Petition — McDonald v. United Air Lines, Inc.

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FILED

We 2108 | on we

- o TEVAS,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

LIANE BuIxX MCDONALD,

on her own behalf and on behalf

of all others similarly situated,

Petitioner,

Vv.

UNITED AIR LINES, INC.

and

ASSOCIATION OF FLIGHT ATTENDANTS

and

JOYCE BARR,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ISAAC N. GRONER

Counsel of Record

WALTER H. FLEISCHER

JAMES A. BENSFIELD

COLE AND GRONER, P.C.

1780 K Street, N.W.

Washington, D.C. 20006

(202) 381-8888

THOMAS R. MEITES

LYNN SARA FRACKMAN

MICHAEL M. MULDER

MEITEs & FRACKMAN

185 South LaSalle Street

Chicago, Illinois 60608

Counsel for Petitioner

WILson - Eras Prwrine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Does relief granted for violations of Title VII of

the Civil Rights Act conform to the strictures of Franks

v. Bowman Transportation Co., 424 U.S. 747, 764 (1976),

that the victims of the discrimination must be made

“whole insofar as possible,” when the relief denies retro-

active competitive seniority to identified victims of dis-

crimination and simply favors incumbent employees, to

the extent of rejecting accommodations between the twe

groups such as granting that seniority to the victims

only as openings occur or restoring the victims only to

the relative percentile seniority standing which they had

when their employment was terminated in violation of the

Act?

2. Has the duty required by Franks “ ‘to fashion the

most complete relief possible’ ” and “ ‘to make the victims

of unlawful employment discrimination whole,’” been

met, when such relief is denied for any of the following

reasons:

A. The victims of discrimination might move to amend

the decree in the future;

B. The attractiveness of the position involved has in-

creased, making it more of a permanent career position

than a temporary, glamorous one, largely because of the

elimination of the employer’s rule which was violative of

Title VII;

C. After the violation of Title VII had been adjudi-

cated, unusually long litigation delays, caused by invalid

legal positions taken by the employer, resulted in the

hiring of a substantial number of new employees before

the class was granted relief;

D. The presence of flight attendants in furlough sta-

tus and predictions of no hiring are largely responsible

(i)

}

for the findings of “unusual adverse impact” even though

the victims of discrimination are willing to accept rein-

statement to their positions only as job openings arise; or

E. The employer threatens to create “false vacancies”

if such relief is granted?

PARTIES TO THE PROCEEDINGS

(a) Petitioner Liane Buix McDonald is a Plaintiff,

representing a class of female United Air Lines flight

attendants. She was an Appellant-Cross-Appellee in the

Court below.

(b) Respondent United Air Lines, Inc., is a Defend-

ant. It was an Appellee-Cross-Appellant in the Court

below. F

tervened in the District Court to represent the interests

of incumbent United Air Lines flight attendants. It was

an Appellee in the Court below.

(d) Carole Anderson Romasanta, and eleven other

named individuals,* were respectively the original named

Plaintiff and subsequent Intervenors who obtained relief.

A final Judgment as to them was entered in 1975, and

thereafter Petitioner McDonald has represented the class.

(e) Joyce Barr, one member of the class, filed separate

briefs, denominated those of an “intervenor,” although

she has not sought nor been granted leave to intervene.

*Susan Fusco, Mary Whitmore, Rita King, Marlene Carney,

Carol Barounes, Judith Pendleton, Terry Van Horn, Brenda Bailes

Altman, Carol Elaine Brackle, Sandra Hoiles and Joanne Hamersley.

TABLE OF CONTENTS

OPINIONS AND JUDGMENTS BELOW

JURISDICTION ..........

STATUTORY PROVISIONS ......................

STATEMENT OF THE CASE

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

FORA whtidrceceteecesteschinvtenesioes

(iii)

—

ail

TABLE OF AUTHORITIES

Cases:

Page

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

(| REIT CR SENN Ce oe Ye BERR eon Os 12

Allen v. Amalgarm*ted Transit Union, Local 788,

554 F.2d 876 (8th Cir.), cert. denied, 484 U.S.

I ica a i 8

Association Against Discrimination v. City of

Bridgeport, 647 F.2d 256 (2d Cir. 1981), cert

denied, 455 U.S. 988 (1982) ...............-... eee 8, 15

EEOC v. American Telephone & Telegraph Co.,

556 F.2d 167 (8d Cir. 1977), cert. denied, 438

EF SES sae ae RI AEE hs Ne 9-10

Franks v. Bowman Transportation Co., 424 U.S.

I a nieiel passim

Gurmankin v. Costanzo, 556 F.2d 184 (8d Cir.

1977), cert. denied, 450 U.S. 928 (1981) ............ 8

Inda v. United Air Lines, Inc., 565 F.2d 554 (9th

Cir. 1977), cert. denied, 485 U.S. 1007 (1978)... 8

International Brotherhood of Teamsters v. United

States, 481 U.S. 824 (1977) 12

Lee v. Macon County Board of Education, 453 F.2d

I Re a I ich de cetacean 14

Louisiana v. United States, 380 U.S. 145 (1965)... 12

McDonald v. United Air Lines, Inc., 587 F.2d 357

(7th Cir. 1978), cert. denied, 442 U.S. 984

RINE Zs AC Ee hens 2,5

Moore v. City of San Jose, 615 F.2d 1265 (9th Cir.

SRE TRE SE IRE etIT Sule. PE eer ie NR ee 8

Moseley v. Goodyear Tire & Rubber Co., 612 F.2d

Se I I as ccsetses dette ladies 8,9

Pasadena City Board of Education v. Spangler,

427 U.S. 424 (1976) 11

Porter v. Lee, 828 U.S. 246 (1946) 14

Sangster v. United Air Lines, Inc., 688 F.2d 864

(9th Cir. 1980), cert. denied, 451 U.S. 971

(1981) 8

Sledge v. J. P. Stevens & Co., 585 F.2d 625 (4th

Cir. 1978), cert. denied, 440 U.S. 981 (1979) .... 8

TABLE OF AUTHORITIES—Continued

Page

Spagnuolo v. Whirlpool Corp., 717 F.2d 114 (4th

I IED cchnstidllbcisileshaiseictrtantaeatbiidconsantesehacnsiisidabiamsisacion 9,14

Sprogis v. United Air Lines, Inc., 308 F. Supp.

959 (N.D. Ill. 1970), aff'd, 444 F.2d 1194 (7th

Cir.), cert. denied, 404 U.S. 991 (1971) —.......... 2, 4,8

Stotts v. Memphis Fire Department, 679 F.2d 541

(6th Cir. 1982), cert. granted sub nom. Fire-

fighters Local Union No. 1784 v. Stotts, 462 U.S.

——, 108 S.Ct. 2451 (1988) ........................0.......... 9,16

System Federation No. 91 v. Wright, 364 U.S. 642

TURNS RP a BENE ALE LEE FO ik) SS a 11

United Air Lines, Inc. v. McDonald, 482 U.S. 385

(1977), affirming Romasanta v. United Air

Lines, Inc., 587 F.2d 915 (7th Cir. 1976) ......... 2, 4,5

Watson v. City of Memphis, 373 U.S. 526 (1963)... 18

Statutes:

Title VII, Civil Rights Act of 1964

ee ee ND, cdi tecceltcitguemctccncnn 4

Section 708(a), 42 U.S.C. § 2000e(2) (a)........ 3

Section 706(g), 42 U.S.C. § 2000e (2) (g)........ 38-4

United States Code

Be es Se OD siiticeininsipecniteiecalscniciceenisthemoi 3

ee 2,7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-

LIANE BuIxX MCDONALD,

on her own behalf and on behalf

of all others similarly situated,

Petitioner,

Vv.

UNITED AIR LINES, INC.

and

ASSOCIATION OF FLIGHT ATTENDANTS

and

JOYCE BARR,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Liane Buix McDonald, on her own behalf and as repre-

sentative of a class of female flight attendants whose em-

ployment with Respondent United Air Lines was termi-

nated because of the employer’s discriminatory “no-

marriage” rule, petitions for a writ of certiorari to the

United States Court of Appeals for the Seventh Circuit.

OPINIONS AND JUDGMENTS BELOW

The Memorandum Opinion and Order of the United

States District Court for the Northern District of Illinois

which was the subject of the Appeal below was entered

on January 12, 1982 (App. 40a).1 The Memorandum

Opinion is unofficially reported at 31 FEP Cases (BNA)

551. The Order implementing that decision and contain-

ing the certification required for an interlocutory appeal

pursuant to 28 U.S.C. § 1292(b), was entered on July 14,

1982 (App. 94a). The Opinion of the United States Court

of Appeals for the Seventh Circuit (App. la), and its

Judgment (App. 99a), were entered on September 21,

1983. That Opinion is reported at 717 F.2d 1140.

The pertinent earlier opinions in this case or related

cases include the following:

1. Sprogis v. United Air Lines, Inc., 308 F. Supp. 959

(N.D. Ill. 1970), aff'd, 444 F.2d 1194 (7th Cir.), cert.

denied, 404 U.S. 991 (1971) (these decisions established

that the “no-marriage” rule violated Title VII of the

Civil Rights Act) ;

2. United Air Lines, Inc. v. McDonald, 432 U.S. 385

(1977), affirming Romasanta v. United Air Lines, Inc.,

537 F.2d 915 (7th Cir. 1976), reversing unpublished Or-

der (N.D. Ill. October 4, 1975) (the appellate decision

held that Petitioner should have been granted leave to

intervene for purposes of appealing denial of class cer-

tification) ; and

3. McDonald v. United Air Lines, Inc., 587 F.2d 357

(7th Cir. 1978), cert. denied, 442 U.S. 984 (1979), re-

versing unpublished Order (N.D. Ill. March 1, 1978)

(the appellate decision held that the class should be de-

fined, as requested by Petitioner, to include all persons

damaged by the no-marriage rule (within certain time

limits) ).

JURISDICTION

The Opinion and Judgment of the United States Court

of Appeals for the Seventh Circuit were entered on Sep-

tember 21, 1983 (App. la, 99a). A timely Petition for

Rehearing with Suggestion for Rehearing En Banc was

1 “App.” refers to the Appendix to this Petition.

filed on October 5, 1983, and denied on October 20, 1983

(App. 101la).

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(3).

STATUTORY PROVISIONS

The pertinent provisions of Title VII of the Civil

Rights Act are §§ 709(a), 42 U.S.C. § 2000e(2) (a), and

706(g), 42 U.S.C. § 2000e(5)(g), which respectively

read as follows:

“It shall be an unlawful employment practice for an

employer—

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

individual, or otherwise to discriminate against any

individual 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 applicants for employment in any way which

would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely af-

fect his status as an employee, because of such in-

dividual’s race, color, religion, sex, or national

origin.” ; .

“If the court finds that the respondent has inten-

tionally engaged in or is intentionally engaging in

an unlawful employment practice charged in the com-

plaint, the court may enjoin the respondent from

engaging in such unlawful employment practice, and

order such affirmative action as may be appropriate,

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

ment or hiring of employees, with or without back

pay (payable by the employer, employment agency,

or labor organization, as the case may be, responsible

for the unlawful employment practice), or any other

equitable relief as the court deems appropriate. Back

pay liability shall not accrue from a date more than

two years prior to the filing of a charge with the

Commission. Interim earnings or amounts earnable

with reasonable diligence by the person or persons

discriminated against shall operate to reduce the

back pay otherwise allowable. No order of the court

shall require the admission or reinstatement of an

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

reinstatement, or promotion of an individual as an

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

such individual was refused admission, suspended,

or expelled, or was refused employment or advance-

ment or was suspended or discharged for any reason

other than discrimination on account of race, color,

religion, sex, or national origin or in violation of

section 2000e-3(a) of this title.”

STATEMENT OF THE CASE

This action, which now presents issues as to the pro-

priety of denying rightful place seniority to the identified

victims of discrimination whose employment was termi-

nated in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e et seg. (“Act”), attacked the

rule of Respondent United Air Lines (“United”) which

required the discharge of any female flight attendant who

married. This suit was filed in the United States District

Court for the Northern District of Illinois in May 1970,

by Carole Anderson Romasanta on behalf of a class of

United flight attendants. Jurisdiction of the District

Court was invoked under 42 U.S.C. § 2000e.

By June 1971, the illegality of the rule had been defi-

nitively settled in a related case, Sprogis v. United Air

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

U.S. 991 (1971). Since that time, for more than twelve

years, the focus has been entirely upon the class action

and remedial aspects of the dispute. Much of the rele-

vant procedural history is summarized in the Opinion of

this Court in United Air Lines, Inc. v. McDonald, 482

U.S. 385 (1977), affirming Romasanta v. United Air

Lines, Inc., 587 F.2d 915 (7th Cir. 1976), and the Opin-

ion below (App. 2a-5a).

In brief, the District Court in December 1972 denied

class certification. The Seventh Circuit denied an appli-

cation for an interlocutory appeal, which the District

Court had certified, from the December 1972 Order. In

1975, after a final Judgment was entered in favor of the

individually named Plaintiffs, those Plaintiffs decided

not to prosecute an appeal from the denial of the class

certification. At this point, Petitioner McDonald sought

to intervene on behalf of the class in order to pursue

such relief. Ultimately she was successful, see McDonald,

supra, 432 U.S. 385, and she has since represented the

class. Subsequently, the District Court entered an Order

limiting the class to those persons who had been termi-

nated and excluding those who had resigned because of

the no-marriage rule. That Order was reversed, sub

nom, McDonald v. United Air Lines, Inc., 587 F.2d 357

(7th Cir. 1978), cert. denied, 442 U.S. 934 (1979). The

present dispute centers on the thus-far successful effort

of United and the Association of Flight Attendants

(“AFA”) to parlay the litigation delays and the interim

hiring into a determination that Petitioner’s class should

be wholly denied competitive seniority retroactive to the

time their employment was terminated, and instead should

be accorded, upon being rehired, seniority for competitive

purposes limited to that earned before their termination

15 or more years ago.

During the lengthy period after the no-marriage rule

was held invalid in 1971, United hired thousands of new

flight attendants.* Approximately 8,700 flight attendants

2 An exhibit introduced by United in the District Court (United

Trial Ex. 4) reflects that it hired the following number of flight

attendants in the years after the employment of Plaintiff's class

was terminated :

1969-—1,745 1975— 0

1970—1,471 1976— 589

1971—_ 0 1977— 820

1972—1,778 1978— 808

1978—1,816 1979—1,148

1974— 166

(of whom over 1,250 were on furlough) were employed

by United in April 1981 (App. 18a). The District Court

estimated that the class would include approximately

1,400 members."

In capsule, the District Court held that if all members

of the class were immediately reinstated with full com-

petitive seniority, there would be an “unusual adverse

impact’’ on the incumbents, principally because some of

them might be furloughed; those already furloughed

would be lower on the recall list; and they would be

subject to transfer of domicile, the geographic base from

which attendants bid for assignments. While it did grant

the class retroactive seniority in those respects which had

no effect on the incumbents, such as pay, days of vaca-

tion, and flight passes, it declared that “[f]or all other

purposes .. . the McDonald claimants’ seniority will be

adjusted to reflect the actual amount of seniority accrued

during their tenure as flight attendants before they were

forced to terminate under the no-marriage rule” (App.

88a).

The District Court rejected al] solutions to the com-

petitive seniority problem which would have accommo-

dated the interests of the victims and the incumbents.

Petitioner had urged that the class be reinstated with

full seniority only as openings occurred; that is, without

causing the discharge of any incumbents. This approach

was rejected because the District Court thought that it

* The Court accepted the estimate that 1400 of the approximately

1700 former flight attendants identified as potential class members

would be entitled to reinstatement (App. 65a-66a), a figure which

Petitioner contended below was substantially overstated. The exact

number of persons entitled to reinstatement will not be known until

hundreds of individual hearings before a Master are completed.

As the Court below recognized, even with the 1400 figure, the

proportion of discriminatees to incumbents was comparable to or

less than that in Franks and other cases in which retroactive com-

parative seniority had been awarded (App. 18a).

might take a substantial period before there were suffi-

cient openings, and Petitioner had stated that if the delay

was in her view excessive she might return to Court in

two and a half to three years for further relief (App.

87a).

Likewise, the District Court rejected Petitioner’s al-

ternative suggestion that the class be dovetailed into the

seniority roster by placing its members at positions rel-

ative to those they held when terminated. Such relief

would have spread them fairly evenly among all United

flight attendants in terms of seniority. The essential

rationale for rejecting this specific proposal was that dur-

ing the course of the litigation the job had changed from

one perceived as a temporary and glamorous one to a

career position (App. 27a-28a). Although the denial of

seniority to the class generally was justified on the

ground of the “flexibility” of equity (App. 89a), the ef-

fect of the order was to accept the inflexible opposition

of United and the AFA to any accommodation, and to

return the victims to seniority positions much worse than

when the discrimination took place. See, p. 10, infra.

On an interlocutory appeal certified under 28 U.S.C.

§ 1292(b), the Seventh Circuit affirmed the District

Court’s decision in all respects, substantially adopting its

reasoning (App. la-39a).

REASONS FOR GRANTING THE WRIT

The judgment below is irreconcilable with Franks v.

Bowman Transportation Co., 424 U.S. 747 (1976), and

the decisions of other Courts of Appeals adhering to

Franks. In Franks, this Court established the funda-

mental principles for providing relief to victims of dis-

crimination in violation of Title VII of the Act. This

Court declared that the District Courts must “ ‘fashion

the most complete relief possible... . [T]he Act is in-

tended to make the victims of unlawful employment dis-

crimination whole,’” id. at 764, quoting the pertinent

Senate Report, even if “such relief diminishes the ex-

pectations” of incumbents. Jd. at 774. In particular,

this Court held that the presumption must heavily be

that discriminatees are entitled to be rehired with retro-

active seniority.

This is, so far as Petitioner is aware, the first reported

case since Franks in which a class of identified victims

of discrimination has been denied retroactive seniority.

The appellate decisions which have insisted that such sen- °

iority be granted, rejecting arguments similar to those

adopted by the Court below, include, e.g., Moore v. City

of San Jose, 615 F.2d 1265, 1272 (9th Cir. 1980); As-

sociation Against Discrimination v. City of Bridgeport,

647 F.2d 256, 287-288 (2d Cir. 1981), cert. denied, 455

U.S. 988 (1982); Moseley v. Goodyear Tire & Rubber

Co., 612 F.2d 187, 191 (5th Cir. 1980); Sledge v. J. P.

Stevens & Co., 585 F.2d 625, 644 (4th Cir. 1978), cert.

denied, 440 U.S. 981 (1979); Allen v. Amalgamated

Transit Union, Local 788, 554 F.2d 876, 881-882 (8th

Cir.), cert. denied, 484 U.S. 891 (1977) ; and Gurmankin

v. Costanzo, 556 F.2d 184 (8d Cir. 1977), cert. denied,

450 U.S. 923 (1981).*

The Court below acknowledged that its approach was

different from that of other Courts of Appeals (App.

17a, n.6). It knew it was interpreting Franks in a man-

“Indeed, other United flight attendants whose employment was

terminated because of the “no-marriage” rule have been afforded

full retroactive seniority. Sangster v. United Air Lines, Inc., 682

F.2d 864, 865-866 (9th Cir. 1980), cert. denied, 451 U.S. 971

(1981) ; Inda v. United Air Lines, Inc., 665 F.2d 554, 557 (9th Cir.

1977), cert. denied, 485 U.S. 1007 (1978); Sprogis v. United Air

Lines, Inc., 308 F. Supp. 959, 961 (N.D. Ill. 1970), aff'd, 444 F.2d

1194 (7th Cir.), cert. denied, 404 U.S. 991 (1971). In October

1969, United and AFA agreed that return to flight attendant posi-

tions with restoration of full seniority would be offered to all who

had transferred to ground jobs because of the rule and were still so

employed, as well as to those who had filed a union grievance or an

EEOC charge (AFA Trial Ex. 2).

ner uniquely unfavorable to discriminatees. This Court

should not countenance such a blatant disregard of its

teachings. To reverse this judgment promptly is of im-

portance, inasmuch as the grounds relied upon by the

Courts below to depart from the norm of full seniority

relief are ones which could all too readily be used in

many other situations to deprive Franks of vitality.

Where incumbents may be affected by the granting of

relief to a class of discriminatees, other Courts of Ap-

peals have concluded that the appropriate accommodation

is to avoid “bumping” incumbents, but, in return, to

grant preference in hiring to the victims by reemploying

with full retroactive seniority as openings occur. E.g.,

Moseley v. Goodyear Tire & Rubber Co., supra, 612 F.2d

at 191-192; Spagnuolo v. Whirlpool Corp., 717 F.2d 114,

120 (4th Cir. 1983). Those Courts have concluded that

this pattern of accommodation affords reasonable protec-

tion to incumbents against job loss, while affording mean-

ingful relief to the victims, by requiring the phasing of

the discriminatees into active employment over a period

of time. The decision below rejects this course followed

by sister Circuits.

Other Courts indeed have accorded victims relief de-

nied the class here in cases in which the balance of equi-

ties was far less favorable to them than in the present

situation, as where the Court went beyond a settlement

in which an employer had agreed to hire members of a

class who may not have been individually subjected to

discrimination, but were merely members of a race gen-

erally discriminated against by the employer, and held

that the seniority system would not thereafter be allowed

to operate against the new hires, e.g., Stotts v. Memphis

Fire Department, 679 F.2d 541, 564-567 (6th Cir. 1982),

cert. granted sub nom. Firefighters Local Union No. 1784

v. Stotts, 462 U.S. ——, 108 S.Ct. 2451 (1983); or

where retroactive seniority has been accorded “new hires”

and not restricted to clearly identifiable victims of the

discrimination, EEOC v. American Telephone & Tele-

graph Co., 556 F.2d 167 (8d Cir. 1977), cert. denied, 438

U.S. 915 (1978).

In cold reality, the Court below has marched in the

opposite direction from Franks: It has transformed the

narrow escape hatch language of Franks, that the Dis-

trict Courts in formulating seniority relief may take

measures to avoid “unusual adverse impact” upon in-

cumbents, 424 U.S. at 779, n.41, to justify eschewing the

compromise generally adopted to avoid such an unusual

impact, and even to justify eschewing accommodations,

such as comparative seniority, which are much less favor-

able to the discriminatees. Significantly, the Courts be-

low, in asserting that such an “unusual adverse impact”

was present here, focused upon the impact that would

occur if all the class were reinstated at once (App. 21la-

26a), and improperly equated that impact with any which

would result from such accommodations. Whether any

such approach should be sanctioned is an important and

recurrent question of the remedial aspects of Title VII,

which warrants plenary consideration by this Court.

While both the Courts below discussed at length the

potential effect upon incumbents of immediate reinstate-

ment of the entire class, neither discussed the effect upon

the class of this denial of full seniority. Under this de-

cision less than 1 percent of the class will be in the top

half of the seniority list, some 8 percent in the third

quarter, and more than 90 percent in the bottom quar-

ter. In contrast, when their employment terminated be-

cause of the discriminatory rule, 16 percent of the class

was in the upper quarter of the seniority roster; 26 per-

cent in the second quarter; and 35 percent in the third

(Record in Court below, R. 431). The class therefore

will suffer to a far greater degree the adverse effects of

loss of seniority than the portion of the incumbents which

gradually would be affected if Petitioner's return-

on-openings approach prevailed. Such a result is antago-

nistic to Franks and flouts its ultimate prescription that

victims of discrimination must be accorded as complete

relief as possible.

IL.

The reasons given by the Court below for its decision

are themselves further inconsistent with Franks, as well

as with settled principles of equity.

1, ™ ~ ~t denied the openings proposal because the

disc - ‘licated that they desired to be rein-

statea . © zasonable period; and if this did not

occur, the: «nt. ‘ :n to the Court for appropriate re-

lief (App. 25a-26a). To deny relief which is appropriate

now, because the beneficiaries may seek to modify it in

the future in the light of subsequent developments, is

plainly inconsistent with the teachings of this Court that

any party has a right to seek revision of the decree in

light of events, see, e.g., Pasadena City Board of Educa-

tion v. Spangler, 427 U.S. 424, 487 (1976); System Fed-

eration No. 91 v. Wright, 364 U.S. 642, 647 (1961), and

an abuse of discretion. To penalize litigants because they

reserve a traditional right of a party is a like error and

abuse.

Furthermore, the judgment that no relief should be

awarded because of the Court’s assumption that rein-

statements could not be accomplished within a pre-set

time period is manifestly unjust and illogical. It is un-

just to deny some relief because full relief may take too

long. It is illogical to believe that the future may be so

precisely predicted that any requested or possible adjust-

ments to the actual situation as it develops should be

forestalled. Justice delayed is better than justice now

denied.®

5 The error of this approach is shown by the facts, which came

to light during the pendency of the appeal and were made known

by Petitioner to the Court of Appeals, that United had recalled to

active service all of the more than 1,250 flight attendants who were

on furlough, and also was training people for possible openings in

1984 (Petition for Rehearing, 6-7). Nevertheless, a portion of the

“adverse impact” described below was that furloughees would not

be able to return to active employment and might even be dropped

The Court below labelled a “condition” Petitioner’s

announced intention to move to amend the decree if re-

instatements of the victims were not completed within the

stated time (App. 25a-26a). It held that this “condi-

tion” rendered the normal openings approach unavailable.

Petitioner never characterized her statement as a “con-

dition.” In any event, invocation of that word is not a

justification which this Court should tolerate for failing

to fashion an equitable result. Particularly in a Title VII

case, the Court has an independent obligation to dis-

regard or modify an inappropriate condition to provide

the remedies mandated by this Court.

In a Title VII case, the Federal Courts “have ‘ “not

merely the power but the duty to render a decree which

will so far as possible eliminate the discriminatory effects

of the past... .”’” International Brotherhood of Team-

sters Vv. United States, 431 U.S. 324, 364 (1977) (em-

phasis added), quoting Albemarle Paper Co. v. Moody,

422 U.S. 405, 421 (1975), which relied on Louisiana v.

United States, 380 U.S. 145, 154 (1965). Contrary to

this duty, the Courts below rejected the “openings” pro-

posal made by the discriminatees, without any genuine

attempt to devise any other relief consistent with the

purposes of the Act or to amend or adapt Petitioner’s

proposal to the requirements of justice under the circum-

stances. The District Court considered its function per-

formed when it rejected the proposals as tendered by the

discriminatees; and the Court below agreed. An approach

so passive to providing equitable relief under Title VII

cannot be squared with the mandates of this Court. The

judgment below reflects an abdication of judicial respon-

sibility which demands corrective action by this Court.

from the rolls, if the discriminatees were promptly reinstated (App.

29a-30a). In fact, not only have the furloughees been called back,

but also now United has had immediate openings for those 105 mem-

bers of the class who thus far have been reinstated (albeit with

limited seniority) as the consequence of further proceedings in the

District Court.

2. The most bitter of the unjustifiable standards

mobilized against the discriminatees is that the flight at-

tendant position involved “was once viewed as a tem-

porary, glamorous job [but] is now considered a career

position” (App. 28a). The cruel irony is that the main

generator of this change was the elimination of the dis-

criminatory “no-marriage” rule, branded as illegal in this

very litigation. It was a “temporary, glamorous job”

precisely because the predicate was that only single

women should have it; and the implicit assumption was

that they would consider the job primarily as an oppor-

tunity to get married or an interval before marriage,

rather than as a career in the then generally masculine

meaning of “career.” Those who found this presumption

unacceptable, who considered the rule sexist and illegiti-

mate, and have succeeded in this litigation, now have

their vindicated positions cited as a basis for denying

them relief. It is difficult to imagine a more egregious

disregard or noncomprehension of the purposes of civil

rights legislation. Hostility to the precepts of such legis-

lation cannot be a proper basis for limiting relief. Cf.

Watson v. City of Memphis, 373 U.S. 526, 531 (1963).

Also unrecognized below is the fact that the incumbents

have been enjoying the benefits of the attack against this

discriminatory rule. They may marry or plan on mar-

riage without loss of the job. Equity counsels that those

who conferred the benefits are entitled to more under-

standing and favorable consideration, vis-a-vis the in-

cumbent beneficiaries, even than is normally the case and

certainly than was afforded below. The employment of

an utterly improper criterion for denying relief and the

grievous departure from equity, contrary to the princi-

ples promulgated by this Court to effectuate the reme-

dial purposes of the Act, merits review by this Court.

3. The judgment below undermines the remedial] pur-

poses of the Act by penalizing the class for litigation de-

lays, and in weighing the effects of such delays exclu-

sively in favor of incumbents and simply affording no

consideration of its impact upon the victims of discrimi-

nation, As the Statement above indicates, this case has

consumed over a decade, as a result of legal issues raised

against Petitioner’s class by United. The latter’s right

to litigate positions ultimately rejected should not result

in special protection for those employed while it was

litigating, as the Courts below inferred. They failed to

realize that this result encourages obstructive and de-

laying tactics in Title VII litigation. Such tactics would

be rewarded, if the judgment below remains unreviewed,

by reducing, indeed minimizing, the relief that could be

obtained by the victims. The more incumbents, the fewer

opportunities for meaningful relief. The judgment below

thus works effectively to frustrate, rather than to ful-

fill, the purposes of the Act and the mandates of this

Court enforcing the Act.

Moreover, the District Court departed from those pur-

poses, with the approval of the Court below, by concen-

trating on the potential impact upon the class of incum-

bents swollen in numbers by the delay in litigation, with-

out placing on the scales of equity the practical impact

upon the class of discriminatees. The exceptionally long

delay in obtaining reinstatement or any other relief will

be continued, and with no ready end in sight. When re-

instated, the class members will have only such truncated

seniority as to condemn them to severely subordinated

positions on the seniority ladder. Accommodations which

have enablei other victims of discrimination to gain

some meaningful retroactive competitive seniority have

been denied thm, through no fault of their own.

On the other side of the scale, under settled principles,

those who become incumbents under such circumstances

have diminished equities. E.g., Lee v. Macon County

Board Of Education, 453 F.2d 1104 (5th Cir. 1971);

Spagnuolo v. Whirlpool Corp., supra, 717 F.2d at 122;

see generally Porter v. Lee, 328 U.S. 246, 251 (1946).

Those who entered the flight attendant position after the

invalidity of the rule had already been established should

not be heard to say that it is an “unusual adverse im-

pact” for those awaiting relief to be favored in seniority

over them. The judgment below cannot be reconciled

with Franks or the Act.

4. The Courts below were persuaded to deny the vic-

tims of discrimination retroactive competitive seniority

relief primarily on the basis of predictions that, because

of economic conditions, there would be no growth in the

need for flight attendants in the next few years, and

United already had some 1,200 employees on furlough.

These conditions, the Court below declared, were “[p]ar-

ticularly relevant to disposition of this case” (App. 8a)

and “extremely relevant to the present case” (App. 18a) ;

and it concluded that “the economic conditions affecting

United . . . are largely responsible for the finding of ‘un-

usual adverse impact’” (App. 39a). In placing such over-

weening emphasis on the economic conditions allegedly

facing the employer, the Court acknowledged that its ap-

proach in considering whether there was an “unusual ad-

verse impact” on incumbents was not in accord with

that of other Circuits, especially that of the Second Cir-

cuit in Association Against Discrimination v. City of

Bridgeport, supra (App. 17a).

This Court intended that the “unusual adverse impact”

exception should be narrowly applied, lest it inhibit or

prevent achievement of the purpose of the Act to eradicate

the effects of discrimination. See Franks, supra, 424 U.S.

at 779, n.41. The denial of relief in this case based on

economic conditions of the employer (which had employ-

ees on furlough with projections that it would not be

hiring employees in the affected classification) is partic-

ularly unfair to victims of discrimination who were will-

ing to assume the risk that the employer’s economic con-

dition would improve by proposing to return only as open-

ings occurred.* Whether the economic conditions of an

employer should be accorded such exceptional deference in

relieving the employer of the normal result that retro-

active seniority would be awarded is an issue of great

and continuing significance to the enforcement of Title

VII, warranting consideration by this Court. Cf. Stotts

v. Memphis Fire Department, 679 F.2d 541 (6th Cir.

1982), cert. granted sub nom, Firefighters Local Union

No. 1784 Vv. Stotts, 462 U.S. ——, 103 S.Ct. 2451 (1983)

(appropriate sharing of remedial relief between persons

who are not identified victims of employment discrimina-

tion and incumbents under adverse economic conditions).

5. The Court below in denying seniority relief to the

class relied upon yet another impermissible factor: It

held that if an openings approach were followed there

might be an adverse impact upon incumbents because

United was threatening to create “artificial vacancies”

and “false vacancies” by which it would terminate in-

cumbents in order promptly to hire discriminatees and

lessen the monetary compensation owed them (App. 26a-

27a). This holding is a severe threat to the integrity of

decrees under Title VII and should not be countenanced

by this Court.

First, any unscrupulous employer could create “false

vacancies”; that possibility certainly does not present a

situation “that would not be generally found in Title VII

cases,” Franks, supra, 424 U.S. at 779, n.41. Further, it

is improper for the Court to deny equitable relief be-

cause of unseemly threats of the discriminating employer

to use inequitable artifices in order to limit the reach of

Title VII relief. The proper reaction to such a threat is

to broaden the injunction to prevent such actions of the

employer, not further to harm the victims of the dis-

ye’,

® As discussed at pp. 11-12, n. 5, supra, the employer’s economic

condition did improve and openings presently exist for returning

class members.

crimination. Such defiance is ground for strengthening,

not lessening, the relief.

The judgment below is thus so grossly wide of the

mark of providing “make whole” relief and respecting

the presumption in favor of rightful place seniority de-

manded by Franks as to call for review and reversal by

this Court.

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,