, the EEOC issued “not reasonable cause”

decisions on October 29, 1973 and March 15, 1974. The

EEOC determined in those “not reasonable cause”

decisions that “documented evidence reveals that Re-

spondent [LOF] was ordered by Court Civil Action No.

C-70-212 [U.S. v. Libbey-Owens-Ford Co., Inc., et al.,

supra] to reduce the minimum weight standard .. . to

110 lbs., but the height standard . . . was allowed to

remain at 5’4” as written in Minimum Hourly Employ-

ment Standards as of February 4, 1970”, and that based

on this determination there was “not reasonable cause”

to believe that LOF discriminated against the two

women who filed the charges with the EEOC.

On November 20, 1974, on motion of the EEOC and as

directed by Sec. 707(d) of Title VII, 42 U.S.C. Sec.

2000e-6(d) (1972), the EEOC substituted as party

plaintiff for the United States in the original suit (Civil

Action No. C-70-212, United States District Court for

the Northern District of Ohio, Western Division). Since

that time, the EOC has taken no action whatsoever,

even after reviewing in the summer of 1977 all the

records that LOF is required to maintain in accordance

with paragraph XIII, sub-paragraph A of the Consent

Order, to modify in any way the February 3, 1971

Consent Order.

Subsequent to the entry of the February 3, 1971

Consent Order, LOF included within its Affirmative

Action Programs for all of its glass plants nationwide,

the 5’4” height standard and the 110 lbs. weight

standard directed in the Consent Order. The Office of

Federal Contract Compliance Programs (OFCCP) and

its Compliance Agencies have consistently approved for

the entire eight years since the Consent Order was

entered, these Affirmative Action Programs, all of

onlin

which include the 5'4” height standard and the 110 lbs.

weight standard as directed in the Consent Order.

Lower court proceedings

On August 31, 1976, respondent Sherry Eirhart filed

her action against LOF in the U.S. District Court for

the Northern District of Illinois, Eastern Division,

alleging that LOF discriminated against her by main-

taining an arbitrary 5’4” height standard at its Ottawa,

Illinois plant. On May 24, 1978, respondent EEOC filed

its Complaint alleging that LOF’s height and weight

“restrictions” at its Ottawa, Illinois plant violated Title

VII. The Eirhart and EEOC suits were thereafter

consolidated for purposes of discovery and trial.

LOF filed motions for summary judgment in both the

Eirhart and EEOC actions, and the EEOC filed a

motion for summary judgment in its action, also. The

U.S. District Court for the Northern District of Illinois,

Eastern Division, granted LOF’s motion for summary

judgment in both suits holding: (1) that the February 3,

1971 Consent Order constituted a written interpretation

or opinion of the EEOC within the meaning of the

immunity set forth in Title VII, Sec. 713(b), 42 U.S.C.

Sec. 2000e-12(b); (2) that LOF was justified in relying on

the Consent Order in utilizing its height and weigiit

standards; and (3) that the Consent Order, therefore,

provides a defense to LOF in the Eirhart and EEOC

actions.

The Court of Appeals for the Seventh Circuit reversed

the trial court and remanded the case for trial.

—

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

I. t

THE COURT OF APPEALS HAS DECIDED A

IMPORTANT QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN, BUT SHOULD BE, SETTLED BY

THE UNITED STATES SUPREME COURT. THAT

QUESTION IS: DOES A CONSENT ORDER ENTERED

IN A TITLE VII ACTION BETWEEN AN EMPLOYER

AND THE EEOC, SUCH AS THE FEBRUARY 3, 1971

CONSENT ORDER, CONSTITUTE AN INTERPRETA-

TION OR OPINION OF THE EEOC AND, THERE-

FORE, PROVIDE THE EMPLOYER IMMUNITY UN-

DER SEC. 713(b) OF TITLE VII?

The Court of Appeals reversed the District Court’s

decision that the February 3, 1971 Consent Order was a

“written interpretation or opinion” of the EEOC under

Sec. 713(b) and that LOF was immune from the actions

brought by Eirhart and the EEOC pursuant to Title

VII, Sec. 713(b), 42 U.S.C. Sec. 2000e-12(b). The Court

of Appeals’ reversal of the District Court’s decision is a

ruling on a question of federal law important not only to

LOF, but also to all employers entering into and

operating under consent decrees with the EEOC in Title

VII actions.

The Court of Appeals has held that an employer’s

employment practices, even though initiated at the direc-

tion of the OFCCP and conforming with the provisions

of a consent order previously entered into with the

EEOC, still subject the employer to employment dis-

crimination actions, by the same governmental agency

or any other person, based on the very same, previously

approved employment practices. This illogical and

unreasonable extension of liability is contrary to Title

VII, Sec. 713(b). The decision by the Court of Appeals

places such employers in a predicament for it provides

authority for the EEOC or any other rerson to bring

suits against employers, alleging that even though the

employers are conforming their employment procedures

to the provisions of consent orders entered into with the

EEOC, such conduct does not bring the employers in

conformance with Title VII.! Obviously, this is an

important question of federa! law affecting employers

throughout the country, and it is respectfully submitted

that this Court should decide the issue after granting

the Writ of Certiorari to the Court of Appeals for the

Seventh Circuit.

THE CONSENT ORDER OF FEBRUARY 3, 1971 IS

AN INTERPRETATION OR OPINION OF THE EEOC

UNDER TITLE VII, SEC. 713(b), AND THEREFORE

PROVIDES LOF WITH IMMUNITY.

A. The Consent Order Is An Interpretation Or Opinion.

Sec. 713(b) of Title VII provides that no person shall

be subject to any liability or punishment for or on

account of the commission by such person of an unlawful

employment practice if he pleads and proves that the act

or omission complained of was in good faith, in

' The Consent Order of February 3, 1971 requires LOF to

use the 5’4” height requirement and weight requirement. If

the immunity granted by the Consent Order is removed, the

obvious result would be that LOF would be bound by

inconsistent and contradictory judgments. First, LOF would

still be bound by the Consent Order to use the 5’4” height

standard and weight standard. Then, if the immunity granted

by the Consent Order is denied in the case at bar, this could

result in LOF being bound by a second, contradictory

judgment requiring them not to use the 5’4” height require-

ment and weight requirement.

_—

conformity with, and in reliance on any written

interpretation or opinion of the Commission. 42 U.S.C.

Sec. 2000e-12(b).

The February 3, 1971 Consent Order is a written

interpretation or opinion for several reasons. First, it is

a written agreement entered into by the U.S. Depart-

ment of Justice on behalf of the EEOC in open court,

approving LOF’s minimum hiring height and weight

standards. Second, it was adopted by a United States

District Court as a final order, binding the parties

thereto. As such, the Consent Order reflects the

considered legal judgment of both the U.S. Department

of Juscice and the United States District Court that the

height and weight standards are fully consistent with

Title VII. Third, it is a formal opinion, approved and

entered by the District Court as an adjudication on the

merits (Securities & Exchange Commission v. Thermo-

dynamics, Inc., 319 F.Supp. 1380, 1382 (D.C. Colo. 1970),

affd, 464 F.2d 457 (10th Cir. 1972), cert. denied, 410

U.S. 927 (1973) ) and published in a case reporter which

reports the full official text of leading federal and state

decisions (3 E.P.D. Sec. 8052 (1971) and 3 E.P.D. Sec.

8122 (1971, Overruling Objections To Consent Decree) ).

In Equal Employment Opportunity Commission v.

American Tel. & Tel. Company, 419 F.Supp. 1022, 1037

(E.D. Pa. 1976), affd., 556 F.2d 167 (3rd Cir. 1977), cert.

denied, 438 U.S. 915 (1978), a consent order to which the

EEOC, the Department of Labor and A. T. & T. were

parties was approved. In that case, the seniority

override provision of the consent order was being

challenged by certain unions. In response to this

challenge, the court stated that the EEOC, the agency

charged with the enforcement of Title VII, and the

Department of Labor, the agency charged with the

= =

implementation of Executive Order No. 11246, were

parties to the consent decree and obviously judged the

relief provided in the decree and the proposed order to

be fully consistent with Title VII and the Executive

Order respectively, and that their judgment should not

be disregarded by the courts. EEOC v. American Tel. &

Tel. Company, supra, 419 F.Supp. at 1037.

Similarly, in this case, the U.S. Department of Justice,

the federal agency which at the time was charged with

the enforcement of Title VII, was a party to the Consent

Order of February 3, 1971 (the EEOC is now a party to

the February 3, 1971 Consent Order). The U.S. Depart-

ment of Justice judged the relief provided in the Consent

Order of February 3, 1971 to be fully consistent with

Title VII since it did not join in any objections to the

Consent Order either at its initial entry or upon entry of

the District Court’s decision overruling objections to the

Consent Decree, United States v. Libbey-Owens-Ford

Company, Inc., et al., 3 E.P.D. Sec. 8052 (1971) and 3

E.P.D. Sec. 8122 (1971, Overruling Objections To

Consent Decree). Its judgment should not be disregarded

by the courts.

29 C.F.R. Sec. 1601.30 (now 29 C.F.R. Sec. 1601.33)

states that only the types of written interpretations or

opinions set forth therein constitute an interpretation or

opinion of the EEOC.? In this case, the Court of Appeals

2 The EEOC’s present policy, embodied in its current

Affirmative Action Guidelines, 29 C.F.R. Sec. 1608 et seq.

tor gg d 19, 1979), Sec. 1608.8, entitled Adherence to Court

rder, is that “The Commission interprets Title VII to mean

that actions taken pursuant to the direction of a Court Order

cannot give rise to liability under Title VII.” It should be

further noted that Sec. 1608.2 of the EEOC Affirmative

Action Guidelines states that the guidelines themselves

constitute a “written interpretation or opinion” of the EEOC

as that term is used in Sec. 713(b)\(1) of Title VII of the Civil

Rights Act of 1964, as amended.

_ )

found 29 C.F.R. Sec. 1601.30 merely persuasive and not

controlling because “. .. Congress, in adopting Title

VII, did not specifically give the EEOC authority to

promulgate interpretative regulations under that Title.”

(A. 5a-6a). Court decisions have broadened what con-

stitutes an interpretation or opinion under Title VII,

Sec. 713(b).

In Yott v. North American Rockwell Corp., 428

F.Supp. 763, 768, n.1 (C.D. Cal. 1977), the court held

that a letter of the EEOC was an interpretation or

opinion of the EEOC under Title VII, Sec. 713(b), even

though the letter itself did not expressly conform to the

requirements of 29 C.F.R. Sec. 1601.30. The letter in

Yott was not addressed to the corporation seeking its

protection and was not published in the Federal

to the Bureau of National Affairs and) Commerce

Clearing House, publishing firms devoted to the dis-

semination of current legislative, administrative and

judicial actions.

Other cases interpreting 29 C.F.R. Sec. 1601.30 stress

the underlying policy concerns of that Section which are:

(1) that a broader reading of 29 C.F.R. Sec. 1601.30

might bind the EEOC to informal or unapproved

opinions volunteered by a member of its staff and (2)

that 29 C.F.R. Sec. 1601.30 insures that interpretations

and opinions are to be based upon either a solid factual

foundation or upon the most thorough consideration of

the potential factual situations to which the rule might

apply. Sprogis v. United Air Lines, Inc., 444 F.2d 1194,

1200 (7th Cir. 1971), cert. denied, 404 U.S. 991 (1971);

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.

1971), cert. denied, 404 U.S. 1006 (1971); and Local 189,

United Papermakers & Paperworkers v. United States,

—15—

416 F.2d 980, 997 (5th Cir. 1969), cert. denied, 397 U.S.

910 (1970). In the Sprogis case the Seventh Circuit held

that an EEOC internal agency memorandum was not an

interpretation or opinion because the memorandum in

that case did “. . . not indicate a considered legal judg-

ment approving the policy under the Act.” Sprogis v.

United Air Lines, Inc., supra, 444 F.2d at 1201.

In its decision in this case, the Court of Appeals

recognized the comprehensive nature of the Consent

Order of February 3, 1971, but then came to a most

inconsistent conclusion. The Court of Appeals held that

because the Consent Order was so comprehensive they

could not “agree” that it involved careful consideration

by the government of the height and weight standards

(A. 8a-9a). To the contrary, the lowering of the weight

standard from 130 lbs. to 110 lbs. at the direction of the

U.S. Department of Justice shows that the standards

were thoroughly and carefully considered. It is clear

that the February 3, 1971 Consent Order comports with

the reasoning and holdings of the Sprogis, Local 189 and

Robinson decisions because it is a formal, written

agreement entered into by counsel in open court and is

an adjudication on the merits as approved by the court.

Furthermore, it represents the considered legal judg-

ment of both the U.S. Department of Justice on behalf of

the EEOC (EEOC v. American Tel. & Tel. Co., supra,

419 F.Supp. at 1037) and of the District Court

approving the Consent Order, that the height and

weight standards are consistent with Title VII. It does

not, therefore, bind the EEOC to an informal or

unapproved opinion “volunteered” by its staff. Rather,

it reflects a thorough consideration, after five

months of litigation and negotiation between the U:S.

Department of Justice and LOF, of the potential

situations to which it will apply in LOF employment

procedures. It is, therefore, an interpretation or opinion

that the employment practices directed therein, in-

cluding the minimum physical and non-physical hiring

standards, are in conformance with Title VII. Certainly,

the U.S. Department of Justice on behalf of the EEOC

would not agree to acts which are unlawful.

The case of EEOC v. American Tel. & Tel. Company,

supra, holds that a consent order and its accompanying

documents constitute an interpretation or opinion of the

EEOC. The February 3, 1971 Consent Order as a formal

written agreement entered into in open court and

adopted by the District Court as binding on all the par-

ties also constitutes an interpretation or opinion of the

EEOC. It eliminates the danger of the EEOC being

bound to an informal or unapproved opinion

“volunteered” by a member of its staff. The fact that

there is no Memorandum of Agreement or “Opinion

Letter” present with regard to the Consent Order of

February 3, 1971, as in EEOC v. American Tel. & Tel.

Co., does not prohibit the application of the theory of

that case to this case. As the district court held in this

case, “even more than an ‘opinion letter,’ an agreement

to a consent order by the EEOC represents a formal

agency approval of the policies embodied in the order”

(A. 16a).

B. The Consent Order Is Of The EEOC.

Following the EEOC’s investigation (started in March,

1968), their subsequent negotiations and failed -concilia-

tion of the discrimination charges at LOF’s Toledo, Ohio

plant, the EEOC referred the case to the U.S. Depart-

ment of Justice with a recommendation that litigation

be started. This referral was made pursuant to the

EEOC’s statutory authority to refer matters to the At-

torney General with a recommendation “. . . for the in-

stitution of a civil action by the Attorney General under

section 2000(e)-6 of this title, and to advise, consult, and as-

sist the Attorney General on such matters.” (Sec. 705( 26)

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec.

2000e-4(g)(6); EEOC, Legislative History of Titles VII

and XI of Civil Rights Act of 1964, pp. 1010, 3005, 3018.)

The U.S. Department of Justice (Attorney General) then

filed suit against LOF. The Consent Order of February

3, 1971 resulted from subsequent negotiations between

the U.S. Department of Justice as attorney for, and on

behalf of the EEOC, and LOF.

The EEOC has never questioned, for the eight years

the Consent Order has been in effect, the authority of

the U.S. Department of Justice to enter into the Consent

Order on its behalf. Additionally, the EEOC has never

attempted to re-open the Consent Order and, in fact, ad-

mitted at page 22, n.11 of its Brief in the Court of

Appeals that it was bound by the February 3, 1971 Con-

sent Order.

Under Title VII of the Civil Rights Act of 1964, as

amended by the Equal Employment Opportunity Act

of 1972, Sec. 707(d), the function of the Attorney General

(U.S. Department of Justice) to bring actions for pattern

or practice discrimination was transferred completely to

the EEOC. 42 U.S.C. Sec. 2000e-6(d) specifically

provides that upon the transfer of this function, in all

suits commenced prior to the date of transfer, all court

orders and decrees shall remain in effect and the EEOC

shall be substituted as a party for the United States of

America. This language of Section 707(d) clearly shows

that Congress intended for court orders entered into by

the U.S. Department of Justice on behalf of the EEOC

to be court orders of the EEOC.

The EEOC has ratified the Consent Order of

February 3, 1971. Since November 20, 1974 when the

EEOC was substituted as party plaintiff in the case of

United States v. Libbey-Owens-Ford Co., Inc., et al.,

supra, it has taken no action whatsoever, even after

reviewing in the summer of 1977 the voluminous records

that LOF was and is required to maintain in accordance

with paragraph XIII, sub-paragraph A of the Consent

Order, to remove, modify or change either the Consent

Order in its entirety or the minimum physical hiring

standards of 5/4” height and 110 lbs. weight. This inac-

tion by the EEOC itself constitutes acquiescence to the

terms of the Consent Order. See United States v. Atlan-

tic Refining Company, 360 U.S. 19 (1959), wherein this

Court held that where a governmental agency failed to

challenge portions of a consent decree for a period of

years, it acquiesced in those consent order terms. Ad-

ditionally, the EEOC has issued two “not reasonable

cause” decisions based upon the Consent Order. The

EEOC issued these “not reasonable cause” decisions on

two separate occasions subsequent to the entering of the

Consent Order, when two individuals filed charges

against LOF alleging discrimination in its Toledo, Ohio

plant because of LOF’s use of the 5’4” minimum height

standard. The EEOC determined on October 29, 1973

and March 15, 1974 that the February 3, 1971 Consent

Order allowed the 5’'4” minimum height standard to re-

main and that, therefore, there was not reasonable cause

to believe that LOF discriminated against the two

charging parties.

C. The Consent Order Provides LOF With Immunity.

Clearly, the February 3, 1971 Consent Order is not

only an interpretation or opinion under Title VII, Sec.

713(b); it is also an interpretation or opinion of the

19—

EEOC. It, therefore, provides complete immunity to

LOF against the Eirhart and EEOC suits under Sec.

713(b). The Court of Appeals decision, however, subjects

LOF to these causes of action which are based on the

very employment procedures mandated in that Consent

Order. These procedures were judged by the U.S.

Department of Justice to be in conformance with Title

VII, were ratified by the EEOC, and, as part of LOF’s

Affirmative Action Programs in all of its glass plants

throughout the United States, were continuously ap-

proved by the Office of Federal Contract Compliance

Programs (OFCCP) and its Compliance Agencies, after

thorough reviews, for the entire eight years since the

Consent Order was entered. This Court should review

this decision not simply because of its effect on LOF but

because of its effect on all employers who have entered

into consent decrees with the EEOC.

II.

THE COURT OF APPEALS HAS DECIDED THAT A

CONSENT ORDER, SUCH AS THE CONSENT ORDER

OF FEBRUARY 3, 1971, CANNOT BE DEEMED TO BE

AN “OPINION” OF THE GOVERNMENTAL AGENCY

THAT THE ACTIONS DIRECTED IN THE CONSENT

ORDER ARE IN CONFORMANCE WITH THE

STATUTE UNDER WHICH THE ACTION WAS

BROUGHT BECAUSE A CONSENT ORDER IS A COM-

PROMISE AND PRODUCT OF BARGAINING SKILL

BETWEEN TWO PARTIES. THIS DECISION IS CON-

TRARY TO THE HOLDINGS OF THIS COURT IN Us.

v. ARMOUR & CO., 402 U.S. 673 (1971) AND U.S. v. ITT

CONTINENTAL BAKING CO., 420 U.S. 223 (1975).

The Court of Appeals decided that the February 3,

1971 Consent Order could not be construed to be an opin-

ion because it was a compromise and a product of

bargaining skills between the U.S. Department of

Justice and LOF. In so deciding, the Court of Appeals

—20—

quoted the following language of this Court’s opinion in

U.S. v. Armour & Co., 402 U.S. 673, 681-682 (1971):

“Consent decrees are entered into by parties to a

ease after careful negotiation has produced agree-

ment on their precise terms. The parties waive

their right to litigate the issues involved in the case

and thus save themselves the time, expense, and in-

evitable risk of litigation. Naturally, the agreement

reached normally embodies a compromise; in ex-

change for the saving of cost and elimination of

risk, the parties each give up something they might

have won had they proceeded with the litigation.

Thus the decree itself cannot be said to have a pur-

pose; rather the parties have purposes, generally op-

posed to each other, and the resultant decree em-

bodies as much of those opposing purposes as the

respective parties have the bargaining power and

skill to achieve. For these reasons, the scope of a

consent decree must be discerned within its four

corners, and not by reference to what might satisfy

the purposes of one of the parties to it.”

Despite the Court of Appeals’ reliance on U.S. v. Ar-

mour & Co., supra, its decision is contrary to both the

language cited and the holding of that case. Additional-

ly, the Court of Appeals’ decision is contrary to the

holding of this Court in U.S. v. ITT Continental Baking

Co., 420 U.S. 223 (1975).

This Court held in U.S. v. Armour & Co. and U.S. v.

ITT Continental Baking that what action was prohibited

by prior consent decrees must be ascertained from the

four corners of the decrees themselves without reference

to the purposes of the antitrust statute. U.S. v. Armour,

supra, 402 U.S. at 682; U.S. v. ITT Continental Baking

Co., supra, 420 U.S. at 237. This holding, that it is inap-

propriate to search for the “purpose” of a consent decree

and the laws allegedly violated, was in response to a

government age: y’s argument that acts not included in

_ .

a prior consent decree were prohibited by a prior con-

sent decree.

Under the Court of Appeals’ decision, a government

agency could always argue that the very actions man-

dated by the four corners of a consent order never bring

a defendant in conformance with Title VII provisions.

This is clearly erroneous and contrary to the holdings of

the ITT Continental and Armour cases. The Armour

case held:

“Because the defendant has, by the decree, waived

his right to litigate the issues raised, a right

guaranteed to him by the Due Process Clause, the

conditions upon which he has given that waiver

must be respected, and the instrument must be con-

strued as it is written and not as it might have been

written had the plaintiff established his factual

claims and legal theories in litigation.”

U.S. v. Armour & Co., supra, 402 U.S. 682. In other

words, if a party’s actions come within the four corners

cf a consent decree those actions would fulfill not only

the purpose of the government in bringing the prior ac-

tion which resulted in the consent decree but also the

purpose of the law under which the original action was

brought.

To decide otherwise, as the Court of Appeals has done,

would mean that no employer will ever be assured that

conforming his actions to the terms of a consent decree,

previously entered in a suit brought by the government

to enforce Title VII provisions, will ever result in his ac-

tions being consistent with Title VII. This clearly poses

a very real dilemma for employers. The entry of future

consent decrees will obviously be discouraged. One com-

mentary has already forecast this situation based on the

Court of Appeals decision herein. See Equal Employ-

ment Compliance Manual (1978), Callaghan and Com-

pany, Equal Employment Compliance Update, Vol. 3,

No. 7, p. 70, March 1980. It is

“surely . . . incongruous . . . [that] the use of

congressionally preferred means [cooperation and

voluntary compliance resulting in a consent order}

to achieve a Congressionally desired result would

leave that result vulnerable to attack on the ground

that the Congressional intent had been violateu.”

EEOC v. American Tel. & Tel., supra, 419 F.Supp.

at 1039.

III.

THE COURT OF APPEALS, BY RULING THAT A

CONSENT ORDER, SUCH AS THE CONSENT ORDER

OF FEBRUARY 3, 1971, DOES NOT PROVIDE IM-

MUNITY UNDER TITLE VII, SEC. 713(b) EITHER

AGAINST A CLAIMANT WHO WAS NOT A PARTY

OR IN PRIVITY WITH A PARTY TO THE CONSENT

ORDER OR OUTSIDE THE GEOGRAPHICAL AREA

DESCRIBED THEREIN, HAS DECIDED AN IMPOR-

TANT FEDERAL QUESTION IN CONFLICT WITH

THIS COURT’S DECISION IN ALBEMARLE PAPER CO.

v. MOODY, 422 U.S. 405 (1975) AND THE AFFIR-

MANCE BY THE THIRD CIRCUIT IN EEOC v.

AMERICAN TEL. & TEL. CO.

Sec. 713(b) of Title VII of the Civil Rights Act of 1964,

42 U.S.C. Sec. 2000e-12(b\1) provides immunity to a per-

son if that person pleads and proves that the act or omis-

sion complained of was in good faith, in conformity with,

and in reliance on any written interpretation or opinion

of the Commission. Sec. 713(b) further states that such a

defense, if established, shall be a bar to the action or

proceeding, notwithstanding that after such act or omis-

sion, the interpretation or opinion is modified, rescinded

or determined by judicial authority to be invalid or of no

legal effect.

_ a

There are no limitations against whom the Sec. 713(b)

immunity can be asserted. Sec. 713(b) obviously does not

limit its immunity to the claims of particular potential

claimants nor to any specific geographical area. The fact

that an individual is not a party to a consent order

which constitutes an interpretation or opinion of the

EEOC has no effect on the immunity provided by the

consent order. Complete immunity, without any restric-

tions as to geographical area, is provided by Sec. 713(b)

against any and all potential plaintiffs. Albemarle Paper

Co. v. Moody, supra, 422 U.S. at 423, n.17 and EEOC v.

American Tel. & Tel., supra, 419 F.Supp. at 1055, n.34.

Albemarle holds that the immunity provided in Sec.

713(b) is complete, and speaks of narrowness only as it

reflects that a defense must be within Sec. 713(b) to be a

“good faith” defense. Albemarle Paper Co. v. Moody, id.

According to Albemarle, “good faith” is not a defense to

a Title VII action except under Sec. 713(b). However,

Sec. 713(b) provides complete immunity. Albemarle

Paper Co. v. Moody, id. Therefore, where the action

complained of has not only been approved but also

ordered in a consent decree constituting an interpreta-

tion or opinion, that decree provides immunity for the

defendant against actions of all potential plaintiffs, in-

cluding those not a party to the initial decree. EEOC v.

American Tel. & Tel., supra.

In EEOC v. American Tel. & Tel., supra, it was

recognized that the seniority override utilized as part of

the defendant’s Affirmative Action Plan may have had

adverse economic consequences on those employees of

the defendant who were passed over by use of the

seniority override. Employees passed over would not

have been parties to the original consent decree.

Nevertheless, the court found that the consent decree

iene

provided real, complete immunity to the defendant for

its actions taken in good faith reliance on its seniority

override provision against claimants not parties to the

original consent decree. EEOC v. American Tel. & Tel.

Co., supra, 419 F.Supp. at 1055, citing Albemarle Paper

Co. v. Moody, supra. Therefore, as an interpretation or

opinion of the EEOC, the February 3, 1971 Consent

Order provides immunity to LOF against all potential

plaintiffs, even those, such as Eirhart, not parties or

privies to the consent order.

The EEOC procedural regulations themselves, 29

C.F.R. Secs. 1601.28-1601.30 (now 29 C.F.R. Secs.

1601.31-1601.33) do not require that potential claimants

be named and identified in a document in order for it to

constitute an interpretation or opinion providing im-

munity under Sec. 713(b). All three types of documents

designated in 29 C.F.R. Sec. 1601.33 (1979) could affect

un-named and un-identified potential claimants who

would not be party to nor in privity with a party to the

document. Yet, complete immunity would still be

available to the defendants acting under such 29 C.F.R.

Sec. 1601.33 documents.

The Court of Appeals decided that the Consent Order

of February 3, 1971 did not provide immunity against

Eirhart, someone not a party nor in privity with a party

to the Consent Order, because any legal effect of the

Consent Order of February 3, 1971 would be unrelated

to Sec. 713(b) and relevant only to res judicata or

collateral estoppel (A. 8a). The Court of Appeals further

decided that the effect of the Consent Order of February

3, 1971 was specifically limited to the geographical area

mentioned in the Consent Order (A. 8a).

The cases cited by the Court of Appeals (A. 8a) in

support of its decision are distinguishable. They involved

= =

plaintiffs who brought suit seeking relief from practices

which had not been approved and ordered to be utilized

in an earlier consent decree. In those cases, unlike the

Kirhart and EEOC suits, the plaintiffs sought either ad-

ditional or different relief from the same practices for

which relief was given in the initial consent decree or

relief from practices different from those covered or

even mentioned in the initial consent decree. None of

those cases involved a situation, like the instant cases,

wherein the individual plaintiffs sought relief from con-

duct specifically described in, approved by, and ordered

in the initial consent decrees.

Where a consent order provides immunity under Sec.

713(b), as the February 3, 1971 Consent Order provides

to LOF, complete immunity is provided against

whomever is affected by the practice or procedure con-

tained in the consent order. This is true whether the

person affected is named or un-named in the consent

order or whether the person affected is neither a party

to nor in privity with a party to the consent order. The

Consent Order of February 3, 1971, being an interpreta-

tion or opinion, provides immunity under Sec. 713(b)

against all potential plaintiffs including those such as

respondent, Sherry Eirhart.

By reaching the opposite result on this important

question of federal law, the Court of Appeals has

rendered a decision which is in conflict with this Court’s

decision in Albemarle, supra, and the Third Circuit’s af-

firmance in EEOC v. American Tel. & Tel. Co., supra.

For this additional reason, this Court should grant the

Writ of Certiorari to the Court of Appeals for the

Seventh Circuit.

CONCLUSION

For the reasons stated above, the petitioner LOF

urges that a Writ of Certiorari should be granted to

review the judgment and opinion of the Seventh Circuit

Court of Appeals.

Respectfully submitted,

ROBERT 8S. SODERSTROM

JAMES P. DeNARDO

McKENNA, STORER, ROWE,

WHITE & FARRUG

135 South LaSalle Street

Chicago, Illinois 60603

(312) 558-3900 2

Attorneys for Libbey-Owens-Ford Company,

Counsel of Record for Petitioner.

Dated: May 12, 1980

— ila—

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 79-1756

SHERRY EIRHART,

Plaintiff-A ppellant,

Uv.

LIBBEY-OWENS-FORD COMPANY,

Defendant-A ppellee.

No. 79-1757

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-A ppellant,

Vv.

LIBBEY-OWENS-FORD COMPANY,

Defendant-A ppellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 76 C 3182, 78 C 2042—Stanley J. Rozkowski, Jii/ye.

ARGUED DECEMBER 4, 1979—DECIDED FEBRUARY 12, 1980

Before FAIRCHILD, Chief Judge, CASTLE, Senior Cireuit

Judge, and CUDAHY, Circuit Judge.

CASTLE, Senior Circuit Judge. Plaintiff-appellant

Equal Employment Opportunity Commission (EEOC)

filed this suit, challenging hiring practices of defendant-

appellee Libbey-Owens-Ford Co. (LOF). The EEOC suit

was subsequently consolidated with a similar suit filed

—

by plaintiff-appellant Sherry Eirhart. The district court

then granted LOF’s motion for summary judgment as to

both Eirhart and the EEOC. The basis for the district

court’s decision was a determination that LOF was im-

mune from any suit under § 713(b) of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(b). We

hold that the district court erred in granting LOF im-

munity from suit and, accordingly, reverse the decision

of the district court.

The facts of this case are apparently not in dispute. In

1968 the EEOC received a complaint against, and

started investigating, the employment practices at one of

the LOF’s plants in Toledo, Ohio (plant 8). The com-

plaint alleged the restriction of female employees to two

departments containing lower paying jobs and the

maintenance of seniority lists which were segregated on

the basis of sex. The EEOC then issued a “reasonable

cause” letter and entered into conciliation negotiations

with LOF. The negotiations failed and the EEOC

referred the case to the Justice Department with a

recommendation that a civil suit against LOF be in-

stituted.! Such a suit was filed, United States v. Libbey-

Owens-Ford Co., No. C-70-212 (N.D. Ohio, filed July 20,

1970), and on February 3, 1971 a consent order was

entered into by the parties and approved by the United

States District Court for the Northern District of Chio, 3

Emp. Pract. Dec. 18052 (1971). The order, which dealt

primarily with transfer, promotion, and seniority rights,

included a provision concerning height and weight re-

quirements. The provision stated that “{m]linimum

physical and non-physical requirements for entry level

jobs, which were in writing as of February 4, 1970, shall

continue to be applicable to both males and females

seeking employment with the Company, except that the

| At that time the EEOC did not have the authority to file

such a suit. The EEOC’s authority was limited to investiga-

tion of charges, conciliation and persuasion. Civil Rights Act of

1964, Pub. L. No. 88-352, § 706, 78 Stat. 259-60. Instead, such

suits were filed by the Attorney General. /d., § 707, 78 Stat.

261-62.

—fa—

minimum weight requirement for females shall be 110

pounds.” The written physical requirements referred to

in the consent order included a minimum height re-

quirement of 5’4”.

In December, 1970 hiring standards including a

minimum height requirement of 5’4” and a minimum

weight requirement of 110 pounds were instituted at

LOF’s plant in Ottawa, Illinois. In August, 1976 Sherry

Eirhart filed a lawsuit challenging the height re-

— of the Ottawa plant. Eirhart v. Libbey-

wens-Ford Co., No. 76 C 3182 (N.D. IIl.). In May, 1978

EEOC filed a lawsuit challenging the Ottawa plant’s

height and weight requirements. EEOC v. Libbey-

Owens-Ford Co., No. 78 C 2042 (N.D. Ill.). These suits

were consolidated by an order dated September 18,

1978. On June 1, 1979 the district court, in ruling on

cross-motions for summary judgment, granted LOF’s

motions for summary judgment against both Eirhart

and the EEOC. Both Eirhart and the EEOC have

vee and jurisdiction of this Court is based on 28

.C. § 1291.

Il.

The basis for the district court’s opinion is § 713(b) of

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

a That section provides, in pertinent part,

that:

(b) In any action or proceeding based on any

alleged unlawful employment practice, no person

shall be subject to any liability or punishment for or

on account of (1) the commission by such person of

an unlawful employment practice if he pleads and

proves that the act or omission complained of was

in good faith, in conformity with, and in reliance on

any written interpretation or opinion of the Com-

mission... .

The district court held that LOF was immune from suit

under Section 713(b) and that LOF’s immunity entitled

the company to summary judgment.

—44g—

In order to reach that conclusion, the district court

decided that the Ohio consent decree was indeed a

“written interpretation or opinion of the Commission.”

This proposition misconstrues both Section 713(b) and

the nature of consent decrees. As noted by the Supreme

Court:

Consent decrees are entered into by parties to a

case after careful negotiation has produced agree-

ment on their precise terms. The parties waive

their right to litigate the issues involved in the case

and thus save themselves the time, expense, and in-

evitable risk of litigation. Naturally the agreement

reached normally embodies a compromise; in ex-

change for the saving of cost and elimination cf

risk, the parties each give up something they might

have won had they proceeded with the litigation.

Thus the decree itself cannot be said to have a pur-

pose; rather the parties have purposes, generally op-

posed to each other, and the resultant decree em-

bodies as much of those opposing purposes as the

respective parties have the bargaining power and

skill to achieve. For these reasons, the scope of a

consent decree must be discerned within its four

corners, and not by reference to what might satisfy

the purposes of one of the parties to it.

United States v. Armour & Co., 402 U.S. 673, 681-82

(1971) (emphasis in original) (footnote omitted). Such a

compromise and product of bargaining skill between

two parties cannot be deemed to be an “order or opinion”

of either of the parties. It would not be appropriate for

this Court to expand the narrowly drawn Congressional

grant of immunity contained in Section 713(b) to include

such a decree. See Albermarle Paper Co. v. Moody, 422

U.S. 405, 423 n. 17. See also id. at 444 (Rehnquist, J.,

concurring).

Moreover, in granting LOF’s motion for summary

judgment, the district court chose to ignore the EEOC’s

regulations concerning Section 713(b). Those regula-

tions, in pertinent part, state that:

Only the following may be relied upon as a

“written interpretation or opinion of the Commis-

—— 5 a—

ud within the meaning of Section 713 of. Title

(a) A letter entitled “opinion letter” and signed

by the General Counsel on behalf of the Commis-

sion, or

(b) Matter published and specifically designated

as such in the FEDERAL REGISTER, including

the Commission’s Guidelines on Affirmative Action,

cause ... when such determination contains a

statement that it is a “written interpretation or

opinion of the Commission.”

29 C.F.R. § 1601.33 (1979).

In determining whether the district court properly ig-

nored these regulations we take note of the fact that

Congress, in adopting Title VII, did not specifically give

the EEOC authority to promulgate interpretative

regulations under that Title. See General Electric Co. v.

Gilbert, 429 U.S. 125, 141 (1976). Nevertheless, the

EEOC is the agency charged with the administration of

Title VII and, as such, its interpretations are entitled to

great deference. Griggs v. Duke Power Co., 401 U.S. 424,

”»

2 Other relevant regulations provide that:

§ 1601.31 Request for interpretation or opinion.

Any interested person desiring a written interpretation

or opinion from the Commission may make a request

therefor. However, issuance of such interpretations or

opinions is discretionary.

§ 1601.32 Contents of request; where to file.

_A request for an “opinion letter” shall be in writing,

5 by the person making the request, addressed to the

Chairman, Equal Employment Opportunity Commission,

_— E Street N.W., Washington, D.C. 20506, and shall

contain:

(a) The names and addresses of the person making the

request and of other interested persons.

(a) A statement of all known relevant facts.

opinion should be issued.

29 CFR §§ 1601.31, .82 (1979).

—6ha—

433-34 (1971). Accordingly, we view these regulations

with the realization that:

{T]he rulings, interpretations and opinions of the

Administrator under this Act, while not controlling

upon the courts by reason of their authority, do con-

stitute a body of experience and informed judgment

to which courts and litigants may properly resort

for guidance. The weight of such judgment in a

particular case will depend upon the thoroughness

evident in its consideration; The validity of its

reasoning, its consistency with later pronounce-

ments, and all those factors which give it power to

persuade, if lacking power to control.

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), quoted

in General Electric Co. v. Gilbert, 429 U.S. at 141-42.

When viewed in this manner these regulations are

reasonable and, in this case, persuasive. See Sprogis v.

United Air Lines, Inc., 444 F.2d 1194, 1200 (7th Cir.),

cert. denied, 404 U.S. 991 (1971) (regulation “reasonably

confines reliance justified under Section 713(b) to con-

sidered expressions of opinion taking two specifically

defined forms”); Local 189, United Papermakers &

Paperworkers v. United States, 416 F.2d 980, 997 (5th

Cir. 1969), cert. denied, 397 U.S. 919 (1970) (regulation

“gives reasonable scope to the statutory provision”). We

also note that the EEOC’s position on what constitutes a

“written interpretation or opinion of the Commission”

has remained basically unchanged since the passage of

Title VII. 30 Fed. Reg. 8,409 (1965). See General Electric

Co. v. Gilbert, 429 U.S. at 142-43. Furthermore, ex-

panding Section 713(b) to the case at hand would un-

dermine the EEOC’s system for granting immunity un-

der that section. The EEOC’s system “simply insures

that the only Commission interpretations and opinions

which will be given binding effect . . . are those based

either upon a solid factual foundation or upon the most

thorough considerations of the potential factual

situations to which the rule might apply.” Robinson v.

Lorillard Corp., 444 F.2d 791, 801 (4th Cir.), cert. dis-

missed, 404 U.S. 1006 (1971). Therefore, we conclude

that the district court erred in ignoring the EEOC

—Ja—

guidelines as to what constitutes a “written order or

opinion of the Commission” under Section 713(b).

The EEOC also argues that the consent decree simply

was not “of the Commission”. This argument is based on

the fact that the EEOC did not participate in the draft-

ing of the consent decree. Although the EEOC in-

vestigated LOF’s plant 8, the Commission did not have

enforcement powers at that time. Instead, the EEOC

was required to refer the case to the Attorney General,

under whose auspices the suit was filed and the consent

decree entered into. However, the EEOC has been sub-

stituted for the Attorney General as a party-plaintiff in

the Ohio matter. EEOC v. Libbey-Owens-Ford Co., No. C-

70-212 (N.D. Ohio, Nov. 20, 1974) (order granting sub-

stitution). The substitution came about when Congress

transferred enforcement powers under Title VII from

the Attorney General to the EEOC. Equal Employment

Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat.

107. In light of our rulings on the other issues involved

in this case, we need not reach this issue.

III.

LOF raises several arguments in support of the dis-

trict court’s decision. One such argument is based on

EEOC v. Amer. Tel. & Tel. Co., 419 F.Supp. 1022 (E.D.

Pa. 1976), aff'd, 556 F.2d 167 (3d Cir. 1977), cert. denied,

438 U.S. 915 (1978). The argument relies on a footnote

in which the district court, in discussing immunity un-

der Section 713(b), stated that: “(t]he Consent Decree

and its accompanying documents in the instant case cer-

tainly constitute such an interpretation or opinion [of the

Commission].” 419 F.Supp. at 1055 n. 34. However, this

footnote offers little support. for LOF; the documents ac-

companying the consent decree in the A.T.&T. case in-

cluded two documents which were entitled “opinion

letters,” were signed by the General Counsel of the

EEOC, and stated that they were written “on behalf” of

the EEOC. LOF’s Ohio decree had no such accom-

pan, ing documents and, therefore, the A.T.&T. case is

inapposite.

—Sa—

LOF also argues that the Ohio decree is the equivalent

of an adjudication on the merits and is binding on both

the EEOC and Eirhart. However, LOF fails to explain

how Eirhart, who was neither a party to the Ohio case

nor in privity with a party, can be bound by the Ohio

decree.’ See Doninger v. Pacific Northwest Bell, Inc., 564

F.2d 1304, 1307 (9th Cir. 1977); Williamson v. Bethlehem

Steel Corp., 468 F.2d 1201, 1204 (2d Cir. 1972), cert.

denied, 411 U.S. 931 (1973) (both cases indicating that

Eirhart’s ability to sue is not affected by the consent

decree between LOF and the EEOC). Moreover,

regardless of whether or not the consent decree is bind-

ing on the EEOC, that decree is limited, by its terms,

to “(hiring in all Toledo area plants.” Additionally, any

legal effect of the order on the EEOC would be un-

related to Section 713(b).. Rather, such effect would be

relevant only to a res judicata or collateral estuppel

argument. No such argument was set forth in the dis-

trict court’s decision nor is such an argument before us

on appeal.

LOF also contends that those interests which Section

713(b) seeks to safeguard were adequately protected un-

der the circumstances surrounding the issuance of the

Ohio consent decree. Those interests, according to LOF,

are that the EEOC should not be bound by informal or

unapproved opinions volunteered by members of the

EEOC staff and that EEOC opinions should be based

upon a solid factual foundation or on thorough con-

sideration of the issues involved. However, in claiming

that these interests have been adequately protected in

this case, LOF overlooks the comprehensive nature of

the Unio decree and the compromises inherent in such

an agreement. The Ohio decree dealt with a number of

practices at LOF’s Toledo plants. Indeed, neither the

charges filed with the EEOC nor the complaint filed in

3 LOF also fails to explain how, if Section 713(b) immunity is

available to an employer who enters into a consent decree

with the government, several courts of appeals have allowed

individual employees to bring suits following such decrees.

Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304 (9th

Cir. 1977); United States v. Allegheny-Ludlum Industries, Inc.,

517 F.2d 826 (Sih Cir. 1975), cert. denied, 425 U.S. 944 (1976).

—IJa—

the Ohio lawsuit made any mention of height and weight

requirements. Rather, the focus of both the charges and

the suit was LOF’s seniority and transfer practices.

LOF’s hiring standards were dealt with in a two

paragraph portion of the twenty-one page long consent

decree. Therefore, we cannot agree with LOF’s conten-

tion that the consent decree involved careful considera-

tion by the government of the height and weight re-

quirement. .

We have carefully examined the other arguments

raised by LOF and do not find them persuasive. Accord-

ingly, the judgment of the district court is

REVERSED, AND REMANDED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

—10a—

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SHERRY EIRHART and EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiffs,

Vv.

LIBBEY-OWENS-ForpD Co.,

Defendant.

Nos. 76 C 3182, 77 C 2042

ORDER

Plaintiffs Sherry Eirhart and the Equal Employment

Opportunity Commission brought this action against

defendant, Libbey-Owens-Ford Co. (the Company),

charging that the Company imposes minimum height

and weight standards upon applicants for employment

which discriminate in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-et seq.! The Com-

pany has moved for summary judgment against both

' Plaintiff Eirhart stands in the same position as the Com-

mission since the defense urged by the Company in its

motions and in its response to the Commission’s motion is

equally applicable to her cause of action. Additionally, in her

memorandum opposing defendant’s motion for summary judg-

ment, plaintiff Eirhart repeats in abbreviated form the

arguments of the Commission. The discussion in this case, ac-

cordingly, while referring mostly to the EEOC and the Com-

pany, applies equally to her.

plaintiffs. The Commission has also made a motion for

summary judgment.?

The facts are simple and apparently not in dispute. On

March 13, 1970, the EEOC notified Libbey-Owens-Ford

that, after an investigation and attempted conciliation,

(1) an impasse had been reached, (2) individual com-

plainants were to be given right to sue letters, and (3)

the matter was being referred to the Attorney General

for possible action under § 707 of Title VII, 42 U.S.C.

§ 2000e-€ (1976). The investigation by the Commission

dealt only with employment practices which had been

complained of to the Commission and did not deal with

hiring standards. The matter was referred to the At-

torney General pursuant to § 705(g)(6) and the Justice

Department conducted its own investigation, based on

the referral. The Justice Department filed a complaint

against the Company on July 20, 1970, including a

charge of discriminatory hiring practices based on

height and weight, in writing as of February 4, 1970.

Negotiations between the Company and the Justice

Department ensued, and resulted in a Consent Order be-

ing entered on February 3, 1971 by the United States

District Court for the Northern District of Ohio,

Western Division, in United States v. Libbey-Owens-Ford

Co., 3 EPD 18052 (1971). Subsequently, on November

20, 1974, the Commission was substituted on its own mo-

tion as party-plaintiff in place of the Attorney General,

pursuant to § 707(d), 42 U.S.C. § 2000e-6(d), which

oo the functions of the Attorney General to the

OC.3

2 The EEOC also moved to strike the Company’s second af-

firmative defense of laches. Because of the determination of

the case, there is no need to reach this issue.

8 42 U.S.C. Be ge provides: “Upon the transfer of func-

tions provided for in subsection (c) of this section, in all suits

commenced pursuant to this section prior to the date of such

transfer, proceedings shall continue without abatement, all

court orders and decrees shall remain in effect, and the Com-

mission shall be substituted as a party for the United States

of America, the Attorney General, or the Acting Attorney

General as appropriate.”

—12a—

Paragraph XI-A of the Consent Order provides:

Hiring in all Toledo area plants shall be carried out

in a non-discriminatory basis. Minimum physical

and non-physical requirements for entry level jobs,

which were in writing as of February 4, 1970, shall

continue to be applicable to both males and females

seeking employment with the Company, except that

the minimum weight requirement for females shall

be 110 pounds.

These standards include the 5’4” height requirement

and have been in effect at the defendant’s Ottawa, II-

linois plant since December 1970. Plaintiffs contend that

these standards discriminate against women and that

the defendant has not demonstrated their job

relatedness. The defendant does not address those issues,

and relies instead on the Consent Order, maintaining

that § 713(b), 42 U.S.C. § 2000e-12(b) gives it a real and

complete immunity against the present Title VII ac-

tions.4 The question before the Court is whether the Con-

sent Order constitutes “a written interpretation or opin-

ion of the Commission” within the meaning of the

statute and upon which the Company could rely in good

faith as a defense to the instant Title VII actions.

It is clear that the motivation of the Company in in-

itially formulating and imposing the height and weight

requirements is irrelevant. “Title VII is not concerned

with the employer’s ‘good intent or absence of dis-

criminatory intent’ for ‘Congress directed the thrust of

the Act to the consequences of employment practices, not

simply the motivation’.” Albemarle Paper Co. v. Moody,

422 U.S. 405, 422 (1975), quoting Griggs v. Duke Power,

401 U.S. 424, 432 (1971). Congress has, however,

4 42 U.S.C. § 2000e-12(b) provides: “In any action or

proceeding based on any alleged unlawful employment prac-

tice, no person shall be subject to any liability or punishment

for or on account of (1) the commission by such person of an

unlawful employment practice if he pleads and proves that

the act or omission complained of was in good faith, in confor-

mity with and in reliance on any written interpretation or

opinion of the Commission. . . .”

—138a—

recognized a narrowly defined good faith defense. While

narrowly defined, that defense gives complete immunity

for employer conduct falling with § 713(b). Courts are

not free to expand the immunity beyond the statute.

Albemarle, 422 U.S. at 423, n.17.

On the issue of whether the Consent Order might be

relied upon to give immunity under § 713(b), the

arguments of the parties take essentially the same

analytical steps. The first step is to determine whether

the Consent Order is a “written interpretation or opin-

ion” within the meaning of the statute. If it is, the next

step is to determine whether it is “of the Commission.”

Finally, if both of these are determined affirmatively,

the third determination to be made is whether a Consent

Decree entered in Ohio, explicitly binding and applying

directly only on the Company’s Toledo area plants, may

be relied upon by the Company in its Ottawa, Illinois

plants. The Commission would have the Court reach a

negative answer at each step; the Company argues for

an affirmative answer to each proposition.

At the first step, whether the Consent Order can be

considered a “written interpretation or opinion,” the

EEOC points to its guideline 29 C.F.R. § 1601.33 con-

tending under that guideline only an “opinion letter”

signed by the General Counsel on behalf of the Commis-

sion or matter published in the Federal Register can

meet the statutory language. Since a consent order

clearly falls under neither of those categories, the Com-

mission contends that it cannot be a written interpreta-

tion or opinion and cannot give rise to the statutory good

faith reliance defense.

While guidelines promulgated by administrative agen-

cies construing the statutes with whose administration

they have been entrusted by Congress are often afforded

great deference by the courts, that deference is a result

only of their persuasive power of reasoning “as a body of

experience and informed judgment.” Skidmore v. Swift

& Co., 323 U.S. 184, 140 (1949). When Congress enacted

Title VII, it did not confer upon the EEOC authority to

promulgate regulations which would have the force of

—l4a—

law. General Electric Co. v. Gilbert, 429 U.S. 125, 141

(1976). “Without that authority all rules on agency issues

are necessarily interpretative rules regardless of their

impact ... and even though courts often defer to an

agency’s interpretative rule they are always free to

choose otherwise.” Joseph v. U.S. Civil Service Commis-

sion, 554 F.2d 1140, 1154, n.26 (D.C. Cir. 1977); General

Electric Co. v. Gilbert, supra.

Accordingly, 29 C.F.R. § 1601.33 is not binding on this

Court.> The Commission, however, cites cases indicating

that 29 C.F.R. § 1601.33 has been given deference by the

courts. Robinson v. Lorillard Corp., 444 F.2d 791 (4th

Cir. 1971) and Local 189, United Papermakers &

Paperworkers v. United States, 416 F.2d 980 (5th Cir.

1969), cert. den. 397 U.S. 919 (1970), both held that the

guideline is a reasonable interpretation of § 713(b). The

Commission relies particularly heavily on the Seventh

Circuit case of Sprogis v. United Air Lines, Inc., 444

F.2d 1194 (7th Cir. 1971), cert. den. 404 U.S. 991 (1971).

In this case, the Commission contends, the Seventh Cir-

cuit did more than “defer” to the guideline: it held that

the guideline must be complied with to constitute a

written interpretation or opinion under the statute.

Robinson and Local 189 did not deal with anything as

formal as a consent order. Robinson concerned a “no

reasonable cause” determination by the EEOC that was

held not to be a written interpretation or opinion. And

Local 189 involved an oral statement by someone other

than the General Counsel of the Commission.

Sprogis, on the other hand, is more on point. It dealt

with “a so-called ‘letter of opinion’ of the Commission’s

General Counsel” which was held to fall within 29

C.F.R. § 1601.33. At issue in that case was whether the

document in question fell within the guideline. Despite

the Commission’s contention to the contrary, the court

5 The notice published in the Federal Register, 35 F.R.

18692, on December 9, 1970 is similarly entitled only to con-

sideration as a factor in making the determination of the first

step and is not binding.

—15a—

did not require that the guideline be adhered to in all

cases. Rather, the court was concerned, as was Judge

Wisdom in Local 189, supra, that a broader reading of

the language in § 713(b) “might bind” the Commission to

informal or unapproved opinions volunteered by

members of its staff.” Sprogis, 444 F.2d at 1200. The

court held that the particular “letter of opinion” in that

case ran afoul of those dangers and did “not indicate a

considered legal judgment approving the [employment]

policy under the Act.” Sprogis, 444 F.2d at 1201.

By contrast, the Consent Order in the present case

presents none of the dangers which concerned the court

in Sprogis, and does constitute a “considered legal judg-

ment” approving the employment policy. The Consent

Order is neither informal nor unapproved. It is not an

internal agency memorandum. It is rather an order

entered into by the United States District Court for the

District of Ohio, and binding upon the parties. Assum-

ing for the moment that the EEOC was a party, the

order would represent an agreement entered into by an

authorized officer of that agency. Even without such an

assumption, the Consent Order constituted the con-

sidered legal judgment of both the Department of

Justice and the District Court, approving, indeed man-

dating, the height and weight standards at the Com-

pany’s Toledo area plants. The Consent Order in this

case was published in full in Employment Practice

Decisions, a reporter which reports the full official texts

of leading federal and state decisions in the area. All of

these factors minimize, if not eliminate, the problems

perceived by the Sprogis court. Despite that court’s use

of 29 C.F.R. § 1601.33 in that case, the guideline is not

binding on this Court in this case.

At least one court has held that a Consent Order can

be a written interpretation or opinion. EEOC v.

American Telephone & Telegraph Co., 419 F. Supp. 1022,

1055 n.34 (E.D. Pa. 1976), affd. 556 F.2d 167 (8d Cir.

1977.)®° The parties spend a good deal of time debating

6 This “holding” is a two-sentence footnote which was not

decisive in the case.

—1l6a—

the applicability of that case to the present case, but

both agree that the holding in that case was ap-

propriate. The Commission’s agreement to this point is

at odds with its contention that only those items

specified in 29 C.F.R. § 1601.33 are written inter-

pretations or opinions. Despite the Commission’s

emphasis on the “accompanying documents” in the case,

the fact remains that the Consent Order was held to

satisfy the statutory requirement.

There is no reason why a consent order should not

fulfill the requirements of § 713(b). Such an order is

entered into in open court. It is binding on the parties,

and if the EEOC is one of those parties, is binding on

the EEOC. Even more than an “opinion letter,” an

agreement to a consent order by the EEOC represents a

formal agency approval of the policies embodied in the

order. The Consent Order entered on February 3, 1971,

therefore, constitutes a written interpretation or opinion

within the meaning of § 713(b).

This being so, it becomes necessary to make a deter-

mination of the second step, whether the written inter-

pretation or opinion, the Consent Order, is “of the Com-

mission.”

The EEOC investigation, the failed conciliation

attempt, the referral by the EEOC of the matter to the

Attorney General, the filing of the complaint by the At-

torney General, and the entering of the Consent Order

all occurred prior to the 1972 amendments to Title VII.

At that time, the Commission had no authority to in-

stitute suits in the courts. Its function was limited by the

Act to “investigation of employment discrimination

charges and informal methods of conciliation and per-

suasion.” Occidental Life Ins. Co. v. EEOC, 432 U.S.

§ 55, 359 (1977). Litigation was reserved to private in-

dividuals under § 706 and the Attorney General under

§ 707. Section 705(g)(6) gave the Commission the power

to refer matters to the Attorney General “for the institu-

tion of a civil action by the Attorney General under sec-

tion 707, and to advise, consult, and assist the Attorney

General on such matters.” In a very real sense, then, the

—17a—

Attorney General acted as an extension of the Commis-

sion in cases referred to that office under § 705(g)6).

The Attorney General, when it desired, picked up

matters where the Commission had left off, matters

referred to it by the Commission, and continued with

them to fruition. While the Supreme Court in Occidental

Life, 432 U.S. at 359, states that the “failure of concilia-

tion efforts terminated the involvement of the EEOC,”

that language refers only to the Commission’s involve-

ment in a formal way. The Commission still had the

power under the statute to participate in and have an

impact upon the instigation and progress of civil actions

brought by the Attorney General.

The referral in the present case was a referral from

the EEOC to the Attorney General pursuant to

§ 705(g)(c).? The Attorney General accepted the Com-

mission’s recommendation and instituted the civil action

that resulted in the Consent Order of February 3, 1971.

The Commission contends that the action by the At-

torney General in filing the complaint and in

negotiating the Consent Order was an independent ac-

tion of the Department of Justice which did not involve

the EEOC. It points out that the complaint of July 20,

1970 names the United States as plaintiff and states that

the action was brought by the Attorney General on

behalf of the United States. The name of the EEOC is

not mentioned anywhere in the complaint. Jurisdiction

is founded in the complaint on § 707(6\b), which gives

the Attorney General the authority to file a civil action.

While these facts could lead to the conclusion urged by

the EEOC that it was not-involved in the complaint or

the Consent Order, the facts are also consistent with the

proposition that the Attorney General was acting as an

7 The March 19, 1970 letter, with the EEOC letterhead, from

the Commission’s General Counsel to the Company stated,

“This is to advise that this office, pursuant to authorit

ane under Section 705(g)\(6) of Title VII of the Civil

ights Act of 1964, has referred the above cause to the At-

torney General with the recommendation for the institution of

a civil action under Section 707 of the Title.”

—18a—

extension of the Commission, on a referral from the

Commission. The Department of Justice was the only of-

fice under Title VII with the authority to bring the ac-

tion. It is natural that it should be the plaintiff in that

circumstance. Since only the Attorney General could

bring the action, jurisdiction must necessarily have been

predicated upon the statute giving him the authority to

do so. It is also natural that the EEOC would not be

named in the complaint. As the Supreme Court noted in

Occidental Life, supra, the Commission’s formal involve-

ment in the case was ended when it referred the case

pursuant to § 705(g)\(6). But that does not mean that the

Commission was no longer involved. Under the statute,

it could still have had an impact on the case through its

power to advise, consult and assist. The EEOC has cited

no authority and given no examples to demonstrate that

the absence of the name of the EEOC from a complaint

means that the EEOC was not involved.

The best argument made by the Commission that the

Consent Order was the result of actions taken by the At-

torney General and not the Commission was that the

complaint of July 20 included an allegation that the hir-

ing standards, identical to those at issue in this case,

were discriminatory while the investigation referred to

the Attorney General by the Commission made no men-

tion of the hiring standards. This would seem to indicate

an independent investigation by the Justice Department

and, therefore, an independent action. But despite this

appearance of non-involvement, at least on this point,

the Commission concedes that it was bound by the Con-

sent Order,’ including the height and weight hiring

standards. Thus, while the Commission has_ not

necessarily “ratified” the Consent Order as contended by

8’ “There is no doubt that the Commission was bound to defer

to the terms of the Ohio Consent Order during its term, as to

the Defendant's Toledo area oo Therefore, in issuing its

‘no cause’ determination, the Commission’s Cleveland District

Office cited the Consent Order as the sole reason for its find-

ings.” Plaintiff's Reply to Defendant Memorandum Opposing

Plaintiff's Motion for Summary Judgment, p. 6.

—19a—

the Company, it has placed itself in the position of a par-

ty to the Consent Order. Only a party is bound by a

judgment. 1B Moore’s Federal Practice 10.411.

In fact, the Commission is a party to the Consent

Order, though it was not a party when it was entered in

1971. On November 20, 1974, the District Court for the

Northern District of Ohio granted the Commission’s mo-

tion and ordered that the Commission be substituted as

party-plaintiff for the Attorney General in the original

unit which resulted in the Consent Order. This action

was taken pursuant to the 1972 amendments to Title VII

which provided for the transfer of the Attorney

General’s function in the area to the EEOC. 42 U.S.C.

§ 2000e-6(c), (d); § 707(c), (d) of Title VII. Section 707(d)

provides that “upon the transfer of functions. ... all

court orders and decrees shall remain in effect.” That, of

course, is true of the Consent Order in this case.

The Consent Order was a direct result of the in-

vestigation by the Commission and the referral of the

case to the Attorney General. The Commission concedes

that it is bound by that Consent Order, and is, of par-

ticular importance, a party to it. In light of these cir-

cumstances, the logical conclusion is that the Consent

Order, which is a written interpretation or opinion, is

“of the Commission.”

Since the Consent Order is a “written interpretation

or opinion of the Commission” within the meaning of

§ 713(b), it becomes necessary to determine whether the

Company was justified in relying on it in imposing the

height and weight standards in its Ottawa plants. The

Consent Order, by its own terms, applies only to the

Company’s Toledo area plants. Thus, it is only binding

upon the EEOC, as party-plaintiff as of 1974, and upon

the Company in the Toledo area. Both parties were free

to disregard it in other places.

The Commission contends that this fact separates the

present action from the Consent Order and denies the

Company the defense embodied in § 713(b). The Com-

pany, on the other hand, contends that other federal

—20a—

agencies have approved of the standards included in the

Consent Order in other places than Toledo and that the

need for continuity of action for companies reporting to

various federal agencies should permit trans-geographic

application of the Consent Order. The Company further

contends that a contrary decision would result in

different hiring standards being applied in different

places, causing inconsistency within the Company and

potentially engendering further suits based on that in-

consistency.

That other federal offices or agencies have approved

the height and weight standards is irrelevant to a Title

VII action. Each office or agency considers the stan-

dards as they fit into its regulatory sphere and not as an

interpretation of Title VII. “[RJeliance upon Government

approval or participation in the formulation of the

employment practice is not generally a defense in a Title

VII suit.” Stevenson v. International Paper Co., 516 F.2d

1038, 111 (5th Cir. 1975).

But this does not mean that the Consent Order cannot

be the basis of a defense in this case. The issue is not

whether the Order is binding in Ottawa, or whether the

Company might rely on approval by other Governmental

agencies. Rather the issue is whether the Consent Order,

being a written interpretation or opinion of the Commis-

sion, could be relied upon by the Company. Section

713(b) contains no requirements that the written inter-

pretation or opinion be binding upon anyone; it makes

no mention of geographic limitations. Immunity is given

for good faith reliance. The effect is the same as it would

be had the Commission sent an opinion letter to the

Company, and the Company had relied upon that.

Although the Company was bound by the Consent

Order only in the Toledo area, it applied and continues

to apply hiring standards identical to those in the Con-

sent Order at its Ottawa facility. The Consent Order

states that “the minimum weight requirement for

females shall be 110 pounds.” As is evident from the

reference to this as an “exception”, this weight standard

—2la—

was not included in the original standards in writing as

of February 4, 1970. That the Company applies stan-

dards in Ottawa identical to those in the Consent Order

when it is not bound to do so indicates reliance on the

Order.’

There is good reason to permit reliance on an Order

applying to a different geographic area, especially when

the reliance is by the same entity subject to the Order as

in the present case. It promotes consistency in hiring

standards throughout the corporate structure. More im-

portantly, a written interpretation or opinion of the

Commission indicates the Commission’s belief that the

standards are appropriate under Title VII. In the

present case, the Consent Order indicates the Justice

Department’s and the District Judge’s opinion that the

standards are appropriate. Parties should not be subject

to differing interpretations of Title VII simply because

the location of their places of operation are in different

geographic areas. The third step in the analysis,

whether the Company was justified in relying on the

Ohio Consent Order in implementing the height and

weight standards in Ottawa, is answered in the affir-

mative. The Company was justified in its reliance.

Since there is no genuine issue of material fact, and

since the Company relied in good faith on a written in-

terpretation or opinion of the Commission, 42 U.S.C.

§ 2000e-12(b), the Company’s motions for summary

judgment against the plaintiffs Sherry Eirhart and

the Equal Employment Opportunity Commission are

granted.

9 There are other indications of reliance. Before negotiations

oe ye with the Justice Department, the Company apparently

had an even greater weight requirement. Exhibit B of Defen-

dant’s Motion to Summary Judgment. That earlier require-

ment has not been employed at Ottawa, despite not bein

bound to use the lesser 110 pound standard there. Additional-

ly, the identical height and weight standards have been used

in the Company’s affirmative action programs. Exhibit G of

Defendant’s Motion for Summary Judgment.

—22a—

Plaintiff's motion to strike defendant’s second affir-

mative defense is moot, as is the Commission’s motion

for summary judgment.

ENTER:

/s/ Stanley J. Roszkowski, Judge

United States District Court

Dated: June 1, 1979

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.