# Petition — Costa v. Markey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 1017

## Text

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

19a
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0295%3A1. Public record. Not legal advice.