Petition — Local Union No. 84, International Brotherhood of Electrical Workers v. United States

Office-Supreme Court U.S.

FIL 2.

80-2117

Ain : 'UN 15 (908

EINER |. SFEVAS,

LERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

‘

LOCAL UNION No. 84, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, AFL-CIO,

Petitioner,

V.

UNITED STATES, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PATRICK M. SCANLON

(Counsel of Record)

JAMES B. COPPESS

ADAIR & GOLDTHWAITE, P.C.

777 West Peachtree Street, N.E.

Atlanta, Georgia 30308

(404) 876-7100

Attorneys for Petitioner

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

> 00

QUESTIONS PRESENTED

1. Whether a seniority system that has been found

to be free of any discriminatory purpose is protected by

Section 703 (h) of Title VII.

2. Whether a test for determining the bona fides of a

seniority system which focuses exclusively on discrimina-

tory effect is consistent with this Court’s decision in

Teamsters v. United States.

(i)

ii

LIST OF PARTIES

In addition to the parties named in the caption, the

following were parties to this proceeding in the Court

of Appeals: Georgia Power Company, a member of

Southern Company, a holding company vf four utilities;

Charles King and Willie Moreman, representing them-

selves and a class of all black Laborers employed at the

Atkinson-McDonough Plant of the Georgia Power Com-

pany at the time of trial.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

LIST OF PARTIES ue ii

TABLE OF AUTHORITIES .... iv

I eeamanlosienenta 1

JURISDICTION iia PIMA A Minee ee Ne 2

TT A I TI ooo n ce scnitemtinneemanegeenbnnnnnensocsen 2

STATEMENT OF THE CASE ...................200....0............. 2

Ba IED ce Licccencceinetd leit tecedhisivacececasnsinicioy ieee 2

B. Facts 5

REASONS FOR GRANTING THE WRIT .................... 8

I. THE DECISION OF THE COURT BELOW IS

IN CONFLICT WITH THE DECISION OF

THIS COURT IN TEAMSTERS v. UNITED

BO al aadicdipsinrncteesitbalpentnnlenkectnesasbstbatigniciosetied 8

II. THE FIFTH CIRCUIT’S FOUR PART TEST

FOR DETERMINING THE BONA FIDES OF

A SENIORITY SYSTEM RENDERS MEAN-

INGLESS THIS COURT’S DECISION IN

TEAMSTERS Vv. UNITED STATES ................ 12

SI sath att dncicrisieerssncicnininnincnarinensite ba

(iii)

iv

TABLE OF AUTHORITIES

Cases: Page

Carroll v. Steelworkers, 23 FEP Cases 238 (D.

BN PIED sich ciheccssiconbsariciibiaiccumskoucnmnmnetehiadaiens 18, 14, 16, 19

Franks v. Bowman Transportation Co., 424 US.

SR IE acti colas dkesbin icstetsiecibinessaiblesbiiciodinciaineredabisaiin 8

James Vv. Stockham Valves and Fittings Co., 559

ip Fai hy Re, | SR aec conn ne UEC 18, 18

King Vv. Georgia Power Co., 560 F.R.D. 134 (N.D.

|. SERANISS Sao SRR ie 1l

Local 189, Papermakers v. ‘United States, 416 F.2d

SEO CEG CER, DODD) wi peccccccccncsccccsiccsess 8, 10, 12, 18, 14, 17

Mobile v. Bolden, 446 U.S. 55 (1980) ..........0...2...2-2.. 19

Moreman V. Georgia Power Co., 310 F.Supp. 327

CRs ReMi: RIED cxcccconstsinccccconse 11

Patterson v. American Tobacco Co., 684 F.2d 744

(4th Cir. 1980) 4

Personnel Administrator of “Massachusetts Vv.

Feeney, 442 U.S. 256 (1979)................cccecccceeeseeeee 13

Swint v. Pullman-Standard, 624 F.2d 525 (5th

Cir. 1980), cert. granted, Nos. 80-1190 and 80-

1198, 49 U.S.L.W. 8788 (April 20, 1981) ........ 4, 12, 17,

18, 19

Swint v. Pullman-Standard, 17 FEP Cases 730

Oa NING RI chad kacinsdcciocemncnecshisithingnenencaniitishainhhes 15, 16, 18

Teamsters Vv. United States, 431 U.S. 324 (1977) ..passim

Terrell v. United States Pipe and Foundry Co., 644

F.2d 1112 (5th Cir. 1981) ................ . 12,18

Trans World Airlines, Inc. v. Hardison, 482 U.S.

Be I i asuremnianitedahamebaneiels 9,12

United States v. Georgia Power Co., 301 F.Supp.

I ei Mir IIIS wisese seca tondcscncsqsdncninecechinidabonasoos 11

Winfield v. St. Joe Paper Co., 20 FEP Cases 1108

ae Ie ITI posi cccphibsssidcabaonteminscaiasctabbiiieoepieas 15

Zimmer V. McKeithen, 485 F.2d 1297 (5th Cir.

1978) ......... ak 19

Statutes:

Civil Rights Act of 1964, §703(h), 42 U.S.C.

§ 2000e-2(h) passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

LOCAL UNION No. 84, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WoRKERS, AFL-CIO,

©: Petitioner,

UNITED STATES, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Local Union No. 84, International Brotherhood of

Electrical Workers, AFL-CIO, respectfully petitions for

a writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit in United

States v. Georgia Power Co., 634 F.2d 929, entered on

January 22, 1981.

OPINIONS BELOW

The decision of the district court after trial is re-

ported at 3 FEP Cases 767 (N.D. Ga. 1971), and is

reprinted in the separate Appendix hereto as App. E

(70a-128a). The first opinion of the court of appeals

is reported at 474 F.2d 906 (5th Cir. 1973), and is re-

printed as App. D (32a-69a). The order of the district

court modifying the Amended and Final Decree is re-

ported at 470 F.Supp. 649 (N.D. Ga. 1979), and is re-

printed as App. C (28a-3la). The order of the district

court denying private plaintiffs’ motion to reconsider the

modification (September 28, 1979) is reprinted as App.

B (18a-22a). The opinion of the court of appeals vacat-

ing the modification—the decision from which cert.orari

is sought—is reported at 634 F.2d 929 (5th Cir. 1981),

and is reprinted as App. A (1la-17a).

JURISDICTION

The court below entered judgment on January 22,

1981, App. F (129a). On April 2, 1981, Mr. Justice

Powell extended the time for filing this petition to and

including June 21, 1981, App. G (13la). This Court

has jurisdiction to review the judgment below under 28

U.S.C. § 1254(1).

STATUTE INVOLVED

The pertinent parts of Sections 703(a), (c) and (h)

and 706(g), Civil Rights Act of 1964, Title VII, 42

U.S.C. § 2000e-2(a), (c) and (h), and -5(g) are re-

printed in an appendix in the back of this petition.

STATEMENT OF THE CASE

A. Procedure

This case originated as three employment discrimina-

tion suits brought under Title VII of the Civil Rights

Act of 1964. Two of the suits were class actions by

private plaintiffs and one was a pattern and practice

suit by the United States. All three were consolidated

for trial. In June 1971, the district court made findings

of fact and conclusions of law following an extensive

trial. United States v. Georgia Power Co., App. E. That

decision was appealed and the court of appeals remanded

for further consideration of the testing practices used

by the Georgia Power Company and of the propriety of

awarding back pay and further seniority relief in order

to fully remedy the Company’s discrimination. App. D.

On January 31, 1974, an Amended and Final Decree

was entered. 7 EPD ] 9167.

The Amended and Final Decree was directed almost

exclusively to affirmative and monetary relief from the

Company. However, one section of the decree did affect

the seniority system by allowing affected class members

to assert Company seniority in certain instances rather

than the collectively bargained job classification seniority.

App. 4a-5a. This modification of the seniority system

was based on the theory, enunciated in Local 189, Paper-

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

that an ot?«rwise neutral seniority system violated Title

VII if it perpetuated the effects of prior discrimination.

Following this Court’s decision in Teamsters v. United

States, 481 U.S. 824 (1977), petitioner Local 84, In-

ternational Brotherhood of Electrical Workers, moved

that the 1974 decree be modified to allow full application

of the collectively bargained seniority system. The union

argued that further application of the decree’s seniority

provisions would be inequitable because they were based

on a theory of Title VII liability rejected in Teamsters.

The district court agreed with Local 84’s assessment and

ruled that part of the decree’s seniority provisions would

no longer be given prospective effect. App. 24a-27a. The

court allowed certain affected class members to continue

to assert Company seniority as a remedy for discrimina-

tion suffered at the hands of the Company. App. 27a-

28a.

The private plaintiffs appealed the district court’s mod-

ification of the decree. The court of appeals agreed with

the district court that Teamsters represented a sufficient

change in the law to warrant modification of the in-

junctive decree, relying in part on the en bane decision

‘4

of the Fourth Circuit in Patterson v. American Tobacco

Co., 684 F.2d 744 (1980). App. 6a-9a. The court of

appeals did not agree, however, that the seniority sys-

tem at Georgia Power was bona fide. Hence, it held that

the district court had abused its discretion in modifying

the decree on the basis of Teamsters. App. 17a.

The court of appeals tested the district court’s deter-

mination that the seniority system was bona fide against

Fifth Circuit precedent on the question. App. 10a. The

court of appeals reviewed the findings made by the dis-

trict court in 1971 and applied to these findings the

four-part test developed by the Fifth Circuit for de-

termining the bona fides of a seniority system. Swint

v. Pullman-Standard, 624 F.2d 525, 530-534 (5th Cir.

1980), cert. granted, Nos. 80-1190 and 80-1193, 49

U.S.L.W. 3788 (April 20, 1981). In applying this test,

the court of appeals found the following factors to be

significant :

1. while the seniority system applied equally to

all workers, it tended to discourage cross-section

transfers and to that extent had a disproportionately

adverse effect on black workers who had been as-

signed to the lowest paid sections;

2. the seniority units were not based on separate

bargaining units;

8. the seniority system originated during a period

of overt discrimination by the Company; and

4. the seniority system was based on job classi-

fications and sections, and the Company had once

had a policy of restricting black workers to the low-

est paid of these sections. App. 12a-15a.

Because it had found that all four of these factors in-

dicated the seniority system was not bona fide, the court

of appeals vacated the district court’s order modifying

the decree. App. 1la-12a.

B. Facts

The operative facts of this case are set forth in the

district court’s findings of June 30, 1971. App. E. On

appeal, these findings were affirmed, except that the court

felt further validation of the Company’ s testing require-

ments was necessary. App. D. The district court relied

upon the 1971 findings in modifying the decree, App.

C, and the court of appeals relied upon them in vacating

the modification, App. A.

The lawsuits that comprise this case encompassed every

aspect of the hiring and promotion practices at the Geor-

gia Power Company and the application of the collective

bargaining agreement between the Company and the

seven local unions, now merged into Local 84. App. 70a-

71a. Local 84 was a named party in all three of the

suits.

Plaintiffs in all three suits attempted to prove inten-

tional discrimination on the part of the union. They al-

leged that Local 84 had failed to protect the interests

of black workers in contract negotiations’ and that it had

bargained for the maintenance of a seniority system that

limited the promotion possibilities of black workers.

Prior to trial, a preliminary injunction issued modifying

the seniority system with respect to black workers hired

before July 1968. App. 7la-72a. This modification was

ordered because the system tended to perpetuate pre-

1963 discrimination. Further preliminary relief on that

basis was denied. Thus, plaintiffs had a compelling rea-

son to show intentional discrimination on the part of the

union, since relief on the basis of discriminatory impact

had been limited much more narrowly than plaintiffs

wished.

Despite plaintiffs’ attempts to show that Local 84 had

intentionally discriminated against them, the district

court found “no showing of any conscious intent.” App.

6

115a-116a. The court noted that the union had long been

integrated and that it had vigilantly represented the

interests of black workers. App. 104a. It also found

that the lines of progression provided in the seniority

system contained functionally related jobs and that the

system itself “applied equally to whites and blacks.”

App. 76a and 107a.

Although no intentional union discrimination was

shown, the seniority system was modified “under the

retrospective rationale of Local 189 United Papermakers

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

Cir. 1969).” App. 7la, and 67a, 106a, and 116a. The

seniority system was found unlawful insofar as it per-

petuated the Company’s discriminatory policies by lock-

ing black workers hired prior to July 1963 into positions

behind contemporaneously hired white workers. App.

105a-106a.

Prior to July 29, 1963, the Company had an open

policy of assigning blacks to the lowest paid jobs of

Janitor, Porter, Maid and Laborer. Black workers were

not allowed to transfer out of these jobs until the Com-

pany discontinued its segregationist policy. App. 34a-

35a. Shortly after it began allowing black workers to

transfer, the Company imposed the requirements that

anyone seeking transfer from one of the traditionally

black jobs had to possess a high school education and

pass an aptitude test. App. 79a-80a.

For promotion, seniority at Georgia Power is deter-

mined by the length of time an employee has served in

his job classification and in his department. The con-

tract’s term for department is “section.” Each section

consists of job classifications arranged in lines of pro-

gression. Vacancies are filled by the senior employee in

the same job classification as the vacancy. If no such

employee seeks the job, it is filled by the senior employee

in the next lower classification in the section. The

7

amount of time an employee has served in his section,

i.e., section seniority, is important in layoffs and recall

from layoff. If an employee transfers between sections,

he loses his seniority and starts from the beginning in

his new section. App. 76a-77a.

The jobs of Janitor, Porter, and Maid are each in

separate sections. Until 1969, the job of Laborer was in

a separate section, but in that year the Laborers were

merged into other sections. The Laborer’s position be-

came the entry level job in various lines of progression.

Those who had been Laborers prior to 1969 were allowed

to bring their seniority with them to their new sections.

App. 77a-78a.

The district court found that the seniority system

tended to perpetuate the effects of the Company’s dis-

crimination because the Company had made discrimina-

tory assignments by section. Blacks were assigned to

the lowest paid sections and kept there until 1963 as a

result of overt discrimination. Thereafter, the seniority

system made transfers costly because an employee lost

his section seniority upon transfer. In the 1971 order,

black employees hired prior to July 19, 1963, were al-

lowed to use Company rather than section seniority “to

avoid the discriminatory effect of the Company practice.”

App. 106a.

On appeal, the Fifth Circuit affirmed the findings of

the district court, except that it found the validation of

the Company’s aptitude tests to be inadequate. App. 48a.

The court of appeals agreed with the district court’s

assessment of the seniority system, but suggested that

broader relief might be necessary under the rightful

place theory, especially if further Company violations

were found. App. 66a-68a. On remand, the district

court redefined the affected classes entitled to seniority

relief to include all black workers affected by the Com-

8

pany’s unlawful hiring, testing, and educational policies.

7 EPD { 9167.

Following the Teamsters decision, the district court

restricted the affected classes to those employees entitled

to relief under Franks v. Bowman Transportation Co.,

424 U.S. 747 (1976). The decision of the court of ap-

peals vacating this modification is under consideration

here.

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE COURT BELOW IS IN

CONFLICT WITH THE DECISION OF THIS COURT

IN TEAMSTERS v. UNITED STATES

Section 703 (h) of Title VII provides,

{I]t shall not be an unlawful employment prac-

tice for an employer to apply different standards of

compensation, or different terms, conditions, or priv-

ileges of employment pursuant to a bona fide senior-

ity ... system, ... provided that such differences

are nct the result of an intention to discriminate

because of race...

42 U.S.C. § 2000e-2 (h).

In Teamsters v. United States, this Court held that Sec-

tion 703(h) protects bona fide seniority systems even if

they perpetuate the effects of prior intentional discrimi-

nation by the employer. 431 U.S. 324, 349-54 (1977).

In so holding, the Court rejected the Government’s con-

tention that a seniority system which perpetuated prior

discrimination could not be bona fide, stating that, “an

otherwise neutral, legitimate seniority system does not

become unlawful under Title VII simply because it may

perpetuate pre-Act discrimination.” 431 U.S. at 353-54.

The purpose of Section 703(h) is to protect every

seniority system, regardless of its effects, so long as it

is not a ruse intended to perpetuate employment discrim-

ination. Thus, this Court has stated, “[A]bsent a dis-

criminatory purpose, the operation of a seniority system

9

cannot be an unlawful employment practice even if the

system has some discriminatory consequences.” Trans

World Airlines, Inc. v. Hardison, 432 U.S. 63, 82 (1977).

The reason for this focus on “discriminatory purpose”

is obvious. If a seniority system has a disparate impact

on blacks and is maintained by the parties for that pur-

pose, it is a ruse to discriminate in a facially neutral

manner. Congress did not mean to allow employers and

unions to carry out intentionally discriminatory policies

through facially neutral practices; consequently, it ex-

empted such practices from Section 703(h)’s coverage

by specifying that only bona fide seniority systems are

protected and that intentional discrimination remains

unlawful even when shrouded in the provisions of a col-

lective bargaining agreement. However, it did mean to

protect “neutral, legitimate” seniority systems regard-

less of their impact. Teamsters v. United States, 431

U.S. 924, 353-54 (1977).

At trial, the district court considered the purpose and

effect of the seniority system at Georgia Power. With

respect to those black employees hired before July 29,

1963, remedial seniority credit was necessary “to avoid

the discriminatory effect of the company practice.” App.

106a. With respect to employees hired after July 29,

1963, the court found that the seniority system was not

discriminatory and applied equally to blacks and whites

alike. App. 107a. The court of appeals did not disagree

with these findings, but suggested that broader seniority

relief might be warranted if broader Company discrimi-

nation were found by the district court on remand. App.

67a.

The district court noted that the primary reason for

the union’s presence in the case was as a necessary party

under the collective bargaining agreement and that the

evidence showed that was the only reason for its pres-

ence. App. 128a. The court stated that “no showing of

10

any conscious intent has been made” with respect to the

seniority system’s discriminatory impact. App. 115a. It

made other findings that indicated the seniority system

was neutral and legitimate. The union itself was inte-

grated and represented black workers fully. App. 104a.

The lines of progression were rational. App. 76a. The

seniority system applied equally to whites and blacks.

App. 107a.

In its recent decision, the court of appeals dismisses

the significance of the district court’s finding that the

seniority system involved no “conscious intent” to dis-

criminate. App. 15a. It implies that the district court’s

statement concerning “Complaints of general discrimina-

tory patterns and practices by the Unions” does not ap-

ply to the seniority system. However, this is the rubric

under which the district court addressed whether the

union discriminated through the operation of its seniority

system. App. 78a.

The district court found that the union was a proper

party to the suits and the relief under the rationale of

Local 189, Papermakers v. United States, 416 F.2d 980

(5th Cir. 1969), because its seniority system tended to

perpetuate the Company’s prior discrimination and be-

cause its contract permitted the Company’s discrimina-

tory educational requirements. App. 116a. After this

conclusion, the court stated, “Otherwise, there is no evi-

dence of any discrimination by the defendant unions and

further relief is denied.” App. 116a. The court of ap-

peals reads this statement as applying to the allegations

that the union discriminated in handling grievances. App.

16a. That reading is too restrictive. While the statement

may be inclusive of the grievance allegations, the “fur-

ther relief” referred to is the seniority relief sought by

plaintiffs for those black workers hired after 1963. App.

106a-108a. Implicit in the district court’s denial of this

further relief in its 1971 order is the finding that the

11

seniority system had no discriminatory purpose. If it

had such a purpose, the district court would have been

compelled to grant the further relief sought by plaintiffs.

The question of discriminatory purpose was litigated

at trial. In its most recent order, the district court

noted, “the character of the collectively bargained for

seniority system was put in issue at the consolidated

trial of this action.” App. 2la. This observation is

correct.

Plaintiffs in all three of the cases consolidated for

trial attempted to prove intentional discrimination on

the part of the union. In King v. Georgia Power Co.,

the plaintiffs claimed that Local 84 contracted for the

maintenance of a seniority system that limited the pro-

motion possibilities of black workers and failed to fairly

represent black employees. 295 F.Supp. 943 (N.D. Ga.

1968). In Moreman v. Georgia Power Co., the plaintiffs

claimed that Local 84 had failed to protect their in-

terests in contract negotiations. 310 F.Supp. 327 (N.D.

Ga. 1969). Both the private plaintiffs and the govern-

ment took extensive discovery regarding the seniority

system and collective bargaining at Georgia Power.

E.g., King v. Georgia Power Co., 50 F.R.D. 134 (N.D.

Ga. 1970) ; United States v. Georgia Power Co., 301 F.

Supp. 538 (N.D. Ga. 1969).

After the district court’s ruling on preliminary relief,

plaintiffs had even greater incentive to prove purposeful

discrimination in the seniority system, because the court

indicated that it was unwilling to extend seniority relief

further on the perpetuation of past effects theory. App.

7la-72a. Plaintiffs failed to show any discrimination

on the union’s part other than that its seniority system

perpetuated the effects of Company discrimination, and

the district court refused to grant seniority relief be-

yond what it felt was warranted by that theory. App.

116a.

12

Absent purposeful discrimination, a seniority system

is protected by Section 703(h) regardless of its effects.

Trans World Airlines, Inc. v. Hardison, 482 U.S. 63,

82 (1977). That issue has been fully litigated in this

case and it was decided that there was no purposeful

discrimination. Despite the court’s finding that there

was no discriminatory purpose to the seniority system

at Georgia Power, the court of appeals concluded that

it was not bona fide and not entitled to the protection

of Section 703(h). There could be no clearer indication

that the Fifth Circuit intends to disregard the substance

of this Court’s decision in Teamsters v. United States,

431 U.S. 824 (1977).

Il. THE FIFTH CIRCUIT’S FOUR PART TEST FOR

DETERMINING THE BONA FIDES OF A SENIOR-

ITY SYSTEM RENDERS MEANINGLESS THIS

COURT’S DECISION IN TEAMSTERS v. UNITED

STAi ES

In Teamsters v. United States, 481 U.S. 324 (1977),

this Court clearly held that before a seniority system

can be deprived of protection under Section 703(h) it

must be shown to have a discriminatory purpose. T'eam-

sters rejected the theory, advanced in Local 189, Paper-

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

that a seniority system which perpetuates the effects of

prior discrimination is not protected by Section 703 (h)

regardless of its purpose. In a line now extending

through four cases, the Fifth Circuit has developed a

four part test for determining whether there has been

purposeful discrimination in connection with the estab-

lishment or continuation of a seniority system.’ As the

Fifth Circuit’s application of that test has developed,

it has become clear that the test’s purpose is to resurrect

1The fourth case is Terrell v. United States Pipe & Foundry

Co., 644 F.2d 1112 (5th Cir. 1981). Terrell relies heavily upon both

Swint and Georgia Power, 644 F.2d at 1115, 1118, and 1119.

18

the theory of Local 189 clothed in the language of the

Teamsters decision.

The four part test for purposeful discrimination was

first enunciated in James v. Stockham Valves & Fittings

Co., 559 F.2d 810 (5th Cir. 1977), cert. denied, 434 U.S.

1084 (1978). There it was described as merely four

factors deemed significant in this Court’s concrete

analysis of the seniority system under consideration in

Teamsters. 559 F.2d at 352. In James, the court was

not actually examining a seniority system to determine

its bona fides, but rather was explaining its view of

Teamsters in order to aid the district court in applying

that decision. 559 F.2d at 353.

Since James, the Fifth Circuit has actually examined

several seniority systems with respect to the four factors

noted in that decision; in so doing it has developed a

rigid four part test. In Swint v. Pullman-Standard, 624

F.2d 525 (1980), cert. granted, Nos. 80-1190 and 80-

1198, 49 U.S.L.W. 3788 (April 20, 1981), the Fifth

Cire:it firmly established that no flexibility would be

allowed in the application of this test. With its decision

in Georgia Power, App. A, the Fifth Circuit has made

clear that the effect and intent of its four part test is

to “make an ‘endrun’ around the decision in Teamsters.”

Carroll v. Steelworkers, 22 FEP Cases 238, 248, n.8 (D.

Md. 1980), (describing a remarkably similar evasion by

EEOC).

In this case, the court of appeals refused to directly

address the question of discriminatory purpose, dismiss-

ing the district court’s earlier finding on that issue,

with the comment, “A failure to show conscious intent

to discriminate does not preclude a finding of discrimina-

tory purpose.” App. 15a.? Instead, the court of appeals

2 This statement appears to be in conflict with the definition

of discriminatory purpose given by this Court in Personnel Admin-

14

found discriminatory purpose on the basis of its four

part test. The application of that test in this case shows

that it merely redefines discriminatory purpose so that

the standards enunciated in Local 189 for determining a

seniority system’s bona fides are still viable. In short, the

Fifth Circuit finds disparate impact sufficient to prove

discriminatory intent.

The first factor noted by the court of appeals in de-

termining that the Georgia Powor seniority system was

not bona fide is that it has a disparate impact on black

workers hired during the period of Company discrimina-

tion. App. 12a. The system has this impact because

it is essentially departmental in nature and the Com-

pany at one time assigned black workers exclusively to

the lowest paid departments.* There is no doubt that

the Company engaged in purposeful discrimination. How-

ever, the fact that this discrimination continued to have

istrator of Massachusetts v. Feeney, 442 U.S. 256 (1979). In

Feeney the Court stated, “ ‘Discriminatory purpose’, however, im-

plies more than intent as volition or intent as awareness of conse-

quences. It implies that the decisionmaker . . . selected or re-

affirmed a particular course of action at least in part ‘because of’,

not merely ‘in spite of’, its adverse effects upon an identifiable

group.” 442 U.S. at 279 (footnotes and citations omitted). Al-

though Feeney was not a Title VII case, its definition of dis-

criminatory purpose has been applied in determining the bona

fides of a seniority system for Section 703(h) purposes. Carroll v.

Steelworkers, 23 FEP Cases 238, 248 (D. Md. 1980), aff'd per

curiam, No. 80-1412 (4th Cir. December 30, i980).

8 The court exaggerates the disparate impact by failing to note

that many white workers were also placed in departments that

were less than the most desirable. For example, meter readers in

Section XV had no chance for advancement without transferring

to another section and thereby losing their seniority. Their maxi-

mum wage rate under the 1968 agreement was $668.00 per month,

while employees in Section XI could advance through eight job

classifications to a maximum of $984.00. Gov’t Exhibit 2, 75 and

77.

15

some effect because of the structure of the seniority sys-

tem does not establish that the seniority system had a

discriminatory purpose.

The second factor considered by the court of appeals

is that the seniority units are not each in separate bar-

gaining units. App. 18a. Because they are not in sepa-

rate bargaining units, the court of appeals did not con-

sider the district court’s findings that the seniority

units are made up of “functionally related jobs,” App.

76a, and that the system itself “is not untypical of those

negotiated through collective bargaining,” App. 27a. It

is completely irrational to attach any significance to the

fact that the seniority system at Georgia Power encom-

passes only one bargaining unit.‘ Moreover, it is con-

trary to this Court’s direction in Teamsters that depart-

mental and job seniority systems are just as entitled to

protection under Section 703(h) as company-wide sen-

iority systems. Teamsters v. United States, 431 U.S.

324, 355 n.41 (1977).

The third factor considered by the court of appeals

is that the seniority system had its genesis in a period

of overt racial discrimination by the Company. App.

18a-14a. This factor cuts both ways, however. The fact

that the Company had an open policy of allowing blacks

to work only in certain departments meant that the sen-

iority system was irrelevant to the segregationist em-

ployment patterns. Regardless of seniority, the Company

would not allow blacks to work in any other than four

sections. In fact, against this background the nondis-

4 The district courts in the Fifth Circuit have expressed difficulty

in determining the meaning of this second factor. £.g., Swint v.

Pullman-Standard, 17 FEP Cases 730, 734 (N.D. Ala. 1978);

Winjield v. St. Joe Paper Co., 20 FEP Cases 1103, 1132 (N.D. Fla.

1979). Thus far, they have apparently guessed wrong, and it is

doubtful that the direction given in Georgia Power will alleviate

the problem.

16

criminatory nature of the fully integrated union stands

out in bold relief. Judge Pointer found similar facts

to be significant in determining that the Steelworkers’

seniority system did not have a discriminatory purpose.

Swint v. Pullman-Standard, 17 FEP Cases 730, 737-38

(N.D. Ala. 1978); accord, Carroll v. Steelworkers, 23

FEP Cases 288, 245-46 (D. Md. 1980), aff'd per curiam,

No. 80-1412 (4th Cir. December 30, 1980). Local 84

submits that Judge Pointer’s method of analysis is much

closer to the spirit of the Teamsters decision than the

method followed by the Fifth Circuit in Swint and

Georgia Power.

Finally, the court of appeals concluded that the sen-

iority system was not negotiated and maintained free

from any discriminatory purpose because it “tracked and

reinforced the purposefully segregated job classification

scheme maintained by the company.” App. 14a. The

court reached this conclusion because blacks were at one

time assigned to the sections with the lowest paid jobs

and the seniority system was such that transfer from

these sections, when the Company finally allowed such

transfers, resulted in a loss of section seniority.° To say

5Three of the four black job classifications were essentially

maintenance jobs—Janitor, Porter, and Maid. These jobs are

functionally unrelated to any other jobs and remained in separate

sections following entry of the Amended and Final Decree. The

other predominantly black job classification was Laborer. In 1969,

Laborers were merged into other sections according to the func-

tional relationship between the Laborer’s job and the jobs in

each section. The court of appeals suggests that this change was

made to benefit white workers hired as Laborers. App. 14a. How-

ever, the changes were of much greater benefit to black workers

as they continued to make up the bulk of employees in that classifica-

tion and tended to have more seniority in that section than white

workers. App. 82a-85a. Merging these workers into previously

ali white sections was detrimental to a number of white workers

because they suddenly had to compete with more senior black

workers who had not previously been in their seniority unit. A

17

that the seniority system “tracked and reinforced” the

Company’s discrimination is to say nothing more than

that it tended to perpetuate the effects of that discrimina-

tion. Whenever a seniority system perpetuates prior dis-

crimination there must be some relationship between

the system and the form of discrimination, otherwise the

system could not perpetuate the effects of the discrimina-

tion. By the court of appeals’ reasoning, if a depart-

mental seniority system has a disparate impact on a

particular racial group because the employer has as-

signed members of that group to the least desirable de-

partments, the departmental seniority system is per se

unlawful. That reasoning is contrary to Teamsters.

Taken by themselves or in aggregate, the four factors

considered by the court of appeals show nothing more

than that the seniority system had an adverse impact

on certain black workers because the Company had a

policy of assigning blacks to the least desirable sections

and not allowing them to transfer out. Yet based on this

disparate impact alone, the court of appeals found dis-

criminatory purpose and denied the protection of Sec-

tion 703 (h) to the seniority system.

The effects of this method of analysis will not be con-

fined to the seniority system at Georgia Power. The

Georgia Power decision has already become ensconced,

along with Swint, in the line of Fifth Circuit precedent

on the question of discriminatory purpose. Thus, in a

recent decision the Fifth Circuit has stated,

more logical explanation for that change is that faced with these

lawsuits, the Company and the union tried to minimize any ad-

verse impact that the seniority system had on blacks in order to

limit liability under Local 189. The Laborers could be merged

into other sections because their jobs were functionally related to

the jobs in those sections. The Janitors, Porters and Maids could

not be merged into other sections because their jobs were unre-

lated to any other jobs.

18

We have since [James] held that disparate impact

constitutes not only relevant evidence of discrimina-

tory purpose, Swint, but can conclusively resolve the

“equality” factor in favor of those who have suf-

fered such discrimination. See Georgia Power.

Terrell v. United States Pipe & Foundry Co., 644

F.2d 1112, 1119 (1981).

Even in the more concrete form described in James v.

Stockham Valves, this four part test has created confu-

sion among the district courts of the Fifth Circuit. It

now threatens to give these courts serious misdirection in

applying Section 703(h). Prior to the recent trilogy of

Swint, Georgia Power, and Terrell, Judge Stafford of

the Northern District of Florida expressed misgivings

about the Fifth Circuit’s direction:

It does not appear from Teamsters itself that the

Supreme Court intended to fashion a rigid test from

these four criteria. Rather, these were matters used

to bolster the Court’s conclusion in that case. Swint

v. Pullman-Standard, 17 FEP Cases 730, 734 (N.D.

Ala. 1978). Considerable difficulty is entailed by

attempting to apply the four factors to every case,

no matter how dissimilar to the factual circum-

stances in Teamsters. This court is obliged to fol-

low the lead of the Fifth Circuit, however.

Winfield v. St. Joe Paper Co., 20 FEP Cases 1103,

1131 (N.D. Fla. 1979).

Judge Pointer of the Northern District of Alabama has

made two praiseworthy attempts to salvage the spirit

of the Teamsters decision while following the Fifth Cir-

cuit’s four point formula, both times he has been re-

versed. Swint v. Pullman-Standard, 17 FEP Cases 730

(N.D. Ala. 1978), rev’d 624 F.2d 525 (5th Cir. 1980),

cert. granted, Nos. 80-1190 and 80-1193, 49 U.S.L.W.

3788 (April 20, 1981) ; Terrell v. United States Pipe and

19

Foundry Co., 22 FEP Cases 1695 (N.D. Ala. 1979),

rev'd 644 F.2d 1112 (5th Cir. 1981).°

In this case, Judge Murphy simply relied on previous

findings that there was no intent to discriminate in the

seniority system at Georgia Power. That issue had been

litigated earlier in trial, and it was decided that the

seniority system was free of any discriminatory purpose.

The court of appeals ignored the findings on this ques-

tion and applied its four part analysis to find discrimina-

tory purpose based on the effects of the system. Of the

four Fifth Circuit decisions developing this analysis,

Georgia Power gives the clearest indication that the Fifth

Circuit intends to apply its four part test to find dis-

criminatory purpose and liability under Teamsters in

every instance where it would have previously found dis-

criminatory impact and liability under Local 189.

The Fifth Circuit’s test for determining the bona fides

of a seniority system is similar in form and substance

to the “Zimmer criteria” applied by the Fifth Circuit in

equal protection cases. Zimmer v. McKeithen, 485 F.2d

1297, 1305 (1978), aff'd on other grounds sub nom.,

East Carroll Parish School Board vy. Marshall, 424 U.S.

636 (1976). The Fifth Circuit continued to apply this

test which focused on discriminatory effect even after this

Court held that it is necessary to show discriminatory

purpose to prove a violation of the Equal Protection

Clause. Mobile v. Bolden, 466 U.S. 55, 71 (1980). Just

as it was necessary for this Court to explain that an

abstract test focusing on effect was insufficient to estab-

* Judge Pointer’s decision in Swint was followed in Carroll v.

Steelworkers, 23 FEP Cases 288 (D. Md. 1980). Judge Miller’s

opinion in Carroll is another example of how district courts should

apply Teamsters. His decision was affirmed by the Fourth Circuit

in a per curiam decision “for the reasons assigned by the district

court.” No. 80-1412 (December 30, 1980). Judge Miller would

almost certainly have been reversed by the Fifth Circuit applying

its Swint test.

lish discriminatory purpose in equal protection cases, it

is now necessary that the Court explain that a similar

test will not establish discriminatory purpose in Title

VII cases.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

PATRICK M. SCANLON

(Counsel of Record)

JAMES B. CoPpPEss

Apair & GOLDTHWAITE, P.C.

777 West Peachtree Street, N.E.

Atlanta, Georgia 303808

(404) 876-7100

Attorneys for Petitioner

APPENDIX

la

APPENDIX

STATUTE INVOLVED

Section 708(a), Civil Rights Act of 1964, Title VII,

42 U.S.C. § 2000e-2(a) provides as follows:

(a) It shall be an unlawful employment practice

for an employer—

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

pm any individual with respect to his com-

pensation, terms, conditions, or privileges of

employment, because of such individual’s race,

color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his em-

ployees or applicants for employment in any

way which would deprive or tend to deprive any

individual of employment opportunities or other-

wise adversely affect his status as an employee,

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

sex, or national origin.

Section 708(c), Civil Rights Act of 1964, Title VII,

42 U.S.C. § 2000e-2(c) provides as follows:

(c) It shall be an unlawful employment practice

for a labor organization—

(1) to exclude or to expel from its member-

ship, or otherwise to discriminate against, any

individual because of his race, color, religion,

sex, or national origin;

(2) to limit, segregate, or classify its mem-

bership or applicants for membership, or to

classify or fail or refuse to refer for employ-

ment any individual, in any way which would

deprive or tend to deprive any individual of em-

2a

ployment opportunities, or would limit such em-

ployment opportunities or otherwise adversely

affect his status as an employee or as an appli-

cant for employment, because of such individ-

ual’s race, color, religion, sex, or national origin;

or

(3) to cause or attempt to cause an employer

to discriminate against an individual in viola-

tion of this section.

Section 703 (h), Civil Rights Act of 1964, Title VII, 42

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

(h) Notwithstanding any other provision of this

subchapter, it shall not be an unlawful employment

practice for an employer to apply different standards

of compensation, or different terms, conditions, or

privileges of employment pursuant to a bona fide

seniority or merit system, or a system which meas-

ures earnings by quantity or quality of production

or to employees who work in different locations, pro-

vided that such differences are not the result of an

intention to discriminate because of race, color, re-

ligion, sex, or national origin, .. .

Section 706(g), Civil Rights Act of 1964, Title VII, 42

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

(g) If the court finds that the respondent has

intentionally engaged in or is intentionally engaging

in an unlawful employment practice charged in the

complaint, the court may enjoin the respondent from

engaging in such unlawful employment practice, and

order such affirmative action as may be appropriate,

which may include, but is not limited to, reinstate-

ment or hiring of employees, with or without back

pay (payable by the employer, employment agency,

or labor organization, as the case may be, responsi-

ble for the unlawful employment practice), or any

other equitable relief as the court deems appropriate.

Back pay liability shall not accrue from a date more

than two years prior to the filing of a charge with

the Commission. Interim earnings or amounts earn-

able with reasonable diligence by the persons or per-

sons discriminated against shall operate to reduce

the back pay otherwise allowable. No order of the

court shall require the admission or reinstatement of

an individual as a member of a union, or the hiring,

reinstatement, or promotion of an individual as an

employee, or the payment to him of any back pay, if

such individual was refused admission, suspended, or

expelled, or was refused employment or advancement

or was suspended or discharged for any reason other

than discrimination on account of race, color, re-

ligion, sex, or national origin or i.. violation of sec-

tion 2000e-3(a) of this title.