Opposition Brief — Lee Way Motor Freight, Inc. v. Jones

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Rate wf Alabama v. United Sates, 504 F.2d $83.

S80 (Sth Cir, £962), aff por coriam 271 US.

87 (1982)

Turner v. Bouche, $96 US. 346, 360, 90 S.A.

S82 (1970) ' os

United Rates v. Dillon Supply Co., 429 F.24 800

(4th Oir., 1970)

United States v. Bloctrical Workers (IBEW).

_ Lewal 88, 428 F.2d 144 (1970, cor dead De-

comber 7, 1970)

United States v. Hayes tat. Corp. 415 F.2d 1038

(Sth Cir, 1989)

United Rates v. Hinds County School Board, 417

F.2d 852. BSB (Sth Cir. 1969), con. den'd

80 SCY. 612 (1970)

United States v. Local 189, 28? F.Supp. 39.44

(ELD. La. 1968) aff 416 F.2d 980 (Sth

Cir, 1969)

United States v. Metal Workers fat'l Ass’n.. Local

§®, 416 F.2d 123 (8th Cir. 1969)

UNITED STATES STATUTES

28 U.S.C. §1254¢1)

CIVIL QIGHTS ACT oF 1964

Title VI. Sections 703( a). 703¢j) and 706(¢)

Title Vil. §§2000e-2000e-15

Title 42. § (a) (§$703a

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110 Cong. Rec. 7213 ( April 8, 1964)

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oft rejected employers’ contention that Tithe VII of the

Civil Rights “Act does not encompass the present and

thority has rejected such contention. While it is true that

the Act was imtended to have prospective application,

relief is called for to remedy present and continuing

effects of past discriméaation. Local 53 of intermational

Association of Heat & Frost Iinsuietors and Asbestos

Workers v. Vogier, 407 F.26.A047 (C.A. Sth, 1959),

U. S. v. Local 189, 282 F.Supp. 39-44 (E. D. La., 1968)

aff'd 416 F.2d 980 (Sth Cir. 1969), Quaries v. Philip

Morris, Inc. 279 FSupp. 505-516 (E.D. Va. 1968),

U.S. v. Hayes int. Corp., 415 F.2d 1038 (Sth Cir. 1969).

termined, but which. in fact, incorporate and perpetuate

| pre-Title VII discrimination are unlawful. See, c.g,

Griggs v. Duke Power Co., 420 F.2d 1225 (Sth Cir.,

1970). cert. granted 399 U.S. 926 (1970); Local 189,

Papermakers and Paperworkers v. United States, 416

F.2d 980 (Sth Cir. 1969), cert. den’'d 397 US. 919

(1970); United States v. Electrical Workers (IBEW),

Local 38, 428 F.2d 144 (1970, cert. den’'d December 7,

1970; United States v. Sheet Metal Workers Int'l. Ass'n.,

Local 36, 416 F.2d 123 (8th Cir. 1969). Title VII

_ therefore requires elimination of job standards which have

the effect of locking Negroes into the position to which

they were restricted under prior overtly discriminating

practices.

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indeed, in Parham v. Southwestern Bell & Tele. Co.,

— F.2d . 3 CCH EPD, 8021 page 690 (8th Cir..

1970). ( Violation established by statistics which “revealed

an extraordinary small number of black employees”):

United States v. Haves International Corp., 415 F.2d

1038, 1043 (statistical evidence “amply demonstrates a

preliminary showing” suflicient to support preliminary

injunction); United States ¥. Sheet Metal Workers, Local

36, supra; United States v. Dillon Supply Co., 429 F.2d

800 (4th Cir., 1970). The legislative history of Title VU

shows that Congress intended statistical information. to

be used as evidence of discriminatory practices, 110 Cong.

Rec. 7213 (April 8, 1964).

There can be no doubt that the decision of the Court

of Appeals with respect to ‘the adequacy of the proof

showing a violation of Title VII is consistent with re-

spected authority and Congressional intent. This case does

not warrant this court's attention.

Amicus on page 3. note 2 of its brief erroneously states

that:

“It was stipulated that during the two year period

preceeding the filing of the suit, Lee Way in addition

to ‘searching diligently’ a ee

community or governmental sponsored program in

an effort to correct racial imbalance in its over-the-

road driver classification.”

There was no such stipulation of fact. It was only stip-

ulated that if the executive vice-president of Lee Way

Motor was called as a witness he would testify to certain

set out facts. This is a far cry from a stipulation of a fact.

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involving 703(j). indeed, because of the enormous, un-

controvertible, racial imbalance in Petitioner's work force,

even if Plaintifli succeed in becoming line drivers the

effect will be imperceptible. To inject 703(j) into this

case would nullify the purposes of the act against con- .

tinuing effects of past discrimination, U. S. v. Electrical

Workers (IBEW) Local 38, 428 F.2d at 149, emasculate

the heart of the Act and open wide the door to open

as well as subtle violations. Petitioner's interpretation of

judicial decisions recognizing that it is “the duty of the

courts to make sure the Act works, and the intent of

Congress is not hampered by a combination of strict con-

struction of the statute and a battle with semantics.”

Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891

(Sth Cir. 1970). See also, Bowe v. Colgate-Palmolive Co.,

416 F.2d 711, 721 (7th Cir. 1969) (“This grant of

10

authority (under 706(¢'' should be broadly read so as to

eHlectively terminate th: practice and make its victims

whole.”); Rosen v. Public Service Electric and Gas Co..

409 F.2d 775, 781 (3ed Cir. 1969).

authority granted to : uader Section 706(g) and that the

remedy in this case vas entirely appropriate. The question

does not warrant review by this Court.

The opinion of the Court of Appeals is grounded on

sound legal principles and recognized authority. It is there-

fore respectfully prayed that Petitioner's application for a

writ be denied.

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APPENDIX

Title 42, US.C.A., § 2000c-2. Uniawjul

practices—t-mployer practices (703 a)

(a) it shall be an unlawiul employment practice for

an cmploy r—

or Abe

[Ramee en

or in violation of section 2000e-3(a). of this title.