Petition — Costa v. Markey

g 3 ae 9 9 5 l FILED Vad

AUG 22 1983 ©

ALEXANDER L. STEVAS,

No.

° CLERK

—

In the

Supreme Court of the United States.

OctosBer TERM, 1983.

LYNDA LEBOEUF COSTA,

PETITIONER,

v.

JOHN A. MARKEY, er AL.,

RESPONDENT.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the First Circuit.

Tuomas F. McKENNa,

Counsel of Record

Ten Tremont Street,

Government Center,

Boston, Massachusetts 02108.

(617) 523-5200

On the Petition:

RoBERT M. SOLOMON.

BATEMAN & SLADE, INC.

Question Presented.

Whether, pursuant to a Title VII action under disparate im-

pact analysis, a female plaintiff who has been denied appoint-

ment by an employment requirement that classifies far more

women than men as ineligible for an employment position

which is open to both men and women is prevented from

establishing a prima facie case of discrimination because in a

particular round of the hiring process the applicant pool con-

tained only women.

List of Parties.

The plaintiff was identified in the complaint as “Lynda L.

LeBoeuf (Costa).” The named defendants were: “John A.

Markey, in his capacity as Mayor of the City of New Bedford;

Joseph A. Pelletier, in his capacity as Chief of Police in the City

of New Bedford; Rosalind Pool Brooker, Brian Lawler, Dor.aid

R. Perry, George Rogers, William Saltzman, Paul G. Hamel,

Richard Bachand, David R. Nelson, Richard W. Hinkley,

Manuel F. Neto, Ralph J. Saulnier, in their capacity as City

Councillors for the City of New Bedford; Nancy Beecher,

Wayne A. Budd, Richard J. Healey, Richard Linden, John

Donegan, in their capacity as Commissioners on the Massachu-

setts Civil Service Commission; Ann Ramsey, in her capacity as

Acting Personnel Administrator in the Massachusetts Executive

Office for Administration and Finance.”

Only those defendants who are officials of the City of New

Bedford are represented in this petition.

Table of Contents.

Opinions below

Jurisdiction

Statute involved

Statement of the case

owns No

Reasons for granting the writ

I. Plaintiff established a prima facie case of disparate

impact discrimination by making an undisputed

showing that New Bedford’s use of the height re-

quirement excluded far more women than men

from the opportunity to become police officers 8

II. The Court of Appeals’ decision in Costa III con-

flicts with this court’s holding in Connecticut v.

Teal by holding that the “bottom line” results of

New Bedford’s hiring process prevents the plaintiff

from establishing a prima facie case of discrimina-

tion 10

III. The majority opinion in Costa II] mistakenly

distinguishes Costa and Teal 12

Conclusion 17

Table of Authorities Cited.

CASES.

Costa v. Markey, 672 F.2d 158 (1st Cir. 1982) 2,6,7

Costa v. Markey, 694 F.2d 876 (1st Cir. 1982) 2, 6,

8, 15, 16

Costa v. Markey, 706 F.2d 1 (1st Cir. 1983) a 7,

12, 15, et seq.

ii TABLE OF AUTHORITIES CITED.

County of Washington v. Gunther, 452 U.S. 161 (1981) 17

Dothord v. Rawlinson, 433 U.S. 321 (1977) 10

Equal Employment Opportunity Commission v. Grey-

hoyind Lines, 365 F.2d 188 (3d Cir. 1980) )

Furnco Construction Corp. v. Waters, 438 U.S. 567

(1978) 1]

Gerdom v. Continental Airlines, 692 F.2d 602 (9th

Cir. 1982) 16, 17

Griggs v. Duke Power Co., 401 U.S. 424 (1971) 9

International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) 9

LeBoeuf v. Ramsey, 503 F. Supp. 747 (D. Mass. }980) ]

Los Angeles Dept. of Water & Power v. Manhart, 435

U.S. 702 (1978) 13

Smith v. United Brotherhood of Carpenters, 685 F.2d

164 (6th Cir. 1982) 9,11

Stroud v. Delta Air Lines, Inc., 544 F.2d 892 (5th Cir.

1977), cert. denied, 434 U.S. 844 17

Teal v. Connecticut, 645 F.2d 133 (2d Cir. 1981),

aff'd, 457 U.S. 440 (1982) 6, 7, 8, 9, 10 et seq.

STATUTES.

28 U.S.C. § 1254(1) 2

Title VII of the Civil Rights Act of 1964 —1, 4n, 5, 6, Yet seq.

§ 703(a) 2

42 U.S.C. § 2000e et seq. 8

42 U.S.C. § 2000e-5(f) 5

No. -

In the

Supreme Court of the United States.

Octroser TerM, 1983.

LYNDA LEBOEUF COSTA,

PETITIONER,

v.

JOHN A. MARKEY, €Er At.,

RESPONDENT.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the First Circuit.

To the Honorable, the Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States:

Petitioner prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the First

Circuit entered in this case on May 23, 1983.

Opinions Below.

The opinion of the United States District Court for the Dis-

trict of Massachusetts is reported: LeBoeuf v. Ramsey, 503 F.

Supp. 747 (D. Mass. 1980), and is reprinted in the appendix at

page 47a.

2

The opinion of the original appellate panel of the United

States Court of Appeals for the First Circuit is reported, Costa

v. Markey, 672 F.2d 158 (lst Cir. 1982), and reprinted at ap-

pendix 28a.

The opinion of the rehearing panel of the United States

Court of Appeals for the First Circuit is reported, Costa v.

Markey, 694 F.2d 876 (lst Cir. 1982) and reprinted at appen-

dix lla.

The opinion of the rehearing en banc panel of the United

States Court of Appeals for the First Circuit is reported, Costa

v. Markey, 706 F.2d 1 (1st Cir. 1983) and reprinted at appen-

dix la.

Jurisdiction.

The latest judgment of the United States Court of Appeals

for the First Circuit, on rehearing en banc, was entered on

May 23, 1983 and a copy is appended to this petition in the ap-

pendix at page la. This petition was filed within 90 days of

that date. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254 (1).

Statute Involved.

The statute involved is § 703(a) of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a) (1976).

The pertinent parts are set forth below:

It shall be an unlawful employment practice for an em-

ployer —

(1) to fail or refuse to hire or to discharge any individ-

ual, or otherwise to discriminate against any individual

3

with respect to his compensation, 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 employees or ap-

plicants for employment in any way which would deprive

or tend to deprive any individual of employment oppor-

tunities or otherwise adversely affect his status as an em-

ployee, because of such individual's race, color, religion,

sex, or national origin.

Statement of the Case.

The plaintiff, Lynda LeBoeuf Costa, is a 5 foot 3 inch

woman who on October 14, 1972 took and passed a written ex-

amination administered by the Massachusetts Division of Civil

Service for the position of police officer. In accordance with

Massachusetts state law, all appointments to the New Bedford

Police Department are subject to the Massachusetts Civil Serv-

ice laws and the regulations promulgated thereunder.

Prior to February, 1974 the New Bedford Police Depart-

ment had two separate and distinct positions for men and

women police personnel, with separate examinations admin-

istered for the two positions. Men served as “police officers”

and women as “policewomen.” After February, 1974, the rel-

evant time period for this action, the New Bedford Police

Department discontinued the separate positions of “police offi-

cer” and “policewoman” and instead established the single

position of “police officer” which was open to both men and

women. Male and female police officers had the same duties,

powers, responsibilities, privileges, and pay. Although previ-

ous to this change, women were subject to either a 5 feet 3 inch

height requirement or to no height requirement whatsoever,

4

women were at this time made subject to a 5 feet 6 inch height

requirement, as were men. Subsequent appointments to the

police force were made from “integrated” lists of both men

and women, compiled and certified to the city of New Bedford

(hereinafter “city”) by the Division of Civil Service.

In the spring and summer of 1974, the city sought to appoint

several police officers to the police force. Among the city’s

needs at this time was the appointment of at least one addi-

tional fernale police officer to perform those certain additional

duties of female police officers, related, for example, to female

prisoners. The city requested and received permission for a

sex-specific hiring from the Massachusetts Commission

Against Discrimination. Subsequently, however, the Division

of Civil Service certified to the city only an “integrated list” of

men and women applicants for the “police officer” positions to

be filled. This list was dated July 30, 1974. On August 12,

1974, the plaintiff was interviewed for a position as police offi-

cer, and although she passed the city’s physical fitness exami-

nation, she was rejected solely because she failed to meet the

5 feet 6 inch height requirement.' Seven male applicants

whose names appeared below that of the plaintiff's were ap-

pointed as police officers. No fernale candidates were appoint-

ed from the “integrated list.”

After the use of the July 30 “integrated list” failed to result

in the hiring of a female police officer, and after an additional

female police officer retired, New Bedford sought and received

approval to hire from a special list, derived from the July 30

“integrated list,” containing only the names of the female ap-

plicants in the order that their names appeared on the “inte-

‘In February, 1975, well after the alleged discriminatory acts had oc-

curred, it was discovered that the plaintiff's name had, in fact, been placed

higher on the “integrated list” than it should have been. Nevertheless, the

district court still found application of the height requirement to the “inte-

grated list” to be a violation of Title VII.

5

grated list.” Although plaintiff's name properly appeared first

on this “all-women list”, she was again rejected because of her

failure to satisfy the 5 feet 6 inch height requirement. Two

women whose names appeared lower on the list, but who sat-

isfied the height requirement, were hired as police officers. All

of the police officers hired, whether from the “integrated list”

or the “all women list”, were sworn in as police officers on the

same date.

Plaintiff filed a charge of discrimination with the proper

state and federal agencies, and the Massachusetts Commission

Against Discrimination issued a finding of probable cause of

discrimination against the city and State defendants. This ac-

tion was commenced in the United States District Court for

the District of Massachusetts under 42 U.S.C.§ 2000e-5(f).

Plaintiff relied primarily on Title VII of the Civil Rights Act of

1964, using a disparate impact theory of discrimination.

Plaintiff introduced undisputed statistical evidence that the

height requirement excluded about 80% of women between

the ages of 18 and 34, while excluding only about 20% of men

in that age group. Plaintiff alleged that the use of the height

requirement discriminated against her on two separate occa-

sions. The first time was when the “integrated list” was used,

and the second time was when the “all-women list” was used.

The trial judge found for the plaintiff in both instances,

holding that the city had violated Title VII by its use of the

height requirement as to both the “integrated list” and the

“all-women list”. Judgment entered for the plaintiff and it

was ordered that she be promptly appointed as a police offi-

cer, and that back pay and attorney fees be awarded. It should

be noted, however, that although the court concluded that the

failure to appoint the plaintiff from the “integrated list” was a

violation of Title VII, it resulted only in an “invalid appoint-

ment” because of her mistakenly high placement on that list.

Therefore, while the court awarded back pay on the basis of

6

the city’s failure to appoint the plaintiff from the “all-women

list’, it did not award the plaintiff lost wages and benefits as a

result of the city’s discriminatory failure to appoint the plain-

tiff from the “integrated list.”

The city defendants did not appeal the trial court's judg-

ment concerning the “integrated list”, but they did appeal the

judgment as to the “all-women list.” In “Costa I” the Court

of Appeals for the First Circuit reversed the district court's rul-

ing that the plaintitf had failed to establish a prima facie case

of discrimination. The court rejected the plaintiff's argument,

which relied in part on the Second Circuit's decision in Teal v.

Connecticut, 645 F.2d 133 (2d Cir. 1981), aff'd, 457 U.S. 440

(1982), which held that the “bottom line” resuit of a hiring

process was no defense to a Title VII discrimination action,

nor did it prevent a plaintiff from establishing a prima facie

case. Id. at 452. The Appeals Court in Costa I stated that

“we do not follow the Teal approach. Absent any discrimina-

tory purpose, we see no justification for looking behind a result

that does not reveal a hiring that has a disproportionately ad-

verse impact on the relevant minority labor pool.” (A. 35.)

Shortly thereafter, this Court affirmed Teal and on motion

of the plaintiff this court extended the time for filing a petition

for certiorari in view of that decision (S.Ct. No. A-89). On

rehearing, in light of this Court's opinion in Connecticut v.

Teal, 457 U.S. 440 (1982), the Appeals Court in “Costa I/” re-

versed its original appellate decision and reinstated the district

court's judgment. The majority opinion in Costa II stated

that:

In this case the city applied the requirements to women

only and hired only women. But this is no defense to a

prima facie case of disparate impact discrimination. It

seeks to justify the disparate effect of the rule in general

by pointing to the end results of one particular application

7

of the rule. This is the “bottom line” approach which is

proscribed by Teal.

(A. 17a.) In his concurring opinion, Judge Campbell stated

that:

[While my personal views remain in accord with our

original Costa opinion (and with Justice Powell’s dissent

in Teal), I am not persuaded that Teal is distinguishable.

When the Supreme Court decides a case, I think we must

ascribe a certain generality to its opinion; the present

issue seems to me to be subsumed in principle, if not in

every respect, by the language and holding in Teal. Ac-

cordingly I think we must affirm the district court.'?!

(A. 23a.)

Subsequently, on March 9, 1983, the Appeals Court granted

a rehearing en banc. In “Costa III” the court reversed itself

again and reaffirmed its original decision in Costa ] reversing

the district court’s finding of discrimination. In the majority

opinion in Costa IJ], the court held that the plaintiff had

failed to establish a prima facie case of employment discrimi-

nation since:

In this case, however, the evidence is uncontroverted that

competition between men and women was at least tem-

porarily suspended so that the city would hire two needed

female police officers. Without the height requirement,

the city would still have hired only two women. The

*In Costa II] Judge Campbell has reversed himself and now believes that

Teal does not apply.

8

only difference is that plaintiff would have been one of

them.

(A. 7a.) Judge Bownes, in a dissenting opinion, continued to

adhere to his majority opinion in Costa I], stating that:

The Court in Teal was not concerned with the employer's

reason for including additional factors in its hiring proc-

ess. The crucial issue for the Court was the employer's

attempt to point to the end results (bottom line) of its hir-

ing process to justify the discriminatory element. This is

precisely what New Bedford is attempting in this case and

what Teal prohibits.

(A. Ya.)

Reasons for Granting the Writ.

Certiorari should be granted in this case because the Court

of Appeals for the First Circuit has incorrectly decided a sub-

stantial and important question in a way which is in conflict

with the applicable decisions of this Court. Furthermore, the

First Circuit has so far departed from the accepted and usual

course of judicial proceedings as to call for an exercise of this

Court's power of supervision.

I. PLAINTIFF EsTABLISHED A Prima Facie Case or DISPARATE

IMPACT DISCRIMINATION BY MAKING AN UNDISPUTED SHOW-

ING THAT New Beprorp’s Use oF THE HEIGHT REQUIREMENT

Exc.upep Far More WOMEN THAN MEN FROM THE Oppor-

TUNITY TO BEcoME Po ice OFFICERs.

There are two means to establish an employer's violation of

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

9

seq.; disparate impact analysis, and disparate treatment anal-

ysis. In the instant case the courts below used disparate impact

analysis to deterrnine whether the ostensibly neutral height re-

quirement was discriminatory and violated Title VII. Under

disparate impact analysis, unlike disparate treatment analysis,

a party need not show discriminatory intent by an employer.

Instead, disparate impact analysis focuses on employment

practices or requirements which, although fair in form, are

discriminatory in operation. Griggs v. Duke Power Co., 401

U.S. 424 (1971); International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 335-336 n.15 (1977). While

disparate impact analysis and disparate treatment analysis are

two different means by which to determine if a given employ-

ment requirement violated Title VII, both focus on the

employment requirement in question and whether that re-

quirement acts as an exclusionary barrier upon individuals

within a protected group. See, Cornecticut v. Teal, 457 U.S.

440 (1982); Smith v. United Brotherhood of Carpenters, 685

F.2d 164, 168 (6th Cir. 1982); Equal Employment Opportu-

nity Commission v. Greyhound Lines, 635 F.2d 188, 198 (3d

Cir. 1980) (dissent).

To establish a prima facie case of discrimination using dis-

parate impact analysis the plaintiff must prove that the facially

neutral employment requirement had a significantly discrimi-

natory impact upon the protected group. Connecticut v.

Teal, supra at 446. The district court properly found that the

city defendants had violated Title VII by using an employment

requirement which clearly had a disparate impact upon

women by excluding far more women than men from employ-

ment opportunities, while being unrelated to job performance

(A. 72a).

The city defendants concede, and the Appeals Court recog-

nizes, that the plaintiff was denied appointment as a police

officer solely because of her failure to meet the height require-

ment (A. 6a). Statistics introduced by the plaintiff at trial

oe

established that the height requirement served to systematically

exclude 80% of women, while excluding only about 20% of

similarly situated men (A. 54a, 13a). As this Court has recog-

nized, a plaintiff has never been required to base a statistical

showing of disparate impact analysis on the characteristics of

the actual applicants. On the contrary, the use of general

population statistics is clearly appropriate to show the dispar-

ate impact of a given e nployment requirement when, as here,

“there is no reason to suppose that physical height and weight

characteristics (of the applicants) differ markedly from those

of the national population.” Dothard v. Rawlinson, 433 U.S.

321, 330 (1977).

This controlling statistical evidence is straightforward and

irrefutable. It demonstrates not some theoretical effect that

the height requirement has on women, but rather a very real

discriminatory barrier that was posed to each and every female

applicant for the position of police officer. It is clear then,

that the plaintiff established a prima facie case of discrimina-

tion under Title VII, by proving that the height requirement

had a significantly disproportionate impact upon women by

excluding far more women than men from the opportunity to

be employed as police officers. “But for” the discriminatory

height requirement, plaintiff would have been appointed as a

police officer from the “all-women list” (A. 72a).

Il. THe Court or Appeacs’ Decision 1n Costa IJ] ConFiicts

WITH THIS Court's HoLpINc In Connecticut v. Teal sy HoLp-

ING THAT THE “Bottom Line” ResuLts or New Beprorp’s

Hrrinc Process PREVENTS THE PLAINTIFF FROM ESTABLISHING

A PriMA Facte Case oF DiscRIMINATION.

The Court of Appeals decision in Costa 11] is in conflict with

this Court’s decision in Connecticut v. Teal, 457 U.S. 440

1]

(1982). In Teal this Court rejected the “bottom line” defense

to a Title VII action based on disparate impact analysis, as the

courts had earlier rejected a similar defense under disparate

treatment analysis. See, Furnco Construction Corp. v.

Waters, 438 U.S. 567 (1978).

In affirming the Second Circuit's decision in Teal, this

Court rejected the employer's “bottom line” defense. The

court held that where a pass-fail employment barrier or re-

quirement classified far more blacks than whites as ineligible

for employment, then that requirement violated Title VII

even if the end result of the employment process (i.e., the bot-

tom line) was that a disproportionately large number of black

candidates were promoted. Connecticut v. Teal, supra at

450-452.

To allow the “bottom line” defense the court held would be

to ignore Title VII's clear emphasis on the individual and the

individual's right to equality of employment opportunity. The

Court stressed that “the statute speaks not in terms of jobs and

promotion but in terms of limitations and classifications that

would deprive any individual of employment opportunities.”

Connecticut v. Teal, supra at 448 (emphasis in original).

Thus, this type of facially non-discriminatory “bottom line”

result does not prevent the plaintiff from establishing a prima

facie case, nor does it offer a defense to the employer. Id. at

452. The proper focus for determining whether a plaintiff has

established a prima facie case under disparate impact analysis

is not, then, solely on the “bottom line” but rather on the em-

ployment requirement in question at any stage of the employ-

ment process, and that requirement’s discriminatory effects.

See, Connecticut v. Teal, supra at 450-451; Smith v. Brother-

hood of Carpenters, supra at 168.

By proving that New Bedford's height requirement operated

to exclude far more women than men from the opportunity to

become police officers, the plaintiff established a prima facie

12

case of discrimination, despite the fact that the “bottom line”

result of the hiring process in this one particular instance was

the appointment of two other women.

III. THe Majyorrry Opinion in Costa II] MisTAKENLY

DisTINGuIsHES Costa FROM Teal.

As the dissent notes in Costa II], the majority opinion mis-

takenly distinguishes the case at bar from Teal, so as to hold

that the plaintiff failed to establish a prima facie case (A. 9a).

For several reasons, the court’s attempt to distinguish Costa

from Teal is seriously flawed.

To begin with, the Costa II] court continues to ignore Teal

by mistakenly focusing on groups and not on the individual,

and the individual's right to employment opportunities. The

court asserts that the plaintiff failed to demonstrate that the

challenged barrier had a discriminatory effect (A. 6a). The

court arrives at this conclusion by erroneously distinguishing

the case at bar from Teal in that:

Both cases involved a pass-fail hiring barrier that statistics

demonstrated had a greater impact on members of the

protected class than on non-members. Both also involved

an additional aspect of the hiring process that operated to

remove the impact of that barrier. . .. In Teal the initial

discrimination was compensated for at the end; in Costa

the separation of the hiring lists meant that there was no

discrimination to begin with.

(A. 4a n.1.) (Emphasis added.)

This position ignores the fact that in neither Teal, nor in

Costa is there, or can there be, an “additional aspect of the hir-

r, f

EM

13

ing process that operate[s] to remove the impact of [the] bar-

rier” upon the excluded plaintiffs. On the contrary, Teal is

explicit in its holding that the discriminatory impact upon the

individual of the discriminatory requirement cannot be re-

moved by an additional factor. In particular, the “bottom

line” result, even if that result is the appointment of a dispro-

portionate number of individuals from the protected group,

will not excuse the discriminatory barrier. In both Teal and

Costa, individuals were denied an equal opportunity to com-

pete because of a barrier that was statistically proven to impact

significantly more harshly upon a protected group of which

they are members. This Court recognized in Los Angeles

Dept. of Water & Power v. Manhart, 435 U.S. 702, 708, 709

(1978) that:

The statute [Title VII] makes it unlawful “to discrimi-

nate against any individual. ...” The statute’s focus on

the individual is unambiguous. It precludes treatment of

individuals as simply components of a racial, religious,

sexual or national class. . ..

Even if the statutory language were less clear, the basic

policy of the statute requires that we focus on fairness to

individuals rather than fairness to classes.

This Court reiterated this point in Connecticut v. Teal, supra

at 455, stating that: “Title VII does not permit the victim of a

facially discriminatory policy to be told that he has not been

wronged because other persons of his or her race or sex were

hired.”

In the final analysis there is no escaping the district court's

finding that “but for” the discriminatory height requirement,

the plaintiff, as an individual, would have been appointed as a

police officer (A. 72a). The “bottom line” result of the hiring

14

process supplies the city with no defense to their violation of

Title VII.

The second error that the court makes in Costa III is to at-

tempt to distinguish Costa from Teal in that: “In Teal the ini-

tial discrimination was compensated for at the end; (while) in

Costa the separation of the hiring lists meant that there was no

discrimination to begin with” (A. 3an.1). Upon further anal-

ysis it should be apparent that, contrary to the above state-

ment, the compensatory factor, to tle extent there can be one,

appears subsequent to the “dirtywork” done by the discrimi-

natory barriers in both Teal and Costa, and thus Costa is not

distinguishable from Teal on this basis.

As the Appeals Court recognized, the “all-women list” was

comprised simply of those women whose names appeared on

the integrated list. In effect, “the most recent integrated list

was therefore separated and the city hired the top two women

on the women-only list who also met the 5 feet 6 inch height

requirement” (A. 6a). By ostensibly separating the “integrated

list”, and then applying the height requirement to the “all-

women list”, the city defendants, in actuality, applied the

height requirement to each and every applicant, male or

female, on the “integrated list” and only then chose women in

the order of their appearance on the “integrated list.” To sug-

gest that the height requirement was only imposed after the

“separation” of the lists is to ignore the essential truth that the

height requirement was applied to all applicants, both male

and female. In reality, Linda Costa, and all other women

applicants under 5 feet 6 inches were eliminated from the ap-

plicant pool the moment their names appeared on the “inte-

grated list,” at a time when they were in competition with

men for the positions as police officers. Therefore, in Costa,

as in Teal, the initial discrimination was “compensated” for

[by the decision to hire two women] only after the discrimina-

tory requirement had done its damage by disproportionately

15

excluding members of the protected group. This is the type of

“bottom line” result that cannot prevent a plaintiff from estab-

lishing a prima facie case of discrimination under Title VII.

Lastly, the importance of the fact that the job of police offi-

cer was open to both men and women cannot be overempha-

sized. It is because men and women were in competition for

the job of police officer that the height requirement disparately

impacted upon women applicants, eliminating them from the

competition for employment opportunities. Thus, put in the

proper perspective, it is clear that the relevant job at issue was

one of a set of police force jobs in general open to both men

and women, and that the height requirement worked to dis-

proportionately exclude women from that competition. (See

A. 3a, where the court frames this issue.) A subsequent deci-

sion by the city to hire two women could not undo the discrim-

inatory effect of the height requirement. On the contrary, the

decision to hire two women from an all-female pool of appli-

cants (derived from the “integrated list”) only resulted in the

plaintiff's again being denied employment because of the dis-

criruinatory height requirement.

Both the district court and Judge Bownes in his majority

opinion in Costa II and his dissenting opinion in Costa III rec-

ognized that because the height requirement related to an em-

ployment position in which men and women were in competi-

tion, the fact that in one instance the applicant pool consisted

solely of women, neither excused the disparate impact of the

height requirement, nor prevented the plaintiff from estab-

lishing a prima facie case. The district court emphasized this

in holding that:

For this reason, even though the discrimination based on

the height requirement in the particular instance of its

application to the all-women list was among women only,

it was so intimately and integrally related to the broader

16

use of the height requirement that the contention that it

was not a cause of legally cognizable harm to the plaintiff

cannot be sustained.

(A. 73a.) (Emphasis added.) The Appeals Court in Costa I]

made this point even more directly, stating that:

In this case the city applied the requirement to women

only and hired only women. But this is no defense to a

prima facie case of disparate impact discrimination. It

seeks to justify the disparate effect of the rule in general

by pointing to the end results of one particular applica-

tion of the rule. This is the “bottom line” approach

which is proscribed by Teal. In light of Teal, we hold

that when as here an employer uniformly applies a rule to

male and female applicants and applies it in one round of

hiring decisions to a pool of only female applicants, the

rule must be job-related if in its regular application it has

a disparate impact on women.

(A. 17a-18a.) (Emphasis added.)

Both of the above decisions were correct in not reaching the

issue of whether or not disparate impact analysis was applica-

ble to a job classification restricted to one sex, since there was no

need to reach that issue. See, Gerdom v. Continental Airlines,

692 F.2d 602, 605 (9th Cir. 1982). However, when as in Costa,

a job is not restricted to one sex, but is open to both men and

women, then the fact that in a particular round of the hiring

process the applicant pool is limited to females, will not prevent

a plaintiff from establishing a prima facie case of discrimination

in the face of a discriminatory hiring requirement.

The majority opinion in Costa IJ] continues to ignore this

distinction, as can be seen by that court’s emphasis on Stroud

17

v. Delta Air Lines, Inc., 544 F.2d 892 (5th Cir. 1977), cert. de-

nied, 434 U.S. 844, a case which dealt with a job classification

which was by definition open only to women. Furthermore,

although it arose in the context of disparate treatment analysis,

this Court has rejected the reasoning in Stroud allowing a

female plaintiff to be denied relief under Title VII because

there are no similarly situated males. County of Washington

v. Gunther, 452 U.S. 161, 178-179 (1981); see, also Gerdom v.

Continental Airlines, supra at 607.

Conclusion.

As this Court has stated, “[w]e must . . . avoid interpreta-

tions of Title VII that deprive victims of discrimination of

remedy without clear congressional mandate.” County of

Washington v. Gunther, supra at 178. The court in Costa III

has improperly limited Title VII so as to deny a plaintiff who

has been the victim of a discriminatory employment require-

ment the protection of Titie VII. If this decision is allowed to

stand, there will be significant adverse consequences for all

victims of discriminatory requirements who have the misfor-

tune of having that discrimination take place in the context of

a portion of a hiring process that, for whatever reason, collu-

sive or not, is limited to applicants who are members of a par-

ticular protected group.

For the reasons stated herein the petition for certiorari

should be granted.

Respectfully submitted,

THOMAS F. McKENNA,

Counsel of Record

Ten Tremont Street,

Government Center,

Boston, Massachusetts 02108.

On the Petition: (617) 523-5200

ROBERT M. SOLOMON.

Appendix.

Table of Contents.

Judgment of the United States Court of Appeals for the

First Circuit (May 23, 1983)

Opinion of the United States Court of Appeals for the

First Circuit (May 23, 1983)

Judgment of the United States Court of Appeals for the

First Circuit (December 3, 1983)

Opinion of the United States Court of Appeals for the

First Circuit (December 3, 1982)

Opinion of the United States Court of Appeals for the

First Circuit (May 3, 1982)

Final Judgment of the United States District Court for

the District of Massachusetts (April 24, 1981)

Memorandum and order of the United States District

Court for the District of Massachusetts (December 4,

1980)

Memorandum and order of the United States District

Court for the District of Massachusetts (September

16, 1980)

4la

47a

la

United States Court of Appeals

For the First Circuit

No. 81-1361.

LYNDA LeBOEUF COSTA,

PLAINTIFF, APPELLEE,

v.

JOHN A. MARKEY, er Av.,

DEFENDANTS, APPELLANTS.

JUDGMENT

Entered: May 23, 1983

This cause came on to be submitted on memoranda on peti-

tion for rehearing en banc on appeal from the United States

District Court for the District of Massachusetts.

Upon consideration whereof, It is now here ordered, ad-

judged, and decreed as follows: This Court’s original decision

of May 3, 1982 is reaffirmed. The part of the District Court's

judgment relating to denial of employment from the all-women

list of August 12, 1974 is reversed. No costs.

By the Court:

Francis P. Scigliano

Clerk.

2a

United States Court of Appeals

For the First Circuit

No. 81-1361

LYNDA LeEBOEUF COSTA,

PLAINTIFF, APPELLEE,

v.

JOHN A. MARKEY, Er AL.,

DEFENDANTS, APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Ropert E. Keeron, U.S. District Judge]

BEFORE

Corrin, Chief Judge,

CAMPBELL, BOWNES AND Breyer, Circuit Judges.

Armand Fernandes, Jr. for appellants.

Thomas F. McKenna for appellee.

Francis X. Bellotti, Attorney General, Betty E. Waxman,

Assistant Attorney General, Government Bureau, Department

of the Attorney General, and Thomas A. Barnico, Assistant

Attorney General, Government Bureau, Department of the

Attorney General, on brief, for State appellee.

OPINION EN BANC

MAY 23, 1983

Dae F

3a

CorrFin, Circuit Judge. This case has a long history. On

May 3, 1982, we held that plaintiff could not prevail in her

claim of employment discrimination based on a 5 feet 6 inches

height requirement. Although the height requirement would,

in other contexts, have a disparate impact on women, we de-

termined that the height requirement could have had no such

impact in this case because only women were in competition

for the job. Costa v. Markey (Costa I), 677 F.2d 158 (lst Cir.

1982).

Subsequently, we agreed to rehear the case in light of the

Supreme Court's decision in Connecticut v. Teal, 530 U.S.L.W.

4716 (U.S. June 21, 1982). After reviewing supplemental

briefs and hearing oral argument, a majority of the panel de-

termined that Teal required that we reverse our original posi-

tion and allow plaintiff to recover based on her evidence that

the height requirement would exclude more women than men,

regardless of the fact that in this case the only job applicants

were women. Costa v. Markey (Costa II), 694 F.2d 876 (lst

Cir. 1982).

On March 9, 1983, we granted rehearing en banc. Counsel

were requested to file supplemental memoranda addressing

the question whether

“this court [should] view the relevant job here at issue (1)

as a single job open only to women or (2) as one of a set of

police force jobs in general open to both men and women?

If the latter, are not men and women in competition for

the same jobs?”

For reasons set out below, a majority of the court now

agrees that Teal does not require that we reverse our original

determination that plaintiff has not made out a prima facie

case of disparate impact. Nor are we persuaded by any other

4a

factors regarding the hiring process at issue here that plaintiff

was discriminated against on the basis of her sex. Accordingly,

we reaffirm the judgment we rendered on May 3, 1982, deny-

ing plaintiff recovery.

I.

Plaintiff's initial argument before us relied in part on the

Second Circuit's opinion in Teal v. Connecticut, 645 F.2d 133

(2d Cir. 1981), aff'd, 50 U.S.L.W. 4716 (U.S. June 21, 1982),

that Title VII plaintiffs may recover if they are disadvantaged

by one component of a selection process that has a disparate

impact on a protected group of which they are members, even

if their employer “remedies” the disparate impact by subse-

quent affirmative measures. Since then, the Supreme Court

has affirmed the Teal approach, holding that a nondiscrimina-

tory “bottom line” is not a defense to a prima facie case of

employment discrimination.

In Costa I, we specifically declined to follow the Teal ap-

proach. In a position similar to that of Justice Powell, dissent-

ing in Teal, we concluded that if the overall effect of a hiring

process is not discriminatory, we saw no reason to look behind

that result to possibly discriminatory elements of the process.’

We no longer have the liberty of offering that broad justification

‘We also described Teal and the case before us as “mirror images”, a de-

scription which has caused some confusion as this case has evolved. Use of

the term was intended to highlight the differences rather than the similarities

between the two cases. Both cases involved a pass-fail hiring barrier that sta-

tistics demonstrated had a greater impact on members of the protected class

than on non-members. Both also involved an additional aspect of the hiring

process that operated to remove the impact of that barrier. But there the

similarity ends. They are mirror images and not identical situations because

the aspects of the process that operated to remove the overall impact of the

barrier were at different ends of the process. In Teal the initial discrimina-

tion was compensated for at the end; in Costa the separation of the hiring

lists meant that there was no discrimination to begin with.

5a

for our result in this case, but we can still point out that Teai

and this case are distinguishable in at least one crucial respect.

In Teal, the employer sought to remedy the effects of a dis-

criminatory barner by affirmatively hiring members of the

disadvantaged minority group. In this case, although plaintiff

was discriminated against on the basis of her height, there was

never any discrimination of the type for which Title VII pro-

vides a remedy. Because the sexes were not in competition,

the height requirement had no disparate effect on women.

There was, therefore, no question of remedying the discrimi-

natory effect of an element in a process with a non-discrimina-

tory “bottom line”.

A brief review of the facts should make the absence of dis-

criminatory effect clear. The failure to hire at issue here arose

from an effort in 1974 by the City of New Bedford, Massachu-

setts (city) to hire two female police officers. The city makes

appointments for police officers from a list of eligible appli-

cants that is certified to it by the state civil service personnel

division. Applicants’ names appear on the list in order of their

scores on a written exam, adjusted for various statutory and

court-ordered preferences. Ranking on the list is not affected

by an applicant’s height.

Prior to February 1974, the city had two distinct police cate-

gories: males were police officers and females were police

women. Male applicants were ineligible for positions as police

officers if they failed to meet a minimum height requirement

of 5 feet 6 inches. In February, 1974, the city abandoned

these separate job categories, and thereafter both men and

women competed for positions as police officers. Women

applicants were also required to meet the 5 feet 6 inches height

requirement.

In the spring and summer of 1974, two female police officers

retired. Because the city needed female officers to perform

certain duties, related, for example, to female prisoners, and

6a

because there were no women high enough on the integrated

list to be hired, the city sought and received approval from the

Massachusetts Commission Against Discrimination to hire

from a list of exclusively female applicants. The most recent

integrated list was therefore separated and the city hired the

top two women on the women-only list who also met the 5 feet

6 inches height requirement. Although plaintiff's name ap-

peared first on the list, she was rejected because she did not

meet the height requirement.

Plaintiff brought suit under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-2, asserting that application of the

height requirement was discriminatory because it had a dis-

parate impe + on women. The district court agreed with

plaintiff and granted her back pay and other relief.? We re-

versed, concluding that if the height requirement was applied

to women only, it could have had no disparate effect on

women. Plaintiff, therefore, had failed to establish a prima

facie case of employment discrimination.

After lengthy consideration, we are satisfied that our origi-

nal reasoning was sound. Plaintiff simply failed to make it

over the initial hurdle of demonstrating that the challenged

barrier had a discriminatory effect on women. Absent a dis-

criminatory effect, there is no need to engage in further inquiry

regarding the employer's non-discriminatory “bottom line”.

*The district court also agreed that plaintiff had been discriminated

against by an earlier application of the height requirement. During the inte-

grated list period, plaintiff's name was incorrectly placed higher on the list

than it should have been. Based on this placement, plaintiff was interviewed

for a position as a police officer, but was rejected because of her height. The

district court held that, although plaintiff was deprived only of an “invalid

appointment” as a police officer, defendants nonetheless had violated Title

VII. The court denied plaintiff back pay, but issued a declaratory judgment

in her favor. Since neither party appealed this judgment, we have had no

occasion to reconsider it.

‘a

Another plaintiff — perhaps one denied employment be-

cause of height a year after initiation of the separate lists —

might be able to argue that because the job sought was that of

a “police officer”, the duties of which were basically the same

for men and women, the sexes were in competition and the

height requirement did have a disparate impact on women. In

such a case, the city’s height requirement might operate to ex-

clude more women than men. In this case, however, the evi-

dence is uncontroverted that competition between men and

women was at least temporarily suspended so that the city

could hire two needed ferna'e police officers. Without the

height requirement, the city would still have hired only two

women. The only difference is that plaintiff would have been

one of them.

We are compelled to decide the case on the facts before us.

On these facts, the height requirement cannot be viewed as

having a disparate effect on women. In the absence of a dis-

criminatory effect, Teal simply does not apply. See Teal, 50

U.S.L.W. at 4719 (“[a] non-job-related test that has a dispar-

ate racial impact, and is used to ‘limit’ or ‘classify’ employees,

is ‘used to discriminate’ within the meaning of Title VII

whether or not it was ‘designed or intended’ to have this effect

and despite an employer's efforts to compensate for its discrim-

inatory effect.”) (Emphasis added.)

II.

Besides relying on Teal, plaintiff has an additional basis for

challenging our decision in Costa 1. In Costa I, we relied on a

line of cases in which courts have refused, in the absence of

competition between the sexes, to find that a facially neutral

employment barrier discriminated against women on the basis

of sex. See, e.g., Stroud v. Delta Airlines, Inc., 544 F.2d 892

(5th Cir. 1977). Plaintiff suggests that subsequent authority

8a

has cast doubt on the reasoning of those courts. Her argument,

however, is unpersuasive. Neither Gerdom v. Continental

Airlines, Inc., 692 F.2d 602 (9th Cir. 1982), nor County of

Washington v. Gunther, 452 U.S. 161 (1981), found disparate

impact where the sexes were not in competition. Both cases

dealt with disparate treatment, the proof of which is not based

on the effect on two competing groups of a facially neutral

barrier, but on intentional discrimination against an individual

because of his or her race or sex. We remain unpersuaded that

a hiring barrier can have a disparate impact on a protected

group when competition for the job is only among members of

that protected group.

We reaffirm our original decision of May 3, 1982. The part

of the district court's judgment relating to denial of employ-

ment from the all-women list of August 12, 1974 is reversed.

Bownes, Circuit Judge (dissenting). I continue to adhere to

my majority opinion in Costa I], 694 F.2d 876 (1st Cir. 1982),

and briefly state why I think my brethren are wrong.

It seems clear to me that there were not two separate jobs at

issue here; the city gave up its distinction between police offi-

cers and police women in 1974, prior to the employment deci-

sions at issue here. Thus, the height requirement was uniform-

ly applied to all male and female applicants for police officer

positions.

Plaintiff established a prima facie case by showing that the

height requirement acted more harshly on women than men.

The city’s attempt to defend on the basis of its hiring only

women fails in light of Connecticut v. Teal, 50 U.S.L.W. 4716

(U.S. June 21, 1982). The final statistical outcome of a hiring

process, according to Teal, is irrelevant in assessing the strength

of a plaintiff's prima facie case. Rather, the analysis focuses

on the step of the hiring process that plaintiff claims is discrim-

9a

inatory; here, the height requirement. General population

statistics are sufficient to determine whether a height require-

ment discriminates against women; there is no need for a

plaintiff to resort to statistics that reflect the actual applicant

pool. See Dothard v. Rawlinson, 433 U.S. 321, 330 (1977).

The majority errs by focusing on the wrong aspect of Teal.

It attempts to distinguish this case from Teal by pointing to the

employer's motivation. In Teal, as the majority correctly

notes, the employer included additional factors in its hiring

process to compensate for one discriminatory element in that

process. Here, the city’s motivation for the second round of

hiring was not to compensate for initial discrimination. This

distinction, however, is of no moment. The Court in Teal was

not concerned with the employer’s reason for including addi-

tional factors in its hiring process. The crucial issue for the

Court was the employer’s attempt to point to the end results

(bottom line) of its hiring process to justify the discriminatory

element. This is precisely what New Bedford is attempting in

this ca » and what Teal prohibits.

10a

United States Court of Appeals

For the First Circuit

No. 81-1361.

LYNDA LeBOEUF COSTA,

PLAINTIFF, APPELLEE,

Vv.

JOHN A. MARKEY, et al.,

DEFENDANTS, APPELLANTS,

JUDGMENT

Entered December 3, 1982.

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and

was argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The judgment of the District

Court is affirmed.

Ry the Court:

Dana H. Gallup, Clerk.

By:

Francis P. Scigliano,

Chief Deputy Clerk.

(cc. Messrs. Fernandez, McKenna & Barnico.]

lla

United States Court of Appeals

For the First Circuit

No, 81-1361.

LYNDA LeBOEUF COSTA,

PLAINTIFF, APPELLEE,

Vv.

JOHN A. MARKEY, et al.,

DEFENDANTS, APPELLANTS.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[HON. ROBERT E. KEETON, U.S. District Judge. }

Before

CorFIN, Chief Judge,

CAMPBELL and BOWNES, Circuit Judges.

Armand Fernandes, Jr., for appellants.

Thomas F. McKenna, with whom Mariann Zampano was on

brief, for appellee Lynda LeBoeuf Costa.

Francis X. Bellotti, Attorney General, Betty E. Waxman, Assis-

tant Attorney General, Government Bureau, and Thomas A. Bar-

nico, Assistant Attorney General, Government Bureau, on brief,

for state appellee.

December 3, 1982

BOWNES, Circuit Judge. We granted the plaintiff's peti-

tion for a rehearing to examine the effect on this case of the

Supreme Court’s decision in Connecticut v. Teal, 50

U.S.L.W. (U.S. June 21, 1982). Because we find that Teal

mandates a reversal of our prior opinion, we restate the rele-

vant facts.

The New Bedford Police Department makes appointments

for police officers from a list of eligible applicants that is cer-

12a

OPINION OF THE COURT

tified to it by the state civil service personnel division. The

lists at issue in this case were derived from a 1972 written ex-

amination for the position of police officer. Applicants’ names

appear on the list in order of their scores on the exam, ad-

justed for various statutory and court-ordered preferences.

Plaintiff took the 1972 examination and was notified in 1973

that her score was 93.3 percent. She passed the city’s phys-

ical fitness examination in May 1974.

Prior to February 1974 New Bedford had two distinct po-

lice categories: males were police officers and females were

police women. Male applicants were ineligible for positions as

police officers if they failed to meet a minimum height re-

quirement of five feet six inches. Ir February 1974 the city

abandoned these separate categories, and thereafter both

men and women competed for positions as police officers.

Women applicants were also required to meet the five feet

six-inch height minimum.

In March 1974 a woman police officer retired. Because the

city needed a female officer to perform special duties, rela-

ted, for example, to female prisoners, it sought special per-

mission from state authorities to engage in sex-specific hiring

using a list of female applicants already certified for Taunton,

Massachusetts. The Massachusetts Commission Against

Discrimination authorized New Bedford’s use of the Taunton

list, but the state Division of Civil Service never certified the

list to New Bedford.

The Division of Civi] Service supplied New Bedford with an

integrated list of male and female applicants on July 30,

1974, that was derived from the 1972 examination. Plaintiff's

name was mistakenly omitted from this list, but was included

on August 7, 1974, after the city was notified of the error.

Her name, however, was incorrectly placed higher on the list

than it should have been.! This error was corrected, but not

' Plaintiff's position on the list was based on the ranking of an ap-

plicant who not only had scored 93.3 percent on the examination,

as plaintiff had, but also was a member of a racial minority to be ac-

corded preference, which plaintiff was not.

13a

MARKEY v. COSTA

until February 1975, well after the allegedly discriminatory

acts occurred.

In August 1974 plaintiff was interviewed for a position as a

police officer in New Bedford, but was rejected because she

failed to meet the five feet six-inch height requirement. If her

name had appeared in the correct place on the July 30 list,

she would not have received the interview. Thus, application

of the height requirement prevented plaintiff from obtaining

a job as a police officer for which she was not eligible under

the civil service requirements.

After an additional female police officer retired and use of

the July 30 list did not result in the hiring of any women, New

Bedford sought and received approval to hire from a list

dated August 12, 1974. This list was derived from the July 30

list, but contained only the names of the female applicants.

Plaintiff's name correctly appeared first on this list. Plaintiff,

however, was again rejected because she failed to meet the

height requirement. Two women who placed third and fourth

on the list satisfied the height requirement and were ap-

pointed to positions as police officers. The woman appearing

second on the list was also disqualified because of the height

requirement.

Plaintiff brought suit under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-2, using a disparate impact

theory of discrimination. Plaintiff alleged that New

Bedford’s use of the height requirement discriminated

against her on two separate occasions: once, when the in-

tegrated list was used, and again, when the female-only list

was used. We start with the integrated list. Plaintiff pro-

duced undisputed evidence that eighty percent of the male

population is at least five feet six inches tall, while less than

twenty percent of the female population reaches this height.

The city defended on the basis of the incorrect placement of

plaintiff's name on the applicant list for police officers. The

l4a

OPINION OF THE COURT

district court held that, although plaintiff was deprived only

of an ‘invalid appointment” as a police officer, the defend-

ants nonetheless had violated Title VII. The court denied

plaintiff back pay, but issued a declaratory judgment in her

favor. Neither party appealed this judgment.

As to the female-only list, the district court held that the

second application of the height requirement also violated

plaintiff's rights under Title VII and entitled her to back pay

and other relief. The defendants appealed, and we reversed.

In our decision we concluded that because the height re-

quirement was applied to women only there could be no

disparate effect on women and hence no prima facie case of

disparate impact discrimination. In so doing we rejected

plaintiff's argument, which relied primarily on the Second

Circuit’s opinion in Teal v. Connecticut, 645 F.2d 133 (2d Cir.

1981), affd, 50 U.S.L.W. 4716 (U.S. June 21, 1982), that the

height requirement was one component of a selection process

that excluded eighty percent of all women applicants and that

this alone violated Title VII even though the overall result of

the selection process was not objectionable. We explicitly

declined to follow the Second Circuit’s approach in Teal, and

the Supreme Court’s subsequent affirmance of Teal made

this reconsideration necessary.

In Connecticut v. Teal, 50 U.S.L.W. 4716 (U.S. June 21,

1982), the Supreme Court considered “whether an employer

sued for a violation of Title VII of the Civil Rights Act of 1964

may assert a ‘bottom line’ theory of defense.” Jd. at 4716.

Under such a theory, an employer using an employment

criterion that has an adverse impact on a group protected by

Title VII can defend on the ground that the adverse impact is

offset by other measures and the final result is an ap-

propriately balanced work force. The Court held ‘‘that the

‘bottom line’ does not preclude [a plaintiff] from establishing

a prima facie case, nor does it provide [an employer] with a

defense to such a case.”’ Jd. at 4717.

15a

MARKEY v. COSTA

In Teal, the plaintiffs, four black employees of the Depart-

ment of Income Maintenance of Connecticut, sought to up-

grade their positions from provisional to permanent Welfare

Eligibility Supervisors. The first step in the promotion proc-

ess was attainment of a passing score on a written examina-

tion. Failure of this test precluded an applicant from further

consideration for promotion. Passing the test meant that the

applicant moved on to later stages of the selection process in

which the employer considered various other criteria, such as

past work performance and recommendations of supervisors.

Plaintiffs failed the written exam and brought suit alleging a

violation of Title VII.

Plaintiffs produced evidence that the written examination

had a significantly disparate effect on black candidates; the

black passing rate was sixty-eight percent that of the white.

The employer defended on the basis of the bottom line result

of its promotion process. It argued that its additional factors

in the promotion process, those considered once an applicant

passed the written test, resulted in promotion of a greater

percentage of black than white candidates.

Rejecting the employer’s arguments, the Court explained

that in determining whether the plaintiff had established a

prima facie case under a disparate impact theory of discrimi-

nation the proper focus is not on the “‘bottom line” results of

the hiring process, but rather on the particular step in the

process alleged to have a discriminatory effect.

In considering claims of disparate impact under § 703(a)

(2) this Court has consistently focused on employment

and promotion requirements that create a discrimina-

tory bar to opportunities. This Court has never read §

703(a) (2) as requiring the focus to be placed instead on

the overall number of minority or female applicants ac-

tually hired or promoted.

Id. at 4719 (emphasis in original). Continuing on to a discus-

16a

OPINION OF THE COURT

sion of its decision in Dothard v. Rawlinson, 433 U.S. 321

(1977), a case concerning height and weight requirements for

prison guards, the Court explained:

Although we noted in passing that women constituted

36.89 percent of the labor force and only 12.9 percent of

correctional counselor positions, our focus was not on

the ‘“‘bottom line.’’ We focused instead on the disparate

effect that the minimum height and weight standards

had on applicants: classifying far more women than men

as ineligible for employment.

50 U.S.L.W. at 4719. The Court concluded that “[t]he sug-

gestion that disparate impact should be measured only at the

bottom line ignores the fact that Title VII guarantees these

individual respondents the opportunity to compete equally

with white workers on the basis of job-related criteria.” Id.

(emphasis in original).

Teal teaches that the proper place to evaluate the strength

of a Title VII plaintiffs prima facie case of disparate impact

discrimination is the point at which the employer’s neutral

criterion has a discriminatory effect. The Court’s focus must

be on the first step in the employment process that produces

an adverse impact on a group protected by Title VII, not the

end result of the employment process as a whole. When it is

shown that an employer’s rule disproportionately affects

members of a class protected by Title VII, eliminating them

from competition for an employment opportunity, the plain-

tiff establishes a prima facie case, and the burden shifts to the

employer to show job-relatedness. The employer cannot point

to the results of its process, but must justify use of the dis-

criminatory element in that process.

Our original decision focused on the end result of New Bed-

ford’s hiring process. We reasoned that the height require-

ment could not have a discriminatory effect on women be-

cause the city, during this phase of its police officer recruit-

17a

MARKEY v. COSTA

ment, hired only women. We explained that “[a]bsent any

discriminatory purpose, we see no justification for looking be-

hind a result that does not reveal a hiring that has a dispro-

portionately adverse impact on the relevant minority labor

pool.”’ Costa v. Markey, 677 F.2d 158, 161-62 (1st Cir. 1982).

Teal requires us, however, to look behind the result and

evaluate the disparate impact of the height requirement it-

self, not the end result of its application in this particular

case.

In the typical disparate impact case, two groups, one pro-

tected by Title VII and one not, are competing for employ-

ment opportunities. The employer applies a facially neutral

rule to both groups, but the adverse results of the rule fall dis-

proportionately on the group protected by Title VII. The

sticking point here is that in this instance of the city’s applica-

tion of its height requirement women were excluded only

relative to other women. While this may be used as a way to

distinguish this case from Teal, we think to do so would evade

Teal’s specific rejection of the ‘‘bottom line’’ defense.

Were we to focus in this case on the city’s hiring of only

women, we would be focusing on the “bottom line.”’ It is un-

disputed that New Bedford's five feet six-inch height require-

ment resulted in far more women than men being classified

as ineligible for appointment as police officers. The city

routinely applied the height requirement to both male and

female applicants. In this case the city applied the require-

ment to women only and hired only women. But this is no

defense to a prima facie case of disparate impact discrimina-

tion. It seeks to justify the disparate effect of the rule in

general by pointing to the end results of one particular ap-

plication of the rule. This is the ‘‘bottom line” approach which

is proscribed by Teal. In light of Teal, we hold that when, as

here, an employer uniformly applies a rule to male and female

applicants and applies it in one round of hiring decisions to a

18a

OPINION OF THE COURT

pool of only female applicants, the rule must be job-related if

in its regular application it has a disparate effect on women.

We realize that an argument can be made that Teal does

not apply to a sex-specific list where men and women are not

in competition for the same job because a plaintiff cannot es-

tablish a prima facie case if the result of the particular ap-

plication of the employer’s neutral rule only generates statis-

tics about how women fared as compared to other women.

Such an argument, however, overlooks the proper focus for

examining the existence of a prima facie case. The Supreme

Court has never required a plaintiff to use statistics from the

actual application of a neutral] rule when establishing a prima

facie case.

There is no requirement . . . that a statistical showing

of disproportionate impact must always be based on

analysis of the characteristics of actual applicants. ...

[R]eliance on general population demographic data [is]

not misplaced where there [is] no reason to suppose that

physical height and weight characteristics of [one

state's] men and women differ markedly from those of

the national population.

Dothard v. Rawlinson, 433 U.S. 321, 330 (1977) (citations

omitted). If there is reason to doubt the accuracy with which

national statistics reflect the effect of the rule on the par-

ticular employer’s labor pool, more narrowly tailored statis-

tics may be required. See New York City Transit Authority v.

Beazer, 440 U.S. 568, 586 n.29 (1979). A case involving a

height standard does not require resort to these more exact-

ing statistics.

We hold that plaintiff has established a prima facie case of

disparate impact discrimination by making an undisputed

showing that New Bedford’s use of its height requirement ex-

cluded far more women than men from competing for posi-

tions as police officers. Since the city did not seek to justify

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MARKEY v. COSTA

its requirement by proving job-relatedness,’ plaintiff has

proven a complete violation of Title VII.

The final issue is relief. The parties have stipulated to the

amount of back pay, interest, and attorney's fees and the se-

niority and wage level to which the plaintiff would be entitled

if she prevails. The city defendants? however, dispute

whether plaintiff is entitled to back pay at all, the time from

which back pay is to be computed, and if she is entitled to

back pay, they argue that the state should be jointly liable for

any award.

The defendants recognize and we agree that once a viola-

tion of title VII is proven, the successful plaintiff is presump-

tively entitled to back pay. See City of Los Angeles Depart-

ment of Water & Power v. Manhart, 435 U.S. 702, 719 (1978);

Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975).

“The Albemarle presumption in favor of retroactive liability

can seldom be overcome, but it does not make meaningless

the district courts’ duty to determine that such relief is ap-

propriate.” City of Los Angeles Department of Water &

Power v. Manhart, 435 U.S. at 719. In particular, the district

court is required to exercise its discretion in accord with the

purposes of title VII. ‘{[B]ackpay should be denied only for

reasons which, if applied generally, would not frustrate the

central statutory purposes of eradicating discrimination

throughout the economy and making persons whole for in-

juries suffered through past discrimination.”” Albemazle Pa-

per Co. v. Moody, 422 U.S. at 421 (footnote omitted). The de-

fendants claim that in this case two special circumstances ex-

ist to justify denial of a back pay award without frustrating

the central purposes of title VII.

The first is reliance on a state statute. Defendants rely on a

2 The height requirement rule has been eliminated.

* All further references to defendants are to the city defendants,

the city officials of New Bedford. The state is also a party defend-

ant.

20a

OPINION OF THE COURT

line of cases, decided before Albemarle, in which the courts

ruled that an employer’s compliance with a state law de

signed to protect women, although a violation of title VII,

was an important factor in determining whether the plaintiff

was entitled to back pay. See, e.g., Williams v. General Foods

Corp., 492 F.2d 399, 407 (7th Cir. 1974); Ash v. Hobart

Manufacturing Co., 483 F.2d 289, 292-93 (6th Cir. 1973);

Kober v. Westinghouse, 480 F.2d 240, 246-49 (3d Cir. 1973).

The Supreme Court in Albemarle did not reach the question

of whether reliance on female protective statutes provides an

employer with a shield from back pay liability, Albemarle Pa-

per Co. v. Moody, 422 U.S. at 423 n.18, and although at least

two circuit courts since Albemarle have stated that such

reliance would be a factor in the equitable balancing at the

remedy stage, see Palmer v. General Mills, 600 F.2d 595,

598-99 (6th Cir. 1979) (dictum); Stewart v. General Motors

Corp., 542 F.2d 445, 451 (7th Cir. 1976) (dictum), cert.

denied, 433 U.S. 919 (1977); contra Stryker v. Register Pub-

lishing Co., 423 F. Sup). 476, 477 (D. Conn. 1976), we need

not decide this question ii. the present case.

In the line of cases to which defendants look for support,

the state statutes in question unequivocally commanded the

employer to treat women employees differently than male

employees. Such a statute, for example, would place limits on

the hours a woman could work or on the strenuousness of the

tasks she could perform. In the typical case the employer was

caught between the proverbial rock and a hard place. That is,

it could comply with either the commands of title VII or the

state statute, but not both. The courts reasoned that the

employer should not be penalized with a back pay award

when it relied in good faith on a valid state statute.

In this case, there is no statute that commanded New Bed-

ford to adopt the height requirement. The statute to which

defendants point only authorizes a city or town to adopt a

2la

MARKEY v. COSTA

height requirement if it chooses to do so. See 1973 Mass. Acts

ch. 351. The statute did not present New Bedford with the di-

lemma inherent in cases in which the state statute irrecon-

cilably conflicts with title VII; such a conflict is the factor

that tips the equitable balance in a defendant’s favor.

The second special circumstance that defendants claim re-

quires the court to deny back pay is their own good faith. We

think that Albemarle prohibits a court from denying back pay

solely on the basis of the employer’s good faith. Although in

Albemarle the Court ruled only that an employer’s lack of bad

faith is not a sufficient reason for denying back pay, 422 U.S.

at 422, the factors the defendants used to show absence of

bad faith are almost identical to those asserted here, and the

Court’s reasoning, therefore, is equally applicable here.

In Albemarle defendant's claim of no bad faith was based

on its attempts to recruit minorities and its lack of knowledge

that its seniority system violated title VII despite its dis-

parate effect on blacks. Here, defendants contend that their

good faith is demonstrated by their taking affirmative firm

steps to hire women and their lack of intent to discriminate.

Defendants, thus, in effect ask us to deviate from the holding

that Albemarle compels.

We are not convinced that denial of back pay would not frus-

trate the purposes of title VII. Denying back pay on the basis

of an employer’s innocent intentions would make the remedy

“a punishment for moral turpitude, rather than a compen-

sation for workers’ injuries. This would read the ‘make whole’

purpose right out of Title VII... .” Albemarle Paper Co. v.

Moody, 422 U.S. at 422. Moreover, too close an ‘“‘emphasis on

the employer’s aspirations and intentions accords too little

weight to the legal standards that govern under Title VII. The

Act focuses on effects, not purposes.”” Cohen v. West Haven

Board of Police Commissioners, 638 F.2d 496, 504 (2d Cir.

1980). Were we to deny back pay here we would eliminate an

22a

OPINION OF THE COURT

important incentive for employers to undertake self-

examination of their employment practices and discard those

that have an illegal discriminatory effect.

Defendants next claim that their back pay liability was cut

off as of the date of their subsequent offer to place plaintiff

on the police force if she met the applicable civil service

regulations. Plaintiff argues, first, that any offer was not

“bona fide’ because it was necessarily conditioned on plain-

tiffs obtaining a place on a civil service list, a factor the city

could not control, and second, that she was not obligated to

accept the offer because it did not include back pay and retro-

active seniority. The Supreme Court’s recent decision in

Ford Motor Co. v. EEOC, 50 U.S.L.W. 4937 (U.S. June 28,

1982), controls our disposition of this issue.

In Ford Motor Co. the Court held that ‘‘absent special cir-

cumstances, the rejection of an employer’s unconditional job

offer ends the accrual of potential backpay liability,” id. at

4943, and that an employer’s failure to include in the offer

retroactive seniority or back pay does not make the offer un-

conditional and is not a special circumstance justifying rejec-

tion. Jd. at 4938 n.7, 4940-43. From our examination of the

record we are unable to discern the exact date on which the

city made an offer to plaintiff and whether the offer was un-

conditional as defined in Ford Motor Co. We must therefore

remand to the district court so that it can determine the

amount of back pay due in the light of Ford Motor Co.

Finally, we uphold the district court’s limitation of the back

pay award to the city defendants only. The single act of

discrimination that led to an award of back pay was the ap-

plication of the height requirement to plaintiff during com-

petition involving the all-women list. As we noted earlier, the

city’s adoption of the height requirement was completely vol-

untary. Although the state permitted an individual city to

adopt a height requirement, it in no way compelled New Bed-

23a

MARKEY v. COSTA

ford to do so, and it clearly did not mandate adoption of a re-

quirement that violated title VII. In short, neither the plain-

tiff nor the city produced any evidence that the state was

responsible for the discrimination at issue.

Our prior opinion finding no liability is reversed, and the

case is remanded for further proceedings consistent herewith.

CAMPBELL, Circuit Judge (Concurring). I concur in the

analysis of the court. While Chief Judge Coffin points out cer-

tain differences between Teal and this case, and while my

personal views remain in accord with our original Costa opin-

ion (and with Justice Powell’s dissent in Teal), I am not per-

suaded that Teal is distinguishable. When the Supreme Court

decides a case, I think we must ascribe a certain generality to

its opinion; the present issue seems to me to be subsumed in

principle, if not in every respect, by the language and holding

in Teal. Accordingly I think we must affirm the district court.

COFFIN, Chief Judge (dissenting). This case seems to me

unlike most cases resulting in a divided panel. Instead of a

head-on clash of arguments (there is/is not probable cause,

sufficient evidence, due process, etc.), the difference between

my brothers and me lies in our choice of a starting point. I in-

sist that, because there has been no discrimination against

women in the process of filling the positions at issue here,

there is no prima facie case to begin with. My brothers’ posi-

tion has to be that although women have not been discrimi-

nated against, the use of a criterion of choice — height —

which in other circumstances can be a means of discrim-

inating against women, is sufficient to make out a prima facie

case here. Because this seems to me to provide a remedy

when there has been no wrong and to carry abstract dis-

parate impact analysis far beyond that articulated in Connec-

ticut v. Teal, __. U.S. ___, 102 S. Ct. 2525, 50 U.S.L.W.

4716 (U.S. June 21, 1982), I dissent.

24a

OPINION OF THE COURT

At the outset, I must assume some responsibility for what I

consider to be current confusion as to the relationship be-

tween the situation in this case and that in Connecticut v.

Teal. In our first opinion, (Costa J), I described Teal as the

‘‘mirror image”’ of this case and specifically declined to follow

the Teal approach. In part because of that language I agreed

that in light of the Supreme Court’s affirmance of Teal we

should rehear this case and make sure that the two cases dif-

fer significantly. I think they do.

The plaintiff in this case had urged us to accept the Second

Circuit’s opinion in Teal as guidance for our resolution of her

claim. We could (and perhaps should) have dismissed Teal as

simply irrelevant to a situation where the challenged barrier

never had any disproportionate effect on women. Instead, we

described the cases as ‘‘mirror images’’, a description which

has caused no small amount of confusion and which I feel

some obligation to attempt to clarify. In describing Teal as

the mirror image of this case, I meant to highlight the dif-

ferences rather than the similarities between the two cases.

Both cases involved a pass-fail hiring barrier that statistics

demonstrated had a greater impact on members of the pro-

tected class than on non-members. Both also involved an ad-

ditional aspect of the hiring process that operated to remove

the impact of that barrier. But there the similarity ends. They

are mirror images and not identical situations because the as-

pects of the process that operated to remove the overall im-

pact of the barrier were at different ends of the process. In

Costa there was no discrimination to begin with; in Teal the

initial discrimination was compensated for at the end. That

timing is a crucial distinction between the two cases because,

as we pointed out in Costa J, the initial decision in this case to

hire only women meant that the pass-fail barrier never had

any disparate effect on women. There was, therefore, no ques-

tion of remedying the discriminatory effect of an element in a

25a

MARKEY v, COSTA

process with a non-discriminatory bottom line. There was

never any discriminatory effect.’

As I understand the debate between the majority and the

dissent in Teal, the issue was whetier an employer should be

excused for utilizing a barrier that statistics showed dispro-

portionately affected blacks as long as it added enough blacks

at the end of the hiring process to meet the appropriate racial

ratio. The majority concluded that a non-discriminatory ‘‘bot-

tom line” was no justification for ciscriminating against in-

dividuals along the way. They found it ‘‘clear that Congress

never intended to give an employer license to discriminate

against some employees on the basis of race or sex merely

because he favorably treats other members of the employees’

group.” 50 U.S.L.W. at 4720. In Justice Powell’s view, the

result reached by the majority is an unprecedented expansion

of the theory of disparate impact. As he points out, Title VII

plaintiffs have been allowed to proceed under either a theory

of disparate treatment — by establishing that they, as indi-

viduals, have been discriminated against — or of disparate

impact — by establishing that they have been victims of a fa-

cially neutral practice that excludes a disproportionate

number of members of his protected group. Because the |at-

ter theory necessarily requires reference to the group rather

than to the individual, Justice Powell would not allow a plain-

tiff proceeding under this theory to ‘have it both ways’’, to

‘In Costa J, we also described Teal as standing for an approach

to reviewing disparate impact discrimination claims that we re-

jected. In a position similar to that of Justice Powell, dissenting in

Teal, we concluded that if the overall effect of a hiring process is

not discriminatory, we saw no reason to look behind that result to

possibly discriminatory elements of the process. We no longer have

the liberty of offering that broad justification for our t in this

case, but we can still point out that Teal and this case are different

in the crucial respect that the challenged hiring barrier in one had a

disparate effect on women and that in the other did not. Nothing in

Teal requires us to find a discriminatory effect where there is none.

26a

OPINION OF THE COURT

infer discrimination by reference to the group and then ig-

nore the fact that the group as a whole has not been injured.

In his view, this is “‘to confuse the individualistic aim of Title

VII with the methods of proof by which Title VII rights may

be vindicated.’’ Jd. at 4721 (Powell, J., dissenting).

Whatever the merits of the dispute in Teal, neither side ad-

dressed the issue raised by plaintiff here. My brothers, I sub-

mit, have made a leap beyond the position taken by the ma-

jority and criticized by the dissent in Teal. For, as far as I can

tell, the Supreme Court has never held, or even intimated,

that a Title VII plaintiff should be able to recover for

discrimination on the basis of her sex when it is impossible

that she was disadvantaged in relation to any man. We held

in Costa J, and my brothers still agree, that at the only point

in time when the height requirement had any effect on plain-

tiff, she was in competition only with other women for a job

as a police officer.? As we pointed out in Costa J, courts that

have addressed similar situations agree that when there is no

competition between the sexes, there can be no discrimina-

tion on the basis of sex. See Stroud v. Delta Air Lines, Inc.,

544 F.2d 892 (5th Cir. 1977); Gerdom v. Continental Airlines,

Inc., 648 F.2d 1223 (9th Cir. 1981).

The majority reasons that “‘[w]ere we to focus in this case

on the city’s hiring of only women, we would be focusing on

the ‘bottom line’’’, a focus forbidden by Teal. To the con-

trary, I submit that in this case, the city’s hiring of only

women is the introductory paragraph. It is the key to

? It has not been argued and there is no evidence that the relative

numbers of men and women hired would have varied according to

the number or quality of the eligible women applicants. The City re-

ested permission to hire from a list of women because of its need

or female police officers and the fact that, wholly apart from the

height requirement, there were no women high enough on the in-

tegrated list to be hired. Thus it is doubtful that after the lists were

separated the number of women hired would have increased had

there been no height requirement.

27a

MARKEY v. COSTA

everything else that follows. According to Teal, once a

disparate effect is demonstrated, no amount of undoing of

that effect will suffice. In this case, there is no effect, so we

need not worry about the employer’s ‘bottom line’’.

My dispute with my brothers, I believe, comes down to

what is required for a plaintiff to demonstrate disparate im-

pact. I have no question that in another context, where the

sexes are in competition, the statistics provided here, show-

ing that as of 1971-74 the average height of women between

the ages of 25 and 34 was 5 feet, 4.1 inches while that for men

in the same age bracket was 5 feet, 9.6 inches, would

establish a prima facie case of disparate impact and require

an employer to demonstrate that his height requirement was

job related. My point in Costa J and the point which I reiterate

here is that the fact that a hiring barrier excludes more

women than men is irrelevant when the women cannot lose

out to men. When only women are competing for a job as a

police officer, a height requirement may be unfair but it is not

a violation of Title VII.

28a

United States Court of Appeals

For the First Circuit

No. 81-1361.

LYNDA LeBOEUF COSTA,

PLAINTIFF- APPELLEE,

v.

JOHN A. MARKEY, et al.,

DEFENDANTS- APPELLANTS,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

(Hon. ROBERT E. KEETON, U.S. District Judge.]

Before

CoFFIN, Chief Judge,

CAMPBELL and BOWNES, Circuit Judges.

Armand Fernandes, Jr., for appellants.

Thomas F. McKenna, with whom Mariann Zampano was on brief

for appellee.

Thomas A. Barnico, Assistant Attorney General, Government

Bureau, Department of the Attorney General, with whom Francis

X. Bellotti, Attorney General, and Betty E. Waxman, Assistant At-

torney General, Government Bureau, Department of the Attorney

General, were on brief, for the State appellee.

May 3, 1982

COFFIN, Chief Judge. The interesting question at the heart

of this appeal is whether the authorities of New Bedford

engaged in sex discrimination when they hired police officers

from an all-women pool from which the female plaintiff was

excluded because she was below the required minimum

height of 5 feet, 6 inches.

Plaintiff's action was brought against the mayor, chief of

police, and city councillors of New Bedford and the personnel

29a

MARKEY v. COSTA

administrator and Civil Service Commission of the Com-

monwealth of Massachusetts. The district court denied relief

sought under 42 U.S.C. §§ 1981, 1983, and the Equal Protec-

tion clause of the Fourteenth Amendment, but granted

retroactive relief in the forrn of back pay and other benefits

for the city’s violation of section 703(a) of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The city

challenges both the finding of discrimination and the conclu-

sion that the Commonwealth defendants were not jointly

and/or severally liable with the city defendants.!

The presently critical facts are few. In 1974 New Bedford

abolished its separate hiring procedures for ‘‘policewomen”’

and ‘‘police officer’ and used an “‘integrated”’ candidate list

for ‘‘police officer’ prepared by state civil service. Early in

that year, a recently adopted 5 feet, 6 inches height require-

ment was extended to apply to women as well as to men.

Plaintiff, 33 years old and 5 feet, 3 inches tall, took her police

civil service examination in 1972, was notified in 1973 that

her score was 93.3 per cent, and in May, 1974, passed the

city’s physical fitness examination. On July 30, 1974, the use

of an integrated list of men and women, ranked by civil serv-

ice to reflect examination scores and statutory and court

ordered preferences, failed to result in the appointment of

any female.?

1 The plaintiff presently serves on the — force with seniority

and pay calculated in accordance with the district court’s finding

that she had been im ny Or deprived of employment at ihe time

of the hiring from the ee. all-women pool. In the

event this court finds no violation of Title VII, plaintiff is to retain

her position but her pay and seniority are to be calculated on the

basis of the date of her actual appointment.

? This end result followed a drama, if not a comedy, of errors in

which, first, plaintiff's name was erroneously left off the list, sec-

ond, her name was restored to the list at an erroneously higher po-

sition than her various qualifications merited, and, third, after an

interview (which she should not have had) she was rejected because

of failure to meet the height requirement. The district court’s rul-

ing that this rejection did not cause cognizable harm because an

appointment of plaintiff would have been invalid, is not sonbeebel.

Wa

OPINION OF THE COURT

New Bedford, having a continuing need for a female police

officer, ¢.g., to attend to female prisoners and to investigate

cases involving females, sought and received permission from

the Massachusetts Commission Against Discrimination to

make a gender-specific hiring. To implement this action, it

also received, on August 12, an all-women list. Plaintiff,

although placing first on the list, was rejected because of her

height. All height requirements were abolished in November,

1974. The evidence before the court, in addition to these

facts, included national statistics showing that as of

1960-1962 80 per cent of women between 18 and 34 were

shorter than 5 feet, 6 inches, and that as of 1971-1974 the

average height of women between the ages of 25 and 34 was

5 feet, 4.1 inches while that for men in the same age bracket

was 5 feet, 9.6 inches.

The district court specifically found that the height require-

ment had not been adopted “‘because of’ a purpose to dis-

criminate against women. It therefore addressed the Title

VII issue as one involving a presumptively neutral test which

results in a disparate impact, without requiring proof of a

discriminatory purpose. Albemarle Paper Co. v. Moody, 442

U.S. 405, 425 (1975). The court found that plaintiff's

statistics established ‘‘the significantly disparate impact of a

5 feet 6 inches minimum height requirement upon women as

compared to men.’’ This, so the court concluded, made out

plaintiff's prima facie case which was unrebutted. The court

therefore found the height requirement invalid because it was

“so intimately and integrally related to the broader use of the

height requirement” and because ‘‘but for application of the

height requirement to the selection from the all-women list,

plaintiff would have been on the police force under a valid ap-

pointment.”

The precise issue before us is whether the district court was

correct in concluding that plaintiff had established a prima

3la

MARKEY v. COSTA

facie case under the statute. The statute, 42 U.S.C.

§ 2000e-2(a), states, in essence, that it is an unlawful practice

for an employer ‘‘(1) to... refuse to hire. . . any individual

. . . because of such individual’s...sex...; or (2) to...

classify . . . applicants for employment in any way which

would deprive . . . any individual of employment oppor-

tunities . . . because of such individual’s...sex....’’ Aprima

facie disparate impact case under the statute requires a

demonstration by plaintiff that the employee selection re-

striction selects ‘‘applicants for hire . . . in a [sexual] pattern

significantly different from that of the pool of applicants.”’

Albemarle Paper Co. v. Moody, supra, 442 U.S. at 425.

Defendants argue in essence that plaintiff was excluded,

not because she is a woman but because she is short. The

criterion of height, of course, does operate to exclude more

women than men when the two sexes are in competition. It is

then a built-in trigger of discrimination. But, they contend,

the fact that the pool of applicants is limited to women

operates as a safety lock, preventing the trigger from achiev-

ing its ordinarily discriminatory end result. The end result

here, the filling of the two available job openings from the

August 12 list with women only, cannot be said to produce a

sexual pattern significantly less representative of women

than is the pool of persons interested in joining the New Bed-

ford police force. Thus, say defendants, plaintiff has not

established a prima facie case. Plaintiff finds this cualysis

simplistic. She emphasizes the fact that she, an individual

woman, never had a chance to compete because of a pass-fail

threshold height requirement that is more adverse in its im-

pact on women than it is on men.

In assessing these positions, we think that an analogy may

point up the issue more sharply. If a private employer main-

tained a branch drug store which he wished to man with all-

black personnel and if he, quixotically, wished all his person-

32a

OPINION OF THE COURT

nel to be college graduates, could it be successfully argued

that he violates Title VII by carrying out his plan? The college

graduate requirement, if applicable where whites and blacks

are in competition, would bear much more harshly on blacks,

but not where only blacks are to be hired. In both cases there

are several layers of analysis. On the surface each applicant is

excluded from a job opportunity because of a neutral factor —

height or education. To this the short female and non-college

black person respond that each supposedly neutral factor ac-

tually is an indicium of their minority, since it in fact usually

operates to prefer males or whites. But when we probe one

layer deeper, we conclude that this is an inadequate response.

The height or education factor does its dirty work only when

there are males or whites to prefer. Absent this role of dis-

proportionate preferment, the factor no longer distinguishes

between sexes or races, but only within the sex or a race. The

taint is not inherent in the factor, but contextual. Alterat con-

textus, cessat ipsa lex. In sum, we accept defendants’ reason-

ing.

The relevant case law heavily supports this reasoning. An

important line of cases is led by Stroud v. Delta Air Lines

Inc., 544 F.2d 892 (5th Cir. 1977), which upheld the validity of

an airline’s no-marriage rule for its all-women group of flight

attendants. The court reasoned:

“Here, plaintiff is not a member of one of the relevant,

identifiable classes which has been discountenanced in

favor of another such class. Rather, certain women —

stewardesses who are unmarried — are favored over

certain other women — stewardesses who are married.

As one of the all-female group of flight attendants

employed by Delta, plaintiff suffered a discrimination,

but it was based on marriage and not sex. Men were not

favored over women; they simply were not involved in

the functioning of the policy.’’ Jd. 544 F.2d at 893.

33a

MARKEY v, COSTA

See also DeVolld v. Bailar, 568 F.2d 1162, 1163-64 (5th Cir.

1978) (promotion of one Mexican-American removes any

possibility that the plaintiff can prove that her situation is due

to discrimination against her as a Mexican-American).

Plaintiff attempts to distinguish these cases as generally in-

volving discharge standards which did not automatically ex-

clude 80 per cent of the available female applicant pool. This

does not seem persuasive to us. Although particular lawsuits

involving such rules as no-marriage may have arisen in a

discharge context, the rule itself effectively excludes married

women from applying.

Plaintiff relies heavily on a case in which the court held that

black plaintiffs had made out a prima facie case by showing

that one component of a selection process for promotion to

Welfare Eligibility Supervisor, a written examination, had a

disparate impact on them and operated as a pass-fail barrier

to their further consideration, notwithstanding the fact that

the total selection process did not have a disparate impact on

black candidates. Teal v. Connecticut, 645 F.2d 133 (2d Cir.

1981) cert. granted, 50 U.S.L.W. 3244 (October 6, 1981).

In Teal plaintiffs sought to gain permanent status as super-

visors. They first had to pass a written examination. From

’ We note our discomfiture at learning only by our own research,

after oral argument in March, 1982, of the granting of certiorari

five months earlier. The question presented is:

“In Title VII action in which final outcome of employee selec-

tion process does not result in adverse impact against plain-

tiffs’ minority group, can plaintiffs make prima facie showing

of employment discrimination by merely establishing: (1) that

they failed 1 to succeed on component of selection process and

fant became ineligible to proceed further in selection proc-

ess, and (2) that results of such component had disparate im-

pact on plaintiffs’ minority group?” (50 U.S.L.W. 3054).

This is really the mirror image of the case before us. In Teal and

gar per ed the defusing of disparate impact came

at the end of rie pated pte ay Reh dagen we ganna

decision to hire only women made defusing unnecessary.

34a

OPINION OF THE COURT

the resulting eligible pool the appointing authority considered

past performance, recommendations of supervisors, seniori-

ty, and, not least, affirmative action considerations. This par-

ticular examination resulted in a pass rate for black can-

didates that was only 68 per cent that of white candidates.

Yet the final result was a promotion rate of 23 per cent of the

black applicants and 13.5 per cent of the white applicants.

The case followed and overruled #rown v. New Haven Civil

Service Board, 474 F. Supp. 1256 (D. Conn. 1979), in which,

as in most other similar cases up to that time, the court, in ex-

amining for disparate impact, had looked at the selection

process as a whole, rather than any particular stage or seg-

ment.‘ Brown’s two compelling reasons had been the

palpable problems of court management if courts were to ex-

amine ‘‘subtests, sub-subtests, and even individual

questions’’, id. at 1262, and its concern that Title VII not be

construed to prevent a municipality’s resorting to affirmative

action to guarantee a fit between minority hiring and the

minority applicant pool, not leaving matters entirely to the

random workings of a non-discriminatory selection process.

‘ The Brown court’s comprehensive catalogue of authorities pur-

suing this ap roach is as follows:

v. Leidinger, 588 F.2d 61, 66 (4th Cir. 1978), ih

446 F. Supp. 361 (E.D. Va. 1977); Rule v. Ironworkers Local

$96, 568 F.2d 558, 565, n.10 (8th Cir. 1977); Smith v. Troyan,

520 F.2d 492, 497-98 (6th Cir. 1975); Lee v. City of Richmond,

456 F. Supp. 756, 771 (E.D. Va. 1978); of Kit v. New

York State Department of Correctional Services, 374 F. Supp.

1361, 1370 (S.D.N.Y. 1974), affd in relevant part, 520 F.2d

420, 425 (2d Cir. 1975) (showing that overall examination pro-

cedure has disparate results cannot be rebutted by fragment-

ing process and no disparate results in separate

parts); Vulcan Society of New York tal agen

Inc. v. Civil Service Commission, 360 F. Supp. 1265,

(S.D.N.Y.), aff'd, 490 F.2d 387 (2d Cir. 1973) emma), Contre

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364,

1372-73 (5th Cir. 1974); League of United Latin American

Citizens v. City of Santa Ana, 410 F. Supp. 873, 894-95 (C.D.

Cal. 1976).” 474 F. Supp. at 1261. (Footnote omitted).

35a

MARKEY v. COSTA

In overruling Brown, the Teal court reasoned that the

overview-of-the-whole-process approach is justifiable only

where each candidate’s total score is made up of negative

(disparate impact) and positive (affirmative action) factors in

equipoise. All candidates would share in both burdens and

offsetting benefits. But, the court concluded, if there is a

discriminatory pass-fail barrier that excludes individuals

from an opportunity to be later evaluated, belated ‘‘correc-

tive” action is of no avail. 645 F.2d at 139.

As our previous discussion would indicate, we do not follow

the Teal approach. Absent any discriminatory purpose, we

see no justification for looking behind a result that does not

reveal a hiring that has a disproportionately adverse impact

on the relevant minority labor pool. Beyond this, there are

prudential problems in trying to distinguish between a selec-

tion process which is based on cumulative scores and one

which involves a pass-fail threshold followed by other selec-

tion steps. As a comment in 23 Boston College Law Review,

Dec. 1981, Annual Survey of Labor Law 84, 278-279 puts it:

“In its discussion of the Brown case, the Teal court did

not address Brown’s statement that ‘[e]ven in a

cumulatively scored application process, a score on any

single component might be so low as to preclude the ac-

cumulation of a total score meeting a minimum hiring

requirement.’ 474 F. Supp. at 1262, 20 FEP Cas. at

1380. In light of that observation, it is evident ‘nat the

distinction between the two types of selection processes

is not so neat... . Furthermore, it is only on the basis of

the existence of the distinction that the Teal court

dismisses the concern that courts will be burdened ex-

cessively by examining isolated sub-tests. 656 F.2d at

139, 25 FEP Cas. at 533... . The court fails to explain

convincingly why the burden of examining sub-tests is

lighter in the process with a pass-fail barrier.”

36a

OPINION OF THE COURT

We therefore conclude that the district court erred in deem-

ing that the men-women height statistics established a prima

facie case under the circumstances we have described. So con-

cluding, we need not decide other issues.

It is perhaps worth emphasizing what we have not held or in-

timated. First, we have not dealt with a selection process that

uses a facially neutral requirement in circumstances belying

the good faith of the employer. For example, if it were the case

that rather extreme requirements were set with the result that

positions nominally reserved for women were seldom filled

and then only after inordinate delay, this would involve dis-

parate treatment analysis and the concomitant need, easily

met, to prove discriminatory purpose.

Second, this case does not deal with an equal protection

challenge against a height restriction on behalf of short wom-

en, where there is proof that the employer devised the require-

ment “‘at least in part ‘because of,’ not merely ‘in spite of,’ its

adverse effects upon an identifiable group. [Footnote

omitted.]"’ Personnel Administrator of Mass. v. Feeney, 442

U.S. 256, 279 (1979).

Third, this is not a case where the selection process incor-

porated criteria that were so demeaning to women as to con-

stitute institutionalized harassment. Cf. Tomkins v. Public

Serv. Elec. & Gas Co., 568 F.2d 1044, 1046 n.1 (3d Cir. 1977)

{court does not pass on theory that sexual harassment created

“an environment of debilitating sexual intimidation’’]; and

Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981) [sexual

harassment even without adverse employment consequences,

can be a violation of Title VII, in that it creates a “‘discrim-

inatory environment’’}.

Finally, this is not a case where there is evidence that replac-

ing one female with another was to cover up a discriminatory

act. See Equal Employment Opportunity Commission v. Tufts

Institution of Learning, 421 F. Supp. 152, 165 (D. Mass. 1975).

The part of the judgment relating to denial of employment

from the all-women list of August 12, 1974 is accordingly

reversed.

37a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

LYNDA LeBOEUF COSTA,

PLAINTIFF

: CA,

v. : No, 75-2915-K

JOHN MARKEY, etal.,

DEFENDANTS

April 24, 1981

FINAL JUDGMENT

I. Appointment

A. David Marchand, Personnel Administrator of Division

of Personnel Administration, as successor to defendant Anne

Ramsey, shall revive the all-woman list of police officers cer-

tified in 1974 to the City of New Bedford, said list consisting

of the name of Lynda LeBoeuf Costa, subject to her passing a

physical examination administered by the Division of Person-

nel Administration.

The Personnel Administrator will notify the members of

the Massachusetts Civil Service Commission that it is re-

questing the revival of an eligibility list containing the plain-

tiffs name (Lynda LeBoeuf Costa) pursuant to St. 1976, c.

539.

B. The current members of the Massachusetts Civil Serv-

ice Commission, as successors to those named in LeBoeuf v.

Markey, shall approve the revival of the list pursuant to St.

1976, c. 534 and shall notify the Personnel Administrator of

said approval.

C. Upon approval, the administrator forthwith shall cer-

tify the name of Lynda LeBoeuf Costa to the City of New

Bedford for appointment as a police officer.

38a

OPINION OF THE COURT

D. The City of New Bedford and its officials and agents

shall promptly appoint Lynda LeBoeuf Costa as a police of-

ficer of the New Bedford Police Department within ten (10)

days of her certification by the Personnel Administrator.

E. Plaintiff shall be placed in the status for current and

future pay that she would have occupied had she been ap-.

pointed on September 22, 1974 with Jeanne Lawrence and

Shirley Arsenault.

F. Except as hereinafter stated, plaintiff shall be given full

seniority privileges as if she had been appointed on

September 22, 1974 immediately prior to Jeanne Lawrence

and Shirley Arsenault. These privileges include, but without

limitation, election of vacations, number of vacation weeks,

transfer rights and bidding rights. However:

1. Plaintiff shall not accrue retroactive seniority for

purposes of eligibility for promotional exams (Mass. Gen.

Laws c. 31, § 59).

2. Until the plaintiff has completed three (3) months’

recruit training pursuant to applicable state law, plaintiff will

be required to be assigned to limited (inside) duty.

3. Following completion of said recruit training, plain-

tiff will comply with the Union contract provision which now

requires all new recruits to be first assigned to the Uniform

Patrol Division Nights for three (3) years subject, however, to

all bidding rights which she will have based on seniority as

stated above.

4. Upon appointment, plaintiff shall be required to sat-

isfactorily complete training at a police academy (Mass. Gen.

Laws c. 41, § 96B) and serve a probationary period (Mass.

Gen. Laws c, 31, § 61) before her appointment becomes per-

manent.

5. Plaintiff will be credited with fifteen (15) days of sick

leave.

39a

MARKEY v. COSTA

G. The Court shall retain jurisdiction of this matter during

plaintiff's probationary period.

Il. Back Pay

A. The City Defendants shall pay the Plaintiff back pay

from September 24, 1974 to February 28, 1981, the sum of

Twenty Five Thousand Three Hundred Fifty Four and

12/100 ($25,354.12) dollars.

B. The City Defendants shall pay the Plaintiff the sum of

$7,028.11 as interest on the back pay of eight (8%) percent

per annum through February 28, 1981, plus interest at eight

percent (8%) per annum on $25,354.12 from that date to the

date of this order.

C. City Defendants shall deduct five percent (5%) of the to-

tal sum awarded as back pay (pursuant to Paragraph 114A of

this order) as the plaintiff's employee’s contribution to the Ci-

ty Defendant’s Retirement Program adininistered in accor-

dance with state law and the City shall contribute any sums

required to be deposited by it in accordance with said pro-

gram.

III. Attorney’s Fees

Subject to the stipulations made and referred to in Para-

graph IV.A. herein, the City defendants shall pay the plain-

tiff attorney’s fees for the period through February 28, 1981

in the amount Eleven Thousand ($11,000.00) dollars.

IV. Stipulations

A. The parties have stipulated as to the amount of back

pay, interest and attorney’s fees through February 28, 1981.

However, City and State defendants have reserved the right

to appeal on all issues raised during the trial. These issues in-

clude, without limitation: the underlying issue of discrimina-

tion; the locus of responsibility for such discrimination, City

40a

OPINION OF THE COURT

and/or State; the award of back pay, interest and attorneys

fees, and responsibility for payment of such award by City

and/or State defendants.

B. Pending any appeal filed by either the City and/or State

defendants, the City with the approval of the State defen-

dants, has tendered to the plaintiff the position of police of-

ficer for the City in the status for current pay that she would

have received and occupied had she been appointed on

September 24, 1974 with Jeanne Lawrence and Shirley

Arsenault. The plaintiff has now accepted this tender.

C. In the event an appellate court rejects the order of ap-

pointment to the position of police officer under the terms of

the Final Judgment, the parties have agreed to retain the

plaintiff in the position of police officer at a rate of pay and

level of seniority effective as of the actual date of her appoint-

ment.

Robert E. Keeton,

United States District Judge

4la

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

LYNDA LeBOEUF COSTA,

PLAINTIFF:

ae

v. : No. 75-2915-K

JOHN MARKEY, et al.,

DEFENDANTS

December 4, 1980

Memorandum and Order

The matters before the court are issues relating to the

terms of judgment consistent with the rulings of the court in

the Memorandum and Order of September 16, 1980, and de-

terminations to be made at this time on remaining issues, in

light of additional submissions of the parties.

I,

Plaintiff argues that the state defendants, along with the

city defendants, should be held jointly and severally liable for

both back pay and attorneys fees. In the Memorandum and

Order of September 16, 1980, however, the court concluded

that the sole basis for awarding back pay was denying plain-

tiff appointment from the All-Women List by the city defend-

ants’ application of a city-determined minimum height re-

quirement. No basis was found, and none is now found, for

holding state defendants accountable for this action of the ci-

ty defendants. 42 U.S.C. § 2000e-5(g) provides that a back

pay award is “payable by the employer, employment agency

or labor organization . . . responsible for the unlawful employ-

ment practice.” Even if state defendants were considered to

be within the group subject to liability for back pay, they are

42a

OPINION OF THE COURT

not, on the evidence and findings of the court in this case,

among those “responsible” for the improper employment

practice by reason of which back pay is awarded. Cf. Guerra

v. Manchester Terminal Corp., 498 F.2d 641, 656 (5th Cir.

1974). Plaintiff's request that state defendants be held jointly

and severally liable for the award of back pay is denied.

State defendants are appropriately made parties to the

order for equitable relief allowed the plaintiff. They must

take actions consistent with the court’s order to make the

equitable relief fully effective. This need for their presence as

parties, however, is not in itself a sufficient ground for

awarding plaintiff's attorney’s fees against state defendants.

The central basis for both the back pay award and the

equitable relief allowed in this case is the improper applica-

tion of the height requirement by city defendants. Insofar as

plaintiff has asserted that state defendants directed or super-

vised or caused this improper action of city defendants, the

court has found against plaintiff's claim. 42 U.S.C. § 2000e-

5(k) grants a court discretion in awarding attorney's fees toa

prevailing party. Such discretion may be exercised in deter-

mining which defendant, among several, should be held liable

for attorney's fees. See Chastang v. Flynn & Emrich Co., 541

F.2d 1040, 1044-45 (4th Cir. 1976); Wisconsin Socialist

Workers 1976 Campaign Committee v. McCann, 460 F. Supp.

1054, 1058 (E.D. Wis. 1978). In light of the limited extent to

which the state defendants’ conduct contributed to the cir-

cumstances leading to this lawsuit, plaintiff's request that

state defendants be held jointly and severally liable for an

award of attorney’s fees is denied.

II.

Should interest be awarded on back pay and, if so, in what

amount?

43a

MARKEY v. COSTA

Back pay is an indebtedness arising out of a violation of a

statutorily-imposed obligation and is aimed at making the

plaintiff whole. Interest to compensate for loss from delayed

payment is likewise aimed at making the plaintiff whole. It is

therefore appropriate that it be awarded in a case such as the

present one. Cf. McClanahan v. Mathews, 440 F.2d 320,

325-326 (6th Cir. 1971) (interest on NLRB award of back

pay).

With respect to the method of calculating interest, plaintiff

proposes computation on an annual rather than quarterly

basis (the quarterly basis being more favorable to plaintiff),

the evidence introduced in this case not having disclosed

earnings on a quarterly basis. The court concludes that com-

putation on an annual basis is appropriate in this case.

In the absence of an applicable rule of federal practice,

United States district courts commonly apply the rate

prescribed by state law for the most nearly analogous cir-

cumstances. In this instance, the rate established by state law

for contract actions generally, including actions on employ-

ment contracts, is the most nearly analogous rule. Mass. Gen.

Laws c. 231, § 6C, as amended in 1974, provides that the in-

terest rate be 8 per cent per annum.

Plaintiff contends that the rate should be increased to 10

per cent per annum effective September 19, 1980, because of

the amendment of c. 231 § 6C effective that date. However,

the amending act, Mass. Reg. Session 1980, c. 322, § 3, ex-

plicitly declares that the amendment ‘‘shall apply to causes of

action commenced on and after the effective date of this act.”

The court therefore concludes that the rate to he applied is 8

per cent per annum.

Plaintiff contends that the interest should be compounded

quarterly. Section 6C, however, provides for simple rather

than compounded interest, and this court will follow the

statutory rule of simple interest at 8 per cent per annum.

44a

OPINION OF THE COURT

This rate is to be applied to the annual net difference be-

tween what plaintiff would have received as pay (excluding

overtime) had she been appointed from the All-Women List

and what she did earn. In view of the previous submissions of

the parties, it appears likely that the determination of the an-

nual figures can now be made by counsel in accordance with

this ruling, without further dispute. Counsel are directed tc

confer for this purpose and advise the court promptly.

With respect to sick leave, the city defendants have pro-

posed, as a compromise and without prejudice to their posi-

tion, that a credit of fifteen days of accumulated sick days be

included as an element of the equitable relief awarded. Ab-

sent a showing of good cause by plaintiff for a different dis-

position of this matter, the relief awarded will include a credit

of fifteen sick days.

IV.

With respect to interim appointment, city defendants have

agreed, subject to reservation of their appellate rights on

other issues, that an appeal and its outcome would not affect

plaintiff's appointment, though it might affect retroactive

back pay, seniority, interest, and retirement hb 1efits. If such

an interim appointment is opposed, either by plaintiff or by

state defendants, opposition, stating grounds therefor, shall

be filed in writing, within seven days. If no opposition has

been filed within the time permitted, the court proposes to

order the interim appointment promptly and submits to the

parties for their consideration the following proposed terms

of the order:

Order for Interim Appointment

A. David Marchand, Personne! Administrator of the Divi-

45a

MARKEY v, COSTA

sion of Personnel Administration, as successor to defendant

Anne Ramsey, shall revive the all-woman list of police of-

ficers certified in 1974 to the City of New Bedford, said list

consisting of the name of Lynda LeBoeuf Costa, subject to

her passing a physica] examination administered by the Divi-

sion of Personnel Administration.

B. The current members of the Massachusetts Civil Ser-

vice Commission, as successors to those named in LeBoeuf v.

Markey, et al., shall approve the revival of the list pursuant to

St. 1976, c. 534.

C. Upon approval, the Personnel Administrator shall cer-

tify the name of Lynda LeBoeuf Costa to the City of New

Bedford for appointment as a police officer.

D. The City of New Bedford and its officials and agents

shall promptly appoint Lynda LeBoeuf Costa as a police of-

ficer of the New Bedford Police Department.

E. Plaintiff shall be placed in the status for current and

future pay that she would have occupied had she been ap-

pointed on September 22, 1974 (with Jeanne Lawrence and

Shirley Arsenault).

F. Except as hereinafter stated, plaintiff shall be given full

seniority privileges as if she had been appointed on

September 22, 1974 immediately prior to Jeanne Lawrence

and Shirley Arsenault. These privileges include, but without

limitation, election of vacations, number of vacation weeks,

transfer rights and bidding rights. However:

1. Plaintiff shall not accrue retroactive seniority for

purposes of eligibility for promotional] exams (Mass. Gen.

Laws c. 31, § 59).

2. Until the plaintiff has completed three (3) months’

recruit training pursuant to applicable state law, plain-

tiff will be required to be assigned to limited (inside) du-

3. Following completion of said recruit training, plain-

46a

OPINION OF THE COURT

tiff will comply with the Union contract provision which

now requires al] new recruits to be first assigned to the

Uniform Patrol Division Nights for three (3) years sub-

ject, however, to all bidding rights which she will have

based on seniority as stated above or any contract

amendments.

4. Upon appointment, plaintiff shall be required to

satisfactorily complete training at a police academy

(Mass. Gen. Laws c. 41, § 96B) and serve a probationary

period (Mass. Gen. Laws c. 31, § 61) before her appoint-

ment becomes permanent.

5. Plaintiff will be credited with 15 days sick pay.

G. The Court shall retain jurisdiction of this matter during

plaintiff's probationary period.

V.

A conference is scheduled for December 11, 1980 at 2:30

p.m., to determine whether plaintiff and city defendants can

stipulate upon the amount to be awarded as attorneys fees,

city defendants reserving their rights to challenge on appeal

the determination that attorneys fees be awarded, as distin-

guished from challenging the amount. If no stipulation is

reached as to the amount, or as to a procedure for determin-

ing the amount without full hearing by the court, counsel

should be prepared to proceed with the hearing. Attention is

directed to the attached memorandum regarding procedures

for determining awards of attorneys fees.

Robert E. Keeton,

United States District Judge

47a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

LYNDA LeBOEUF COSTA,

PLAINTIFF

. i

v. : No. 75-2915-K

ANNE RAMSEY, etal.,

DEFENDANTS

September 16, 1980

Memorandum and Order

I. Introduction

This is an action under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seg., and under 42 U.S.C. § 1981

and 42 U.S.C. § 1983 and the Fourteenth Amendment, alleg-

ing discrimination in employment on the basis of sex. Plain-

tiff alleges, first, that defendants rejected her for a position

on the New Bedford Police Department because of the ap-

plication of a minimum height requirement and, second, that

the imposition of the height requirement had a discriminatory

impact on women.

The case came on for trial before the court on May 20 and

21, 1980. Arguments were heard on May 27, 1980, and the

parties were allowed time to file additional memoranda.

After consideration of the evidence adduced and the argu-

ments made at trial anc the proposed findings and conclu-

sions, memoranda, and other documents submitted by the

1 Before and at the time of tria] the parties filed proposed find-

ings of fact and conclusions of law upon which the opposing parties

had indicated, by underlining, those proposed findings that were

contested. Accordingly, al] non-underlined proposed findings of

fact contained in State Defendants’ Proposed Findings and Conclu-

sions (which city defendants indicated was a joint submission) and

48a

OPINION OF THE COURT

parties, the court has reached the findings an“ conclusions

stated here.

II. Jurisdiction

This court has subject matter jurisdiction over this case un-

der 28 U.S.C. §§ 1331, 1343/3) and (4), and 42 U.S.C. § 2000e-

Xf).

III. Findings of Fact

A.

Plaintiff Lynda L. LeBoeuf, now known as Lynda L.

Costa, is a thirty-two year old woman who is five feet three

inches tall.

Defendant John A. Markey is the Mayor of the City of New

Bedford and has been since 1971. In that capacity he has the

appointing authority for the Police Department.

Defendant Joseph A. Pelletier is the Chief of Police of the

City of New Bedford and has been since May, 1970. In that

capacity he is responsible for the supervision, control, and

management of the New Bedford Police Department.

Defendants Rosalind Pool Brooker, Brian Lawler, Donald

R. Poory, George Rogers, William Saltzman, Paul G. Hamel,

Richard Bachand, Donald R. Nelson, Richard Hinkle, Manuel

F. Neto, and Ralph J. Saulnier comprised the New Bedford

City Council on or about July 1, 1975. In that capacity they

reviewed all bills and requirements submitted by the Mayor.

They also had power to confirm appointments of police offi-

cers submitted by the Mayor.?

all proposed findings of fact contained in Plaintiff's Proposed Find-

ings and Conclusions that were not underlined by either state

oF Daunte Cobared to ts the teneqeeghs apenas snail

ts referred to in thi i

ants Markey and Pelletier, are hereinafter referred to collectively

as the “‘city defendants.”

49a

MARKEY vy. COSTA

Defendants Nancy Beecher, Wayne A. Budd, Richard J.

Healey, Richard Linden, and John Donegan comprised the

Massachusetts Civil Service Commission on or about July 1,

1975. Since that time Amelia Miclette has replaced Nancy

Beecher as Chairperson of the Commission.

The Director of Civil Service for the Commonwealth of

Massachusetts from at least July 1, 1973 through July 1,

1975, was Edward W. Powers. On July 1, 1975, the position

of Director of Civil Services was abolished and the duties of

the Director were allocated to the newly created position of

Personnel Administrator. On July 1, 1975, defendant Anne

Ramsey assumed the duties of Personnel Administrator. The

position is now held by David Marchand.®

B.

Appointments to the New Bedford Police Department are

subject to Massachusetts Civil Service laws, rules, regula-

tions, and practices.

The New Bedford Police Department makes appointments

from a list of eligible applicants that is certified to it by the

state civil service personnel division. The certified lists at the

center of this litigation were derived from a 1972 written ex-

amination for the position of police officer. Applicants’ names

appeared on this list in order of their scores on the test, ad-

justed for various statutory‘ and court-ordered® preferences.

On July 24, 1973, the New Bedford City Council approved

Mayor Markey’s establishment of a minimum height require-

ment for police officers of 5 feet 6 inches. At the time, a

* Defendants referred to in this paragraph and the preceding

paragraph are hereinafter collectively referred to as the “‘state

defendants.”’

* See, ¢.g., Mass. Gen. Laws c. 31, § 26, regarding veterans’

preferences under current law.

5 See Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972), on remand,

365 F. Supp. 655 (D. Mass. 1973).

Wa

OPINION OF THE COURT

Massachusetts statute authorized such action.* Appropriate

state authorities were notified of the adoption of the height

requirement. Prior Massachusetts law had also authorized

imposition of a height requirement, and the City of New Bed-

ford had first adopted a height requirement for police officers

in 1972. New Bedford abolished the height requirement in

November 1974.’

Before 1974, men and women police personnel in New Bed-

ford held distinct positions with distinct duties, the men serv-

ing as ‘“‘police officers’ and the women as “‘policewomen.”’

Different examinations were administered for the two posi-

tions. After February 1974 both men and women were eligi-

ble to be “‘police officers’ and were appointed from so-called

“integrated lists’ derived from a common examination.

Nevertheless, female police officers were not permitted to

engage in street duty until January, 1977.

In the spring of 1973 New Bedford's certified list of eligible

applicants for policewomen expired by operation of law. On

or about that time New Bedford had an opening for at least

one policewoman position and requested that the Division of

Civil Service hold an open competitive examination for the

position. No such examination was ever held. The city con-

tinued to seek a policewoman. It was advised that an exemp-

tion would have to be sought from the Massachusetts Com-

mission Against Discrimination (““MCAD”’) since a gender-

specific hiring was to be made. Such a request was submitted

by letter of March 29, 1974.8 MCAD replied by letter of May

9, 1974, authorizing New Bedford to use the certified list for

policewomen already in existence for Taunton, Massachu-

* Mass. St. 1973, c. 351.

’ Mass. St. 1974, c. 762, approved August 8, 1974 and effective

November 8, 1974, aboli any height requirement for the posi-

tion of police officer unless the appointing authority petitioned the

appropriate state agency for such a requirement and included with

the request a validation study.

® Plaintiff's Exhibit 1.

5la

MARKEY v. COSTA

setts.® This list was never certified to New Bedford by the

Division of Civil Service.

The Division of Civil Service supplied New Bedford with a

certified list of eligible applicants for police officer on July 30,

1974. This was an “integrated list,’ containing names of

eligible men and women ranked in accordance with scores on

the 1972 examination, adjusted for various statutory and

court-ordered preferences.'® Plaintiff's name was not con-

tained on this list.

On August 7, 1974, Edward M. Powers, then Director of

the Division of Civil Service, notified Mayor Markey that

plaintiff's name inadvertently had been omitted from the list.

He instructed the Mayor to insert her name after that of

William Grovell and before that of John Lopes. This position

was consistent with the ranking that would have been afford-

ed to an applicant who not only had scored 93.3% on the ex-

amination (as plaintiff had) and was a non-veteran resident of

New Bedford (as plaintiff was) but also was a member of a

racial minority to be accorded preference under Castro,

supra (which plaintiff was not). Plaintiff's name should have

been placed on the list in a position consistent with someone

who had scored 93.3% on the 1972 written examination and

was a non-minority, non-veteran resident of New Bedford.

On or about February 25, 1975, the Division of Civil Service

took steps to correct the erroneous ranking of plaintiff on the

list and by letter instructed New Bedford to place her name

below that of Robert L. Linquest and above that of James F.

Camacho, Jr., both of whom had filed applications for the

police officer examination that indicated that they were non-

minority, non-veteran residents of New Bedford. Neither

Camacho nor Linquest has been appointed a police officer in

New Bedford as a result of the July 30, 1974 certification.

* Defendants’ Exhibit 9.

10 See text at nn.4 and 5, supra.

52a

OPINION OF THE COURT

Both Grovell and Lopes, between whose names plaintiff's

was originally placed, were appointed from the July 30 list.

As a result of the error in the initial placement of her name,

plaintiff was interviewed in August, 1974 for the position of

police officer in New Bedford. She was rejected because she

failed to meet the 5 feet 6 inches height requirement. If plain-

tiff’s name had been placed on the list in the proper position,

her name would not have been reached and she would not

have been interviewed for the position of police officer in

August, 1974. This list has now expired. The name of the last

person to be appointed from the list appears on the list above

the plaintiff's name. No man whose name appears below

plaintiff's on the list was appointed from the list. Several

women whose names appear below the plaintiff's were ap-

pointed from lists derived from this list."

The Division of Civil Service in compiling the list from the

1972 examination did not take account of an applicant’s

height. The height requirement was a local option permitted

by statute, and some municipalities did not impose a height

requirement. Accordingly, applicants who failed to satisfy a

municipal height requirement were rejected at the time of the

interview by the municipality.

Because of its continuing need for a female police officer to

perform special duties, related, for example, to female pris-

oners, and because no woman's name appeared sufficiently

high on the July 30, 1974 list to be reached in the normal

course, New Bedford requested and received a special list,

dated August 12, 1974, that was derived from the July 30,

1974 list but contained only the names of female applicants.

Plaintiff's name appeared first on this list.

1! Jeanne F. Lawrence and Shirley R. Arsenault were a ted

from a special list of female applicants when plaintiff and 1 A.

Sacremento were rejected for failure to meet the height require-

ment. These appointments are described immediately infra. Ms.

Sacremento was appointed as a result of a settlement reached in a

dispute over the failure to appoint her from the all-women list.

53a

MARKEY v, COSTA

Two appointments were made from the August 12 list.'*

The appointees ranked third and fourth on the list.'* They

both were at least 5 feet 6 inches tall. Plaintiff and the

woman who ranked second were both less than 5 feet 6 inches

tall and were rejected because they failed to satisfy the

minimum height requirement.

Plaintiff offered at trial two sets of statistics to show the

differential impact of a height requirement upon women as

compared to men.'* The first set was a table entitled ‘Height

in inches, average height and selected percentiles, by age and

sex: United States, 1960-62.’’ This table was described at

trial by plaintiff's counsel as being a National Health Service

Survey compiled by HEW. It is described in plaintiff's pro-

posed findings of fact as a compilation by the National Center

for Health Statistics published in a booklet entitled “Weight,

Heights, and Selected Body Dimensions of Adults,” U.S.

1960-62.'* The second set of statistics was a table entitled

“Average Heights and Weights, By Age and Sex: 1960-1962

and 1971-1974.”’ At trial plaintiff's counsel described this

table as coming from the same source as the first table.

Defendants indicated that they did not object to the introduc-

tion of these statistics on hearsay or authentication grounds

but that they did object on the ground that the statistics did

not have a sufficiently close nexus to this case. Defendants’

objection was overruled.

The first set of statistics contains a wealth of data relative

12 See note 11, supra.

‘8 At the time, former Mass. Gen. Laws c. 31, § 15B (now Mass.

Gen. Laws c. 31, § 27) required that an appointment from a list of

three or more eligible applicants willing to accept the position be

made from one of the first three positions and that written explana-

tion be given if the highest applicant on the list was not selected.

4 Plaintiff's Exhibit 12.

* Plaintiff's Proposed Finding of Fact 26.

+

i

54a

OPINION OF THE COURT

‘« heights of men and women in the period 1960-1962, among

which are the following:

1, For men between the ages of 18 and 24 years:

(a) average height: 68.7 inches, or

5 feet 8.7 inches.

(b) 20th percentile’* height: 66.5 inches, or

5 feet 6.5 inches.

2. For men between the ages of 25 and 34 years:

(a) average height: 69.1 inches, or

5 feet 9.1 inches.

(b) 20th percentile height: 66.8 inches, or

5 feet 6.8 inches.

3. For women between the ages of 18 and 24 years:

(a) average height: 63.8 inches, or

5 feet 3.8 inches.

(b) 80th percentile?’ height: 65.9 inches, or

5 feet 5.9 inches.

4. For women between the ages of 25 and 34 years:

(a) average height: 63.7 inches, or

5 feet 3.7 inches.

(b) 80th percentile height: 65.7 inches, or

5 feet 5.7 inches.

The second set of statistics repeats the average height data

for the years 1960-1962 contained in the first set and also

contains the following information regarding average heights

for the period 1971-1974:

1. Ages 18-24 years:

(a) men: 69.7 inches, or 5 feet 9.7 inches.

(b) women: 64.3 inches, or 5 feet 4.3 inches.

16 ‘Percentile’ is ‘‘a value on a scale of one hundred that in-

dicates the percent of a distribution that is equal to or below it.”

Webster’s New Collegiate Dictionary (1979). For example, that the

20th percentile height for men between 18 and 24 is 66.5 inches in-

— that 20% of the men in that age group are 66.5 inches tall or

‘7 In other words, 80% of the women in the age group were 65.9

inches tall or less.

55a

MARKEY v. COSTA

2. Ages 25-34 years:

(a) men: 69.6 inches, or 5 feet 9.6 inches.

(b) women: 64.1 inches, or 5 feet 4.1 inches.

On or about September 9, 1974, plaintiff filed a charge of

discrimination with MCAD, complaining of violations of the

Civil Rights Act of 1964.

On or about September 16, 1974, plaintiff filed a charge of

discrimination with the United States Equal Employment

Opportunity Commission (‘‘EEOC’’), complaining of viola-

tions of the Civil Rights Act of 1964.

On December 20, 1974 MCAD issued a finding of probable

cause of sex discrimination against the defendants. The prob-

able cause finding states in its corclusion:

Conclusion - the 5’ 6” height requirement has a

disparate impact on women and has not been shown to

be job related; becauxe she did not meet this require-

ment complainant was jenied a position as police officer,

and seven males that w 2re below her on the certification

list were appointed. The evidence therefore sv »ports the

finding of probable cause to believe that complainant

was denied appointment because of her sex.

On April 1, 1975 MCAD notified New Bedford that part of

its probable cause decision was based on a mistake but that

nevertheless MCAD, after reviewing the evidence, reaf-

firmed the decision of probable cause for the following

reason:

But for the height requirement the complainant would

have been appointed as a police officer pursuant to the

selective certification process. As a woman she has

standing to challenge this height requirement as being

discriminatory towards women. The evidence set for th

in the September [sic] twentieth finding provides prob-

able cause to believe that the height requirement

discriminates against women and was illegal under

Chapter 151B.

56a

OPINION OF THE COURT

These probable cause findings were not introduced at trial. It

appears that the mistake referred to in the April 1 commu-

nication probably related to an initial, mistaken under-

standing by MCAD that the initial (erroneous) placement of

plaintiff's name on the July 30, 1974 list was the correct

placement of her name on that list.

EEOC has issued plaintiff a notice of right to sue.

III. Claim under 42 U.S.C. § 1981

Although plaintiff's complaint asserts a violation of 42

U.S.C. § 1981,* it is not at all clear that she intends to press

this claim, since memoranda of law filed by her at and after

trial do not advert to a violation of § 1981.*® In any event,

“(t]he overwhelming weight of authority holds § 1981 not ap-

plicable to discrimination based on sex.’’ B. Schlei and P.

Grossman, Employment Discrimination Law 610 (1976) (see

1979 Supplement at 139). Plaintiff is not entitled to recover

under 42 U.S.C. § 1981.

IV. Claim under 42 U.S.C. § 1988

42 U.S.C. § 1983?° creates a remedy but does not itself con-

fer any substantive rights. Chapman v. Houston Welfare

Rights Organization, 441 U.S. 600, 617-618 (1979) (‘‘one can-

18 42 U.S.C. § 1981 provides in relevant part as follows:

All persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and en-

force contracts . . . as is enjoyed by white citizens... .

19 See Plaintiff's Supplemental Memorandum of Law, filed May

20, 1980 at trial, and Plaintiff's Memorandum of Law on Damages,

filed June 9, 1980 (Document 18).

20 42 U.S.C. § 1983 provides as follows:

Every person who, under color of any statute, ordinance, regu-

lation, custom, or usage, of any State or Territory, subjects, or

causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the ivation of any

rights, privileges, or immunities secured by the tution and

laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

57a

MARKEY v. COSTA

not go into court and claim a ‘violation of § 1983’ - for § 1983

by itself does not protect anyone against anything”’; “[s}tand-

ing alone, § 1983 clearly provides no protection for civil

rights since ... § 1983 does not provide any substantive

rights at all’’). Typically, § 1983 has been invoked to remedy

alleged violations of the Fourteenth Amendment. Recently

the Supreme Court has indicated that § 1983 encompasses

not just claims of constitutional violations but also claims

based solely on violations of federal statutory law. Maine v.

Thiboutot, 48 U.S.L.W. 4859 (June 25, 1980).

The only federal statutory provision arguably violated in

this case is Title VII.?* The decision of the Supreme Court in

Great American Federal Savings & Loan Association v.

Novotny, 442 U.S. 366 (1979), indicates by implication that a

right created by Title VII cannot be the basis for a cause of

action under § 1983. Novotny deals with an attempt to invoke

42 U.S.C. § 1985(c), like § 1983 a remedial provision creating

no substantive rights, to redress an alleged violation of Title

VII. Focusing on the fact that allowing a violation of Title VII

to be asserted through the remedial framework of § 1985(c)

would allow the claimant to bypass the critical administrative

process and other detailed and specific provisions of Title

VII, the Court held that deprivation of a right created by Ti-

tle VII cannot be the basis for a cause of action under §

1985(c). Plaintiff has no viable statutory § 1983 claim.

The heart of plaintiff's § 1983 claim is her assertion of a

violation of the equal protection clause of the Fourteenth

Amendment to the Constitution of the United States. To

make out this claim plaintiff must show that defendants acted

with discriminatory purpose. Washington v. Davis, 426 U.S.

229 (1976).

*1 Plaintiff has not asserted the violation of any federal! statute as

the basis for her § 1983 claim. Nevertheless, it seems appropriate

for the court to address this potential basis for relief. Plaintiff has

asserted a violation of Title VII. If a violation is found and plaintiff

could invoke § 1983 to remedy that violation, the scope of available

remedies would be enhanced.

58a

OPINION OF THE COURT

“Discriminatory purpose,"’ however, implies more

than intent as volition or intent as awareness of conse-

quences. . . . It implies that the decisionmaker .. .

selected or reaffirmed a particular course of action at

least in part ‘‘because of,’’ not merely “‘in spite of,’’ its

adverse effect upon an identifiable group.

Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979).

A showing of a disproportionate impact is relevant to this

determination since discriminatory purpose may be inferred

from the totality of the relevant facts, but standing alone,

without a finding of discriminatory purpose, disproportionate

impact does not establish a violation of the equal protection

clause. Washington v. Davis, supra, at 241, 242; Personnel

Administrator v. Feeney, supra, at 274, 275, 279 nn.24, 25;

see Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 264-268 (1977).

In this case, based on the totality of the circumstances, the

court concludes that defendants did not act with forbidden

discriminatory purpose in imposing a height requirement on

candidates for police officer. At the time the requirement was

imposed a state statute authorized its imposition. Although

the city defendants had not and have not undertaken any vali-

dation studies to establish the job-relatedness of the height

requirement, the court concludes that at the time the require-

ment was imposed defendants believed that it was job-related

and that the height requirement was not adopted “because

of” its adverse effect upon women. During the period in ques-

tion the city defendants were affirmatively seeking female

police personnel. Although the city defendants after adopting

a unitary selection procedure continued until 1977 to

differentiate between male and female police officers in

terms of assigned duties, plaintiff cannot, establish a Four-

teenth Amendment cause of action on this basis, since she

was neither on the police force then nor able to establish a

Fourteenth Amendment cause of action for denial of her ap-

plication.

59a

MARKEY v. COSTA

Because the court concludes that defendants did not act

with forbidden discriminatory purpose in imposing the height

requirement, plaintiff's Fourteenth Amendment equal pro-

tection claim fails.

V. Claim Under Title VII

A. Nature of the Cause of Action

Title VII is the source of a legal duty regulating the conduct

of certain actors. It may be helpful to view it, like 42 U.S.C. §

1983, as creating a species of liability in the nature of tort, ef.

Imbler v. Pachtman, 424 U.S. 409 (1976), although, of course,

the remedies contemplated by Title VII differ from those

traditionally available in tort. See 42 U.S.C. § 2000e-5(g).

In the traditional tort context, a plaintiff, in order to

establish a cause of action, must prove not only a violation of

a legal duty to the plaintiff but also that the violation has had

an impact on some legally protected interest of the plaintiff.

In the language of the shorthand formulation often used to

describe the elements of a cause of action for common law

negligence, a plaintiff must establish: (1) duty, (2) breach of

duty, (3) cause, and (4) harm. See W. Prosser, Torts § 30 (4th

ed. 1971); Restatement (Second) of Torts § 281 (1965). The

existence of the first and second elements of this formulation

make the defendant’s conduct negligent, or, more generally

put, wrongful. The existence of the third and fourth elements

make the negligent (or wrongful) conduct of the defendant

actionable by the plaintiff. See Restatement (Second) of Torts

§ 281, comment a (1965).

This same framework can profitably be applied to analyze

plaintiff's Title VII claim. In particular, the issues raised by

the distinctive circumstances of the two applications of the

minimum height requirement against plaintiff - once to deny

60a

OPINION OF THE COURT

her an appointment from the all-women list - are by nature

closely analogous to those commonly, though not uniformly,”

referred to in the basic law of torts as issues of legal cause.

B. Legal Duty and Violation

In the context of a Title VII claim, the statute itself is the

source of the relevant legal duty. The nature and dimensions

of that duty are fleshed out by precedents interpreting the

statute. Decisions of the Supreme Court make clear that in a

Title VII?* disparate impact*‘ case, to establish a prima facie

33 ~ # Although the terminology of ‘‘proximate cause” or “‘legal

cause’’ is more often used, these issues are sometimes referred to

in terms of ‘‘duty."’ See, e.g., W. Prosser, Torts § 43, at 250 (4th ed.

1971) Such use of the term ‘‘duty”’ is fundamentally different from

the use of the term in this opinion, since it subsumes issues ad-

dressed here under the rubric of ‘‘'«.;al cause.”

23 The relevant substantive provision of Title VII in this case is

codified at 42 U.S.C. § 2000e-2, which provides in relevant part as

follows:

(a) It shal] be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employ-

ment, because of such individual’s race, color, religion, sex, or

national origin; or

(2) to limit, segregate, or classify his employees or applicants

for employment in any way which would deprive or tend to de-

prive any individual of employment opportunities or otherwise

adversely affect his status as an employee, because of such indi-

vidual's race, color, religion, sex, or national origin.

It may be noted that plaintiff has not named the City of New Bed-

ford as a defendant in this action. She has, however, sued in their

official capacities the persons with authority to make and approve

appointments of members of the police force. These defendants in

their official capacities may be taken to be ‘‘an employer’’ within

the meaning of 42 U.S.C. § 2000e-2.

* There are two basic genres of Title VII employment discrimi-

nation cases: disparate treatment cases and disparate impact

cases. See, e.g., Furnco Construction Corp. v. Waters, 438 U.S. 567,

581-582 (1978) (Marshall, J., dissenting).

6la

MARKEY v. COSTA

case of violation of the statute,

a plaintiff need only show that the facially neutral stand-

ards in question select applicants for hire in a signifi-

cantly discriminatory pattern. Once it is thus shown that

the employment standards are discriminatory in effect,

the employer must meet ‘‘the burden of showing that

any given requirement [has] .. . a manifest relation-

ship to the employment in question.’’ Griggs v. Duke

Power Co. [401 U.S. 424], at 432. If the employer proves

that the challenged requirements are job related, the

plaintiff may then show that other selection devices

without a similar discriminatory effect would also

“serve the employer’s legitimate interest in ‘efficient

and trustworthy workmanship.’ "’ Albemarle Paper Co.

v. Moody, [422 U.S. 405], at 125, quoting McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 801.

Dothard v. Rawlinson, 433 U.S. 321, 329 (1977).

Statistics offered by plaintiff establish the significantly

disparate impact of a 5 feet 6 inches minimum height require-

ment upon women as compared to men. Generalized national

statistics, such as those offered by plaintiff here, will suffice

to make out a prima facie case of violation of Title VII; plain-

tiff was not required to adduce comparative statistics

concerning actual applicants for police officer positions. Jd.,

at 330. Plaintiff's statistics make out a prima facie case of

violation of Title VII through unlawful discrimination on the

basis of sex.

Defendants do not deny that as a general proposition ap-

plication of a 5 feet 6 inches minimum height requirement to

a group of men and women will have a disparate impact on

the women. They also do not deny that plaintiff was rejected

for appointment because of the application of the height re-

quirement to her. Rather, they argue that plaintiff suffered

no discrimination as a result of the imposition of the height

62a

OPINION OF THE COURT

requirement. Their theory is twofold. With respect to the

refusal to appoint plaintiff from the integrated list when her

name was called, defendants assert that because plaintiff's

name was located erroneously on the list and would not have

been reached had it been properly located, there was no dis-

crimination as to which plaintiff is entitled to complain.

With respect to the refusal to appoint plaintiff from the all-

women list, defendants assert that as a matter of law there

can be no discrimination on the basis of sex involved in the

choice of « .» . 2>man over another from a pool comprised only

of female applicants.

Although deserving consideration in relation to issues in

this case of legal cause and of existence of remediable harm,

these arguments are not persuasive in relation to the ques-

tion of the existence of a violation of Title VII. Plaintiff's

prima facie case of violation of the statute relative to the

general discriminatory impact of the height requirement

upon women remains unrebutted. City defendants did act in

violation of Title VII when they applied a minimum height re-

quirement, which requirement had a negative disparate im-

pact on female applicants for employment in the city’s police

force. There remain, however, issues of legal cause and of ex-

istence of remediable harm to plaintiff.

C. Legal Cause and Remediable Harm

As previously indicated (see Subpart A, supra), in order to

establish a cause of action, plaintiff must prove not only a

violation of a legal duty to her but also that the violation has

had an impact upon some legally protected interest of hers.

The second part of this formulation - that the violation has

8 Defendants couch this argument in terms of plaintiff's lack of

standing, because of no injury in fact, but their argument can also

be read as an assertion that has failed to state a claim upon

which relief can be granted.

‘

o|

|

all

63a

MARKEY v. COSTA

had an impact upon some legally protected interest of plain-

tiff’s - involves related issues of legal cause and existence of

remediable harm.

(1) The Standard for Determining Legal Cause

Proof of legal cause is essential to the existence of a cause

of action entitling plaintiff to any relief whatsoever. See Mt.

Healthy City School District Board of Education v. Doyle,

429 U.S. 274, 285-287 (1977). Legal cause subsumes two ele-

ments: (1) causation in fact, traditionally expressed either as

a requirement that the conduct in question be a ‘‘substantial

factor” in bringing about the harm or as a requirement that

the harm would not have occurred “‘but for’’ the conduct in

question; compare Restatement (Second) of Torts § 431

(1965) with E. Devitt & C. Blackmar, Federal Jury Practice

and Instructions § 80.18 (1977); and (2) rules limiting the

scope of liability because of the manner in which the conduct

has resulted in the harm.** See Restatement (Second) of Torts

§ 431 (1965); W. Prosser, Torts § 42 (4th ed. 1971).

In the context of the basic law of torts, two contrasting

points of view have influenced the development of the doc-

trine of legal cause in relation to the second of these

elements. One of those points of view, supported by reason-

ing that the scope of liability should be commensurate with

the basis of liability, favors an explicit rule limiting the scope

of liability for negligence to persons within the risks by

reason of which defendant’s conduct is determined to be

negligent,?” and if nan, extended, favors limiting the

* For example, a rule that the harm was a natural and

consequence of the See E. Devitt & C. Blackmar,

Jury Practice and Instructions § 0.181877)

Pad me nthe maj opinion Palpral Long Toland

— v. Long Island

RE De NY. 339, 150m (Candee, 5). Wits peleny

64a

OPINION OF THE COURT

scope of liability to results within the scope of those risks.”*

The other point of view, focusing somewhat more upon the

way the injury is “connected with the negligence” and taking

into account ‘‘many considerations” of policy and practical

judgment, aims to determine whether the connection is such

that the injury may be said to have been proximately caused

vy the negligence.** Among these “many considerations,”

however, “foreseeability of the harm” (a concept very close

to “result within the scope”’ of relevant risks) has been most

prominent.*° Thus, under each of these mainstreams of

thought about legal cause, concern about whether the harm

at issue is of the general type the legal rule was designed to

redress is a major influence on the decision that plaintiff's

harm was or was not legally caused by defendant’s wrongful

conduct. Moreover, this general principle of limiting the

scope of liability by a standard related to the reasons for

characterizing conduct as wrongful appears not only in basic

foundation of this rule is stated crisply in Sinram v. Pennsylvania

R.R., 61 F.2d 767, 770 (2d Cir. 1932) (Learned Hand, J.):

But so long as it is an element of imposed liability that the

wrongdoer shall in some degree disregard the sufferer’s in-

terests, it can only be an anomaly, and indeed vindictive, to

make him responsible to those whose interests he has not

disregarded.

28 See, e.g., Seavey, Mr. Justice Cardozo and the Law of Torts, 39

Colum. L. Rev. 20, 29-39; 52 Harv. L. Rev. 372, 381-91; 48 Yale

L.J. 390, 399-409 (1939).

29 See, e.g., Palsgraf v. Long Island R.R., 248 N.Y. 339, 347, 162

N.E. 99, 101 (1928) (dissenting opinion of Andrews, J.); W.

Prosser, Torts § 43 (4th ed. 1971).

% “Except only the defendant's intention to produce a given

result, no other consideration so affects our feeling that it is or is

not just to hold him for the result of foreseeability; and no other

consideration so largely influences the courts.” Edgerton, Legal

Cause (pt. 2), 72 U. Pa. L. Rev. 343, 352 (1924). Cf W. Prosser,

Torts § 43, at 258 (4th ed. 1971).

-

65a

MARKEY v. COSTA

tort doctrine but as well in other more specialized bodies of

law.*} It is a principle of pervasive influence.

Precedents relating to the scope of liability for violations of

Title VII are consistent with this general principle of legal

cause. Liability extends to harm that (1) was caused in fact by

defendant’s violation of Title VII - see 42 U.S.C. § 2000e-5(g),

and cf. Mt. Healthy City School District Board of Education

v. Doyle, supra (applying traditional “but for’’ test to a claim

based on 42 U.S.C. § 1983) - and (2) was within the scope of

the types of harm against which Title VII is directed. The lat-

ter limitation, as will be developed in subsection (2) below, has

been derived from the manifest objectives of the statute and

the mandates its expresses.

Before the objectives and mandates of the statute are ex-

amined, it may be useful to observe one additional point. Ap-

plying the legal cause standard to a particular case is a func-

tion ordinarily performed by the factfinder - jury or, in a non-

jury case, trial judge. Only if reasonable persons, correctly

understanding the lega! standard, could not differ about the

outcome of its application to the evidence presented in the

particular case is the legal cause issue determined by the

court as questions of law are determined. If reasonable per-

sons might differ, the legal cause issue is determined by the

factfinder. This determination is by nature, however, not a

finding of pure fact but instead a common-sense evaluation of

the evidence as measured by the applicable legal standard.

" B.g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S.

477, 489 (1977) (injury must be “‘of the type the antitrust laws were

intended to prevent and that flows from that which makes the

defendants’ acts unlawful"); A.D.M. Corp. v. Sigma Instruments,

finding that alleged injury was not “antitrust injury” in the

absence of a showing aes Letoriee, flowing from alleged business

torts, had an unreasonable effect on competition) (citing III P.

Areeda & D. Turner, Antitrust Law { 737 (1978); see also II id. 333

66a

OPINION OF THE COURT

Cf W. Prosser, Torts § 45 (4th ed. 1971). Moreover, in

whatever way one may express the standard, its application

to any set of facts that produces disagreement among

reasonable persons inherently involves an element of fiat

that can be defended as reasonable but cannot be

demonstrated by reason to have been the only possible out-

come of faithful application of an authoritative rule of law to

a given set of facts. Compare the opinions of Learned Hand,

J., in Sinram, n.27, and Andrews, J., dissenting in Palsgraf,

n.29, supra.

(2) The Scope of Legal Cause and the Scope of Available

Relief in Title VII Cases

Issues concerning the existence of remediable harm are in-

timately related to issues of legal cause. Remediable harm in

turn subsumes two subsidiary issues: (1) the existence of

harm to the plaintiff; and (2) the availability of a legal remedy

for that harm.*?

In a Title VII action, by statutory directive, certain tradi-

tional legal remedies - for example, compensatory damages

- are not available.** B. Schlei and P. Grossman, Employment

%In the ——_ case plaintiff seeks declaratory relief

establishing that her rights protected by Title VII have been

violated. In addition, she seeks injunctive relief that would (1)

restrain defendants ‘from taking any action which further in-

terferes with plaintiff's right to equal employment” (Plaintiff's

Complaint, p. 16); (2) require her appointment as a police officer in

the City of New Bedford; (3) require the city defendants to institute

“a recruitment system in which affirmative action is taken to pro-

vide an adequate rememdy for the defendants’ and present

discriminatory (id., p. 17)’’; and (4) back pay and

retroactive ty we benefits for plaintiff. Plaintiff also seeks

™ The t of for Sia) shiah peovldcs

which is is 42 U.S.C. § which

67a

MARKEY Vv. COSTA

Discrimination Law at 1258 (1976) (see 1979 Supplement at

$38). This is at once a statement about the types of harm to

which Title VII is directed and a statement about the scope of

available relief, but the two are not necessarily identical.

Thus, although the scope of relief does not extend to damages

for the mental and emotional impact upon a plaintiff of a vio-

lation of Title VII, this does not necessarily mean that mental

and emotional impact are beyond the types of harm to which

Title VII is directed. It may instead mean only that if a reme-

dy is allowed, it must be some remedy other than an award of

monetary damages. This distinction between the scope of

If the court finds that the respondent has intentionally en-

gaged in or is intentionally engaging in an unlawfu! employ-

mint practice charged in the complaint, the court may enjoin

the respondent from e ing in such unlawful employment

practice, and order such affirmative action as may be ap-

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

ment or hiring of employees, with or without back pay

(payable by the employer, employer agency, or labor organ-

ization, as the case may be, responsible for the unlawful em-

ployment 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 with

the Commission. Interim earnings or amounts carnable with

reasonable diligence by the person or persons discriminated

t shall operate to reduce the back pay otherwise

owable. 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 individuai as an

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

dividual was refused admission, suspended, or expelled, or

was refused employment or advancement or was suspended

or discharged for any reason other than discrimination on ac-

count of race, color, n, sex, or national origin or in

OPINION OF THE COURT

harm to which Title VII is directed and the relief available is

well illustrated by the fact that harm in the nature of lost

wages may be redressed in a Title VII action through an equit-

able award of backpay even though that same harm is not com-

pensable through the legal remedy of monetary damages. This

aspect of the standards relating to legal cause and remediable

harm will be considered further in subdivision (3) below.

(3) Application of the Legal Standards To The Present Case

In the circumstances of this case, has plaintiff established

that City defendants’ violation of Title VII was a legal cause

of remediable harm to her? If so, to what relief, if any, is she

entitled?

On two occasions the minimum height requirement, the im-

position of which violated Title VII for reasons stated in Part

V-B, supra, was supplied to deny plaintiff an appointment

she would have received but for application of this require-

ment. Thus, a but-for causal relationship between use of the

minimum height requirement and nonappointment of plain-

tiff is established. In both instances, however, issues of legal

cause and remediable harm are presented.

(a) Denial of Appointment from the Integrated List

When the city defendants applied the minimum height re-

Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971), that Title VII

poles, ody . . an unlawful employment practice” as that phrase

is used in 42 U.S.C. § 2000e-5(g) even though, as stated in Part IV,

ee purpose”’ in the sense

t to plaintiff's § 1983 claim.

69a

MARKEY Vv. COSTA

quirement to deny plaintiff an appointment from the inte-

grated list, in competition with men as well as oth

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