Amicus Curiae Brief — Wards Cove Packing Co. v. Atonio
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> ) FILED
Nov 4 1988
No. 87-1387 JOSEPH E SPANIOL, JR
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
—_
WARDS COVE PACKING COMPANY, INC.,
CASTLE & COVE, INC.,
Petitioners,
—V,---
FRANK ATONIO, ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO TIIE UNITED STATES
COURT OF APPEALS FOR TILE NINTH CIRCUIT
BRIEF FOR THE AMERICAN CIVIL LIBERTIES
UNION, NATIONAL WOMEN’S LAW CENTER,
NOW LEGAL DEFENSE AND EDUCATION FUND,
WOMEN’S LEGAL DEFENSE FUND,
AMICI CURTAE, ON BEHALF OF RESPONDENTS
JOAN E. BERTIN
Counsel of Record
KARY L. Moss
ISABE. _E KATZ PINZLER
JOHN A. POWELL
American Civil Liberties
Union Foundation
132 West 43rd Street
New York, New York 10036
(212) 944-9800
Page
TABLE OF AUTHORITIES .... «2. « «- iii
INTEREST OF AMICI CURIAE. . eo © «© « &
STATEMENT OF THE CASE .... +++ « 2
SUMMARY OF ARGUMENT .... +6 « « 10
ARGUMENT . ° © © « « 2D
EIn@re@uction .+«+-+s«eeecee ce oe &
I. THE TOTALITY OF THE EVIDENCE
INCLUDING STATISTICAL EVIDENCE OF
RACIAL STRATIFICATION, EASILY
ESTABLISHES A PRIMA FACIE
CASE
OF DISPARATE IMPACT
DISCRIMINATION. . . . « «© «© « «© « 17
A.
Petitioners Have Failed
to Demonstrate that
Observed Disparities
Are Attributable to
Valid Skill or Qualifi-
cations Requirements .... 21
The Data Comparing Non-
White Representation In
Cannery and Non-Cannery
Jobs, Along with Other
Evidence, Demonstrates
the Impact of the
Employers' Practices ... . 30
0 eee ee ee lh
II. TITLE VII REQUIRES MORE THAN A
SHOWING OF BUSINESS-RELATED
PURPOSES TO DEFEND APPARENTLY
DISCRIMINATORY EMPLOYMENT
PRACTICES . + cecccecveeee ¢
A. Congress Has Ratified This
Court's Requirement That
Employers Must Demonstrate
the Business Necessity of
Practices Which Result in
Discrimination. ...+s.«. -«
B. Decisions of This Court
Reveal That the Business
Necessity Defense Is An
Essential Element of Dis-
parate Impact Analysis...
on Cost Considerations Do Not
Establish Business Necessity
Or Excuse The Necessity To
PEOVe IF « « 8 « & 6 Soe ee
III. PRINCIPLES OF STARE DECISIS
PRECLUDE ABANDONING OR ALTER-
ING THE BUSINESS NECESSITY
DEFENOB «© © es ce eee eeeee
CONCLUSION ar ee
C. The Employers' Use of An
Undifferentiated Hiring
Procedure Makes the End
Result Appropriate For a
Measurement of Disparate
eile
36
38
41
46
56
59
63
TABLE OF AUTHORITIES
Cases
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975). .... .. . passim
Alexander v. Choate,
|
Vv j Comm. v. Norris,
rr rrr RUSS . « 5 6 6 ec 32, 58
iday,
UO. wg lg cg fg lw passim
Beazer v. New York City
j ority,
~~~ TCE h. « « 6 6 6 ¢« ce ec « $1
Boston Chapter, NAACP, Inc. v.
Beecher,
504 F.2d 1017 (list Cir. 1974),
cert. denied,
umemeeere Mme CROPS). « « « cw tw cw 47, 49
Catlett v. Missouri Highway & Transp.
Comm'n, 828 F.2d 1260 (8th Cir. 1987),
cert. denied, U.S. __,
108 S.Ct. 1574 (2968). ..-+e 16, 28, 54
Caviale _v. State of Wisconsin
; of Health and
curity,
744 F.2d 1289 (7th Cir. ene «© « « « 48
-iii-
Coble v. Hot Springs School Fisher v. Procter and Gamble
District No. 6, Manufacturing Co.,
682 F.2d 721 (8th Cir. 1982) ....e. 84 613 F.2d 527 (5th Cir. 1980),
cert. denied,
Connecticut v. Teal, 449 U.S. 1115 (1981) ..... 23, 47, 48
457 U.S. 440 (1982). ...... . passim
Franks v. Bowman Transportation Co.,
Craig v. Alabama State Univ., 495 F.2d 398 (5th Cir. 1974),
804 F.2d 682 (11th Cir. 1986)... .. 10 rev'd, 424 U.S. 747 (1976) .... 14, 24
Crawford v. Western Electric Co., Gamble v. Birmingham Southern R. Co.,
614 F.2@ 1300 (Sth Cir. i980). .-«e« 37 514 F. 2d 678 (5th Cir. 1975). .. 15, 22
Davis v. Califano, Gathercole v. Global Associates,
613 F.26 937 (D.C.Cir. 1979) . « « 34, 28 545 F.Supp. 1280 (N.D.Cal. 1982) ... 59
De Medina v. Reinhardt, Geller v. Markhan,
686 F.2d 997 (D.C.Cir. 1982) ... 26, 28 635 F.2d 1027 (2d Cir. 1980),
cert. denied, 451 U.S. 945 (1981). .. 47
Dothard v. Rawlinson,
G35 Gee Fas CEPT) s « sc eo « Oy Os TO General Bld. Contractors Ass'n v.
Pennsylvania,
EEOC v. Radiator Specialty Co., \. ae ae ee CPOs « 4 6 te ec eee
610 F.2d 178
(ae Gis. 3078). «eo ne eo st i Me HS General Electric Co. v. Gilbert,
429 U.S. 125 (1976) ee wes os co Oy GB
EEOC v. Rath Packing Co., Grant v. Bethlehem Steel Corp.,
787 F.2d 318 (8th Cir.), 635 F.2d 1007 (2d Cir. 1980),
cert. denied, 479 U.S. 910 cert. denied,
(Sa0ewep oc ec ce ewe ew we et ewe es HO, GGe Geme BGO (2961). « . «© « 0 0 « 49,
Firefighters Institute for Racial Griggs v. Duke Power Co.,
Equality v. City of St. Louis, 401 U.S. 424 (1971)... ... . . passim
549 F.2d 506 (8th Cir.),
cert. denied, Grove City College v. Bell,
Gee Weames Bar taerrie + « 6 © © 6 « % 3 ee Ga wame Bee Ceemers © s+ tb eee sews eS
-iv- -vV-
Guardians Ass'n of the New York
City Police Dep't v. Civil Service
: SS
’
ee a en ONG O8. Ss see
Harless v. Duck,
619 F.2d 611 (6th Cir.),
cert. denied, 449 U.S. 872 (1980).
Harrell v. Northern Elec. Co.,
672 F.2d 444 (5th Cir. 1982)...
Hawkins v. Bounds,
752 F.2d 500 (10th Cir. 1985)...
Hayes v. Shelby Memorial Hospital,
726 F.2d 1543 (llth Cir. 1984). .
Illinois Brick Co. v. Illinois,
S3n Geto Fae CaS77)e« © «© © @ ©
International Brotherhood of
Teamsters v. United States,
Bs ses °° Fi, Fe
Jones v. Lee Way Freight Inc.,
431 F.2d 245 (10th Cir. 1970),
cert. denied, 401 U.S. 954 (1971).
Kilgo v. Bowman Transp. Inc.,
789 F.2d 859 (llth Cir. 1986)...
Kinsey v. First Regional Sec.,
557 F.2d 830 (D.C.Cir. 1977) ...
Kirby v. Colony Furniture Co.,
613 F.2d 696 (8th Cir. 1980)...
evie
- « 48
24, 25
48, 49
48, 58
60
Kirkland v. NY State Dep't of
Correctional Services,
520 F.2d 420 (2d Cir. 1975),
cert. denied, 429 U.S. 823 (1976).
Knight v. Nassau County Council
Service Commission,
649 F.2d 157 (2d Cir. 1981),
cert. denied, 454 U.S. 818 (1982).
Lewis v. Bloomsburg Mills, Inc.,
773 F.2d 561 (4th Cir. 1985) oe
Los Angeles Dep't of Water &
Power v. Manhart,
SO ee
Marsh v. Eaton Corp.,
639 F.2d 328 (6th Cir. 1981) ...
McDonnell Douglas Corp. v. Green,
ie © = DD | eres
Mobile v. Bolden,
Gan Dems Ge tanee) « «© « oe eo 6 6
Monell v. Dep't of Social Services,
Gam Wome Gee Caereis © « « we co 8
Muller v. U.S. Steel Corp.,
509 F.2d 923 (10th Cir.),
cert. denied,
a us Ge COTO). 2 2 ee ee
Nash v. Consolidated City of
Jacksonville,
837 F.2d 1534 (llth Cir. 1988) .
-vii-
NLRB v. International Longshoremen's
Ass'n, AFL-C) iO,
473 U.S. 61 (1965) . «© «© © © © © @© @ @
Nashville Gas Co. v. Satty,
636 Gee 296 CA97T7)e © we wo ee ee 8
ws v. EEOC,
462 U.S. 669 (1983). . «© «© «© «© « «© «© «
New York City Transit
Authority v.Beazer,
440 U.S. 568 (1979). ~. «© «© «© «© « e « »
Orr v. Orr,
440 U.S. 268 (1979). . . «+ «+ «© ee © -
Parson v. Kaiser Aluminum &
Chemical Corporation,
575 F.2d 1374 (5th Cir. 1978),
cert. denied,
owe See COUN). 2% % © a 8 ce 8
Patsy v. Florida Board of Regents,
457 U.S. 496 (1982). .+-+-e«ee © @« »«
Robinson v. Lorillard Corp.,
444 F.2d 791 (4th Cir.),
cert. dismissed,
404 U.S. 1006 (1971) ..... 47, 49,
Rowe v. General Motors Corp.,
457 F.2d 348 (5th Cir. 1972) .. . 23,
Shidaker v. Tisch,
833 F.2d 627 (7th Cir. 1986),
cert. denied, 5.8. .
108 S.Ct. 2900 (1988). .~. «© «© «© « « « «
-viii-
60
49
58
51
53
23
60
58
48
35
Page
Smallwood v. United Airlines Inc.,
661 F.2d 303 (4th Cir. 1981),
cert. denied,
656 @.8. 1007 (1962) . .~. «+--+ 38, 39
ited Airii P
475 F.2d 216 (10th Cir. 1972). ... . 26
Texas Dep't of Community Affairs
vy. Burdine,
GEO Gebe 2O8 C3083). «- se ce ec eoveve &
Transworld Airlines, Inc. v. Thurston,
SGD Gee 228 (A9ES)e @ wo ec eoveeene eo
United States v. County of Fairfax,
629 F.2d 932 (4th Cir. 1980) ... 15, 28
Walker v. Jefferson County Home,
726 F.2d 1554 (11th Cir. 1984) .. 48, 49
Washington v. Davis,
426 U.S. Zan (3976). «© «© © ec eo eo eo 0 eo SF
W Vv ort Worth Bank & us O.,
487 U.S. -
108 S.Ct. 2777 (1988). . . .«. « « « 17, SE
W Vv outhern Bell Tel. . ne
408 F.2d 228 (5th Cir. 1969) ..... 51
Wengler v. Druggists Mut. Ins. Co.,
- 3 Se BR). | ee ee era
Wi lams v. Colorado Springs Schoo
District,
641i F.2d 835
(10th Cir. Bewep «© «© © 0 & 6 le BAe See 8
-ix-
Statutes
Civil Rights Restoration Act,
Pub. L. 100-259 (1988) . . . . . . . . 61
Pregnancy Discrimination Act,
42 U.8.C- §2000e(k). . . . . . . . . . 57
Section 504 of the Rehabilitation Act,
29 U.8.C. $794 (1982). «© «© ee eeee &
Title VII of the Civil Rights Act
of 1964,
42 U.S.C. §2000 et seg. .... + passim
Voting Rights Act,
GB U.BcG. GATS. « ¢ 6 ee eo ee th ew ce SS
Legislative History and Other Authorities
Alaskan Fisheries Hearings: Hearings
Before the Subcommittee on Alaskan
Fisheries, Committee on the Merchant
Marine and Fisheries,
76th Cong., list Sess. (1939) .. 7, 9, 10
Committee on Labor and Human Resources,
U.S. Senate, 96th Cong., 2d Sess.,
Legislative History of the Pregnancy
Discrimination Act of 1978 (1979). . . 58
117 Cong. Rec. 31960 (1971). . « « « « 44
117 Cong. Rec. 32095 (1971)... « « « 44
117 Cong. Rec. 3209? (19M3). /.6- ‘e te. eee
117 Cong. Rec. 32101 (1971). ..... 44
118 Cong Rec. 7166 (1972). .....-. 43
House Report No. 238,
92d Cong., list Sess. (1971 . . 43, 44, 45
Liljeblad, Filipino Alaska: A Heritace
(1980) (Alaska Historical Commission
Studies in History No. 9)... .+«+ «+ «9
S. Rep. No. 97-417, 97th Cong., 2d
Sess., reprinted in 1982 U.S. Code
Cong. and Ad. News 1 ..... + «6 « « 45
<xi-
INTEREST OF AMICI CURIAE2/
Amici curiae are non-profit legal,
education and research organizations
concerned about the legal rights and
economic status of women and minority
workers. 2/
Amici believe that this case has
potentially far-reaching implications for
the rights secured by Title VII of the
Civil Rights Act of 1964, as amended, 42
U.S.C. §§2000e, et seg. ("Title VII"). In
particular, arguments pressed by petition-
ers and the United States, as amicus
curiae, would, if accepted, seriously
undermine the ability of any worker who has
1/ he parties have consented to the filing
of this brief, and the letters of consent are being
filed with the Clerk of the Court pursuant to Rule
36.2 of the Rules of this Court.
2/ The interest of each individual amicus
curiae is set forth in the Appendix to this brief.
-l-
jected to discriminatory employment prac-
tices to receive the remedy Congress
intended. We write especially to urge the
Court to reject this unwarranted departure
from established precedent.
Statement of the Case
This class action, filed in 1974,
alleges employment practices that,
individually and in combination, have
created a patently racially stratified
work environment at three Alaska salmon
canneries. Among the elements con:ributing
to this discriminatory result are (1) a
history of job segregation; (2) recruitment
practices which targetted non-whites for
lower-paying jobs, while applicants for
better jobs were sought from a predomi-
nantly white labor force; (3) rehire
preferences, word-of-mouth hiring and
nepotistic practices; (4) subjective hiring
practices; (5) segregation in the provision
of housing and meals; and (6) common use of
overt racial designations and characteriza-
tions.
The evidence reveals that non-whites
were concentrated in lower-paying cannery
jobs, and whites predominated in higher-
paid positions. At Bumble Bee Cannery,
more than 90% of all hires over a nine year
period in seven of twelve departments were
white. Non-whites predominated in only one
department -- cannery worker -- and
represented a third of hires in “hree other
departments (laborer, culinary, quality
control). Joint Excerpt of Record
(hereinafter "ER") at 35. The same kind of
stratification was evident at Red Salmon:
whites obtained more than 75% of jobs in
nine of twelve departments. Non-whites
filled the majority of the laborer and
cannery worker positions. ER 36. At Wards
Cove and Red Salmon, between a third and
two-fifths of all hires were non-white,
but they were largely confined to two
departments -- cannery worker and culinary.
ER 36, 37.
Even within apparently “integrated”
departments, there was job segregation. At
Bumble Bee, in the Fish House and Cannery
departments, butcher and slimer jobs were
filled exclusively by non-whites, and
filler feeder and retort jobs were held
almost exclusively by whites. ER 42. At
Red Salmon, whites in the same department
worked only in cold storage, fish weigher,
and egg puller jobs, and non-whites held
all other positions. ER 50; see also ER
54. At the Warehouse department at Wards
Cove, whites represented 48% of the hires
(N=28), but all except one were assigned to
the warehouse job category, while non-
whites were spread throughout seven job
categories. ER 55.
The “inexorable zero" is evident in
the record as well. At Bumble Bee, in two
job categories comprising 304 hires, no
non-whites were hired at all from 1971 to
1980, and in five other categories, with
437 jobs at stake, non-whites obtained only
20 positions, fewer than 7% of the total.
ER 35. At Red Salmon, no non-whites were
hired into two job categories, involving 39
jobs; non-whites held only 11 out of 379
positions in three other departments. ER
36. At Wards Cove, in six job categories
non-whites got only 16 of 614 jobs. ER 37.
The industry has traditionally
employed non-white laborers for the
hardest, least lucrative positions, a
pattern that persisted well past the
passage of Title VII. The recruitment
practices at issue in this case are
particularly instructive. Non-whites were
recruited specifically for cannery work,
although there is no apparent reason why
the employers did not make the full range
of employment opportunities available to
all potential applicants. Undoubtedly,
many of the native Alaskans and Filipino
workers recruited for cannery work would
have preferred other jobs, especially if
the pay and working conditions were better.
But the preferred jobs were not offered,
and inquiries about the availability of
other positions were met by a variety of
evasive responses. 3/ Higher-paying "at
3/ For example, recruiters at Alaskan vil-
lages in the remote areas near the canneries were
not authorized to accept applications for non-
cannery work, Joint Appendix (hereafter "JA") at
163; and non-whites were actively discouraged from
applying. JA 38-42; 52; 56-60; 63-67; 71-73; 75-
77; 85-86; 125-126.
issue" jobs were generally filled through
offices in Washington and Oregon, that
drew from a predominantly white labor
force, a practice that was common in the
industry well before the institution of
this lawsuit.4/ Thus, by selectively con-
trolling the labor market from which
employees in different positions were
drawn, the employers controlled the racial
make-up of both the applicant pool and
hires in various jobs.2/
Although certain skills are claimed as
necessary for some "at issue" jobs, no
4/ Alaskan Fisheries Hearings: Hearings
Before the Subcommittee on Alaskan Fisheries,
Committee on Merchant Marine and Fisheries,
76th Cong., 1st Sess. 58 (1939) (hereafter
"Hearings") .
2/ By this practice, if the employers'
argument is accepted, an employer may insulate
itself from liability for discrimination by
manipulating the labor pool: the comparative base
used to measure discriminatory impact is the very
labor force selected by the employer that has
already produced the challenged result.
7
skill or education requirements were ever
actually imposed.£/ The desirable skills
were identified only in preparation for
litigation, and many of the incumbents did
not possess them. Subjective judgments
thus clearly controlled the selection of
employees for "at issue" jobs, although the
pool from which such employees were drawn
largely excluded non-whites.
Overt discrimination was evident in
the housing and meals arrangements and in
the race-typing of jobs and workers. Many
of the employment practices have changed
little since the days when the cannery
owners openly embraced and espoused race-
based practices. A report by the Alaska
Historical Commission observed:
&/ Young inexperienced whites were commonly
given jobs that petitioners now claim are
"skilled." See, e.g., JA 19-24, 25-29, 35-37, 60-
62, 78-79, 110-11, 114-22, 123-24, 131-36.
8
The cannery workers were divided into
two groups, or crews, those that
worked inside the canneries processing
fish and those in cannery maintenance
and operations.... [t]he fish and
processing crew was mainly composed of
racial and ethnic minorities, and
after [the arrival of] Chinese
contract laborers, it retained a
primarily Oriental composition for
decades. Sometimes Caucasians might
be found within the "China" crew, yet
the opposite was seldom found.
7/ sue Liljeblad, Filipino Alaska: A
Heritage (1980) (Alaska Historical Commission
Studies in History No. 9) (hereafter "Historical
Report"). Race labeling and stereotyping
dominated industry practices. Chinese were valued
as "willing to work excessively long hours without
grumbling, and are content to live in miserable
quarters and the cheapest food." Id. at 100. A
representative from the Territory of Alaska
testified in Congress in 1939: "The oriental is
not able physically to do the work of a white man,
and I am sure it is the desire of the packer now to
get rid of the Filipino.... If he has to pay a
wage like that the packer feels he can get more
work out of a white man and perhaps with less
trouble...." Hearings, supra n.4, at 29. At the
same time the white man was viewed as too good for
the dirtiest work. "Some of the operators are of
the opinion that white people would not generally
prove satisfactory in the butchering crews. That
is, the men who feed the iron chinks and slime the
fish .... Some of them believe it would be
necessary to use oriental labor in the butcher
room, even if white labor were available and there
was no restriction on employment." Id. at 346-47.
9
Originally shaped by intentionally
discriminatory practices, the system
challenged here incorporated elements of
intentional discrimination, both covert and
overt, along with identifiable neutral
practices applied alike to whites and non-
whites, that served to maintain the status
quo. 8/
SUMMARY OF ARGUMENT
The record in this case is replete
with evidence that petitioners' employment
practices have operated to freeze
historical patterns of race discrimination.
See Griggs v. Duke Power Co., 401 U.S. 424
Living accommodations were distributed on the basis
of race or ethnicity with whites receiving the
newest bunkhouses with the best lighting and
conditions. Id. at 115-16.
8/ For example, the rehire preference clearly
serves to perpetuate current staffing patterns,
Craig v. Alabama State Univ., 804 F.2d 682, 687 n.7
(11th Cir. 1986), and whites benefitted overwheln-
ingly from the nepotistic practices. ER 57-101.
10
(1971), Albemarle Paper Co. v. Moody, 422
U.S. 405 (1975). Yet petitioners ignore
this overwhelming body of evidence,
focussing their attack on only a smali
piece, and in so doing seriously distort
the reality that workers in these Alaskan
Salmon canneries experience.
This case recalls an earlier era of
Title VII enforcement when race and sex
typing in employment was rampant, often
overt and institutionalized. Although the
law has developed to address more sophisti-
cated and subtle forms of discrimination,
there is nothing sophisticated or subtle
about this case. Only by viewing the
totality of the evidence, Bazemo Vv.
Friday, 478 U.S. 385 (1986), rather than
forcing the facts into a legal straight
jacket never intended for this kind of
11
Situation, can this case be properly
analyzed. See Point I, infra.
The rules and definitions established
in Griggs, refined in Albemarle, and
reaffirmed in Connecticut v. Teal, 457 U.S.
440 (1982), directly govern this case, and
compel the conclusion that petitioners have
wholly failed to rebut the evidence of
discrimination or to demonstrate that their
practices are justifiable. See also
international Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977). The
defense consists of speculative attacks on
plaintiffs' evidence, unsupported asser-
tions of necessity, and hypothetical
allegations as to the cost of improvements.
Thus, petitioners and the United States
propose dispensing with the authoritative
interpretation of Title VII that has
governed for 17 years, even though Congress
12
has expressly ratified this application of
the statute. See Point II, infra.
Principles of stare decisis preclude
the result petitioners urge. The Court
should instead affirm its long-standing
rule that practices "fair in form, but
discriminatory in operation" are unlawful
unless affirmatively justified as necessary
to the business. See Point III, infra.
ARGUMENT
Introduction
Many industries have been marked by
the pervasive stratification and stereo-
typing apparent in this case. Historical-
ly, for example, the trucking industry was
stratified by race and sex. Whites
predominated in the lucrative over-the-road
("OTR") tractor trailer driving jobs, while
minorities were initially confined to
certain shop positions and later obtained
1 3
employment driving local routes and working
on the loading dock. See Teamsters, 431
U.S. at 337-38; Franks v. Bowman Transp.
Co., 495 F.2d 398, 410 n.10 (5th Cir.
1974), rev'd on other grounds, 424 U.S. 747
(1976); Jones v. Lee Way Motor Freight,
Inc., 431 F.2d 245 (10th Cir. 1970), cert.
denied, 401 U.S. 954 (1971). This
allocation of jobs was maintained by a
system of subjective and discretionary
hiring practices, often in combination with
neutral rules, like no-transfer provisions,
that operated to freeze and perpetuate the
discriminatory practices. See also Kilgo
v. Bowman Transp. Irc., 789 F.2d 859, 869-
75 (llth Cir. 1986) (women excluded from
OTR driving jobs as a result of a neutral
prior experience requirement and other
practices, including unequal and
inconsistent application of job require-
14
ments, failure to provide adequate bathroom
and bunk facilities, and other practices
designed to deter women applicants).
The same patterns occurred in many
settings. Whites entered the preferred
lines of progression, and minorities and
women were routed to race and sex-typed
positions, often the lowest paid, with the
least likelihood of advancement.2/ Subjec-
tive assessments, selective recruitment,
experience and education requirements, and
paper and pencil tests were all employed,
often simultaneously.
2/ £.g., Albemarle Paper Co. v. Moody, 422
U.S. 405 (1975) ("racial identifiability" of lines
of progression; blacks in worst jobs); United
-, 629 F.2d 932,
937-38 (4th Cir. 1980) (women clustered in clerical
jobs, minorities in maintenance); Gamble v.
Birmingham Southern Railroad Co., 514 F.2d 678 (5th
Cir. 1975) (blacks confined to switchman position) ;
Marsh v. Eaton Corp., 639 F.2d 328 (6th Cir. 1981)
(women channeled into specific jobs).
15
Vigorous enforcement of Title VII,
and judicial scrutiny of employment prac-
tices that resulted in marked workforce
stratification has made this a less
familiar, but by no means non-existent,
pattern. Women workers, in particular, are
still subject to stereotypes about their
interests and skills and to pervasive
discrimination in male-dominated industries
and professions. See, e.g., Catlett v.
Missouri Highway & Transp. Comm'n, 828
F.2d 1260 (8th Cir. 1987) cert. denied, ___
U.S. __, 108 S.Ct. 1574 (1988); EEOC v.
Rath Packing Co., 787 F.2d 318, 328 (8th
Cir.), cert. denied, 479 U.S. 910 (1986);
Kilgo v. Bowman Transp. Inc., 789 F.2d 859.
No one familiar with the efforts to eradi-
cate widespread employment discrimination,
to which Title VII was originally
dedicated, can fail to recognize the
16
pattern present in this case. This case,
like Griggs, 401 U.S. 424, and Albemarle,
422 U.S. 405, had its genesis in the
overtly discriminatory practices pursued
widely in this industry prior to the
enactment of Title VII. And, like Griggs
and Albemarle, this case also involves
neutral practices, applied to all, that
fall more harshly on one group and that
“operate to 'freeze' the status quo of
prior discriminatory employment practices."
Griggs, 401 U.S. at 430,40/
I. THE TOTALITY OF THE EVIDENCE,
INCLUDING STATISTICAL EVIDENCE OF
RACIAL STRATIFICATION, EASILY ES-
TABLISHES A PRIMA FACIE CASE OF
DISPARATE IMPACT DISCRIMINATION.
10/ here can be no doubt in this case that
the "racial identifiability" of jobs, Albemarle,
422 U.S. at 409, did not arise from a "myriad of
innocent. causes,"
Co., 487 U.S. __, 108 S.Ct. 2777 (1988), but from
an extended history of specific discriminatory practices.
17
The parable of the blind describing an
elephant4// is an apt metaphor for the
mischaracterization of this case by
petitioners and some supporting amici.
By focussing their attack on a single
element of the case, namely the comparison
between the proportion of non-whites in
cannery jobs and non-whites in better
paying, more desirable “at issue" jobs, as
if no other evidence exists, the employers
distort reality. The record establishes
pervasive evidence of discrimination, of
which this particular statistical
_ 42/ Several blind people stationed at various
points around an elephant are each separately asked
penne Ay. - The one at the trunk
an elephant is a large hose; the
at the tusk describes a curved spike; ancther at
the ear says the elephant resembles a sail; the one
feeling the body says an elephant is a large hairy
wall, and according to the one at the tail an
elephant seems to be a sort of rope with a tassel
at the end. Here, the employers and their amici
are all feeling the tail; they perceive no
elephant, only a rope.
18
comparison is only a part: discrimination
is apparant "by the manner in which [an
employer] publicizes vacancies, his
recruitment techniques, his responses to
casual or tentative inquiries, and even by
the racial or ethnic composition of that
part of his workforce from which he has
discriminatorily excluded members of
minority groups." Teamsters, 431 U.S. at
365.
Petitioners do not contest many of
the facts upon which respondents rely, but
they question the relevance and probative
value of this evidence and assert that some
of the practices are defensible. Specifi-
cally, the employers do not deny that
general hiring, hiring of relatives,
recruitment, rehire, bunking and messing
practices occur essentially as respondents
describe them. They claim that there is no
19
statistical evidence of discrimination,
because they allegedly hire in proportion
to the "qualified" labor pool.
Both parties attempted to define the
appropriate comparative reference to
measure statistically the significance of
the obvious racial stratification in the
labor force, and there was and is sharp
dispute on this issue. This dispute,
however, should not obscure the agreement
regarding the other factual elements of the
employment process (even if the legal
implications are debated), and the fact
that these elements can and should be
considered in determining the existence of
the prima facie case. Cf. Bazemore v.
Friday, 478 U.S. at 400.
The dispute over the statistical
evidence of impact ultimately involves two
questions: (1) whether qualifications that
20
have not actually been uniformly applied in
the selection of employees and that them-
selves may disproportionately exclude non-
whites may be used to define the relevant
labor pool for purposes of statistical
evidence of impact; and (2) whether the
employers may themselves manipulate the
labor pool, by selectively seeking employ-
ees for some jobs in a predominantly white
area and employees for other jobs in
predominantly non-white areas.
A. Petitioners Have Failed to Demonstrate
that Observed Disparities Are Attrib-
utable to Valid Skill or Qualifi-
cations Requirements
Evidence of racial, ethnic, or sex-
based stratification in employment compell-
ingly suggests the presence of discriminat-
ory practices or the residue of intention-
21
al, historical discrimination.42/ Such
Such stratification is unlikely to occur as
a result of choice when the jobs to which
minorities or women are confined are the
least desirable ones. It is equally
unlikely that qualifications or skills
fully account for the disparities, espe-
cially in the jobs "at issue" in a case:
until this litigation, the employer had no
defined requirements for the jobs, and many
of the incumbents were unskilled. The
selection process for at issue jobs was
highly subjective.143/ Under these
12/ £.g., Gamble v. Birmingham So.R. Co., 514
F.2d 678 (Sth Cir. 1978); Muller v. U.S. Steel
Corp., 509 F.2d 923 (10th Cir.), cert. denied, 423
U.S. 825 (1975). See also Albemarle, 422 U.S. 405
and Griggs, 401 U.S. 424.
13/ ‘the failure to articulate objective
criteria, and the reliance on unguided subjective
decisions, has often been identified as a ready
mechanism for discrimination. Knight v. Nassau
County Civil Service Commission, 649 F.2d 157, 161
(2d Cir.), cert. denied, 454 U.S. 818 (1981) ;
Wi Vv. orado Springs Schoo is , 641
22
circumstances, the skill level, for
purposes of identifying comparative labor
force data, must be based on the “non-
discriminatory standards actually applied
... to individuals who were in fact hired."
ans -, 424 U.S. at
772 n.32. See also Albemarle, 422 U.S. at
433. Since the evidence demonstrates that
no standards were developed or consistently
applied to actual hires, labor force
comparisons cannot be restricted by
hypothetical skill levels. Indeed, the
notion that the Beach Gang truck driver job
is a "skilled" job conflicts with this
Court's repeated statements, in the context
F.2d 835, 842 (10th Cir. 1981); Fisher v. Procter
and Gamble Manufacturing ©o., 613 F.2d 527, 546
(Sth Cir. 1980), cert. denied, 449 U.S. 1115
(1981) ;
Corporation, 575 F.2d 1374, 1385 (5th Cir. 1978),
(1979) ; nea po ete 457
F.2d 348, 359 (5th Cir. 1972).
23
of OTR trucking cases, that this is a skill
widely possessed or easily obtained.
e.g., Franks and Teamsters.
It is hard to imagine that driving a
See,
truck around a cannery requires more skill
than driving an 18 wheel tractor-trailer
across country. Similarly, it is hard to
understand why Alaskan native Americans are
deemed not sufficiently skilled to cook on
board fishing boats, or to be deckhands.
They lack the requisite "skill" level,
according to petitioners, because they have
previously been excluded from these jobs.
It is the defendant's burden to prove
the necessity of special qualifications, if
they are in doubt. EEOC v. Radiator
Specialty, Co., 610 F.2d 178, 185 n.8 (4th
Cir. 1979); Davis v. Califano, 613 F.2d
957, 964-65 (D.C. Cir. 1979); Harrell v.
Northern Elec. Co., 672 F.2d 444, 448 (5th
24
Cir. 1982). Where the very subjectivity of
the practice is challenged as contributing
to, or creating, the discriminatory result,
numerous courts have held that comparative
labor force data may be limited only by
reference to the "minimum objective
qualifications" for the job. Davis v.
Califano, 613 F.2d at 964.
minimum objective qualifications for the
There were no
jobs at issue in this case because none had
been identified and none was uniformly
required.
Furthermore, prior experience and skill
requirements would themselves be discrim-
inatory. Defining the labor pool according
to discriminatory standards would be
entirely inappropriate:
The circuitousness of this
bootstrap argument becomes
obvious when one recalls that it
is [the] qualifications for
flight officer that appellant
Claims are discriminatory.
25
Spurlock v. United Airlines, 475 F.2d 216,
218 (10th Cir. 1972) (emphasis in
original).44/ In such a case, it would be
unreasonable to require plaintiffs to rely
on the very data that "may be biased
against them." De Medina v. Reinhardt, 686
F.2d 997, 1010 n.8 (D.C. Cir. 1982).
Lower federal courts are virtually un-
animous in imposing on employers the burden
of proving the existence and/or necessity
of special job qualifications or skills
where the requirements are not uniformly
imposed, where they are not clearly jus-
tifiable, or where they may themselves
cause or contribute to discriminatory
exclusions. See EEOC v. Rath Packing Co.,
787 F.2d at 327, 336 ("Rath could not
_ 44/ In Spurlock, the court held that a prima
facie case was established through evidence of the
"minuscule" number of blacks employed, and that the
employer bore the burden to justify the job qualifications
26
identify any criteria it used in selecting
employees or any common qualifications or
skills that its employees possessed") ;
Crawford v. Western Elec. Co., 614 F.2d
1300, 1315 (5th Cir. 1980) ("an employer
may not utilize wholly subjective standards
by which to judge its employees' qualifi-
cations and then plead lack of qualifi-
cation when its promotion procedure is
challenged as discriminatory"); Kinsey v.
First Regional Securities, 557 F.2d 830,
837-38 (D.C. Cir. 1977) (“objective
criteria" had not been uniformly applied;
skill requirements should be scrutinized if
the evidence showed systematic exclusion of
blacks).
Petitioners further assume that skills
and qualifications are unevenly distributed
in the population on the basis of race or
ethnicity. The "more logical assumption,"
27
however, is that skills of the sort
involved in this case42/ are evenly
distributed. De Medina v. Reinhardt, 686
F.2d at 1008 n.7; United States v. County
of Fairfax, 629 F.2d at 939. The employer
bears the "burden of producing evidence
from which it is possible to evaluate the
likelihood that the disproportionate impact
was caused by unequal qualifications." De
Medina, 686 F.2d at 1009 n.7 (quoting D.
Baldus and I. Cole, Statistical Proof of
Discrimination 194-195 (1980)). See also
Catlett Mi : Hial =.
Comm'n., 828 F.2d at 1266 (employers burden
to show that statistical disparity results
from women's lack of interest).
12/ The skill level, to the extent it exists,
is of the experiential sort, commonly available to
all groups. Unlike brain surgeons and rocket
scientists, societal discrimination does not
Operate against non-whites in these categories, but
rather fosters their participation.
28
In sum, the assertion that skills,
qualifications, or interest level precludes
the statistical comparisons undertaken by
respondents is neither apparent from the
nature of the jobs nor is it factually
supported in the record. The burden was on
the employers to prove the existence of
minimum, objective qualifications actually
applied during the relevant period to
individuals actually hired so that
respondents could, if necessary, adjust
their statistical presentation. EEOC v.
Radiator Specialty, 610 F.2d at 185-86.
Absent this showing, respondents'
statistical data cannot be rejected or
discounted for failing to account for
spurious or hypothetical skills and
qualifications that are allegedly lacking
29
in the excluded class and that may
themselves foster discrimination.2&/
B. The Data Comparing Non-White
Representation In Cannery and Non-
Cannery Jobs, Along With Other
Evidence, Demonstrates the Impact of
the Employers' Practices
Petitioners and the United States
challenge the Ninth Circuit's reliance on
the patent racial stratification in this
workforce in finding a prima facie
case.4// To make this argument, they are
16/ Indeed, some plaintiffs and class members
had college educations, JA 52, 56-60, 63-67, 71-
73, 75-77, 85-86, but were apparently not deemed
sufficiently qualified to work in the Beach gang,
quality control, clerical, or other jobs.
47/ The court may well have consiuered this
evidence in the context of other evidence in the
record, since nothing in the opinions below sug-
gests that the court relied solely on that
evidence. Whether or not the Court of Appeals
considered the totality of the evidence,
respondents are, of course, entitled to assert any
ground for affirmance of the judgment in their
favor. Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 119 n.14 (1985). The totality of the
evidence is clearly the appropriate standard to
determine the existence of a prima facie case.
Bazemore v. Friday, 478 U.S. at 400-01.
30
forced to rely on petitioners' own
practices - the very subject of this
lawsuit - to construct an argument that
this evidence is irrelevant. In particu-
lar, petitioners rely on their practice to’
hire from outside the workforce to fill
non-cannery jobs to justify the contention
that comparisons to the external labor
market are more relevant than internal
comparisons. The government relies,
ultimately, on the claim that use of Local
37 as a referral source results in the
“overrepresentation" of non-whites in
cannery jobs, distorting any comparison
between that group and non-cannery hires.
Neither addresses the anomaly their
arguments suggest: that the employers’
own challenged acts become the basis for
defeating liability. Both ignore the fact
that it was the employers’ own decision to
31
hire for non-cannery jobs through offices
in Washington and Oregon, and that the
labor agreement with Local 37 gave manage-
ment the exclusive right to select new
hires.48/ The rehire preference compounded
the harmful effects of this management
prerogative.
The contention that non-whites are
“overrepresented” is itself ironic: both
the government and petitioners claim that
application of Griggs will "force"
employers to adopt "quotas" to avoid
potential liability. Both now seek the
benefit of a "ceiling" quota. They argue
18/ This fact distinguishes this case from
'
General Bldg. Contractors Ass'n v. Pennsylvania,
458 U.S. 375 (1982), in which the union was the
exclusive referral source and the sole agent found
liable for intentional discrimination under 42
U.S.C. §1981. Compare
Norris, 463 U.S. 1073, 1089 & n.21 (1983)
(employers gain no immunity by delegating tasks to
third parties where “employers are ultimately
responsible").
32
ee
—— -
.
that their practices should be insulated
from liability so long as their hiring is
proportionate with the appropriate labor
pool as they define it, whether or not the
practices impact more heavily on non-whites
than whites.12/
In any event, the record is devoid of
any factual verification for the claim that
non-whites are “overrepresented." In fact,
the high proportion of non-whites may as
easily reflect the fact that whites, having
more options, are less willing to do this
hard, seasonal work in remote locations.
These factors, far from supporting the
“overrepresentation" theory, suggest that
the best comparison available is the actual
workforce, a figure that avoids speculation
about which elements of the labor force
12/ this contention has already been rejected
by this Court. Connecticut v. Teal, 457 U.S. 440
(1982) .
33
might be available for or interested in
this employment.
The other comparative data all suffer
serious, if not fatal, flaws. The district
court's own characterization of census
data22/ reveals why census figures are
Singularly inappropriate: they are largely
comprised of individuals in year-round,
fixed location jobs near their place of
residence; the canneries are located in
remote, sparsely-populated regions and
provide only seasonal employment. There is
no apparent relevance of this data to this
case, and the district court provided no
rationale for its acceptance. The finding
20/ ‘he district court noted that census data
is “dominated by people who prefer full-year,
fixed-location employment," but nonetheless found
that "such data is nevertheless appropriate in
defining the labor supplies for migrant seasonal
work." Fdg.120, 34 CCH Empl. Prac. Digest 434,437,
p.33,829. Why such data is "appropriate" is not
explained.
34
in this regard is simply devoid of any
foundation and is clearly erroneous.
Especially in the absence of minimum
objective qualifications, the apparent
restriction of minorities and women to
lower paying less desirable jobs has often
been viewed by the courts as highly proba-
tive evidence of discrimination, and suffi-
cient to support a prima facie case. See
Shidaker v. Tisch, 833 F.2d 627 (7th Cir.
1986), cert. denied, ___-U.S. __, 108
S.Ct. 2900 (1988); EEOC v. Radiator Spec-
ialty Co., 610 F.2d at 181-82, Muller v.
U.S. Steel Corp., 509 F.2d 923. A
"plaintiff in a Title VII suit need not
prove discrimination with scientific
certainty." Bazemore v. Friday, 478 U.S.
at 400 (Brennan, J., concurring).
The evidence of racial stratification
does not exist in a vacuum, and the
35
totality of the evidence clearly supports
the finding of a prima facie case of
discrimination Id. at 401-02.
Cc. The Employers' Use of An
Undifferentiated Hiring
Procedure Makes the End Result
Appropriate For a Measurement of
Disparate Impact
Petitioners contend that the plain-
tiffs improperly relied on the "cumulative
effects" of their employment practices and
that, having failed to demonstrate the
individual impact of each specific prac-
tice, their challenge must fail. Having
created a multifactorial selection process,
with subjective elements and unweighted
components, the employers cannot assert
that the system is immune from attack
because it does not have separate, scored
or weightec factors whose impact can be
separately aid independently ascertained.
36
In some cases, it might be entirely
appropriate to require a plaintiff to
demonstrate the discriminatory effect of
identifiable criteria by which employees or
applicants are selected. For example,
police departments commonly subject new
potential recruits to paper and pencil
tests, medical examinations, physical
ability tests, and background inquiries.
Each one of these pre-employment hurdles is
scored: a certain number of applicants are
eliminated, the remaining may be ranked.
The system contains both objective and
subjective elements. Those who would
challenge its validity may reasonably be
expected to identify where the discrimina-
tion, if any, occurred, because in such a
system the effects of each aspect of the
screening process can be separately
37
ascertained. Cf. Connecticut v. Teal, 457
U.S. 440.
But where the elements of the hiring
process are not so clearly identifiable
and applicants neither pass, fail nor score
at any point until the end of the process
when they are either hired or not, the only
reasonable target for challenge is the
result of the process. Even the United
States recognizes that in such a situation
the impact of each element in a multifacto-
rial process cannot be demonstrated. 22/
II. TITLE VII REQUIRES MORE THAN A
SHOWING OF BUSINESS RELATED
PURPOSES TO DEFEND APPARENTLY
DISCRIMINATORY EMPLOYMENT
PRACTICES
2)/ In its brief, at
, ’ p.22, the government
concedes that "if (multiple) factors combine to
produce a single ultimate selection decision and it
is not possible to challenge each one, that
decision may be chall
we ay enged (and defended) as a
38
Flouting seventeen years of Title VII
jurisprudence, and Congressional ratifica-
tion of that caselaw, the employers and the
government in this case advocate abandon-
ment of the central tenet of Griggs: that
equal employment opportunity may not be
offered “merely in the sense of the fabled
offer of milk to the stork and the fox,
...{but] that the vessel in which the milk
is proferred be one all seekers can use.
The Act proscribes ... practices that are
fair in form, but discriminatory in
operation. The touchstone is business
necessity." 401 U.S. at 431 (emphasis
added).
Instead, the employers argue that
they should be able to defend their prac~-
tices simply by offering “reasonably clear
and specific" reasons. Petitioner's Brief
at 39; see also U.S. Brief at 27. In fact,
39
the government would dispense with Griggs
entirely: "Nothing about disparate impact
cases justifies a departure from the model
for litigating disparate treatment cases."
Id; see also Petitioner's Brief at 47
("Indeed, the rigid formula of Griggs
itself should be reexamined in this
context").
Thus, the government suggests that
employers should be able to defend dis-
criminatory practices for any reason other
than “non-business,” U.S. Brief at 24-25,
& n. 35. It would accept an employer's
sincere but unsupported assertions.22/ It
22/ Indeed, the exp] and
characterize the defendant's burden as ave of
production despite decisions by this Court
that the burden is one of proof. Albemarle, 422
U.S. at 425 ("the company must meet the burden of
proving that its tests (were) job related") ;
, 433 U.S. at 329
dants failed "to prove that the challenged require-
ments are job-related"). See also Connecticut v.
Teal, 457 U.S. at 451 (employers must "demonstrate
that the examination given was not an artificial,
40
was precisely this contention that this
C art rejected over fifteen years ago when
it held in Griggs that the employer's
attempt to improve the overall quality of
the workforce through educational and
testing requirements, a “reasonably clear
and specific" business related purpose,
failed to provide an adequate defense.
Stare decisis precludes such a departure
from established law, ratified by Congress.
A. Congress Has Ratified This Court's
Requirement That Employers Must
Demonstrate the Business Necessity of
Practices Which Result in
Discrimination.
In 1971 this Court expressly rejected
Duke Power Company's defense that its
educational and testing requirements,
adopted in response to the increasing
complexity of its business, served a
arbitrary, or unnecessary barrier, because it
measured skills related to effective performance....")
41
“legitimate business purpose": the company
wanted to improve its efficiency and have
some assurance that employees would be able
to advance through the ranks.
In Griggs, the Court determined that
the statutory exemption for professionally
developed tests, 42 U.S.C. §2000e-2(h), did
not shield Duke Power since the test had
been “used to discriminate," as demon-
strated by its effect on blacks. Such
tests, like other neutral practices with
disproportionately adverse effects, could
only be justified if the employer could
show a "manifest relationship" to
successful job performance or business
necessity. Id. at 433.
The same year, Congress expressly
endorsed the Griggs interpretation of Title
VII, retaining the statutory language cited
in Griggs. The House Report also ex-
42
plicitly quoted Griggs*2/ and endorsed
both the effects test and the holding that
an employer's good faith could not defeat a
finding of discrimination, if the employer
failed to prove the existence of an
overriding business necessity. H.R. 92-238,
92a Cong. lst Sess. 8 (1971).24/
The Court has itself recently acknowledged
that "Congress recognized and endorsed the
disparate impact analysis employed by the
Court in Griggs." Connecticut v. Teal, 457
U.S. at 447 n. 8.
23/ See, e.g., H.R. 92-228, 92d Cong. Ist
Sess. 8, 21 (1971) (specific reference to
"business necessity" as "touchstone").
24/ congress further incorporated Griggs by
providing that: "In any area where the new law
does not address itself, or in any areas where a
specific contrary intention is not indicated...
present case law as developed by the courts would
continue to govern the applicability and construc-
tion of Title VII." 118 Cong. Rec. 7166, 7564
(1972).
43
Nor does legislative history provide present effects of earlier discrimination
any basis for relaxing Griggs' requirements through various institutional devices, as
in cases involving subjective employment well as testing and validation require-
practices. The legislative history of the ments. H.R. 92-238, 92d Cong. lst Sess. 8
1972 ameniments is replete with examples of (1972).
racial stratification in upper level The rule of law enunciated in Griggs
positions, positions where subjective has been adopted by Congress on other
criteria are most likely to be used.25/ occasions, as well, in defining prohibited
Recognizing the increasingly subtle discrimination. For example, it has been
and complex nature of discrimination, the used to define conduct prohibited by the
legislative history refers to "systems and | Voting Rights Act as well as the
effects." The House Report included within Rehabilitation Act.29/ In sum, Congress
the ambit of prohibited "systems" practices has on several occasions relied upon, and
relating to seniority, lines of progres-
28/ fan lapielative history of te Wie
sion, practices which perpetuate the Rights Act Amendments of 1982, 97 P.L. 205,
Stat. 131 42 U.S.C. §1973 (1982), shows express
reliance on Griggs: "the results test to be
22/ For example, the concentration of catities in Section 2 is 0 wal) dstine’ ctantion
minorities and women in the lowest paying and least first enunciated by the Supreme Court _— .
desirable jobs was particularly noted: H.R. 92- in numerous lower federal court , ge .
238, 92d Cong., Ist Sess. 23 (1971). 117 Cong. Rep. No. 97-417, 97th Cong., 2d Sess. ,
Rec. 31960 (9/15/71) (remarks of Rep. Perkins); 117 reprinted in 1982 U.S. Code Cong. and yl
Cong. Rec. 32095 (9/16/71) (remarks of 193-94. Section 504 of the Rehabilitation
Rep. Faunteroy); 117 Cong. Rec. 32097 (9/16/71) U.S.C. §794 (1982), has been similarly held
(comments of Rep. Abzug); 117 Cong. Rec. 32101 incorporate Griggs standards.
(9/16/71) (comments of Rep. Badillo). 469 U.S. 287 (1984).
44 45
endorsed, the Griggs decision, as
interpreted in this and lower federal
courts. An integral part of that decision
is the insistence on business necessity as
the standard by which practices, "fair in
form but discriminatory in operation," must
be justified.
B. Decisions of This Court Reveal That
the Business Necessity Defense Is An
Essential Element of Disparate Impact
Analysis
Like Congress, this Court has
consistently affirmed the rule of Griggs as
Originally enunciated, including its
insistence on business necessity as the
standard by which discriminatory practices
must be judged. Thus, this Court has held
that employment practices which “operate as
"built-in headwinds'" must be validated and
“shown, by professionally acceptable
methods, to be ‘predictive of or signifi-
cantly correlated with’ important elements
46
of work behavior which comprise or are
relevant to the job...." Albemarle, 422
U.S. at 431 (quoting 29 C.F.R. §1607.4
(c)). The Court has specifically
emphasized Title VII's rigorous burden:
Siiieiteks anmm manienal heals f=
the challenged practices. It is
in addition, that they be
"val idated' . . « « However this
process proceeds, it involves more
probing judicial review of, and less
deference to, the seemingly reasonable
acts of administrators.
Washington v. Davis, 426 U.S. 229, 247
(1976) (emphasis added) (distinguishing
constitutional cases). 2//
27/ Lower courts have consistently required
that a defendant provide professional or empirical
ee ee ey ee P20
1017, 1022 (ist Cir. 1974), cert. denied. 421 U.S.
910 (1975) (rejecting written test for —
firefighters) ; ; ty
ong ny oh alge ge yx 1032-
940 (1981); Geller v. Markham, . ’
451 U.S. 945
1034 (2d Cir. 1980), cert. denied,
(1981) (cost concerns rejected); Robinson v.
Lorillard Corp., 444 F.2d 791, 799 (4th Cir.),
cert. dismissed, 404 U.S. 1006 (1971); Fisher v.
47
Allegations of good faith will not
rebut a prima facie case of class-wide
discrimination. Griggs, 401 U.S. at 431,
and see Teamsters, 431 U.S. at 342 n.24.
Nor will a desire to hire only the best
qualified applicants. Id. Instead, the
employer has to show that the challenged
practices are of "great importance" or of a
“compelling nature." Connecticut v. Teal,
-, 613 F.2d 527,
544-45 (Sth Cir. 1980), cert. denied, 449 U.S. 1115
(1981) (qualifying tests and experience); Rowe v.
, 457 F.2d 348, 358 (5th Cir.
1972) (rejecting "ebb and flow" in production
level); Harless v. Duck, 619 F.2d 611, 616-617 (6th
Cir.), cert. denied, 449 U.S. 872 (1980) (physical
ability test and oral interview); Caviale v. State
=Val UNC :
2 : ii ico al 2%. Cc wiv.
744 F.2d 1289, 1294-95 (7th Cir. 1984) (requirement
that applicants be members of Career Executive
Program); Fi
j j is, 549 F.2d 506, 511
(8th Cir.), cert. denied, 434 U.S. 819 (1977)
(promotional exam) ; Hawkins v. Bounds, 752 F.2d 500
(10th Cir. 1985) (discriminatory detailing); Walker
, 726 F.2d 1554, 1559 (11th
Cir. 1984); Hayes v. Shelby Memorial Hospital, 726
’
F.2d 1543, 1553 n.15 (11th Cir. 1984) (potential
litigation costs).
48
457 U.S. at 451. 28/ Accord Nashville Gas
Co. v. Satty, 434 U.S. 136, 143 (1977);
Dothard v. Rawlinson 433 U.S. at 331;
General Electric Corp. v. Gilbert, 429 U.S.
at 138 n.14 (1976); .cDonnell Douglas Corp.
v. Green, 411 U.S. 792, 805 (1973).
Contrary to the government's and the
petitioners' suggestion, the business
necessity defense is an “affirmative
defense," entirely distinct from the "much
less burdensome riposte... applicable to
28/ See also Hawkins v. Bounds, 752 F.2d 500
635
("great importance"); Grant v. Bethlehem Steel,
7 ("genuine business need"); Kirby v.
rhe waa ., 613 F.2d 696, 705 n.6 (8th
Colony Furniture Co., 2
Cir. 1980) ("compelling need"); Walker v. Jefferson
, 726 F.2d at 1559 ("rigorous
standard" .
4 520 F.2d 420, 426 (2d
of Correctional Services
Cir. 1975), cert. denied, 429 U.S. 823 (1976)
"heavy burden"); Boston Chapter, NAACP v.
Hen A 504 F.2d at 1024 ("substantially related”
444
by "convincing facts"; Robinson v. Lorillard,
a iciently compelling"); Williams
F.2d at 798 ( suffici ¥ i ict, 641 F.2d 835,
842 (10th Cir. 1981) ("the practice must be essen-
tial, the purpose compelling").
49
individual disparate treatment cases."
Lewis v. Bloomsburg Mills, Inc., 773 F.2d
561, 571-72 (4th Cir. 1985). Articulation
of a legitimate non-discriminatory reason
"simply has no doctrinal relevance as a
negating or justifying defense to
statistically proven patterns and practices
of discrimination ... [it is] ‘about as
relevant as a minuet is to a thermonuclear
battle.'" Id. at 572 n.19 (citation
omitted.) Accord Nash v. Consolidated
City of Jacksonville, 837 F.2d 1534, 1536
(llth Cir. 1986).
If the position now advocated by the
government and the employers were the law,
Title VII would have done little to
desegregate the workplace. For example,
the employer in Dothard may have sincerely
believed that height and weight correlated
with effectiveness as a corrections
50
officer, but that belief was not factually
supported. If a lower level of proof --
merely assertion of a business purpose --
had been accepted, women would still be
virtually excluded from law enforcement
jobs, many factory jobs, and other
positions for which size has been wrongly
assumed to be relevant.22/ See also Weeks
v. Southern Bell Tel. & Tel. Co., 408 F.2d
228, 236 (Sth Cir. 1969) ("using these
class stereotypes denies desirable
22/ on only one occasion has the Court even
arguably excused the usual validation ns conan
In New York City Transit Authority v. Beazer,
U.S. 568 (1979), the Court noted that plaintiffs'
statistical data was "weak," possibly not even
sufficient to establish a prima facie case. Id. at
587. Under these circumstances, the Court found
the restriction of methadone users from "safety
sensitive" positions was job-related. Id., n.31.
The ultimate holding was contained in a footnote:
"Whether or not respondents' weak showing was
sufficient to establish a prima facie case, it
Clearly fails to carry respondents' ultimate
le Id. This decision provides no basis
for the conclusion that the Court has dispensed
with the business necessity requirement in response
to a prima facie case of discrimination.
51
positions to a great many women perfectly
capable of performing the duties
involved").
A simple explanation fails to rise to
the level of the evidence of systematic
discrimination inherent in a prima facie
case of class-wide discrimination. Any
employer can always articulate some
business-related reason for its practices,
but that does nothing to address the
systematic impact of discriminatory
practices. Title VII's focus is and should
be on the eradication of practices that
inhibit equal employment opportunity,
regardless of motive.302/
30/ Indeed, business related purposes have
been advanced to justify even facially discrimi-
natory practices, and the asserted non-invidious
motives were most likely genuine. E.g., Los
“ , 435
U.S. 702 (1978). Sex discrimination cases reveal
the irrelevance of bigotry or animus to a finding
of discrimination. Invidious discrimination
against women has historically been characterized
52
Statistical data may always be
challenged as irrelevant, unreliable or
inaccurate, because the plaintiff's prima
facie case can always be attacked directly.
Class disparate treatment cases best define
this process: the defendant must produce
its own statistical analysis, or valid
statistical critique, demonstrating why the
statistics are incorrect or unworthy of
credibility. Teamsters, 431 U.S. at 340.
In reviewing the statistical data in
Bazemore v. Friday, the Court noted that
the defendants failed to provide “evidence
to show that there was in fact r
disparity”:
motives. The Supreme Court has
Seuditened teamensonns discrimination even where
the intent was" to favor [women], not to disfavor
them." Wengler v. Druggists Mutual Ins. Co., 446
U.S. 142, 150 (1980). See also Orr _v. Orr, 440
U.S. 268 (1979) (alimony statute which benefitted
only women invalidated as unconstitutional
intentional discrimination).
53
Respondents’ strategy at trial
was to declare simply that many
factors go into making up an
individual employee's salary;
they made no attempt that we are
aware of-statistical or
otherwise-to demonstrate that
when these factors were properly
organized and accounted for there
was no significant disparity
between the salaries of blacks
and whites.
478 U.S. at 403-04 n.14 (references
omitted) (Brennan, J., concurring).
As Bazemore thus makes clear, affirmations
of good intentions do not refute a
statistical showing of discrimination -
only facts suffice.3)/
Failing refutation of the statistical
evidence, an employer is free to prove the
business necessity of practices with
a)/ "“(H)ypotheses or conjecture will not
suffice" to rebut statistical evidence of
discrimination.
682 F.2d 721, 730 (8th Cir. 1982) (citation
omitted) . issi
Comm., 828 F.2d at 1266 (defendant may not rely on
“mere Conjecture or assertion” but must produce
“direct evidence").
54
discriminatory impact.22/ Here, the
employers offered little other than
assertions of their own good faith and the
business related purposes that were
allegedly served.22/
In the context of both disparate
impact and class disparate treatment cases,
this Court has squarely and consistently
rejected the assertions of business-related
purposes to rebut a discrimination claim
that relied in whole or in part on class-
= " The job analysis prepared in this case is
unavai. »5, since it is conceded that the
qualifi ations had not been previously identified
or remired. Validation undertaken in preparation
_& Lot — - 2 U.S 2 an n.32
“ -_ , 42 -S. -32.
Moreover, <.:.e study was materially defective in
that it did not attempt to correlate important
elements of work behavior with the job
qualifications identified. This is legally
insufficient. Id. at 431-32.
So
23/ The district court accepted these mere
“articulations” but the court failed to apply
disparate impact and these conclusions were thus
governed by an incorrect legal standard.
wide statistical evidence of
discrimination. 34/
c. Cost Considerations Do Not Establish
Business Necessity Or Excuse The
Necessity To Prove It
The employers and the government
contend that the potential costs of non-
discrimination should excuse discrims natory
practices, in essence arguing thst the
assertion of a cost-based rationale should
coceamant en eat that petitioners and the
rely on in f
0 An Opinion vf four members of
487 U.S. , to support the conclusion that an ‘
"articulation" defense is appropriate in this case,
that reliance is misplaced. Watson involved
Single individual claimant who asserted that
were disproportionately affected by the bank'
subjective promotion practices. The Court held
that she could proceed on such a theory. It had no
occasion to address the burden on a defendant in
This Court's decisions have always distinguished
between individual and class disparat? treatment
cases with regard to both the prima facie case and
the defense. Compare Teamsters with Texas Dep't of
, 450 U.S. 248 (1981).
When evidence of classwide discrimination A. 7
present, even in an individual case, the Teamsters
model is the more relevant one.
56
suspend the obligation to prove business
necessity. But this is simply another
rendition of their contention that
articulation of a business related purpose
should provide a defense. Here, the cla.m
regarding costs is wholly speculative and
unsupported. On this basis alone it should
fail.
Morover, Congress has rejected the
notion of a cost-based defense. In 1978,
opponents of the Pregnancy Discrimination
Act complained that compliance would be too
costly. Representative Hawkins, sponsor of
the amendmen., replied:
Eradicating invidious discrimination
by definition costs money: It is
cheaper to pay all black workers less
than all white workers, or all women
less than all men. The fact that it
would cost employers money did not
prevent Congress from enacting the
Equal Pay Act or title VII, and it
should not prevent this Congress from
making clear that title VII prohibits
this form of sex discrimination as
well.
57
Legislative History of the Pregnancy
Discrimination Act (1979) (committee print
prepared for the Senate Committee on Labor
and Human Resources) at 26. The Senate
Report concluded:
even a very high cost could not
justify continuation of the policy of
discrimination against p nt women
which has played such a major part in
the pattern of sex discrimination in
this country.
Id. at 48.
This Court has explicitly rejected a
cost-based defense on three separate
occasions. Los Angeles Dep't Water & Power
¥. Manhart, 435 U.S. 702, Newport News
Shipbuilding & Dry Dock Co. vy. EEOC, 462
U.S. 669 (1983), and Arizona Governing
Committee v. Norris, 463 U.S. 1073
(1983).22/ Even the Griggs Court must have
22/ See also Robinson v. Lorillard, 444 F.2d
at 799-800 and n.8; ~, 726
F.2d 1543, 1552 n.15 (llth Cir. 1984); Smallwood y.
58
recognized that validation and the
alteration of unlawful practices would
entail some c-~ts, but mandated them
anyway, and has repeatedly done so.
III. PRINCIPLES OF STARE DECISIS PRECLUDE
ABANDONING OR ALTERING THE BUSINESS
NECESSITY DEFENSE.
The decisions noted above constitute
an integral part of Title VII jurisprudence
and are central to the disparate impact
theory. Principles of stare decisis
dictate adherence to Griggs, Albemarle, and
other authoritative interpretations of
Title VII. The Court has held that stare
decisis “weighs heavily” and precludes a
departure from precedent where Congress had
the oppor. nity to reject the "Court's
interpretatior of its legislation” but
United Airlines, In>., 661 F.2d 303, 307 (4th Cir.
1981), cert. denied, 456 U.S. 1007 (1982)
Gathercole v. Global Assocs., 545 F. Supp. 1280,
1282 (N.D. Cal. 1982).
59
Geclined to do so. Jllinois Brick Co. vy.
Tllinois, 431 U.S. 720, 736 (1977).
Accorg NLRB v. International Longshoremen
Association, AFL-CIO, 473 U.S. 61, 84
(1985). In deciding whether to overrule an
earlier case, the Court is required to
determine whether that act “would be
inconsistent with more recent expressions
of Congressional intent." Patsy vy. Florida
Board of Regents, 457 U.S. 496, 501
(1982); Monel] v. New York City Department
of Social Services, 436 U.S. 658, 695
(1978). See also Guardians Association yv.
York, 463 U.S. 582, 612 (1983) (O'Connor,
concurring) (constrained to follow Court's
prior interpretation of Title VI). Here,
overruling Griggs, or any of its essential
elements, particularly the business
necessity requirement, would plainly be
60
“inconsistent” with “expressions of
Congressional intent."
Congress is, of course, free to
reverse a statutory constuction by this
Court that is inconsistent with its intent,
and it has done so on several occasions,
notably when the Court has narrowed the
scope of civil rights laws.39/
In some of these prior instances,
arguably the intent of Congress had not
been as clear as it is here. Congress
could hardly have made plainer its intent
to adopt the entire constellation of
38/ £.g., General Electric v. Gilbert, 427
U.S. 125 (1976) led to the Pregnancy Discrimination
Act, 42 U.S.C. §2000e(k) (1982). Grove City
College v. Bell, 456 U.S. 555 (1984) was overruled
by the Civil Rights Restoration Act, Pub. L. 100-
259 (1988). Mobile v. Bolden, 446 U.S. 55 (1980),
was reversed by the Voting Rights Act Amendments of
1982, 42 U.S.C. §1973, et seg. (1982). In Mobile
v. Bolden a plurality of the Supreme Court broke
with precedent and substantially increased the
burden on plaintiffs in voting discrimination cases
by requiring proof of discriminatory purpose.
?
61
holdings for which Griggs stands. Under CONCLUSION
these circumstances, adherence to stare For the foregoing reasons, amici
decisis will not only preserve the respectfully submit that the judgment of
integrity of the judicial process, by the Ninth Circuit in favor of respondents
reinforcing judicial reliability and should be affirmed.
predictability, it will also ensure that
; Respectfully submitted,
Congressional action endorsing Griggs will .
be respected. JOAN E. BERTIN
Counsel of Record
KARY L. MOSS
ISABELLE KATZ PINZLER
JOHN A. POWELL
American Civil Liberties
Union Foundation
132 West 43rd Street
New York, New York 10036
(212) 944-9800
November 5, 1988
62 63
APPENDIX
Statement of Interest of Amici Curiae
The American Civil Liberties Union
("ACLU") is a nationwide union, non-
partisan organization of over 250,000
members dedicated to protecting fundamental
rights, including the right to equal
treatment under the law. The ACLU has
established the Women's Rights Project to
work towards the elimination of the
pervasive problem of gender-based
discrimination. It has participated, both
directly and as amicus curiae, in the
litigation of many cases before the Supreme
Court and other courts challenging sex
discriminatory practices.
The National Women's Law Center
("NWLC") is a non-profit legal advocacy
organization dedicated to the advancement
and protection of women's rights and the
corresponding elimination of sex
discrimination from all facets of American
life. Since 1972, the Center has worked to
secure equal opportunity in the workplace
through the full enforcement of Title VII
of the Civil Rights Act of 1964, as
amended, and other civil rights statutes,
and through the implementation of effective
remedies for long standing discrimination
against women and minorities.
The NOW Legal Defense and education
Fund ("NOW LDEF") was founded in 1970 by
leaders of the National Organization for
Women as a non-profit civil rights
organization to perform a broad range of
legal and educational services nationally
in support of women's efforts to eliminate
sex-based discrimination and secure equal
rights. A major goal of the Now LDEF is
the elimination of barriers that deny women
economic opportunities. In furtherance of
that goal, NOW LDEF has participated in
numerous cases to secure full enforcemen*
of laws prohibiting employment
discrimination.
The Women's Legal Defense Fund is a
non-profit membership organization founded
in 1971 to provide pro bono legal
assistance to women who have been the
victims of discrimination based on sex.
The Fund devotes a major portion of its
resources to combating sex discrimination
in employment through litigation of
significant employment discrimination
cases, operation of an employment
discrimination counseling program, and
advocacy before the Equal Employment
Opportunity Commission and other federal
agencies charged with enforcement of the
equal opportunity laws.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.