Petition for Writ of Certiorari — Bazemore v. Friday

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: Office -Supreme Court, US.

FILED

JUil_15.. 1985

In THR ALEXANOER L STEVAg,

CLERK

Supreme Court of the United States

Octroser Term, 1984

P. E. Bazemorsp, et al.,

Petitioners,

Vv.

WruuM C, Femay, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Epwarp D. Rerman

108 North Eighth Street

Allentown, Pa. 18101

Cressie H. Tuicpren, JR.

Thigpen, Blue & Stephens

Suite 214

Hallmark Building

Raleigh, North Carolina 27601

Jutius LeVonngs CHAMBERS

Ronaup L. Eis

Eric ScHNAPPER*

NAACP Legal Defense &

Educational Fund, Inc.

16th Floor

99 Hudson Street

New York, New York 10013

Counsel for Petitioners

*Counsel of Record

QUESTIONS PRESENTED

(1) Did the court of appeals err in

holding - that it is both legal and

constitutional for a state to intentional-

ly pay black employees less than white

employees in the same job, so long as the

Original decision establishing that

discriminatory wage differential was not

itself the subject of a timely charce or

action?

(2) Did the court of appeals err in

holding that statistics may not be treated

as probative evidence of discrimination

unless the statistical analysis considers

every conceivable non-racial variable?

(3) Did the court of appeals err in

holding that a state may satisfy its obli-

gation to desegregate a de jure system by

adopting a freedom of choice plan that

fails?

(4) Did the court of appeals err in

holding that an employer may immunize

itself from liability under Title VII by

delegating its employment decisions to

discriminatory a third party?

(5) Did the court of appeals err in

denying class certification in this case?

PARTIES

The petitioners in this action are: P.

E. Bazemore; James E. Wright; George E.

McDaniel; Plese Corbett; Calvin Hargrave;

Fred Belfield, Jr.; W. N. Payton, Jr.; L.

C. Cooper; Chester L. Bright; Johnnie

Jones, III; Lloyd L. Peace; James P.

West; E. C. Short; Haywood E. Harrell; D.

B. Waymer; Roosevelt Lawrence; Booker T.

McNeill; Richard M. Edwards; L. E.

Baldwin; Leroy James; Robert L. Lancas~-

ter; Henry Revell, Jr.; Clifton M. Grimes;

Chester Stocks; Avant P. Coleman; Percy W.

Williams; W. C. Stroud; Elizabeth Ivey,

Administratrix of the Estate of D. O.

- 111 -

Ivey, deceased; Cassius S. Williams;

Samuel Taylor; Fletcher Barber; R. E.

Wilkins; J. H. Wallace; Eva L. Greene,

Administratrix of the Estate of Cleo Rich

Greene; Warren G. Barnes; Hoover 4M.

Royals; Thelma Graves Turner, Administra-

trix of the Estate of J. A. Turner; S. T.

Lloyd; Hernando F. Palmer; Clifton Parker;

W. F-. Wright; Clarcence Stockton; Earl G.

Swann; I. WwW. Murfree; J. M. Spaulding;

Mary C. Martin; Alma C. Hobbs; Martha B.

Thomas; Ann Coston; Esther B. Roscoe;

Minnie B. Taylor; Jo Ann Fleming; Jeanette

B. Sherrad; Inez W. Foster; Carrier U.

Lindsey; Geraldine H. Ray; Mary I. Parham;

Dianne Stanley and Dorothy M. Mobley;

Louise P. Slade; Marilyn White; Pennie P.

Battle; Joyce P. Hunter, on their own

behalf and on behalf of all others

similarly situated; Timothy Bazemore;

Eddie Watford; Willie Ryan; Alice Ballance

and Herbert White, on their own behalf

and on behalf of others similarly situ-

ated; Mary B. Crawford and Essie Moore, on

their own behalf, and on behalf of all

others similarly situated; Deborah Jean

Hart, by her father and next friend, James

Hart; Herman Hinton, by his father and

next friend, James Hinton; Bernice Staton

and Marian Staton, by their father and

next friend James Staton, on their own

behalf and cn behalf of all others

similarly situated.

The respondents are: William cC.

Friday, President of Consolidated Univer-

sity of North Carolina;

John T. Caldwell, Chancellor of North

Carolina State University; George Hyatt,

Jr., Director of North Carolina Agricul-

tural Extension Service; The Board of

Trustees of the University of North

Carolina, a body politic and corporate;

The University of North Carolina, a body

politic and corporate; and Crawford

Amick, Hassell Thigpen and James 6G.

Martin, County Commissioners, on their

own behalf and on behalf of all others

Similarly situated.

The United States of America, John R.

Block, Secretary of Agriculture, and Dr.

Mary Nell Greenwood, Deputy Director,

Science and Education Administration

Extension, were also plaintiffs in the

proceedings below.

— vi —

TABLE OF CONTENTS

Page

Questions Presented ..cccccccccccseces i

Parties e*eeeseeedesegcf5§ee#ee#*eee*ee@geege#*ee#*ee%#*ee#*#*#*e#ee#e#e iii

Pablie GE ABGROPECLOS <ccecceccesoese xiii

Opinions Below eseeeeeseeesete$ese7ese##*e#eee#ee#eee#€#e#e# 2

Jurisdiction e*eeeeeeese§s§v#se§rvceeee*eeeeee#esee# 2

Statutes and Constitutional

Provisions InvoOlved...cccccecces 3

Statement of the CaSe@ wecccccscvccecs 4

Reasons for Granting the Writ .... 13

Be Certiorari Should Be

Granted to Resolve a

Conflict Among The

Circuits As to Whether

The Application Of

Racially Motivated

Wage Scales Violates

Title VII or the Four-

teenth Amendment...ecse- 13

- vii -

Ez. Certiorari Should Be

Granted To Resolve A

Conflict Among The

Circuits As To The

Admissibility of Sta-

tistical Evidence of

Intentional Racial

Discrimination .eccccees

III. The~Decision Of The

Court Of Appeals Is In

Conflict With Green

v. School Board Of New

Kent County, 391 U.S.

SSO CVSSS) coccccceccccecs

IV. The Decision Of The

Court Of Appeals

Raises An Important

Question As To The

Meaning Of General

Building Contractors

v. Pennsylvania, 458

U.S. *“e eeeee#ee#-*

V. The Decision Of The

Court Of Appeals Is

In Conflict With Eisen

v. Carlisle & Jacque-

lin, 417 U.S. 196

CESIE) cocccccccccescccs

Conclusion eee oeee@eeenensnee#eseeeeeneeeee

- viii -

Page

APPENDIX

Judgment on Class-Wide Claims,

August 20, EDs 6eeeseeseeeeees

District Court, Memorandum of

Decision (Class-Wide Claims),

August 20, 1982 e*eseeoeeeneeeense3eseeeneeee

Order of Dismissal as to Certain

Individual Claims, August

20, DE. eae aeeeeesececesesece

Judgment, September 17, 1982......-.

District Court, Memorandum of

Decision (Individual Claims),

September 17, 1982 cecccesecesecs

Opinion of the Court of Appeals,

December 10, 1984 e*eeeeeenseeee#8ee¢e

Order of the Court of Appeals

Denying Rehearing and Rehear-

ing En Banc, April 15, 1985 ....

Page

208a

213a

216a

346a

482a

TABLE OF AUTHORITIES

Cases:

Arizona Governing Committee v.

Norris, 77 L.Ed.2d 1236

(1983) ccccccccecccccsccccceocs

Bartlett v. Berlitz School of

Lanauages, 698 F.2d 1003

(9th Cif. 19S3) ccccccccccccs

Berry v. Board of Supervisors

of Louisiana State University,

715 F.2d 971 (5th Cir. 1983).

Bowman v. County School Board

of Charles City County, 382

F.2d 326 (4th Cir. 1967)...e--

Brown v. Roard of Education, 347

U.S. 483 (1954) eeeeeevee eeeeeee

Cajidas v. Banco de Ponce, 791

F.2d 464 (lst Cir. 1984)...<.6.

Calcote v. Texas Educational

Foundation, 578 F.2d 1251 (6th

Cie. 197TB)cccecseceectssss TrTTT eT °

Chrisner v. Complete Auto Transit

645 F.2d 1251 (6th Cir. 1981)..

Clark v. Olinkraft, 556 F.2d 1219

(Sth Cir. 1977) cccccccccesevecs

Corning Glass Works v. Brennan,

417 U.S. 18 (1974) eccccccccceces

County of Washington v. Gunther,

452 U.S. 161 (19Sl)cccccececce

Page

53,54

24,25

Craik v. Minnesota State Univer-

Sity Board, 731 F.2d 465 (8th

Car. 4) a rn 42

Davis v. Califano, 613 F.2d 957

iaaae Gals See ddbbiccentscee 37,42

Delaware State College v. Ricks,

SSP Gebe ZOO TEPSe ccccececocecse 20

DiSalvo v. Chamber of Commerce,

598 F.2d 593 (8th Cir. 1978)... 21

Nothard v. Rawlinson, 433 U.S. 321

[E97 Td ecceocess TrrTTTeT 29,31, 34, 35

Dumas v. Town of Mount Vernon,

612 F.2d 974 (5th Cir. 1980)... 23,24

Eisen v. Carlisle & Jacquelin

$17 U.S. 156 (1974) cccccceccce 55,58

Falcon v. General Telephone,

626 F.2d 369 (5th Cir. 1980).. 39

General Building Contractors v.

Pennsylvania, 458 U.S. 375

LRP ebeubeeeheseeseoeeesee 49,50,55

General Telephone Co. v. EEOC,

446 U.S. 318 (1980) ..ccccees 12

Green v. School Board of New

Kent County, 391 U.S. 430

ceeebeseoenesoeeseue 10,44,46,47,43

Griags v. Duke Power, 401 U.S.

424 (1971) eoeeeeeeeeeeeneeeneeee 44,50

Guardians Association v. Civil

Service Commission, 636

Poa FS (26 Cit. 19SSdcccccosecse 38

= 24 «

Guardians Association v. Civil

Service Commission, 633 F.2d

232 (2d Cir. 1980) wecccccccces

Hall v. Ledex, 669 F.2d 3978

(6th Cir. 1982) cccccccccccceccs

Hunter v. Underwood, 85 L.Ed.2d

222 (1985) ceccc coe ccccsccccces

International Union of Electri-

cal Workers v. Westinghouse,

631 F.2d 1094 (3d Cir.

io) | ) PPrrrerrTrTrerTeereeTTreT se

Laffey v. Northwest Airlines,

Inc., 567 F.2d 429 (D.C.

Cire L976) cccccccccccccecsececs

Lamphere v. Brown University,

685 F.2d 743 (lst Cir.

1982) eseeeeeeeeeeeeeeeeeeeeees

Norman v. Missouri Pacific Rail-

road, 414 F.2d 73 (8th Cir.

BPS 66060006 00 6606600600666

Payne v. Travenol Laboratories,

Inc., 673 F.2d 788 (5th Cir.

BUOS 1666666686666 66 SESS EOSO ODE

Perez v. Laredo Junior College,

706 F.2d 731 (5th Cir.

BOOS) 666066060660 66 66606660066

- xii -

17,25

39,40

Roberts v. North American Rock-

well Corp., 650 F.2d 823

[Sen Cas ESeeleeceees 5eeeeeeoes 23

Satz v. ITT Financial Corp.,

619 F.2d 738 (8th Cir.

to }) errs e*eeneee eoeeeeeeeeeeeeenee 21

Segar v. Smith, 738 F.2d 1249

(D.C. Civ. 1964) cocccceccecoces 36

Teamsters v. United States,

S34 GsSB. BSS CE97F) coeses 27 629,330,311,

35,39

Trout v. Lenman, 702 F.2d 1044

(D.C. Che BFSS) ccoccsoceces 36,42

United Airlines v. Evans, 431]

BuBa, Bas CASTES coeeeeooos 16,18,19,

20,21,23

Other Authorities:

Equal Pay Act..... TETERELELEEE EE 27

Title VI Civil Rights Act of

1964 e*eeseeseeee#se#seee#e#e#e#e#e#ee#ee#e#ee#ee#e#ee#e#* 3,10

Title VII Civil Rights Act of

B9G4cccccccoes TEETTETTTE eosces POS8iR

26 U.S.Ce §$ T254(1) ceoccccccceceocs 3

42 UeReGe § 1931 e*eeneeeeee eee eeeee 50

42 U.S.C. § BOGOG cccccceeeeenseees 3

- xiii -

42 U.S.C. § 2Z000C-2( a) ec ceeccesees 3

42 U8 Ce s 2000e-5(e) eeeeee oeeeee 4

Fourteenth Amendment, U.S. Consti-

SUCTONR cocecceseoeceeooees : passim

7 CoP Re 15.-3(BD) (6) Cidbccccccceceose 47

Rule 23, Federal Rules of Civil

PLOCEGULE ceccccccccecccces seoos Sen

Ore. Rev. Stat. § 137-350. ccc eeece 25

- xlv -

No.

IN THE

UNITED STATES SUPREME COURT

October Term, 1984

P. E. BAZEMORE, et al.,

Petitioners,

WILLIAM C. FRIDAY, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners P. E. Bazemore, et al.,

respectfully pray that a Writ of Certio-

rari issue to review the judgment and

opinion of the United States Court of

Appeals for the Fourth Circuit entered in

this proceeding on December 10, 1984.

» 2 «

OPINIONS BELOW

The opinion of the court of appeals

is reported at 751 F.2d 662 and is set out

at pp. 346a-48la of the Appendix. The

order denying rehearing, which is not

reported, is set out at p.482a. The

district court's memorandum of decision of

August 20, 1982, regarding class claims,

which is not reported, is set out at pp.

3a-207a of the Appendix. The district

court's memorandum of decision regarding

individual claims, dated September 17,

1982, is set out at pp. 216a-345a.

JURISDICTION

The judgment of the court of appeals

was entered on December 10, 1985. A

timely petition for rehearing and sugges-

tion for rehearing en banc was denied by

an evenly divided court on April 15, 1985.

Jurisdiction of this Court is invo«ed

under 28 U.S.C. § 1254(1).

STATUTES AND CONSTITUTIONAL

PROVISION INVOLVED

Section 601 of Title VI of the 1964

Civil Rights Act, 42 U.S.C.

provides:

§ 2000d,

No person in the United States

shall, on the ground of race,

color, or national origin, be

excluded from participation in,

be denied the benefits of, or

be subjected to discrimination

under any program or activity

receiving Federal financial

assistance.

Section 703(a) of Title VII of the 1964

provides in pertinent part

It shall be an unlawful

employment practice for an

employer --

(1) to fail or refuse to hire

ees 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....

Section 706(e) of Title ‘II of the 1954

Civil Rights Act, 42 U.S.C. § 2000e-5(e),

provides in pertinent part:

(e) A charge under this

section shall be filed

within one hundred and

eighty days after the

alleged unlawful employ-

ment practice occurr-

—

Section 1 of the Fourteenth Amendment

provides, in pertinent part, "No state

shall ... deny to any person within. its

jurisdiction the equal protection of the

laws."

STATEMENT OF THE CASE

This is an action seeking to redress

intentional racial discrimination in the

operation of the North Carolina Agricul-

tural Extension Service. ("NCAES") NCAES

is a federally funded state agency which

provides assistance to farmers throughout

» § «

North Carolina, and which organizes and

assists the system of 4-H clubs in that

State. Prior to 1965 NCAES was a de jure

segregated agency operating along strictly

racial lines. There were separate black

and white offices in each county, with

each servicing exclusively black and white

citizens respectively. The several

thousand state assisted 4-H clubs were

also organized along racial lines. It was

the avowed policy of the defendant to vay

black workers lower salaries than were

paid to whites in the same positions. The

black and white offices were merged in

1965, but the differences in the salaries

of the black and white employees per-

forming the same jobs were never elini-

nated, and no steps were taken to merge

the separate all-white and all-black 4-H

clubs operating side by side in communi-

ties throughout the state.

@ 6«

This action, commenced in 1971 in the

United States District Court for the

Eastern District of North Carolina, was

initially filed by private plaintiffs,

including NCAES employees, seeking to

redress a variety of forms of intentional

racial discrimination alleged to exist at

NCAES. In 1972 the United States of

America intervened as a plaintiff in the

action, advancing essentially the same

claims as the individual plaintiffs.

Following a lengthy trial the district

court rejected on the merits all the

claims of both the United States and the

private plaintiffs. On appeal a divided

panel affirmed the decision of the

district court; Judge Phillips, dissent-

ing, insisted that the denial of relief

was an error as a matter of law.

A timely petition for rehearing was

filed, together with a suggestion for

rehearing en banc. Five members of the

a ee ee ee

—

fourth circuit voted to grant rehearing en

banc, Judges Winter, Murnaghan, Sprouse,

Ervin, and Phillips. The court of appeals

was evenly divided on the petition, and

rehearing en banc was therefore denied.

This case presents several somewhat

interrelated claims of intentional

discrimination. First, the plaintiffs

alleged that the different salary scales

established prior to 1965 for black and

white workers hired prior to 1965 still

remained in effect, and that blacks hired

before 1965 continued to be paid less than

white colleagues holding the same posi-

tions. The district court and the court of

appeals concluded that pre-1965 pay

differentials for black and white workers

indeed remained in effect, but both

courts held that the continued use of such

differentials violated neither Title VII

30a-31a, 122a, 201a, 359a, 360a, 390a.

=» @ «

nor the Fourteenth Amendment. Judge

Phillips dissented, insisting that those

salary differentials were both illegal and

nities.

Second, the plaintiffs alleged that

NCAES engaged in intentional racial

discrimination in fixing the salaries of

workers hired after 1965, and in determin-

ing raises for pre-1965 hires. The

plaintiffs introduced statistics demon-

strating that the average salaries of

white workers were consistently higher

than the average salaries of black workers

in the same jobs and with the same amount

of seniority and education. Both courts

below concluded that proof that black and

white workers holding the same position

were paid different salaries was as a

matter of law devoid of evidentiary

significance, and could provide no support

3 122a, 380a-82a.

462a-66a.

- 9 -

for the claims of intentional racial

discrimination in “eeiieeioe.” Again

Judge Phillips dissented, arguing that

such statistical evidence clearly demon-

strated intentional racial discrimination

in mien.”

Third, the plaintiffs alleged that the

defendants had engaged in intentional

racial discrimination in selecting the

County Chairmen, the salaried official

responsible for supervising the NCAES

office in each county. The record showed

that between 1965 and 1981 no black had

ever been appointed to a county chairman-

ship for which a white male also applied;

of 123 appointments in this period, only 6

went to blacks, and only one black County

Chairman was appointed prior to 1976. The

court of appeals agreed that there was

evidence of discrimination, but concluded

s 131la-136a, 389a, 392a.

448a-462a.

@ 416 «

that any discrimination was on the part of

local officials to whom NCAES delegated

decisions between black and white appli-

cants, and that NCAES was immune from

liability for such Steactetaantans

Fourth, the plaintiffs asserted that

continued state assistance to several

thousand single race 4-H clubs violated

both Title VI and the Fourteenth Amend-

ment. Following the enactment of Title VI,

the defendants had adopted a freedom of

choice plan that failed; there were 1,474

all-white clubs in 1965, and 1,348

all-white clubs in 1980. Despite this

Court's decision in Green v. School Board

of New Kent County, 391 U.S. 430 (1968),

both courts below held that NCAES was

under no obligation to take any steps to

desegregate the clubs. Judge Phillips

dissented, contendinw that the majority

5 412a-13a.

165a-184a, 424a, n. 128.

» 4% «

opinion erred in refusing to comply with

Green.

Fifth, the private plaintiffs

presented individual claims of

discrimination in compensation or in

promotion to the position of County

Chairman. Both courts below regarded the

resolution of these claims as controlled

by their views of the merits of the

related class-wide ineiies

Finally, the district court believed

class certificarion in a private Title VII

case was impermissible if, as here, the

United States had filed a pattern or

practice action. Judge Phillips insisted

469a-48la.

218a, n.70, 380a. Petitioners believe

that this position was essentially

correct. Reversal by this Court on the

pattern and practice issue would neces-

sarily require reversal of disposition of

the individual claims. For that reason,

the disposition of the individual claims

is encompassed within questions 1, 2 and

10 >°

45a.

o 92 «

that this reasoning was inconsistent with

General Telephone Co. v. EEOC, 446 U.S.

318 (1980), and the majority declined to

defend it. The majority, however, held

that denial of certification was proper,

because it rejected on the merits the

legal claims which petitioner sought to

present on behalf of the claims. Judge

Phillips again —

Petitioners sought rehearing en banc

on each of these issues, and five members

of the court of appeals voted to rehear

all of them en banc.

432a-33a.

372a-73a.

426a-33a.

» 13 «

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED

TO RESOLVE A CONFLICT AMONG THE

CIRCUITS AS TO WHETHER THE

APPLICATION OF RACIALLY

MOTIVATED WAGE SCALES VIOLATES

TITLE VII OR THE FOURTEENTH

AMENDMENT

The decision in this case marks a

clear and dangerous departure from what

until now has been the uniform view of

seven circuits regarding the legality of

racial discrimination in salaries. For

fifteen years every appellate court which

has considered this issue has concluded

that, where an employer intentionally

establishes different salaries for white

and black employees because of their

race, that practice violates Title VII and

the Fourteenth Amendment, where applic-

able, as long as that pay differential

remains in effect. Every prior decision

has held discrimination in compensation to

@ $4 «

be continuing violation, recurring anew

with each pay period.

The panel opinion in this case now

adopts the opposite rule. The facts with

regard to this issue are not in dispute.

Prior to 1965, when many of the petition-

ers were initially hired, North Carolina's

Agricultural Extension Service was

Operated as a de jure segregated system.

Black employees worked in separate

offices, serviced only black citizens, and

were deliberately paid less than white

employees doing the identical work in -the

white offices. In 1965 the offices were

merged, but no changes were made in the

salaries; black and white employees

worked side by side performing the same

duties but continued to receive different

Salaries. Both courts below found that

these racially based salary differentials

continued well past 1971, the year in

which this action was filed, and petiti-

oners contend that those disparities

persist to this <_< The fourth circuit,

however, held that these practices

violated neither Title VII nor the

Fourteenth Amendment. (80a-82a). The

majority opinion holds, not only that

North Carolina is free to pay blacks hired

prior to 1965 less than whites for the

rest of their lives, but that the state

may in the future give black employees

smaller raises than comparable whites so

long as those raises are based on the

racially motivated pay schedules esta-

blished in the past. (390a).

14 30a-31a, 122a, 201a, 359a, 360a.

The fourth circuit noted, “the Extension

Service admits that, while it had made

some adjustments to try to get rid of the

Salary disparity resulting on account of

pre-Act discrimination, it has not made

all the adjustments necessary to get rid

Of all of such disparity.” 390a.

» $6 «

The majority below believed that this

extraordinary conclusion was required by

this Court's decision in United Airlines

v. Evans, 431 U.S. 533 (1977), a reading

of Evans that has been expressly rejected

by several other circuits. The fourth

circuit reasoned that the only discrimi-

nation in compensation forbidden by Title

VII or the Fourteenth Amendment is an

employer's initial decision establishing

the level of compensation for an indi-

vidual or position; the continued appli-

cation of that racially based rate of pay,

which may recur over years or even

decades, was held to be entirely lawful.

Judge Phillips dissented, insisting that

Evans did not sanction the use Of a

"pattern of salary discrimination that

carries forward differentials originating”

prior to the adoption of Title VII or

prior to the commencement of the relevant

limitations period. (462a-466a). But the

ee ee ee

o 19 «

majority held that the Constitution

forbids only the creation, but not the

implementation, of separate and unequal

wage scales for blacks and white, and

concluded that the Congress that adupted

Title VII did not wish to affect the

Salaries of blacks then being paid less

than whites for doing the same work, but

intended to leave an entire generation of

women and minorities in that inferior

position so long as they continued to hold

the same jobs that they held in 1965.

Seven circuits over 15 years have

uniformly rejected this interpretation of

Title VII and the Fourteenth Amendment. As

early as 1969, in a decision joined by

then circuit judge Blackmun, the eighth

circuit held in Norman v. Missouri Pacific

Railroad, 414 F.2d 73, that discrimination

in compensation was a "continuing"

violation of the law. 414 F.2d at 84-85.

The controversy in Norman concerned

» 48 «

pre-Act pay differentials that dated from

1918. 414 F.2d at 76, 81. In Laffey v.

Northwest Airlines, Inc., the District of

Columbia circuit also concluded that

discrimination in salaries was a contin-

uing violation, and afforded relief to

correct pay differentials that had been

established in 1947 and that had first

been applied to the lead plaintiff in

1958. 567 F.2d 429, 437-38, 473 (D.C. Cir.

1976).

This Court's decision in United

Airlines v. Evans made clear that claims

of continuing violations were to be

closely scrutinized, but until the instant

case all circuits remained in agreement

that Title VII forbade the application as

well as the creation of a racially based

compensation scheme. In Lamphere v. Brown

University the first circuit held that

Evans did not permit an employer to pay

a oe le ee

ee ee re Y

- 19 «

a female employee a lesser wage based on a

discriminatory pre-Act salary schedule:

A discriminatory ... decision,

made prior to the effective

date of the Act, but implement-

ed post-Act, is actionable ....

[A] decision to hire an

individual at a discriminatori-

ly low salary can, upon

payment of each subsequent pay

check, continue to violate the

employee's rights.

685 F.2d 743, 747 (lst Cir. 1982). Twice

Since this Court's decision in Evans, the

fifth circuit has held that salary

discrimination is a continuing violation,

and that, in addition to the original

decision establishing a salary scale,

"each discriminatory pay check violates

the act." Berry v. Board of Supervisors of

Louisiana State University, 715 F.2d 971,

980 (5th Cir. 1983). In Hall v. Ledex,

Berry discussed Evans at 715 F.2d at 971.

A similar interpretation of Evans can be

found in Perez v. Laredo JuniorCollege,

706 F.2d 731, 733-34 (5th Cir. 1983). In

Calcote v. Texas Educational Foundation,

578 F.2d 95 (Sth Cir. 1978) a black ard a

white with similar credentials were hired

«» 26 <

669 F.2d 397 (6th Cir. 1982), the plain-

tiff complained that when she was named to

a supervisory position she was paid only

two-thirds of the salary given to men in

that job. The defendant asserted the

action was untimely, since the plaintiff

had not filed her complaint with EEOC

until over a year after her salary was

staat The sixth circuit rejected that

contention, insisting "the discrimination

was continuing in nature. Aall suffered a

to do the same work but given different

job titles and salaries. The Fifth

circuit held that the defendant was in

violation of Title VII even though later

it placed both employees in the same

classification, since each kept "his prior

Salary level." 578 F.2d at 96-97. In

Clark v. Olinkraft, 556 F.2d 1219 (5th

Cir. 1977), decided shortly after Evans,

the fifth circuit upheld the plaintiff's

contention that salary discrimination in

1974, although based on wages established

in 1964, was "a continuing and unlawful

employment practice in violation of Title

VII." 556 F.2d at 1222. 4

7 The defendant relied in particular on

Delaware State College v. Ricks, 449 U.S.

250 (1980). See 669 F.2d at 399.

Le eS a Pain et oti ea ar al i a Tag Be

Soe cane

Ae le a te ty et Sy tk ttl gad ae

» 24 «

denial of equal pay with each check she

received." 669 F.2d at 398.

Similarly, the eighth circuit has

reiterated since Evans its view that

salary discrimination is a continuing

violation, In Satz v. ITT Financial

Corp., 619 F.2d 738 (8th Cir. 1980), the

plaintifé€ did not file a charge with RFROC

until more than 180 days after her

employer set her salary at a level lower

than that of men doing the same work. The

court Of appeals rejected the employer's

contention that the charge was untimely,

holding that "[t]he practice of paying

discriminatorily unequal pay occurs not

only when an employer sets pay levels, hut

aS long as the discriminatory differential

continues," 619 F.2d at 743, In Bart-

18 See also Di Salvo v. Chamber of Commerce,

598 F.2d 593, 595 (8th Cir. 1978) (Salary

discrimination claim upheld despite the

fact that the disputed salary was fixed

more than 180 days prior to the filing of

a charge.)

» 22 «

lett v. Berlitz School of Languages, 698

F.2d 1003 (9th Cir. 1983), the employer

made precisely the argument sustained by

the fourth circuit in this case, that only

the original action establishing an

employee's wages violates Title — The

ninth circuit rejected that contention,

holding that “paying lower wages to female

employees on each payday constitutes a

‘continuing violation'". 698 F.2d at

1004. The third circuit dealt with claims

similar to those in the instant case in

International Union of Electrical Workers

v. Westinghouse, 631 F.2d 1094 (3d Cir.

1980), in which the plaintiffs alleged

that the employer's wage scales, which

provided the lowest salaries for predoni-

nantly female jobs, had been established

See 698 F.2d at 1005 n. 1: “Berlitz's

primary argument is that the limitations

period should run from the date the

plaintiffs became [employees] because it

was at this time that their allegedly

discriminatory wages were set.”

eee es ree Bd

ee ee ee ee ee

ee eS

- 23 «

as the result of an intentional policy to

discriminate against women. 631 F.2d at

1097. The third circuit held that those

allegations stated a cause of action under

Title VII, despite the fact that the

Salary scales at issue had been created in

the 1930's, a generation prior to “he

adoption of Title VII itself.

The division in the circuits on this

issue is typical of the widespread

disagreements among the lower courts as to

the meaning of United Airlines v. Evans.

The fifth circuit has aptly described

those subsequent interpretations of Fvans

as "inconsistent and confusing". Dumas v.

Town Of Mount Vernon, 612 *.2d 974, 977

(Sth Cir. 1980). The courts of appeais

are also divided, For example, over

whether or when discrimination in hiring

aU Compare, Roberts v. North American

Rockwell Corp, 650 F.2d 823 (Sth Cir.

1981) (hiring discrimination acontinuing

violation not subject to the rule in

Evans) with Dumas v. Town of Mount Vernon,

612 F.2d 974 (Sth Cir. 1980) (hiring

» 24 <

or discrimination in promotions constitute

continuing violations of the law.

The fourth circuit's decision in this

case, unless overturned, will largely

emasculate the statutory and constitu-

tional prohibitions against racial

discrimination in compensation. Both

Title VII and the Fourteenth Amendment,

where applicable, forbid an employer to

intentionally assign a lower wage to a

particular position because most or all.of

the employees in that position are black

or female. See County of Washington v.

Gunther, 452 U.S. 161 (1981). But such

discriminatory wage systems ordinarily

were established, as was the case in

discrimination is not a continuing viola-

tion and is thus subject to the rule in

Evans).

21 , —_

Compare Dumas, supra (promotion discriml-

nation 1s a continuing violation not

subject to the rule in Evans) with

Cajidas v. Banco de Ponce, 741 F.2d 464,

469-70 (lst Cir. 1984) (Evans is applic-

able to some but not all discrimination

in promotions).

= 28 «

Gunther, long prior to the adoption of

Title VII or the beginning of the limita-

tions period relevant to the constitu-

tional claim. Tf, as the fourth circuit

has held, only the creation of such

discriminatory wage scales, but not their

application, is unlawful, then Gunther

and the principle it establishes would be

a dead letter.

The same is true of the statutory and

constitutional prohibitions aqainst

intentional racial discrimination in the

Fixing of salaries for particular em-

ployees. Unlike discrimination in

promotions or assignments, the effects of

which are often obvious to all involved,

The existence of a separate position for

female prison guards dated from pricr to

1955. See note at Ore. Rev. Stat.

§ 137.350 —

23 ;, , —

See, @.g. Norman v. Missouri Pacific

Railroad, 414 F.2d 73, 84-85 (8th Cir.

1969) (system established in 1930's);

Laffey v. Northwest Airlines, Inc., 567

F.2d 429, 437-38 (D.C. Cir. 1978) (system

established-in 1947).

» 26 «

the existence of discrimination in

compensation is only rarely apparent,

since the victims of that practice usually

do not know the salaries of their white

colleagues, and ordinarily have no method

of comparing their wages with those of

others doing the same work. In a substan-

tial proportion of all reported Title VII

wage compensation cases, the plaintiffs

were unable to detect that statutory vio-

lation until it was already too late to

file a charge with regard to the initial

action establishing their salaries.

The Fourth circuit decision is

manifestly incorrect. It is simply

inconceivable that the Congress which

adopted the 1964 Civil Rights Act intended

to provide no redress for blacks who were

then being paid less than whites for the

same work. It is equally unlikely that

Congress intended to prohibit judicial

scrutiny of the pre-Act origins of salary

—"

~~ —— sina al.

» 27 «

scales when it clearly contemplated such

inquiries into the original purposes of

ore-Act senority systems. See Teamsters

v. United States, 431 U.S. 324, 356

(1977). The fourth circuit's holding that

Title VII does not forbid the continued

use of racially based pre-Act salary

scales is squarely contrary to this

Court's resolution of the same question

under the Equal Pay Act. In Corning Gass

Works v. Brennan, 1417 U.S. 188 (1974),

this Court held.unlawful pre-Act discri-

minatory salary scales that remained in

effect after the adoption of the Fqual Pay

Act:

The differential ... reflected

a job market in which Corning

could pay women less than men

for the same work. That the

company took advantage of such

a situation may be understand-

able as a matter of economics,

but its differential neverthe-

less became illegal once

Congress enacted into law the

principle of equal pay for

equal work.

» 26 «

417 U.S. at 205. (Emphasis added).

As a matter of constitutional law, the

decision of the fourth circuit -- that the

Fourteenth Amendment forbids only the

adoption, but not the implementation, of a

racially motivated practice -- flies in

the face of a century of Supreme Court

decisions. This Court has repeatedly held

unconstitutional the application of state

laws adopted for racial reasons, no matter

how old the laws themselves. The rule

whose implementation was condemned in

Hunter v. Underwood, 85 L.Ed. 2d 222

(1985), for example, had been established

by the Alabama Constitutional Convention

of 1901, even some eighty years before

Underwood filed suit. If the North

Carolina legislature had in 1964 fixed

petitioner Bazemore's salary by statute,

intentionally setting it at a lower level

because of his race, every court in the

land would have struck down that law as

- 29 -

unconstitutional. Surely the result is no

different where, as here, the racially

motivated state practice complained of was

taken pursuant to an administrative

decision rather than a state statute.

If. CERTIORARI SHOULD BFE

GRANTED TO RESOLVE A CONFLICT

AMONG THE CIRCUITS AS TO THE

ADMISSIBILITY OF STATISTICAL

EVIDENCE OF INTENTIONAL RACIAL

DISCRIMINATION

The fourth circuit decision in this

case revives, and gives conclusive weight

to, the very objection to the use of

statistical evidence that this Court

expressly rejected in both Dothard v.

Rawlinson, 433 U.S. 321 (1977) and Team-

sters v. United States, 431 U.S. 324

(1977). In Dothard the plaintiff relied

On population statistics to show that an

empioyer's hiring criteria had an adverse

impact on women. The defendant urged that

such data be deemed insufficient, arguing

» 36 «

that an analysis of actual applicants

might have yielded a different result. The

Court held that such speculation about the

possible effect of a more refined statis-

tical analysis was not an adequate basis

for rejecting the plaintiffs’ statistics:

The plaintiffs in a case such

as this are not required to

exhaust every possible source

of evidence.... If the

employer discerns fallacies or

deficiencies in the data

offered by the plaintiff, he is

free to adduce countervailing

evidence of his own. In this

case no such effort was made.

433 U.S. at 331.

Similarly, in Teamsters the employer

objected to the significance of evidence

that it employed a far smaller proportion

of minorities than were present in the

population. The employer insisted that

half a dozen factors not considered in the

plaintiff's analysis might have explained

away that disparity, and presented an

expert on statistics to criticize the

» 374 «

plaintiff's methodology. But the employer

adduced no statistics of its own indi-

cating that the methodology it advocated

would have yielded any different result,

and this Court concluded that the plain-

tiff itself was under no obligation to

"fine tun[e]" its statistics. 431 U.S. at

342 n. 23.

The fourth circuit in this case

sustained precisely the unsubstantiated

speculation objection disapproved in

Dothard and Teamsters. The plaintiffs

here adduced uncontroverted evidence that

the average salaries of whites and blacks

in the same job were consistently dif-

ferent, with the white average invariably

higher. This disparity was true for all

24 See Brief for Petitioner T.I.M.E.-)D.C.,

Inc., pp. 18-29.

a3 The disparities in the wages of Associate

Agricultural Agent, the single largest job

title, were typical:

Average Average

Salary Salary

Year of Whites of Blacks Difference

- 32 «

jobs, persisted for over a decade, and was

present even when the experience and

education of the employees was consi-

ne" An expert retained by the

defendant's conducted his own analysis of

the data, and also concluded that at least

until the mid-1970's there was a disparity

between the salaries of blacks and whites

in the same jobs. (387a). The fourth

circuit, however, concluded that these

disparities were “unacceptable as evidence

of discrimination." (391a). It was of no

significance, the court of appeals held,

that the employer consistently paid whites

more than similarly educated and experi-

1970 $ 9,876 $ 8,956 $ 920

1971 10,241 9,558 682

1973 10,292 9,797 495

1974 10,244 9,840 404

1976 12,711 11,885 826

1978 14,754 13,518 1,236

1980 15,253 14,485 758

1981 17,035 15,849 1,186

App. 1562; GX 95, 98; PX 50, 100.

26 any. 399-418: GX 122-24.

= 33 =

enced blacks doing the same work; no

statistical analysis was entitled to any

weight unless it considered "all measur-

able variables thought to have an effect

on salary.” (391a). (Emphasis added) The

trial judge had speculated that there were

at least nine additional variables that

might have explained the disparities

(133a), and the majority on appeal

thought this speculative possibility fatal

to plaintiffs claims. (389a-9la).

Judge Phillips correctly dissented

from this aspect of the panel decision

below, insisting that statistical evidence

could not be rejected

for failure to include a number

of other independent variables

merely hypothesized by defen-

dants. ....[{T]O apply such a

rule generally would effective-

ly destroy the ability to

establish any Title VII pattern

Or practice claim by this means

of proof .. . [I]t will

always be possible for Title

VII defendants to hypothesize

yet another variable that might

theoretically reduce a race-

effect coefficient demonstrated

» 34 «

by any multiple repression

analysis that could be con-

ceived. (448a-49a).

Judge Phillips stressed, as did this Court

in Dothard, that there was no “evidence

that the inclusion of other variables

would in fact reduce" the disparities the

wages of blacks and whites in the same

job. (450a) (Emphasis in original).

Correctly recognizing the substantial

impact the majority opinion would have on

the use of statistics in any future Title

VII case, five members of the fourth

circuit voted to rehear this case en banc.

= 38 «

The decision of the fourth circuic

Sustaining the very speculation objection

disapproved in Dothard and Teamsters is

in square conflict with the decisions of

the five courts of appeals that have

dutifully followed the opinions of this

Court. The District of Columbia circuit,

citing Dothard and Teamsters, has

rejected the fourth circuit's rule that

Statistical evidence should or can be

rejected merely because it does not

analyze every conceivably relevant factor:

27 the majority opinion rejected the indivi-

dual claims of salary discrimination ona

Similar theory. Petitioners offered

Statistical comparisons of their wages

with tne wages of white agents with the

same education hired at the same time into

the same jobs. The majority dismissed

that evidence on the ground that such

comparisons did not also consider possible

additional job qualifications or dif-

ferences in job performance. (378a-

379a). Botn the majority and Judge

Phillips agreed that the district court's

decision rejecting the individual claims

would have to be reversed if there was

proof of a pattern and practice of salary

discrimination. (380a, 467a).

@ 36 «

[U]nquantified, speculative and

theoretical objections to the

proffered statistics are

properly given little weight by

the trial court: ‘When a

plaintiff submits accurate

statistical data, and a

defendant alleges that relevant

variables are excluded,

defendants may not rely on

hypothesis to lessen the

probative value of plaintiff's

statistical proof. Rather,

defendant eee must either

rework plaintiff's statistics

incorporating the omitted

factors or present other

proof undermining plaintiff's

claims.' 28

Similarly, in a promotion discrimination

case, the District of Columbia circuit

insisted, contrary to the position of

fourth circuit in the instant case, that

in a comparison of black and white

3 mrout v. Lehman, 702 F.2d 1044, 1102 (D.C.

Cir. 1983), vacated on other grounds sub

nom. Lehman v. Trout, 79 L.Ed.2d 732

(1984). See also Segar v. Smith, 738 F.2d

1249, 1277 (D.C. Cir. 1984) cert. den.

U.S. (1985). (Omission of a

variable does not affect validity of the

Statistics absent proof that the omission

affected the outcome of the analysis.)

29 See, n. 27, supra.

- 37 -

employees “not every conceivable factor

relevant to a ... decision must be

included in the statistical case in order

to make out a prima facie case,"°°

The second circuit has also rejected

the fourth circuit rule. In Guardians

Association v. Civil Service Commission,

630 F.2d 79 (2d Cir. 1980), the defendant

responded to evidence that its tests had

an adverse impact on minorities by

"hypothesiz[ing] some situations in which

[the] statistics might be misleading ...

but present[ed] no evidence to show that

this occurred." 630 F.2d at 88 n. 7. The

second circuit dismissed that objection

out of hand:

To accept such unsupported

possibilities, and require the

plaintiffs to refute every

circumstance that could explain

the disparate impact shown by

the statistics, would create an

onerous burden of proof, far in

Davis v. Califano, 613 F.2d 957, 964 (D.C.

Cir. 1980).

eee oS —w eds

Id.

- 38 -

excess of the Title VII

standard as interpreted by the

Supreme Court. See Dothard v.

Rawlinson....

Later in the same litigation th

e city

again chose to object to a statistical

analysis without offering a more complete

analysis of its own. The second ci

reuit,

quoting Dothard at length, again rejected

that approach:

Guardians Association v.

We see no justification for

holding plaintiffs to an

unrealistic standard regarding

the “completeness” of their

statistical showing.... [I]t

is not inappropriate to expect

a public employer to come

forward with evidence ... even

where the plaintiffs‘ showing

has been somewhat modest....

[D])efendants offered no

persuasive evidence of dif-

ferences in preparation or

content that would cast doubt

on [their statistical] conclu-

SiON...

Civil Service

Commission, 633 F.2d 232, 240 n.

Cir.

1980).

13 (2d

- 39 -

The fifth circuit has adhered to the

same view of statistical evidence as the

District of Columbia and second circuits.

In Falcon v. General Telephone, 626 F.2d

369 (5th Cir. 1980), rev'd on other

grounds 457 U.S. 147 (1982), the fifth

circuit interpreted Teamsters

to mean that once the plaintiff

has offered some evidence that

is probative of disparity that

may be statutorily significant,

it is then the defendant's

burden to come up with more

specific statistical evidence

to rebut the plaintiff's

proof.

626 F.2d at 381. (Emphasis added.) This

requirement that statistics be rebutted

with evidence, not merely with speculative

objections, was applied in Pavne v.

Travenol Laboratories, Inc., 673 F.2d 788

(5th Cir. 1982), which also relied on

Teamsters. The defendant in Payne

responded to evidence that white appli-

cants were hired at a higher rate than

——_

- 40 -

black applicants by hypothesizing that

black applicants might have failed in

disproportionate numbers to actually

attend scheduled interviews. The fifth

circuit agreed that this was an important

consideration, but rejected defendant's

argument because the defendant had

adduced no evidence of any such dispro-

portion:

[A] comparison of referred

applicants to actual hires

omits an important variable:

how many applicants Travenol

failed to interview because

they did not show up. Theo-

retically, this point is well

taken, but its major premise is

speculative.... [T]he record

indicates there was no evidence

how many applicants did not

keep their interview dates.

673 F.2d at 822. The defendant in Payne

also speculated that the number of black

applicants might be inflated because

blacks might have filed more duplicate

applications than whites. Again the fifth

circuit rejected that sort of objection,

»- 41 «

insisting that a defendant come forward

with evidence to support its contentions

that a more complete statistical aneeyese

would have yielded different aii”

The rule expressly adopted by the

second, fifth and District of Columbia

circuits has been applied by at least two

other courts of appeals. In Chrisner v.

Complete Auto Transit, Inc., 645 F.2d 1251

(6th Cir. 1981), the plaintiffs, in

seeking to prove that a two year experi-

ence requirement would have an adverse

impact on female applicants, adduced

evidence as to the proportion of men and

women employed in the industry involved.

The sixth circuit, citing one of the

"({T)here was no testimony that

Dlack duplicates occurred at a

greater rate than white dupli-

cates, and we are unwilling to

make such an assumption without

evidence in the record to support

aCe"

673 F.2d at 822.

» @2 «

District of Columbia cases noted above,

held this evidence “sufficiently proba-

tive" of disparate impact to establish a

prima facie case, and stressed that the

defendant had failed to offer “coun-

tervailing evidence" to rebut the infer-

ence that arose from the plaintiff's

rather general data. 645 F.2d at 1259. In

Craik v. Minnesota State University Board,

731 F.2d 465 (8th Cir. 1984), the defen-

dant criticized a statistical analysis

offered by plaintiff because it had

included some administrators among the

teachers whose treatment was at issue. The

eighth circuit, again citing one of the

nee ae Columbia opinions mentioned

earlier, dismissed that objection, noting

that the defendant had declined to offer

32 Davis v. Califano is cited at 645 F.2d at

1259 n. 7; see n. 30, Supra.

33 Trout v. Lehman is cited at 731 F.2d at

477 n. 15.

- 43 -

any evidence as to the impact of correct-

ing this over bette,”

The panel decision in the instant

case has the practical effect of forbid-

ding the use of statistics in the fourth

circuit to prove either intentional

discrimination or disparate impact. As

Judge Phillips noted in his dissent, no

Statistics could ever be sufficiently

complete to meet the majority's standard,

Since it will always be possible for a

defendant or a court to conceive of some

other factor that might have been con-

sidered in any statistical analysis.

Without the use of statistics, proof of

discriminatory intent will often be

impossible. Since statistics are the only

"The effect of the inclusion of such a

small proportion of administrators is not

obvious, and the defendants chose not to

rework the multiple regression analyses on

a corrected data base in order to demon-

Strate that the result would be more

favorable to them." 731 F.2d at 477 n.

15.

o 4s «

method by which a plaintiff can establish

that a test or job requirement had a

disparate impact, the fourth circuit's

decision effectively nullifies Griggs v.

Duke Power Co., 401 U.S. 424 (1971). In

Maryland, Virginia, West Virginia and the

Carolinas today,the enforcement of Title

VII has been severely impeded. Certiorari

should be granted to correct that situa-

tion and to resolve the inter-circuit

conflict created by the decision below.

III. THE DECISION OF THE COURT

OF APPEALS IS IN CONFLICT WITH

GREEN V. SCHOOL BOARD OF NEW

KENT COUNTY, 391 U.S. 430

(1968)

The panel decision in this case marks

the resuscitation of a fourth circuit

remedial doctrine unanimously condemnea by

this Court some 18 years ago.

In Green v. School Board of New Kent

County, 391 U.S. 430 (1968), the officials

of the de jure segregated school system

» 48 «

adopted, in response to Brown v. Board of

Education, a “freedom of choice" plan

which left students in the schools to

which they had originally been assiqned on

the basis of race, but permitted them to

transfer elsewhere on their own initia-

tive. Not a single white child chose to

attend a black school, and 85% of all

black children remained in black schools.

Tne plan “operated simply to burden

children and their parents with a respon-

Sibility which Brown II places squarely on

the School Board." 391 U.S. at 441-42.

The fourth circuit held, however, that

that manifestly unsuccessful freedom of

choice plan fully satisfied the require-

ments of Brown, and that there was no

longer any actionable violation of the

constitution. See Bowman v. County School

Board of Charles City County, 382 F.2d

326, 327-28 (4th Cir. 1967).

duivtninhiiesionintce ee

- 46 =

This Court unanimously reversed,

holding that freedom of choice plans were

only acceptable if they in fact disestab-

lished the de jure system that the state

had created:

The burden on a school board

today is to come forward with a

plan that promises realistical-

ly to work, and promises

realistically to work now...

[I]£f [freedom of choice] fails

to undo segregation, other

means must be used to achieve

this end. The Board must be

required to formulate a new

plan ee which promise[s]

realistically to convert

promptly to a system without a

"white" school anda "Negro"

school, but just schools.

391 U.S. at 437. Following the decision

in Green, the United States Department of

Agriculture adopted regulations governing

the desegregation of programs such as the

North Carolina 4-H clubs:

In administerinrag a program

regarding which the recipient

has previously discriminated

against persons on the ground

of race ... the recipient must

take affirmative action to

» 47 «

overcome the effects o€ prior

discrimination,

7 C.F.R. §15.3(6)(6)(1). The requirements

of this regulation parallel those of Green

itself.

The 4-H clubs in North Carolina were

for years operated on a strictly de jure

segregated basis. Separate all-black and

all-white clubs existed in the same

communities, In 1965 state officials

adopted a freedom of choice plan similar

to that in Green, and in North Carolina

that plan failed just as it had in Green

itself. Un 1965, prior to the adoption of

the Freedom of choice plan, there were

1,474 all-white 4-H clubs; after 15 years

of Freedom of choice there were 1,348

all-white clubs. Between 1972 and 1980

The history of Extension Homemaker Clubs,

which are also supported by NCAES, is

essentially similar to that of the 4-H

Clubs.

App. 1806, 2237; Ex. 11, 115; 472a.

» 48 -

the number of single race clubs in

racially mixed communities declined by

less than tds Far from converting the

North Carolina system from "black" clubs

and “white"™ clubs to just clubs, the

freedom of choice plan had what Judge

Phillips accurately described as only a

"minimal" effect. (471a).

The panel opinion in the case did not

Suggest that the 1965 freedom of choice

plan had succeeded. Rather, the majority

adopted precisely the position taken by

the fourth circuit in Green itself -- that

a state which establishes a de jure

segregated system need do no more to meet

its legal obligations than refrain from

new additional acts of discrimination.

(368a,424a, n.128). As Judge Phillips

a App. 1807, 1813; 472a.

The evidence also clearly indicated a

pattern of post-1965 intentional racial

discrimination in the recruiting of club

members (475a-77a). Again, the majority

evidently believed that the very existence

of a freedom of choice plan fully remedied

- 49 -

noted in his dissent, the opinions below

do not even purport to find that the

defendants satisfied the requirements of

Green or of the Department of Agriculture

regulations. (474a-75a). The panel

majority was apparently of the view that

the Fourth circuit is somehow free to

refuse at will to enforce either Green or

the duly promulgated applicable federal

regulations. No reasons were given by the

majority for its refusal to do so, and no

legitimate basis for that action is

conceivable.

IV, THE DECISION OF THE COURT

OF APPEALS RAISES AN IMPORTANT

QUESTION AS TO THE MEANING OF

GENERAL BUILDING CONTRACTORS

v. PENNSYLVANIA, 458 U.S. 375

(1982)

Three years ago in General Building

Contractors v. Pennsylvania, this Court

any injuries that might be occasioned by

such ongoing discrimination.

held that section 1981 permits an employer

to delegate its hiring decisions to a

third party which engages in intentional

racial discrimination. In rejecting

Pennsylvania's argument that section 1981

imposed a non-delegable duty to hire on a

non-racial basis, the Court stressed that

liability under section 1981 required

proof of discriminatory intent on the part

of the employer.

The fourth circuit decision in this

case extends the holding in General

Building Contractors to Title VII, despite

the fact that Title VII, unlike section

1981, contains no such intent require-

ment. Griggs v. Duke Power Co, 401 U.S.

424 (1971).In selecting County Chairmen,

NCAES followed one of two procedures. In

most instances NCAES made the decision

itself, approving only a single applicant

and forwarding his or her name to elected

county officials for a pro forma ratifi-

- 517 -

cation. In some cases, however, NCAES

would recommend several candidates to the

county officials, and delegate to those

local authorities the final selection.

The record in this case made clear

that county officials invariably exercised

any such delegated authority in a racial

manner and the Court of Appeals did not

hold otherwise. In every instance in

which NCAES recommended both a black and a

white applicant, the county officials

chose to select the white applicant. As a

result, althoug! »lacks account for 25% of

the full agents, the position from which

County Chairmen are chosen, only 2.6% of

the County Chairmen selected between 1/1962

and 1981 were black. (406a).

The fourth circuit, however, con-

cluded that Title VII permitted NCAES to

delegate its selection decisions to

discriminatory county officials. NCAES,

it held, was "not separately responsible

-~ 52 -

for the appointment" decisions made by

such county officials. (412a). So long

as NCAES "recommended" blacks as well as

whites, the agency was not legally

accountable if, as invariably occurred,

county officials chose only whites. In

the fourth circuit's view it was irrele-

vant that this delegation practice had a

100% adverse impact on black applicants or

that NCAES officials must have been aware

of the county level discrimination. Nor

did the fourth circuit think it important

that in this case NCAES resorted to

delegation in a racially selected manner.

Although NCAES approved only a single

applicant in 83% of all as NCAES has

never recommended a black for a job which

a white male had applied without also

recommending at least one white male as

NCAES recommended only a single applicant

in 94 of 113 cases. See charts following

419a.

-» §3 «

well. The court of appeals insisted that

NCAES was immune from liability so long as

it was “recommending” a substantial number

of blacks, regardless of whether the

counties were invariably and predictably

rejecting all of those black applicants.

The decision below is_ squarely

inconsistent with this Court's opinion in

Arizona Governing Committee v. Norris, 77

LeEd.«2d 1236 (1983). In Norris, the

defendant insisted that it could not be

held liable for discrimination engaged in

by independent operators of a pension plan

funded by the defendant employer. This

Court rejected that contention, holding

that under Title VII “employers are

ultimately responsible for the 'compensa-

tion, terms, conditions, [and] terms of

employment'." 77 L.Ed.2d at 1292. It

reasoned, "We do not think it makes

#0 In the only two instances in which NCAES

recommended only a black for a position

for which a white had applied, the white

applicant was a woman. Id.

- 54 -

any . . .» difference .. . that the

employer engaged third parties to provide

a benefit rather than directly providing

the benefit itself." Id. at 1292 n. 21.

The decision here whether to promote to

County Chairman blacks as well as whites

is as central to the employment rela-

tionship, and as non-delegable, as was the

decision in Norris whether to provide to

female employees the same pensions that

were accorded to male workers.

The fourth circuit decision in this

case is an open invitation for employers

to evade the requirements of Title VII.

Under the principles of the decision

below, an employer is free to delegate to

a third party any empioyment decision that

might violate the law. Thus, while an

employer may not select its workers on the

basis of a non-job related discriminatory

test, it could legally delegate hiring

authority to an agency or individual that

- 55 -

utilized that very test. Such a rule

represents a radical and unwarranted

extension of General Building Conractors

and should be reconsidered by this Court.

V. THE DECISION OF THE COURT OF

APPEALS IS IN CONFLICT WITH £ISEN

v. CARLISLE & JACQUELIN, 417 U.S.

156 (1974)

A decade ago in Eisen v. Carlisle &

Jacguelin, 417 U.S. 156 (1974), this Court

made clear that Rule 23 class actions were

not to be limited to claims which a court

had already decided were meritorious. "In

determining the propriety of a class

action, the question is not whether the

plaintiff or plaintiffs . . . will

prevail, but rather whether the require-

ments of Rule 23 are met." 417 U.S. at

178. Eisen reiterated the purpose and

standards of Rule 23, which was framed to

provide an opportunity for the resolution

of class-wide claims, some of which would,

of course, inevitably prove unsuccessful.

- 56 -

The district court decision in this

case denied certification on grounds which

the fourth circuit declined to sustain. 4

The panel majority, however, insisted that

this case could not be certified as a

class action because there were no

meritorious class claims. Petitioners

alleged a class-wide state practice of

perpetuating pre-Act intentional wage

discrimination; the fourth circuit denied

certification as to that issue because it

believed the practice to be cea

Petitioners alleged that the state had a

non-delegable duty to select County

Chairmen on a racially neutral basis; the

a1 The district court held (1) that no class

action could be maintained in a private

Title VII action if the United States

filed a related pattern and practice

action (44a-46a), and (2) that no class

action could ever be maintained on behalf

of employees working at different loca-

tions. (43a-44a). Judge Phillips describ-

ed the errors underlying this reasoning in

his dissent. (426a-433a).

Compare, 369a with 380a-82a.

- §7 «

fourth circuit denied certification as to

that issue because it believed there was

no such hadiee* Petitioners alleged that

the continued operation of over a thousand

Single-race 4-H clubs violated both the

Constitution and the applicable federal

regulations; certification was denied on

the ground that the fourth circuit

believed the operation of those clubs to

be entirely legal.

On the fourth circuit's view, class

certification cannot be granted unless the

party seeking certification proves, or at

least alleges, a “legally cognizable

wrong." (372a). In this case the court

below concluded that the facts in the

record did not constitute a "legally

cognizable wrong" because the fourth

circuit rejected on the merits peti-

tioners' contentions as to the legal

369a-370a.

370a-37la.

- 58 -

principles applicable to those facts. But

Rule 23 is available for the litigation of .

"common issues of law" as well as common

issues of fact. The decision below that.

there were no “legally copteniingiiae teal

constitutes, not a finding that there were

no such common issues of law, but an

adverse resolution of those very common

issues. Eisen forbids denial of class

certification on such a basis.

CONCLUSION

For the above reasons a writ of cert-

iorari should issue to review the judgment

and opinion of the fourth circuit.

Respectfully submitted,

EDWARD D. REIBMAN

108 North Eighth Street

Allentown, Pa. 18101

CRESSIE H. THIGPEN, JR.

Thigpen, Blue & Stephens

Suite 214

Hallmark Building

Raleigh, North Carolina 27601

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