Opposition Brief — Rath Packing Co. Creditors' Trust v. Equal Employment Opportunity Commission

©) Supreme Court, us. |

No. 86-67 Sep 22 1986

Jn the Supreme Court of the nite

Octoser TERM, 1986

THe RATH PACKING COMPANY CREDITORS’ TRUST,

SUCCESSOR IN INTEREST TO THE RATH PACKING COMPANY,

PETITIONER

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITION FOR A WPT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION IN OPPOSITION

CHARLES FRIED

Solicitor General

JOHNNY J. BUTLER

General Counsel (Acting)

Equal Employment Opportunity Commission

QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding that

petitioner’s subjective hiring practices violated Titie VII of

the Civil Rights Act of 1964, 42 U.S.C. 2000¢ ef seq.,

because of their adverse impact on females?

2. Whether the court of appeals erred in holding that

petitioner’s policy against hiring spouses of existing employ-

ees was not justified by business necessity?

(I)

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

Adickes v. Kress & Co., 398 U.S. 144 ......

Castaneda vy. Partida, 430 U.S. 482 ........

Contreras v. City of Los Angeles,

ee codons be cccceve

Dothard vy. Rawlinson, 433 U.S. 321 .......

Hazelwood School District vy. United States,

DE Gibivecbdlessesececccrcess

Head vy. Timken Roller Bearing Co.,

cee c end ceccecceds

Bee OW. Geet, SGe US. ZIS ccc ccccccces

Jackson vy. Seaboard Coast Line R.R.,

CEE DGEGipecescvccsccccecccese

Kirby v. Colony Furniture Co.,

EES re

Liberles vy. Cook County, 709 F.2d 1122 ....

New York Transit Authority vy. Beazer,

DTT cicchvksrseererbecdcreccoce

Robinson vy. Lorrillard Co., 444 F.2d 791,

cert. denied, 404 U.S. 1006 ..............

(IIT)

*oeeeveeeneeeneeeeeneeeeneeeeeeeeeeeeeee

ener eeeeenveeneeeeeeeneeneeneea eee ewneaneneneaneee

IV

Page

Cases—Continued:

Teamsters vy. United States,

oe ene ee eo ee we 6-7

United States v. Ortiz,422 U.S. 891 ........... 6

Youakim vy. Miller, 425 U.S. 544 ..........406- 6

Yuhas v. Libbey-Owens-Ford Co.,

562 F.2d 496, cert. denied, 435 U.S. 934 ..... 8,9

Zuniga v. Kleberg County Hospital,

di oleh enhbesanvchvnab sees 8

Statutes:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

EE oc pacsevvedarveeensswe bans ye

In the Supreme Court of the Hnited States

OCTOBER TERM, 1986

No. 86-67

THE RATH PACKING COMPANY CREDITORS’ TRUST,

SUCCESSOR IN INTEREST TO THE RATH PACKING COMPANY,

PETITIONER

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-44a) is

reported at 787 F.2d 318. The opinion of the district court

(Pet. App. 1d-36d) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 20, 1986. On June 17, 1986, Justice Blackmun

extended the time for filing a petition for a writ of certiorari

to and including July 17, 1986. The petition for a writ of

certiorari was filed on July 17, 1986. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. From at least 1971 to June 1978, petitioner operated a

hog slaughtering and processing facility in Columbus Junc-

tion, Iowa. Petitioner employed approximately 250 persons

in the Columbus Junction facility, about 95% of whom

employees were male. In September 1977, the Equal

Employment Opportunity Commission filed this action,

alleging that the composition of petitioner’s workforce was

attributable to employment practices violative of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. 2000¢ et seq.

Specifically, the Commission alleged that petitioner’s sub-

jective hiring practices and policy against hiring spouses of

existing employees unlawfully discriminated against females

because of their sex. Pet. App. 3d.

2. The district court agreed with the Commission that

petitioner’s subjective hiring practices violated Title VII

(Pet. App. 4d-23d). The court noted that petitioner had not

used any objective criteria in selecting employees (id. at

4d-6d), that hiring decisions at the Columbus Junction

facility had been the responsibility of one company official

(id. at 4d-5d), that that official was “unable to identify what

information he deem[ed] significant in evaluating applica-

tions * * * or to * * * indicate what factors prompt[ed]

him to select some individuals * * * and to reject others”

(ibid), and, most importantly, that statistically significant

dis parities—disparities sufficient to establish a prima facie

case of adverse impact—existed between the percentage of

females employed in the Columbus Junction facility and the

percentages of actual and potential female applicants dur-

ing the 1971-1978 period (id. at 6d-11d).! The court then

'The court found that between 1973 and 1978 petitioner hired only

seven females and that, based on applicant flow data, petitioner reason-

ably could have been expected to hire 29.34 females—a disparity of 4.96

standard deviations (Pet. App. 7d-8d, 33d-34d). The court also found

that, in 1971, females comprised 5.69% of the Columbus Junction plant

3

found that the subjective hiring practices’ adverse impact

could not be defended as “job-related,” noting that there

was “no credible proof * * * that [petitioner] looked for

certain qualifications in evaluating applicants * * *, nor

was there any suggestion in the record that [petitioner]

consistently sought the most qualified and experienced

individuals * * *” (id. at 15d). Finally, the court determined

that the Commission had successfully proven several spe-

cific instances of intentional discrimination (id. at 16d-23d).

Accordingly, the court held that petitioner’s subjective hir-

ing practices were violative of Title VII (id. at 31d-32d).

However, the district court found that petitioner’s “no-

spouse” rule-—i.e., its policy against hiring spouses of exist-

ing employees—did not violate Title VII (Pet. App. 23d-

31d). The court agreed with the Commission that the

no-spouse rule had a disparate adverse impact on female

applicants (id. at 23d-26d) and that petitioner had not “cor-

roborate{d] its contention that production was adversely

affected through the hiring of spuuses * * *” (id. at 29d).

But the court found that petitioner had promulgated the

no-spouse rule to promote legitimate business concerns?

and that such concerns were “reasonabl[y], albeit theoreti-

caflly],” addressed by the no-spouse rule (id. at 29d-31d).

labor force and 21.58% of the relevant labor pool—a disparity of 5.845

standard deviations (id. at 7d-9d, 34d-35d). This Court has held that a

disparity of 2 or 3 standard deviations can be legally significant. Cas-

taneda v. Partida, 430 U.S. 482, 496-497 n.17 (1977).

*Petitioner suggested that four problems related to spousal

employment—dual absenteeism, tensions engendered by spousal super-

vision, scheduling of vacations and leaves of absence, and employee

pressure to hire spouses—led it to adopt the no-spouse rule. See Pet.

App. 26d. The district court found that these problems either were

corrected prior to the implemention of the no-spouse rule or were based

on singular incidents. (id. at 26d-28d). Nevertheless, it agreed with

petitioner that, as a general matter, spousal employment creates prob-

lems in employee morale. (id. at 29d).

4

Accordingly, the court held that petitioner had established

that the no-spouse rule was justified by business necessity

(and therefore did not violate Title VII) (id. at 30d-31d).?

3. On appeal by petitioner and on cross-appeal by the

Commission, the Court of Appeals for the Eighth Circuit

affirmed in part and reversed in part (Pet. App. la-44a). As

to the subjective hiring practices, the court of appeals

agreed with the district court that petitioner had not shown

that these practices were “job-related”: Petitioner had been

“unable to identify the criteria and qualifications which

were considered in the hiring decisions * * * [and] there-

fore [could] not establish that these qualifications were

necessary to the safety and efficiency of its operations” (id.

at 17a). However, as to the no-spouse rule, the Commission

argued and the court of appeals agreed that the district

court had imposed a lighter burden on petitioner than

required by law and that the district court’s finding of

business necessity was contrary to the record evidence and

inconsistent with its own subsidiary findings (id. at 24a).

The court of appeals’ disagreement with the district court

went to that court’s failure to “consider whether there was a

compelling need for the no-spouse rule” (id. at 25a). The

court of appeals noted that “the proper standard * * * is

not whether [a business practice with a discriminatory

result] is justified by routine business considerations * * *”

(ibid., quoting Kirby v. Colony Furniture Co., 613 F.2d

696, 705 n.6 (8th Cir. 1980), as the district court had rea-

soned (see Pet. App. 29d), but whether the practice has “ ‘a

manifest relation to the employment in question’ ” (Pet.

App. 25a, quoting Dothard v. Rawlinson, 433 U.S. 321,

'The district court referred the case to a special master for relief

proceedings. The master held an evidentiary hearing and recom-

mended, inter alia, that the court award $1,015,901 in back pay and

certain affirmative relief (Pet. App. !c-40c). The district court largely

adopted the master’s findings (id. at 1b-11b).

5

329 (1977)). Moreover, in applying this legal standard to the

district court’s factual findings, the court of appeals found

that petitioner had failed to show that the no-spouse rule

contributed to the safety and efficiency of its operations

(Pet. App. 25a-29a). Accordingly, the court of appeals con-

cluded that petitioner had “failed to demonstrate that the

no-spouse rule was justified by business necessity” (id. at

28a-29a).

ARGUMENT

Petitioner contends that the court of appeals erred in

concluding that it violated Title VII by employing subjec-

tive hiring procedures with an adverse impact on female

applicants and by maintaining a policy of not hiring spouses

of existing employees. However, the court of appeals cor-

rectly decided all issues presented to it and, for that reason,

the case presents no issue warranting review by this Court.

i. Petitioner first contends that this Court should grant a

writ of certiorari to resolve a conflict in the federal circuits

concerning whether a Title VII plaintiff may challenge sub-

jective employment practices for their alleged disparate

impact. See Pet. 7-16. As noted in the petition for certiorari

filed today in Tisch v. Shidaker, No. 86-_ , the courts of

appeals are in fact hopelessly divided over the applicability

of disparate impact theory to subjective selection devices.

However, this case does not raise that issue in a way justify-

ing a grant of certiorari.

The petition for certiorari in this case raises for the first

time in this litigation the question whether a Title VII

plaintiff can challenge subjective employment practices for

their alleged disparate impact. Nothing in the district

court’s opinion suggests, and petitioner does not now

allege, that the applicability of disparate impact analysis to

subjective decisionmaking processes was ever challenged in

the district court. More importantly, in the court of

6

appeals, petitioner contended only that its subjective hiring

practices were justified by business necessity; it did not

argue that the district court had erred in finding that a

prima facie case of disparate impact had been established.

See Pet. App. 15a-18a; AppelJant’s Brief For The Rath

Packing Company, Nos. 84-1217-SI, 84-1458-SI, at 22-25

(8th Cir. filed May 30, 1984); Reply Brief And Cross Appel-

lee’s Brief For The Rath Packing Company, Nos. 84-1217-

SI, 84-1458-SI, at 18-19 (8th Cir. filed Aug. 1, 1984).

Accordingly, neither the district court nor the court of

appeals had an opportunity to address the argument that

petitioner now raises; judicial prudence counsels against

allowing petitioner to raise that issue for the first time in this

Court. See Illinois v. Gates, 462 U.S. 213, 217-224 (1983)

(discussing various prudential reasons for not considering

issues presented for the first time in this Court); Youakim v.

Miller, 425 US. 544, 551-552 n. 5 (1976) (same); United

States v. Ortiz,422 U.S. 891, 898 (1975) (same); Adickes v.

Kress & Co., 398 U.S. 144, 147 n. 2 (1970) (same).

In any event, even if petitioner had raised that issue in the

courts below, certiorari would still not be justified because

the Commission’s evidence proved discrimination under

both disparate impact and disparate treatment theories.

The district court noted that both “the discriminatory

treatment and impact theories * * * may be applied to the

specific facts of this cause” (Pet. App. 6d) and held that

there had been several instances of intentional discrimina-

tion (id. at 31d). While the court’s analysis of the Commis-

sion’s statistics led it to find disparate impact and to reach

no further express holding concerning disparate treatment,

the court did expressly determine that the Commission’s

statistics satisfied the thresholds oi sufficiency that this

Court has established for disparate treatment cases (see id.

at 6d-12d) (citing Hazelwood School District vy. United

States, 433 U.S. 299 (1977); Teamsters v. United States,

7

431 U.S. 324(1977)). For these reasons, the court of appeals

quite reasonably concluded that “intentional discrimina-

tion against women resulted in [petitioner’s] employees

being overwhelmingly male” (Pet. App. 29a).‘ In short, this

litigation did not turn on the particular theory of employ-

ment discrimination under which the courts below analyzed

the statistical data.°

By contrast, in Tisch v. Shidaker, No. 86- , the Court

of Appeals for the Seventh Circuit found that a prima facie

case of discrimination had been made out under the dispar-

ate impact theory, while upholding the district court’s find-

ing for defendant under the disparate treatment theory.

Thus, in gontrast to this case, the Shidaker litigation turns

on the particular theory of employment discrimination ap-

plied by the courts. Accordingly, it is the more suitable

vehicle for resolving the question that currently divides the

courts of appeals. Because the petition for certiorari in this

case raises that question for the first time on facts where its

resolution is unlikely to make a difference in the outcome of

the litigation, it should be denied.®

‘Petitioner argues that, in finding petitioner to have intentionally

discriminated against women, the court of appeals was referring only to

three instances of individual disparate treatment. See Pet. 18 n.6. But

the court of appeals concluded that the “intentional discrimination

resulted in [petitioner’s] employees being overwhelmingly male” (Pet.

App. 28a-29a). This conclusion obviously did not refer only to discrim-

ination against three applicants to a work force of 250 employees.

5We recognize that the burden of proving intentional discrimination

under a disparate treatment case is conceptually quite different from the

burden of proving disparate impact, and may possibly require a differ-

ent quantum of statistical proof. We note here only that the district

court’s own reasoning indicated strongly that both burdens were

carried.

‘Alternatively, the Court may wish to hold this case pending the

certiorari decision, briefing, and resolution of Shidaker.

8

2. Petitioner also contends that this Court should grant

certiorari to resolve whether the court of appeals erred in

holding that petitioner failed to establish that its policy

against hiring spouses of existing employees was not justi-

fied by business necessity (Pet. 19-23). Petitioner suggests

that the court of appeals applied an unduly restrictive

standard of business necessity and that that standard “con-

flicts with the more reasonable standard applied by the

Seventh Circuit”in Yuhas v. Libbey-Owens- Ford Co., 562

F.2d 496 (7th Cir. 1977), cert. denied, 435 U.S. 934 (1978).

But petitioner’s criticisms are misdirected in this case and,

accordingly, this Court’s review is unwarranted.

Although certain language in the court of appeals’ deci-

sion refers to a “compelling need” standard (Pet. App. 25a),

the court summarized its holding in terms fully consistent

with the reasoning of this Court and the other courts of

appeals: “[Petitioner] failed to show that the problems

* * * experienced in employing spouses had any demon-

strable effect on safety and efficiency” (id. at 28a). See New

York Transit Authority v. Beazer, 440 U.S. 568, 587 n.31

(1979); Dothard v. Rawlinson, 433 U.S. 321, 331-332 &

n.14 (1977); Liberles vy. Cook County, 709 F.2d 1122, 1132

(7th Cir. 1983); Jackson v. Seaboard Coast Line R.R., 678

F.2d 992, 1016 (11th Cir. 1982); Zuniga v. Kleberg County

Hospital, 692 F.2d 986, 989 (Sth Cir. 1982); Contreras v.

City of Los Angeles, 656 F.2d 1267, 1275-1280 (9th Cir.

1981); Head v. Timken Roller Bearing Co., 486 F.2d 870,

879 (6th Cir. 1973); Robinson v. Lorrillard Corp., 444 F.2d

791, 798 (4th Cir.), cert. denied, 404 U.S. 1006 (1971). Asin

Dothard, petitioner “failed to offer evidence of any kind in

specific justification of * * * [its] standar{d]” (Dothard v.

Rawlinson, 433 U.S. at 331). Thus, petitioner’s argument

that the court of appeals applied an unduly stringent busi-

ness necessity standard is without f{uundation.

9

Similarly, petitioner’s suggestion that the court of

appeals’ business necessity standard conflicts with the deci-

sion in Yuhas is erroneous. To be sure, the Yuhas court did

not require the employer there specifically to show that its

“no-spouse” employment rule had positively improved

employee morale. See 562 F.2d at 498-500. But the Yuhas

court expressly noted that its decision would have differed if

the plaintiffs there had “shown that [the employer] histori-

cally employed more men than women in its * * * plan{t]

because it intentionally discriminated against women” (id.

at 500); in such circumstances, the Yuhas court would have

been unwilling to presume that a no-spouse rule positively

affected the working environment (ibid.). In this case, the

court of appeals found that petitioner’s past “intentional

discrimination against women resulted in [its] employees

being overwhelmingly male” (Pet. App. 28a). Thus, the

court correctly found the Yuhas case to be distinguishable

(id. at 28a-29a). Further review by this Court is un-

warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOHNNY J. BUTLER

General Counsel (Acting)

Equal Employment Opportunity Commission

SEPTEMBER 1986

DOJ-1986-09