Petition — JOHN W. W. MARTIN v. PERSONNEL BOARD OF JEFFERSON COUNTY (Nos. 80-614, 80-406)

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No. ————— ICT 15 1980

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

JOHN W. MARTIN et al.,

. Petitioners,

THE PERSONNEL BOARD OF JEFFERSON COUNTY,

ALABAMA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

CROSS-PETITION FOR WRIT OF CERTIORARI

OF JOHN W. MARTIN ET AL.

RICHARD M. SHARP

WILLIAM R. GALEOTA

SHEA & GARDNER

1800 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 828-2000

Counsel of Record for

John W. Martin et al.

Of Counsel:

WILLIAM L. ROBINSON

RICHARD T. SEYMOUR

National Lawyers’ Committee

for Civil Rights Under Law

733 Fifteenth Street, N.W.

Suite 520

Washington, D.C. 20005

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the court of appeals erred in holding that

so long as the Personnel Board of Jefferson County was

attempting to validate its employment tests for police

officers and firefighters, the Board’s “provisional use” of

those tests was protected against liability under Section

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

even though the tests were not ultimately validated by

the Board.

(i)

TABLE OF CONTENTS

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STATUTE AND REGULATIONS INVOLVED ...........

STATEMENT OF THE CASE ....................0-..2.---00--00-+-

REASONS FOR GRANTING THE WRIT ....................

I. THE DECISION BELOW, IN REFUSING TO

II.

Il.

FOLLOW THE EEOC’S REGULATION, CON-

FLICTS WITH DECISIONS OF THE

FOURTH AND SEVENTH CIRCUITS AND

WITH A PRIOR DECISION OF THE FIFTH

a Nas ccuhisenpmnniomatnceaenin

THE DECISION BELOW, INSOFAR AS IT

CONSTRUES § 713(b) TO BAR A CLAIM FOR

INJUNCTIVE RELIEF, CONFLICTS WITH

8g Be ty A

THE DECISION BELOW DENIES VICTIMS

OF EMPLOYMENT DISCRIMINATION THE

FULL RELIEF MANDATED BY THIS

COURT’S DECISIONS IN GRIGGS AND

Bie emee PAPER ............-...-..220..:02tcccsecsss.-

Neen hn idensrvosoneavmicnctistvsbinienerevssterenasde

(iii)

PRECEDING PAGE WAS BLANK

TABLE OF AUTHORITIES

Cases: Page

Albemarle Paper Co.. Vv. Moody, 422 U.S. 405

CRIED - icuclitlcrcracitenteteemntdeamhien el eminnaditadoe 10, 12, 13

Griggs V. Duke Power Co., 401 U.S. 424 (1971).... 12, 18

Local 189, United Papermakers vy. United States,

416 F.2d 980 (6th Cir. 19660)............................... 9

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

Cir.), cert. dismissed, 404 U.S. 1006 (1971)...... 9

Rosenfeld v. Southern Pacific Company, 444 F.2d

SED BU a heart ceeeccnsccchinsohehcetiee 11

Rosenfeld v. Southern Pacific Company, 519 F.2d

re Core St I hie. ccnsaccscctaccentanbaienincceinannet 11

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

(7th Cir.), cert. denied, 404 U.S. 991 (1971)... 9

Statutory Provisions:

98 US. CIRO? oskieiekicewee 2

Civil Rights Act of 1964, as amended by Equal

Employment Opportunity Act of 1972, 42 U.S.C.

i | Ry Re ere ere passim

Regulations and Guidelines:

Department of Justice Guidelines on Employee

Selection Procedures, 28 C.F.R. § 50.14 (1976).. 11

COO ccc car) cconnen 10.

Equal Employment Opportunity Commission

Guidelines on Employee Selection Procedures,

SS Ge Se etic passim

Equal Employment Opportunity Commission

Procedural Regulations, 29 C.F.R. § 1601 (1979)

Oe isk rcdeciceccncincse pes tasadeoeatattaeieaaetabaies 3,8

Uniform Guidelines on Employee Selection Pro-

cedures, 29 C.F.R. § 1607 (1979) ........................ 11

IN THE

Supreme Cot of the United States

OCTOBER TERM, 1980

No.

JOHN W. MARTIN et al.,

Petitioners,

Vv.

THE PERSONNEL BOARD OF JEFFERSON COUNTY,

ALABAMA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

CROSS-PETITION FOR WRIT OF CERTIORARI

OF JOHN W. MARTIN ET AL.

Cross-petitioners pray that a writ of certiorari issue

to review the judgment of the United States Court of

Appeals for the Fifth Circuit entered in this case on

May 8, 1980."

1The parties to the proceeding in the court of appeals were

The Personnel Board of Jefferson County, Alabama, the United

States of America, and John W. Martin, Major Florence, Ida

McGruder, Wanda Thomas, Eugene Thomas, and Charles Howard.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 616 F.2d 812. The

opinion of the United States District Court for the

Northern District of Alabama is unofficially reported at

14 FEP Cases 670. The opinions and orders of these

courts are also reproduced in Appendices A through D

of the Appendix to the Petition for Writ of Certiorari

of the Personnel Board of Jefferson County, Alabama

(No. 80-406, docketed September 13, 1980), which is

incorporated here by reference.

JURISDICTION

This conditional cross-petition is filed pursuant to Su-

preme Court Rule 19.5. Cross-petitioners received the

Petition for Writ of Certiorari of the Personnel Board

of Jefferson County, Alabama on September 15, 1980.

This cross-petition seeks review of the judgment of

the court of appeals entered on May 8, 1980. The timely

petition for rehearing of John W. Martin et al. was

denied by the court of appeals on June 16, 1980.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTE AND REGULATIONS INVOLVED

This petition involves the construction of the follow-

ing statutory provision and regulations:

Section 713(b) of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-12 (1976) :

“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, or (2) the failure of such person to publish

and file any information required by any provision

of this subchapter if he pleads and proves that he

failed to publish and file such information in good

faith, in conformity with the instructions of the

Commission issued under this subchapter regarding

the filing of such information. Such a defense, if

established, shall be a bar to the action or pro-

ceeding, notwithstanding that (A) after such act or

omission, such interpretation or opinion is modified or

rescinded or is determined by judicial authority to

be invalid or of no legal effect, or (B) after pub-

lishing or filing the description and annual reports,

such publication or filing is determined by judicial

authority not to be in conformity with the require-

ments of this subchapter.”

Section 1601.33 of the EEOC Procedural Regulations,

29 C.F.R. § 1601.33 (1979) :

“Only the following may be relied upon as a ‘writ-

ten interpretation or opinion of the Commission’

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,

(b) Matter published and specifically designated

as such in the FEDERAL REGISTER, including the

Commission’s Guidelines on Affirmative Action, or

cause, issued under the circumstances described in

§ 1608.10 (a) or (b) of the Commission’s Guide-

lines on Affirmative Action 29 CFR Part 1608, when

such determination contains a statement that it is

a ‘written interpretation or opinion of the Com-

mission,’ ”’

Section 1607.9 of EEOC Guidelines on Employee Selec-

tion Procedures, 29 C.F.R. § 1607.9 (1977) :

“Under certain conditions, a person may be permitted

to continue the use of a test which is not at the

moment fully supported by the required evidence of

validity. If, for example, determination of criterion-

related validity in a specific setting is practicable

and required but not yet obtained, the use of the

test may continue: Provided: (a) The person can

cite substantial evidence of validity as described in

§ 1607.7(a) and (b); and (b) he has in progress

validation procedures which are designed to pro-

duce, within a reasonable time, the additional data

required. It is expected also that the person may

have to alter or suspend test cutoff scores so that

score ranges broad enough to permit the identification

of criterion-related validity will be obtained.”

STATEMENT OF THE CASE

The issue presented in this cross-petition involves the

scope of injunctive relief granted below to cross-

petitioners, who are plaintiffs in one of four actions

consolidated in the U.S. District Court for the Northern

District of Alabama. The four actions challenged em-

ployment and promotion practices of various local gov-

ernments and agencies in the Birmingham, Alabama area.

The Personnel Board of Jefferson County, Alabama (the

“Board’”’), which screens and ranks applicants for em-

ployment and certifies eligible candidates to the local

governments and agencies, is a defendant in all four

actions.

The district court found that the Board’s use of stand-

ardized employment tests to screen and rank applicants

for police officers’ and firefighters’ positions violated Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

because the tests, which had a massive adverse impact on

black applicants for employment, were not demonstrably

job-related (A 31-55).? Having found that the Board’s

use of these tests violated Title VII, the district court un-

dertook to “determine when the requirements of law

were violated and what relief is appropriate therefore”

(A-55). It noted that Title VII had applied to the Board

since March, 1972.° At that point, the Board had con-

ducted “a preliminary in-house validity study” which

contained some “indication of appropriate validity based

upon relationship with existing criterion measures” (A-

55). The court noted that the Board had then hired in-

dependent consultants to perform “an in-depth inde-

pendent validity study” and the “preliminary reports

from the consultants, made while more trustworthy meas-

ures of job performance were being developed, contained

signs of potential validity and recommended use of the

tests pending the additional studies” (A-55-56). The

court held that the Board’s violation of Title VII did not

begin until the results of the independent validity studies

(which the court had found insufficient to allow use of

the tests under Title VII) were reported to the Board:

“Not until April 25, 1975, with respect to the 10-C,

and July 8, 1976, with respect to the 20-B, were the

studies using these new criterion measures com-

pleted and reported to the Board. It was on these

respective dates that, in the court’s opinion, it

should have been concluded that provisional use of

the tests was no longer permissible. Prior thereto,

2 Citation is to the Appendix that accompanies the Board’s petition

for certiorari in No. 80-406. The facts pertinent to the district

court’s ruling that the Board violated Title VII are set forth in

the Brief of Respondents John W. Martin et al. in Opposition to

Petition for Writ of Certiorari, which we have today separately

filed with this Court.

8’ The Equal Employment Opportunity Act of 1972, § 2, 86 Stat.

103, amended § 701\a) of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e(a), to include government agencies such as the Board

within the Act’s definition of “employer.”

“

‘

the Board was, in the court’s opinion, justified in

continuing to use the tests (and the eligibility lists

generated therefrom) in anticipation of favorable

results from those studies. Use of the tests (or of

the eligibility lists therefrom) was thereafter, how-

ever, contrary to the requirements of Title VII, which

overrides state law inconsistent therewith.” (A-56).

The district court set hiring goals and timetables based

on its view that the Board did not violate Title VII until

April 25, 1975, in the case of the 10-C examination, and

July 8, 1976, in the case of the 20-B examination. Es-

sentially, the district court ordered the Board to revise

eligibility lists so that black applicants would be repre-

sented on the lists in proportions equal to the percentages

of black and white candidates tested since those dates (A-

56-57). This resulted in significantly fewer black appli-

ecants being placed on the eligibility lists than would

have been the case if the district court had extended re-

lief to all black applicants injured by use of the tests

since Title VII became applicable to the Board in March,

1972.

Plaintiffs cross-appealed from the district court’s order

and argued on appeal that the order failed to provide full

injunctive relief from the effects of employment dis-

crimination. The Board argued on appeal only that the

limitation on relief was a justified exercise of equitable

discretion by the district court.‘ Without the benefit of

briefs or argument, the court of appeals held that § 713

(b) of Title VII, 42 U.S.C. § 2000e-12, would provide the

Board with a defense against injunctive or backpay

liability for the period when it was attempting to validate

4The Board’s brief on appeal did not suggest that § 713(b) of

Title VII, 42 U.S.C. § 2000e-12, afforded it a defense against

liability for the period while it was attempting to validate the

tests. Brief of Defendant-Appellant and Cross Appellee at 57-61.

the examinations, if the Board could prove that the con-

ditions of § 1607.9 of the EEOC Guidelines on Employee

Selection Procedures. 29 C.F.R. § 1607.9 (1977) had been

met during this period (A-25-26).

The court of appeals noted that § 713(b) provides an

employer with a defense against Title VII liability “if

he pleads and proves that the act or omission complained

of was in good faith, in conformity with, and in reli-

ance on any written interpretation or opinion of the

[EEOC].” (A-25-26). It also noted that § 1607.9 of the

EEOC Guidelines on Employee Selection Procedures pro-

vides that an employer “may be permitted to continue

the use of a test which is not at the moment fully sup-

ported by the required evidence of validity” if he shows

that other studies have validated the test and if he has

in progress his own validation studies designed to vali-

date the test within a reasonable time. The court of

appeals reasoned that:

“The natural reading of EEOC Guideline § 1607.9

(as it was in effect at all times relevant to this

proceeding), especially when read in light of Title

VII, § 713(b), is that an employer will be immune

from liability during the period of permissible pro-

visional use of an unvalidated test. Section 713(b)

of Title VII provides a defense to an employer who

complies with, and relies in good faith upon, EEOC

Guidelines, such as § 1607.9.” (A-26; footnotes

omitted. )

Since the district court had not determined whether the

Board had met the requirements of § 1607.9 and of

§ 713(b), the court of appeals remanded the action for

such a determination.

In a timely petition for rehearing, John W. Martin

et al. pointed out that the EEOC had, by regulation,®

5 This regulation was originally promulgated at 30 Fed. Reg.

8409 (1965) in a text that does not differ materially from its

current text.

defined what constituted a “written interpretation or

opinion of the [EEOC]” providing an employer with a

defense under § 713(b) and that § 1607.9 of the Guide-

lines did not qualify as such under the regulation. The

court of appeals denied the petition for rehearing.

REASONS FOR GRANTING THE WRIT

I, THE DECISION BELOW, IN REFUSING TO FOL-

LOW THE EEOC’S REGULATION, CONFLICTS

WITH DECISIONS OF THE FOURTH AND

SEVENTH CIRCUITS AND WITH A PRIOR DE-

CISION OF THE FIFTH CIRCUIT.

As the court of appeals noted, § 713(b) provides an

employer with a defense against Title VII liability only

if he proves that he acted, inter alia, in reliance on a

“written interpretation or opinion of the Commission.”

The EEOC has defined by regulation what falls within

this category:

“Only the following may be relied upon as a ‘writ-

ten interpretation or opinion of the Commission’

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 Commis-

sion, or

(b) Matter published and specifically designated

as such in the FEDERAL REGISTER, including the

Commission’s Guidelines on Affirmative Action, or

able cause, issued under the circumstances described

in § 1608.10(a) or (b) of the Commission’s Guide-

lines on Affirmative Action 29 CFR Part 1608, when

such determination contains a statement that it is a

‘written interpretation or opinion of the Commis-

sion.’” 29 C.F.R. § 1601.33 (1979) (Emphasis add-

ed).

Section 1607.9 of the EEOC Guidelines, on which the

court of appeals relied, is obviously not an “opinion

letter” signed by the EEOC general counsel or an EEOC

“determination of no reasonable cause,” and it was never

designated in the Federal Register as a “written inter-

pretation or opinion of the Commission.” Thus, the ef-

fect of the decision of the court of appeals is to nullify

the EEOC regulation defining “written interpretation or

opinion” of the Commission.

The court’s refusal to follow the EEOC regulation de-

fining “written interpretation or opinion” stands in con-

flict with decisions of other circuits that have upheld

and applied this regulation so as to avoid confusion over

what materials might provide employers with a defense

based on Section 713(b). Thus, the Fourth Circuit in

Robinson v. Lorillard Corp., 444 F.2d 791, 801 (4th

Cir.), cert. dismissed, 404 U.S. 1006 (1971) upheld and

applied this regulation as “an eminently reasonable one

. . . [which] insures that the only Commission interpre-

tations and opinions that will be given binding effect are

those based either upon a solid factual foundation or

upon the most thorough consideration of the potential

factual situations to which the rule might apply.” So

too, the Seventh Circuit in Sprogis v. United Air Lines,

Inc., 444 F.2d 1194, 1200 (7th Cir.), cert. denied, 404

U.S. 991 (1971) upheld and applied the regulation as

ene that “reasonably confines reliance justified under

Section 713(b) to consider official expressions of opinion

taking two specifically defined forms.” Indeed, until

the decision below, the Fifth Circuit itself upheld and

applied the regulation since, as stated in Local 189,

United Papermakers v. United States, 416 F.2d 980, 997

(5th Cir. 1969), “[a] broader reading might bind the

Commission to informal or unapproved opinions volun-

teered by members of its staff.”

The practical importance of the Fifth Circuit’s sud-

den departure from the settled acceptance of this EEOC

regulation should not be underestimated. It gives § 713

(b) a broad and uncertain scope, and it invites defen-

dants to rely on a wide variety of materials purportedly

constituting a “written interpretation or opinion of the

Commission.” * The Commission’s regulation defining this

phrase was intended to remove just such uncertainty

and to give litigants a clear understanding of their

rights and liabilities under Title VII.

Moreover, the Fifth Circuit has departed from the set-

tled construction of § 713(b) in a case where EEOC did

not intend to provide employers with a defense to a Title

VII action by private plaintiffs. Nothing in the text of

§ 1607.9 of the EEOC Guidelines suggests that it was in-

tended to be anything more than an exercise of prosecu-

torial discretion under which EEOC would refrain from

instituting suit pending the outcome of ongoing validation

studies. The text of this guideline does not suggest

that, if the validation studies do not establish job re-

latedness, then the employer is nevertheless relieved of

all liability to those injured by his use of racially dis-

criminatory tests during the validation effort. Indeed,

the more recent guidelines concerning employee selection

procedures under Title VII make explicit what is im-

plicit in § 1607.9 itself: When tests are not ultimately

validated, the employer must bear the liability for use

of the tests during the period when validation studies

were in progress.’

6 As this Court noted in Albemarle Paper Co. vy. Moody, 422 U.S.

405, 423 n.17 (1975), §713(b) embodies a “legislative choice to

recognize only a narrowly defined ‘good faith’ defense” to Title VII

liability. The decision below, in nullifying the EEOC regulation

defining the scope of the §713(b) defense, runs contrary to this

legislative choice.

7The Justice Department’s Guidelines on Employee Selection

Procedures provide in § 5h that “[i]f the additional studies do not

II. THE DECISION BELOW, INSOFAR AS IT CON-

STRUES §713(b) TO BAR A CLAIM FOR INJUNC-

TIVE RELIEF, CONFLICTS WITH THE NINTH

CIRCUIT.

The decision of the court of appeals in this case holds

that even injunctive relief, the only relief granted thus

far in this action, is not available in circumstances where

§ 713(b) provides the employer with a defense against

“liability or punishment.” In so holding, the court of

appeals stands in conflict with the Ninth Circuit. In

Rosenfeld v. Southern Pacific Company, 444 F.2d 1219

(9th Cir. 1971) that court held that § 713(b) was rele-

vant only to a claim for damages. This holding was

reaffirmed in a subsequent appeal in the same action,

where the court stated that “under section 713(b), good

faith reliance is relevant only to liability for back pay

or other damages, and does not bar declaratory or in-

junctive relief.” Rosenfeld v. Southern Pacific Company,

519 F.2d 527, 529 (9th Cir. 1975).

Ill. THE DECISION BELOW DENIES VICTIMS OF

EMPLOYMENT DISCRIMINATION THE FULL

RELIEF MANDATED BY THIS COURT’S DECTI-

SIONS IN GRIGGS AND ALBEMARLE PAPER.

Under the court of appeals’ erroneous construction of

§ 713(b) and the EEOC Guidelines, persons who suffer

the effects of racially discriminatory tests, or other em-

produce the data required to demonstrate validity, the user is not

relieved of or protected against any obligations arising under

federal law.” 28 C.F.R. § 50.14 (1976); A-145. These guidelines,

as well as those of the EEOC, were replaced by the Uniform Guide-

lines on Employee Selection Procedures, which provide that “[i]f

the study does not demonstrate validity, this provision of these

guidelines for interim use shall not constitute a defense in any

action, nor shall it relieve the user of any obligation arising under

Federal law.” 29 C.F.R. § 1607.5J (1979); A-93.

ployee selection devices violative of Title VII, during a

‘period when an employer is attempting to validate the

tests or devices will be denied all relief for the discrim-

ination they suffered. Such a result undercuts the basic

purpose of Title VII which, as this Court noted in

Griggs v. Duke Power Co., 401 U.S. 424, 482 (1971), is

not merely to prohibit intentional employment discrimina-

tion but also to prohibit “employment procedures or test-

ing mechanisms that operate as ‘built-in headwinds’ for

minority groups and are unrelated to measuring job ca-

pability.”

This Court made clear in Albemarle Paper Co. v.

Moody, supra, that the remedies granted to Title VII

plaintiffs “must . . . be measured against the purposes

which inform Title VII,” which include “mak[ing] per-

sons whole for injuries suffered on account of unlawful

employment discrimination.” 422 U.S. at 417, 418. This

Court therefore held in Albemarle that the backpay remedy

“should be denied only for reasons which, if applied gen-

erally, would not frustrate the statutory purposes of

eradicating discrimination throughout the economy and

making persons whole for injuries suffered through past

discrimination.” Id. at 421.

The court of appeals’ creation of an exemption from

liability based on the “provisional use” provision of

§ 1607.9 of the EEOC Guidelines plainly frustrates the

mandate of Griggs and Albemarle. It denies injunctive

relief, as well as damages, to persons injured by the

“provisional use” of tests later shown to violate Title VII.

Such an exemption creates an anemalous gap in Title VII

remedies since, from the standpuine of the victim of test-

ing, it matters not whether he or she was tested (a) while

the employer was carrying on studies that it hoped would

validate the examination, or (b) after the employer’s

studies had failed to validate the examination. In either

case, the victim is denied employment opportunities on the

basis’ of a test that the employer has not shown to be job-

related; and, in either case, this Court’s decisions in

Griggs and Albemarle require that the victim be made

whole.

CONCLUSION

If the petition for certiorari in No. 80-406 is granted,

this cross-petition also should be granted.

Respectfully submitted,