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

“Supreme Court, &. S. --"*

FILED

JUL 18 1980

MICHAEL RUUAK, JR., CLERK

No. 79-1801

Iu the Supreme Court of the Hnited States

OCTOBER TERM, -1979

LIBBEY-OWENS-FORD COMPANY. PETLEIONER

..

SHERRY EIRHART AND EQuAL EMPLOY \MIENI

OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPL ALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION IN OPPOSITION

WapbdkE H. McCrit. Jr.

Solicitor General

Department of Justice

Washington, D.C. 20530

202) 633-2217

Leroy D. CLARK »

General Counsel

JOSEPH T. EDDINS

Associate General Counsel

LuTzZ ALEXANDER PRAGER

VELLA M. FINK

Attorneys

Equal Employment Opportunity. Commission

Washington, D.C. 20506

In the Supreme Court of the United States

OCTOBER TERM, -1979

No. 79-1801

LIBBEY-OWENS-FORD COMPANY. PETTTIONER

¥.

SHERRY EIRHART AND EQuaAL EMPproy tent

OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION IN OPPOSITION

QUESTION PRESENTED

Whether a 1971 consent decree. which terminated an

employment discrimination action brought against

petitioner by the Department of Justice and permitted

petitioner to impose certain height and weight

requirements for employment as its Toledo. Ohio

manufacturing plants, constitutes a “written interpretation

or opinion” of the Equal Emplovment Opportunity

Commission within the meaning of Section 713(b) of Title

VII of the Civil Rights Act of 1964. 42 U.S.C. 2000c-

12(b), and therefore immunizes petitioner from liability

for having imposed the same height and weight

restrictions at its Ottawa, Illinois facilities.

TABLE OF CONTENES

Prarge

NN I se ccc ves Saxsveauncdoneseve tas Rae ar eS cot harsead |

Ns lege a eer ys uence coucwactiony che AE ed ee |

re ean pea en a edEs ameadawonnaaie |

I oo Nad aa a ciipaitanalcenaces Eoniyiinasicdekiecdicinenetceweas 4

NE Silesia cis Asmasirvibecens eng dhecoxsandan erat: «Oe i iaapesie 7

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422 U.S.

a ce eg ee Ne Sd Aas fam ocganhans 5

Dothard v. Rawlinson, 433 U.S. 321 cece. (6

EEOC vy. American Telephone & Telegraph Co.,

419 F. Supp. 1022. atfd. S556 fF. 2d

167, cert. denied. 4388 U.S. 915 oo... 6

Local 189, United Papermakers & Paperworkers

v. United States, 416 F. 2d 980. cert.

SO es ieee cnsas 5

Robinson vy. Lorillard Corp., 444 b. 2d 791,

cert. denied. 404 U.S. 1006 .....................0..00006. 5

Sprogis v. United Air Lines, Inc., 444 b. 2d

1194, cert. denied, 404 U.S. 991 ooo. 5

United States v. Armour & Co., 402 ULS.

cAI Sarl ee er Peg Ne, Ne Ra a eee a 4

United States v. ITT Continental Bakine Co..

I I eect a Ro rar eat tere Tole 5

II]

Page

Statutes and regulations:

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

NE ON ae ecevisnuliin asec sasaiaioreicene |

Section 707(c), 42 U.S.C. 2000¢-6(e) 200.020... 2

Section 707(d), 42 U.S.C. 2000c-6(d) o.......... 2

Section 713(b). 42 U.S.C.

Noire Seas ancescsacnys Lk 4 Oe

Ur ee ae teg cnet chicas peu een fous 6

I I Seopa e i sts vewevsnaVaaraderassdavraereoe (y

PN PUI Ga daca iu can ot sccaddcadeaeseeeriatene 3 4

Miscellaneous:

ee WU Me CID orvcccis ccs cover teva cvciinsctans 3

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-9a) ts

reported at 616 F. 2d 278. The opinion of the district

court (Pet. App. 10a-22a) is reported at 482 b. Supp. 357.

JURISDICTION

The judgment of the court of appeals was entered on

February 12, 1980. The petition for a writ of certiorari

was filed on May 12. 1980. The jurisdiction of this Court

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

STATEMENT

In August 1976 respondent Sherry Firhart brought suit

under Title VII of the Civil Rights Act of 1964.42 U.S.C.

2000e ef seg., alleging that she had been discriminated

against because of certain height and weight qualifications

that petitioner Libbey-Owens-Ford Company (“bord”)

had imposed for employment at its Ottawa. Illinois

facilities. Thereafter, in May 1978. the Fqual Employment

Opportunity Commission (“Commission”) tiled an action

challenging the same height and weight: requirements.

Both actions were brought in the United States District

Court for the Northern District of Ilinois. and they were

consolidated in September 1978 (Pet. App. 3a).

On cross-motions for summary judgment. bord as-

serted that it was immune from liability under Section

713(b) of Title VII, 42 U.S.C. 2000¢-12(b). on the ground

that it had maintained the restrictions in reliance upon a

1971 consent decree concluding another Tithe VIP suit that

the Justice Department had brought concerning Lord's

Toledo, Ohio plants. The Toledo decree permitted the use

of certain minimum height and weight requirements at

those plants (Pet. App. 2a. 12a).

2

The Toledo lawsuit resulted from a_-charge of

employment discrimination that had been filed with the

Commission in 1968. The charge alleged that female

employees had been restricted to two departments

containing lower paying jobs and that seniority lists, that

were segregated on the basis of sex. were being

maintained at Ford’s “Plant &” in toledo. The

Commission found reasonable cause to believe that the

charge was true, and ultimately unsuccessful conciliation

efforts followed. On February 4. 1970. while conciliation

negotiations were on-going. Ford imposed minimum

height and weight requirements for entry level jobs at

Plant 8 (Pet. App. 2a).

The Commission, whose statutory authority was then

limited to investigation and conciliation, referred the case

to the Justice Department after the conciliation efforts

had failed.' On July 20, 1970. the Department tiled a

lawsuit alleging that Ford maintained a pattern and

practice of discrimination against women at its Toledo,

Ohio plants. The complaint did not refer to height and

weight restrictions. United States v. Libbev-Owens- bord

Co., No. C-70-212 (N.D. Ohio) (Pet. App. 2a. 8a). On

February 3, 1971, the parties entered into a twenty-one

page consent decree which provided special transfer,

seniority and promotion rights for women employees at

Plant 8 (Pet. App. 9a). The consent deeree also contained

a general provision concerning hiring at “all Toledo area

plants.” The provision required that hiring be

“nondiscriminatory” but allowed Ford to retain a 5°4”

'On November 20. 1974. more than three vears alter the decree wats

entered, the Commission was substituted to monitor compliance with

the Toledo consent decree. The substitution occurred pursuant to the

1972 amendments to Title VII. which transterred the functions of the

Attorney General to the Commission. Sections 707(¢) and 707(d) of

Title VI1, 42 U.S.C. 2000e-6(c) and 42 U.S.C. 2000¢-6¢d) (Pet. App.

7a).

height restriction and a weight restriction “tor females” of

110 pounds (Pet. App. 2a-3a).2 In December 1970. prior

to the entrv of the consent decree. Ford had imposed the

same height and weight restrictions at its Ottawa. Hlinois

plants (Pet. App. 3a).

Section 713(b) of Title VII. 42 U.S.C. 2000¢-12(b),

provides that “no person shall be subject to any liability

** * 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

Commission * * *.” Since the enactment of Title VII. the

Commission's regulations have consistently construed

Section 713(b) to provide that only “a letter entitled

‘opinion letter’ and signed by the General Counsel” or

“matter published and specifically designated * * * in the

Federal Register” will constitute such a “written

interpretation or opinion of the Commission.” 29 C.F.R.

1601.33 (formerly 29 C.F.R. 1601.30: 30 Fed. Reg. 8409

(1965)).

The district court granted Ford’s motion for summary

judgment, however, holding that the hiring requirements

provision of the Toledo consent decree constituted a

“written interpretation or opinion of the Commission”

within the meaning of Section 713(b) of Tithe VII (Pet.

App. 10a-22a). The court noted that “[t]he Consent

Order, by its own terms, applies only to the Company's

Toledo area plants,” but concluded that the company was

“The decree provided in pertinent part that “Hiring in all boledo

area plants shall be carried out in a non-discriminatory basts.

Minimum physical and non-physical requirements tor entry level

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

be applicable to both males and females secking employment with the

Company, except that the minimum weight requirement tor females

shall be 110 pounds” (Pet. App. 12a).

4

immune from liability because it could justifiably rely on

the decree in imposing the restrictions at its Ottawa,

Illinois plants (Pet. App. 19a).

The court of appeals reversed. holding that “[ift would

not be appropriate for this Court to expand the narrowly

drawn Congressional grant of immunity contained in

Section 713(b) to include * * * a [consent] decree” (Pet.

App. 4a). The court noted that “[sJuch a compromise and

product of bargaining skill between two parties cannot be

deemed to be an ‘order or opinion of either of the parties”

(Pet. App. 4a).? Moreover, the Commission's regulations

defining a binding order or opinion were reasonable and

should have been followed by the district court (Pet. App.

6a-7a).

ARGUMENT

The decision below warrants no further review: it is

correct and consistent with the construction adopted by

every court of appeals that has considered the question

presented.

1. Since 1965, the Commission has recognized that

agency expressions of “opinion” may take various torms.

The Commission has consistently and expressly provided

in its regulations, therefore. that only those “opinions”

that are contained in officially designated opinion letters

of the Commission’s general counsel or in other materials

published and so designated in the Federal Register. will

provide the requisite basis for a Section 713(b) delense.

See 29 C.F.R. 1601.33. Because good taith reliance on a

Commission opinion provides a complete defense under

Section 713(b), every court of appeals that has considered

‘The court of appeals also concluded that “any legal clleet of the

[consent] order on the EEOC would be * * © relevant only to a res

judicata or collateral estoppel argument” (Pet. App) Sa) No such

argument was made in the court of appeals.

5

the question has determined that the defense may be

invoked only on the basis of opinions contorming to the

Commission’s regulation. See Sprogis \. Cnited Air Lines,

Inc., 444 F. 2d 1194, 1200-1201 (7th Cir.) cert. denied,

404 U.S. 991 (1971) (General Counsel “letter of opinion”

which did not meet the requirements of the Commission's

guideline not a proper basis for a Section 713(b) detense):

Robinson vy. Lorillard Corp.. 444 F. 2d 791. SOL (4th

Cir.), cert. denied, 404 U.S. 1006 (1971) (determination of

“no reasonable cause” not an interpretation under Section

713(b)); Local 189, United Papermakers & Paperworkers

v. United States, 416 F. 2d 980. 997 (Sth Cir. 1969), cert.

denied, 397 U.S. 919 (1970) (letters and statements by

Commission officials not a basis for a Section 713(b)

defense). See also Albemarle Paper Co. \. Moody. 422

U.S. 405. 423 n.17 (1975) (Section 713(b) provides “a

complete, but very narrow, immunity”). As the Seventh

Circuit explained in Sprogis v. United Air lines, Ine..

supra, 444 F. 2d at 1200, the Commission’s regulation

“reasonably confines reliance justified under Section

713(b) to considered official expressions of opinion taking

two specifically defined forms.”

2. The court of appeals, relying on this Court's decision

in United States v. Armour & Co., 402 U.S. 673. 681-682

(1971), correctly concluded that a consent decree cannot

be deemed an interpretation or opinion of the law by

either party (Pet. App. 4a). As this Court explained in

Armour, supra, a consent decree ts a pragmatic

compromise whose scope must be discerned within its

four corners, and whose terms are the product of relative

“bargaining power and skill.” Moreover. consent decrees

“should be construed basically as contracts. without

reference to the legislation the Government: originally

sought to enforce ***." United States, vo MT

Continental Baking Co., 420 U.S. 223, 236-237 (1975).

6

Petitioner's reliance on a footnote in the district court's

opinion in EEOC v. American Telephone & Telegraph

Co., 419 F. Supp. 1022, 1055 n.34 (FE.D. Pa. 1976), afd.

556 F. 2d 167 (3d Cir. 1977). cert. denied. 438 U.S. 915

(1978), is misplaced. That footnote does not establish that

a consent decree will automatically constitute a binding

interpretation providing nationwide immunity as to every

kind of employment practice mentioned in the decree? As

part of the settlement in American Telephone, the

employer negotiated for and obtained “opinion letters”

from the Commission’s general counsel. in which the

Commission stated that certain of the decree’s remedial

provisions were lawful and that the letters could be relied

upon under Section 713(b). Accordingly. the district court

noted that the consent decree “and its accompanying

documents” constituted an interpretation or opinion of

the Commission. 419 F. Supp. at 1055 n.34. Here Ford

did not bargain for or receive separate opinion letters

upholding its use of height and weight restrictions

nationwide. Cf. 29 C.F.R. 1601.31. 1601.32.

Moreover, Ford disregards the critical fact that the

Toledo consent decree specifically provides that it is

applicable only to Ford’s “Toledo area plants.” As Ford

properly notes, the Toledo decree “reflects a thorough

consideration * * * [by] the U.S. Department of Justice

and [Ford] of the potential situations to which it will

apply * * *” (Pet. 15). Contrary to Ford’s argument,

therefore, the present suit, which covers only Ford's

Illinois plants, does not subject the company to potential

liability “based. on the very employment procedures

4it would be particularly anomalous. in light: of this Court's

subsequent decision in Dothard v. Rawlinson. 433 U.S. 321 (1977), it

the Toledo consent decree were deemed a Commission opinion that

the employment practices mentioned therein are categorically “in

conformance with Title VII" (Pet. 16).

7

mandated in [the] Consent Order™ (Pet. 19). Indeed,

Ford’s argument is a transparent attempt to expand the

operation of the 1971 consent decree and take advantage

of certain terms. which Ford now. considers to be

favorable, by applying those terms to its nationwide

activities, rather than to the limited local arca that was the

subject of the bargaining that led to that decree. Just as

this Court has refused to extend consent decrees bevond

their terms at the request of the government. sce. e.g.

United States v. Armour & Co... supra. the court otf

appeals properly refused to extend the Toledo consent

decree beyond its terms through the use of Section 713(b).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

“Wane H. McCrer. Jr.

Solicitor General

Leroy D. CLARK

General Counsel

JOSEPH T. EDDINS

Associate General Counsel

LuTZ ALEXANDER PRAGER

VELLA M. FINK

Attorneys

Equal Employment Opportunity Commission

JuLy 1980

‘Contrary to petitioner's assertion (Pet. 13 n.2). the decision below

does not subject petitioner to conflicting or inconsistent judgments.

This case involves two Ottawa. Hlinois plants: the 1971 consent

decree applies only to the Toledo. Ohio plants.

DOJ-1980-07