Opposition Brief — Gaston County Dyeing Machine Co. v. Brown

J In THE

Supreme Court of the United

October Term, 1972

No. 72-293

Gaston County Dyrinc Macuinet Company,

Petitioner,

v.

Marvin W. Brown,

Respondent.

BRIEF IN OPPOSITION TO CERTIORARI

Jack GREENBERG

James M. Nasuit, III

Wituiam L. Roprxson

Morris J. BALLER

10 Columbus Circle

New York, New York 10019"

scape see sti tenes

J. LeVonne CHAMBERS

Rosert BELTON

Cuampers, STEIN, Fercvson & LANNING

937 West Trade Street

Charlotte, North Carolina

Conrap QO. Prarson

20314 E. Chapel Hill Street

; P. O. Box 1428

Durham, North Carolina

; Attorneys for Respondent.

¥

4 Of Counsel

a

ALBERT J. RoSENTHAL

435 West 116 Street

New York, New York 10027

.

See ot eae a PENS S ELS FEL z ce eo

NEY RELI OF

—

INDEX

PAGE

: Questions Presented for Review ..........-----------ses

Statement of the Case ce lamtsaniaccatets

‘

ARGUMENT

CONCLUSION .........-.0c-.c.ccccecseecessscsecossecconseceneseesseesccsennsneensccenees 26

TaBLE oF AUTHORITIES

Cases:

: Alabama v. United States, 304 F.2d 583 (5th Cir. 1962),

affirmed, 371 U.S. 37 (1962)..........-.--c-cceecessercenseessnrsnneenes 20

Boudreaux v. Baton Rouge Marine, 437 F.2d 1011 (5th

Cir. 1971) ...-..-.-occoescerssvecnsssevsessssnsecensesncesensncensnsensececensensesee

Bowe v. Colgate- Palmolive Co., 416 F.2d 711 (7th Cir.

1969) .

° Brady v. Bristol Myers, 459 F.2d 621 (8th Cir. 1972)... 14

Caldwell v. National Brewing Co., 443 F.2d 1044 (5th

Cir. 1971), cert. denied, 404 U.S. 998 (1971)............- 13-14

Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir.

> 1970), cert. denied, 400 U.S. 951 (1970)..........-------------- 8

Clark v. American Marine Corp., 297 F. Supp. 1305

. (E.D. La. 1969) 21

Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2nd Cir.

| 1968) ............ i 10

Hackett v. McGuire Brothers, Inc., 445 F.2d 442 (3rd

, Cir. 1971) ..9, 11, 12, 13

Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D.

Tenn. 1966) ........----.-----cceesseceeeseensenesenensnseseseceenssensnenensees 7-8

‘i

PAGE

Heard v. Mueller Co.. —— F.2d ——, 4 EPD 97904

oe SO EES LORCA ARLEN IM Re 12, 13

Hodges v. United States, 203 U.S. 1 ( MRE 14

Huff v. N. D. Cass Co., —— F.2d —., 4 EPD 7775

(1972), reh’g granted (CA 5 1972), 4 EPD 97775 .... 12

Jenkins v. United Gas Corp., 400 F.2d 28 (Sth Cir.

G8) ........u... 9,18

“16, 17

Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245

(10th Cir., 1970) ..................

Kahan v. Rosenstiel, 424 F.2d 161 (3rd Cir. 1970)........ 11

Lea v. Cone Mills Corp., 301 F. Supp. 97 (D.C. N.C.

1969), aff'd in part and vacated in part per curiam,

438 F.2d 86 (4th Cir, 1971). ccccccccceccececece. 21, 24

Local 53 of International Association of Heat and

Frost Insulators and Asbestos Workers v. Vogler,

407 F.2d 1047 (5th Cir. NR lias ee se 18

Mack v. General Electric Co., 329 F. Supp. 72 (E.D.

i, Ce eae Ona 9-10

Marquez v. Omaha District Sales Office, Ford Division,

440 F.2d 1157 (8th Cir. 1971)... 20

Miller v. Mackey International, Ine., 452 F.2d 424 (5th

SOE RTA anes Se 11

25

25

ee

PAGE

Parham v. Southwestern Bell Telephone Co., 433 F.2d

' Ns IT eresicisconiecoatsectieasturntensiancedenen 11-12, 18, 19,

20, 21, 23

Potts v. Flax, 313 F.2d 284 (Sth Cir. 1963).................... 9

Robinson vy. Lorillard Corp., 444 F.2d 791 (4th Cir.

1971), cert. dismissed, 404 U.S. 1006 (1972)........0....... 24

Rowe v. General Motors Corp., F.2d ——, 4 EPD

OS a I IID coach sctsesnccnacndsidicermcticiselatebensionanioestpienias 20

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (Sth Cir.

1970), cert. denied, 401 U.S. 948 (1971)......0000.. 14

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90

| S.Ct. 400, 24 L.ed. 2d 386 (1969)..................cc.ccccssssscseeee 17

| Tipler v. E. I. duPont de Nemours & Co., 443 F.2d 125

(bt Cllr, BOTR) ccccceccccncsvnaacecencncesenesrensoversesersensese 11,13

’ United States v. Bethlehem Steel Corp., 446 F.2d 652

I I NN bin sc cic epemsteslobaseaniicsheuneonuncccainnaucants 20

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

Ue Se ga pctsctcasaanisttbdaeieieetieneslancancdiontes 20

United States v. IBEW, Local 18, 428 F.2d 144 (6th

, Cir. 1970), cert. denied, 400 U.S. 943 (1979).............. 20

United States v. Jacksonville Terminal Co., 451 F.2d

418 (5th Cir. 1971), cert. denied, — US. —

PIIIIID’ Gisicesiiescseasbeanencaeireacinas wneud ab taeuteniocionsnitesabaiionsonaiinsnnics 18, 20, 21

United States v. Sheet Metal Workers, Local 36, 416

' Be Me Ce I, TD in recs citeinsctenteiniiesnaeennsoncchcsnds 21

United States v. W. T. Grant Co., 345 U.S. 629 (1953) 23

Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th

Cir. 1970), cert. denied, 400 U.S. 911 (1970)........ 14, 16, 17

iv

Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972)

Young v. International Tel. & Tel. Co., 348 F.2d 757

(3rd Cir. 1971) ..... 13

ere ees

Statutes and Other Authorities:

Re a 14

42 U.S.C. § 1981 1, 2, 13, 14, 15-16, 17, 23

Equal Employment Opportunity Act of 1972, P.L.

REL diisdab canisbanipraidsncctandttiiceinanccodaniecsacistaicen Gtk 10, 15

Federal Rules of Civil Procedure, Rule 12 (h) (2)........ 16

Federal Rules of Civil Procedure, Rule 23 .......... 3, 7, 9, 10,

11, 12

nee MI GD ID panics iiecrnsiccissensciesecesetcernecdeasarcvssoenee 15

Title VII of the Civil Rights Act of 1964—

OR RE, GIO OE OG iinnsisacncsetsesesensecscsoess passim

118 Cong. Ree. S. 2300 (daily ed. Feb. 22, 1972)............ 10

118 Cong. Rec. H. 1863 (daily ed. March 8, 1972).......... 10

RUA ALENT INET EERE IIIT oe oS

ee

a

IN THE

Supreme Court of the United States

October Term, 1972

No. 72-293

Gaston County Dyeinc Macuine Company,

Petitioner,

Vv.

Marvin W. Brown,

Respondent.

BRIEF IN QPPOSITION TO CERTIORARI

Questions Presented for Review

1. If a plaintiff sues his former employer under Title

VII of the Civil Rights Act of 1964, on his own behalf

and on behalf of a class of other, present and future eim-

ployees of the defendant, alleging racial discrimination

against blacks in pay, terms, conditions and privileges of

employment, and if the district court orders the case tried

as a class action and the case is so tried, and the district

court renders a decision on the merits as to both the indi-

vidual and class claims asserted, did either the fact that

the individual plaintiff was a former employee not seek-

ing reinstatement or the fact that his individual claim was

dismissed deprive the court of appeals of discretion to

order class relief for the protection of present and future

employees of the defendant?

2. Is racial discrimination against blacks on the part

of private employers actionable under 42 U.S.C. § 1981?

a

3. On the facts of this case, was it error for the court

of appeals to hold that statistics, showing that almost all

of the better paying jobs in petitioner's plant were held

by whites and that almost all blacks were kept in menial

low-paying jobs, gave rise to a prima facie showing of

racial discrimination, that the evidence presented by peti-

tioner had not rebutted this presumption, while other evi-

dence had corroborated it, and that the case should there.

fore be remanded to the district court for retention on its

docket for a reasonable time, at the end of which the dis-

trici court may dismiss the action if it finds that unlawful

employment practices have becn eliminated but must issue

appropriate injunctive relief if it finds that such practices

remain?

4. On the facts of this ease, was it error for the court

of appeals to direct that plaintiff be awarded his costs

and reasonable counsel fees?

Statement of the Case |

This action was filed in the United States District

Court for the Western District of North Carolina on May

31, 1966. Respondent Marvin W. Brown (hereinafter

“plaintiff”) sued “to secure protection of and redress de- |

privation of rights secured by (a) Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e . . . and (b) 42 U.S.C.

§ 1981 ....” (Complaint $1, A3).° The complaint spe-

cifically designated the action as a class action under Rule

23 of the Federal Rules of Civil Procedure. Injunctive re-

lief against racial discrimination and against denials of

Certiorari are designated “ pe

equal employment opportunity rights granted by both of

the aforementioned statutes was requested on behalf of

both the plaintiff individually and the class, as well as back

pay for the plaintiff individually. (A3-7).

The answer denied plaintiff's allegations of discrimina-

tion. (A6-8). Petitioner moved to dismiss the complaint

on the ground that the Equal Employment Opportunity

Commission had not undertaken conciliation efforts. A

district court order of dismissal was reversed by the court

of appeals, 405 F. 2d 887 (4th Cir. 1968), and certiorari

was denied, 394 U.S. 918 (1969).

The defendant then challenged the standing of plaintiff

to pursue this claim as a class action. On August 26, 1969

the district court entered an order determining that this

action was a proper class action under Rule 23(a), (b)(2),

of the Federal Rules of Civil Procedure. (A14). Petitioner

did not thereafter move to amend this order, and the case

was tried on the merits, as a class action, on September

29 and 30 and October 1, 1970.

The district court in an Opinion and Order filed De-

cember 31, 1970, denied both the individual and class claims

for relief and dismissed the action. (24a). The court found

that although plaintiff had completed a two-year college

course in welding and related skills, he was employed by

petitioner in 1960 to do “picking and grinding” (28a), a

low-skill, low-pay job (A15-17, 8a).* The district court

plaintiff had commenced employment with defendant “on June

em-

4

found: “Brown asked for employment as welder and was

given to understand by supervisory people that it was

premature to try to place a Negro in a job as welder with

the defendant.” (28a). Only when the president of the

company personally intervened over a year later was plain-

tiff given a welding job. (Id.).

The district court found that once plaintiff was assigned

to welding, he was subject to no further discrimination,

and denied him any individual relief. (29a-30a). It gave

no explanation for its failure to accord relief for the

period from June 1960 to November 1961 during which

petitioner was barring all blacks from welding jobs.

Class relief was also refused, despite the district court's

findings that “at least in prior years, welding and high

pay in the defendant's shop were not for black men” (30a),

and “No black employees participated in the welder train-

ing program until about 1968.” (27a). The reasons as-

signed by the court in denying relief to the class were the

:

—<——mom=. ©

On appeal, the court of appeals held:

1. The district court’s findings established that the peti-

tioner had violated 42 U.S.C. § 1981, by denying plaintiff

a welding job because of his race between the time he

in 1960 and the time he was assigned to welding

in 1961, and that he was therefore entitled to back pay in

the amount of the difference between what he had earned

and what he would have earned as a welder. (4a).

2 The district court’s finding that plaintiff had not

been the victim of racial discrimination after he had become

a welder was supported by the record and was binding

on appeal. Thus, plaintiff's claim for individual relief

under Title VII for this period was denied. (4a-5a).

3. The failure of the plaintiff to prove his individual

Title VII claim did not deprive the class he represented

of a remedy. (5a). At least a prima facie case of racial

discrimination against the class of black employees was

shown by the striking concentration of whites in the higher

paying positions and blacks in the lowest (7a-9a), which

was not rebutted by such efforts as the petitioner made

since 1965 to hire and promote black employees. (10a).

The court also noted the long delay on the part of peti-

tioner in admitting blacks to its after-hours training pro-

gram in welding (5a-6a), and it found that the petitioner's

lack of objective, formal guidelines for hiring, promotion

and transfer, and its failure to give notice of vacancies

within the plant except by word of mouth (6a, 10a-12a)

served “to corroborate, not to rebut, the racial bias pictured

by the statistical patterns of the company’s work force.”

(12a).

4. Despite improvement in many of the petitioner’s

practices, most of which had occurred since institution of

Re —

this suit, the transition to a shop free from discrimination

was still incomplete. (12a-13a). If the litigation were pre-

maturely terminated, members of the class might run the

risk that this progress would abruptly end. The case was

therefore remanded to the district court “for retention

on its docket for a reasonable time. If, at the end of this

period, the court finds that the company’s employment

policies have completely eliminated the unlawful practices

prohibited by § 703(a) [of the Civil Rights Act of 1964],

it may dismiss this action. However, if any unlawful

employment practices remain, the court must order appro-

priate injunctive relief. In either event, the plaintiff is

entitled to recover his costs and reasonable counsel fees.”

(13a).

Rehearing en bane was denied on May 22, 1972. (23a).

ARGUMENT

1. Class Relief: Petitioner contends that the class relief

awarded by the court of appeals was improper, on the

ground that the named plaintiff had not proved his in-

dividual claim under Title VII of the Civil Rights Act

of 1964 and that he had resigned from employment with

the petitioner before instituting this action.

Over a year before the trial the district court had

ordered that the action be maintained as a class action

“insofar as it seeks injunctive relief from the alleged

racially discriminatory employment practices existing at

any time since the effective date of Title VIT.... The

class which the plaintiff represents includes those Negroes

presently employed as well as those who may subsequently

be employed by the defendant ... .” (A14). The Title VII

aspect of the case was tried as a class action, and the

ae

7

district court’s decision dealt (albeit adversely) not only

with the plaintiff's individual claim but also specifically

with the claim for class relief. (30a-31a). When the

plaintiff appealed to the Court of Appeals from the district

court’s denial of both individual and class relief, the de-

fendant’s brief argued only the correctness of the district

court’s decision on the merits, but did not eross-appeal ©

from the order that the case be maintained as a class action.

Only now, in its petition for certiorari, does the petitioner

raise this question.

But even if this issue could properly be raised before

this Court at this late date, petitioner’s position has no

merit. The test, under Rule 23 of the Federal Rules of

Civil Procedure, is not whether the claims of the class

representative are identical with those of the class—only

whether they are “typical” of them. When an employer

practices discrimination against blacks, it characteristically

creeps into almost every aspect of his employee relations—

hiring, job assignments, promotions, transfers, discharge.

We have found no case in which a court has held that the

victims of each of these manifestations of an over-all dis-

criminatory policy must be placed in a separate class and

that one who has suffered from one of these forms of

discrimination is barred from representing a class includ-

ing victims of other forms. The courts have consistently

recognized that the claims of one who has suffered from

racial discrimination in one of these respects are typical

of those who have suffered from racial discrimination

in any of them. It is the discrimination that is the common

denominator.

“Racial discrimination is by definition a class dis-

crimination. If it exists, it applies throughout the

class. This does not mean, however, that the effects

of the discrimination will always be felt equally by

all the members of the racial class .... But although

the actual effects of a discriminatory policy may thus

vary throughout the class, the existence of the dis-

eriminatory policy threatens the entire class. And

whether the Damoclean threat of a racially discrimina-

tory policy hangs over the racial class is a question

of fact common to all the members of the class.” Hall

v. Werthan Bag Corp., 251 F. Supp. 184, 186 (M.D.

Tenn. 1966)*

Thus, the courts have consistently held that named plain-

tiffs in Title VII actions may represent not only those

who suffered racial discrimination in identical form, but

all victims of the racially discriminatory practices of the

same employer.

For example, individual plaintiffs claiming that they

were denied employment because of their race may rep-

resent a class that also includes incumbent employees, and

secure injunctive relief against racial discrimination in

the conditions of their employment. Carr v. Conoco

Plastics, Inc., 423 F.2d 57 (5th Cir. 1970), cert. denied,

400 U.S. 951 (1970). An individual plaintiff claiming to

‘ have been discharged for racial reasons may represent

~ @ class of all past, present and future black employees

and seek plant-wide relief against racial discrimination

not only in firing of employees but also in hiring, promo-

tion and maintenance of facilities. Johnson v. Georgia

Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969). A

* “The very nature of a Title VII violation rests upon discrim-

ination against a class characteristic, ie., race, religion, sex or

national origin.” Parham v. Southwestern Bell Telephone Co., 433

F.2d 421, 428 (8th Cir. 1970). See also Bowe v. Colgate-Palmolive

Co., 416 F.2d 711, 719 (7th Cir. 1969) ; Hutchings v. United States

Industries, Inc., 428 F.2d 303, 311 (5th Cir. 1970).

a an aca aia ea Na iain

_—

9

pensioner claiming that he had previously been a victim

of discriminatory discharge may pursue a class action

complaining of discrimination in hiring, promotion and

seniority, as well as his individual claims. Hackett v.

McGuire Brothers, Inc., 455 F.2d 442 (3rd Cir. 1971). An

employee, whose individual claim was one of racial dis-

crimination in refusing to give him a promotion, was per-

mited to pursue a class action attacking every aspect of

racial discrimination in employment by the defendant and

the granting to him of the job he sought shortly after the

suit was brought was held not to moot either his individual

claim or his class action for injunctive relief on behalf

of all black employees. The court specifically rejected the

contention that there was no class represented by the

plaintiff since the only other Negro denied the same pro-

motion had also since been granted it, by asserting “this

ignores element (2) of the claim—plant-wide system-wide

racially discriminatory employment practices.” Jenkins v.

United Gas Corp., 400 F.2d 28, 34 (5th Cir. 1968). Compare

also Potts v. Flax, 313 F.2d 284 (5th Cir. 1963).

“Congress has taken giant strides to legislate bias out

of our economy. Given the tools that Congress has

now provided, courts would be remiss if they were

not used to the fullest extent. The broad Congressional

purpose, expressed in the civil rights acts, of eliminat-

ing job bias can well be effectuated by allowing any

Negro claiming that an employer has discriminated

against him on racial grounds to sue to end all that

employer’s racial discrimination.” Mack v. General

Electric Co., 329 F. Supp. 72, 75-76 (E.D. Pa. 1971).

And, as pointed out in Mack, “the across-the-board ap-

proach allows those who need not fear adverse job con-

sequences to sue to end discrimination against those who

a

10

- might fear to bring such suits, such as present employees

- eoncerned about job security.” Id.

~ Thus, the only pertinent question in a case such as this

’ is whether there-has been compliance with the test set forth

in Rule 23 (a)(4), F.R.C.P., that “the representative par-

‘ties will fairly and adequately protect the interests of the

class.” As stated by Judge Medina in Eisen v. Carlisle &

Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968),

“an essential concomitant of adequate representation is

that the party’s attorney be qualified, experienced,

and generally able to conduct the proposed litigation.

Additionally, it is necessary to eliminate so far as

possible the likelihood that the litigants are involved

in a collusive suit or that plaintiff has interests an-

tagonistic to those of the remainder of the class.” *

* Nor does anything in the legislative history of the Equal Em-

ployment Opportunity Act of 1972, P.L. 92-261, amending Title

VII, suggest an intention to narrow the Title VII class action law

developed prior to the amendment’s enactment; indeed, there is

clear indication of Congressional recognition and approval of the

line of cases allowing class actions broadly, and in particular per-

mitting class representatives to assert claims on behalf of the class

that differ from their individual grievances. This is reflected in

the section-by-section analysis of the bill as it emerged from the

Conference Committee, submitted by Senator Williams before adop-

tion of the conference bill :

“In establishing the enforcement provisions under this subsec-

tion 706(f) generally, it is not intended that any of the pro-

visions contained therein are desgined to affect the present use

of class action lawsuits in Title VII in conjunction with Rule

23 of the Federal Rules of Civil Procedure. The courts have

been particularly cognizant of the fact that claims under Title

VII involve the vindication of a major public interest, and

that any action under the Act involves consideration beyond

those raised by the individual claimant. As a consequence, the

leading cases in this area to date have recognized that Title

VII claims are necessarily class action complaints.” 118 Cong.

Rec. $.3462 (daily ed. March 6, 1972); 118 Cony. Rec. 1.1863

(daily ed. March 8, 1972); see also 118 Cong. Rec. 8.2300

(daily ed. Feb. 22, 1972).

rr

'

Ie

ee es

ll

Neither court below has indicated any doubt that this

test has been met; indeed, the vigor with which this case

has been pursued, on behalf of the class as well as of the

named plaintiff, and the successful result accomplished on

behalf of the class in the court below, themselves demon-

strate how fairly and adequately the interests of the class

have been protected. Certainly, what amounts to a deter-

mination by both courts below that the tests of Rule 23

have been met is scarcely appropriate for reconsideration,

by this Court, and at this stage in the proceedings.

Neither can it be maintained that the loss by the plain-

tiff on the issue of his individual Title VII claim deprived

him of standing to represent the class and required dis-

missal of the class aspects of the case after they had been

fully tried. If this were so, class actions would have to be

terminated whenever the individual plaintiff for one rea-

son or another (e.g., promotion, settlement, disability, or

discharge) lost his right to individual relief. But cf.

Jenkins v. United Gas Corp., supra. And such a rule

would offer an incentive to employers to find “valid” rea-

sons to discharge plaintiffs who bring class actions under

Title VII.

Thus, it is scarcely surprising that every court of ap-

peals that has considered this question has ruled that

the validity of a class action does not depend on the suc-

cess or failure of the individual claims of.the class repre-

sentatives. Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972) ;

Hackett v. McGuire Brothers, Inc., 445 F.2d 442 (3rd Cir.

1971) ; Kahan v. Rosenstiel, 424 F.2d 161 (3rd Cir. 1970) ;

Miller v. Mackey International, Inc., 452 F.2d 424 (5th

Cir. 1971); Johnson v. Georgia Highway Express, Inc.,

417 F.2d 1122 (5th Cir. 1969); Tipler v. E.I. duPont de

Nemours & Co., 443 F.2d 125 (6th Cir. 1971); Parham v.

Ty

Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir.

1970).*

Neither do the cases relied on by petitioner show a con- y

flict in the circuits. In Huff v. N.D. Cass Co., —— F.2d

—, 4 EPD {7775 (1972), a panel of the Court of Ap-

peals for the Fifth Circuit affirmed findings of fact by

the district court that two of the prerequisites of a class

action set forth in Rule 23 were lacking—that the class

was not so numerous that joinder of all members was

impracticable, and that the plaintiff could not and would

12

not fairly and adequately protect the interests of the class. i

Neither factor is present in the instant case; the order of }

the district court can only be regarded as finding precisely t

the opposite, and it was not thereafter modified or even

challenged.

Moreover, even if the Huff case were in point, it ap-

pears to run counter to a long line of Fifth Circuit de-

cisions, some of which are cited above; the Fifth Circuit

has ordered a rehearing en banc, and has the case under :

advisement. At the most, what we have is not a conflict

between circuits but rather a conflict bétween panels of

the same circuit, which it is itself seeking to resolve. The

issue is neither ripe nor appropriate for intervention by

the Supreme Court. y

Similarly, the Sixth Circuit case of Heard v. Mueller

Co., —— F.2d ——, 4 EPD 17904 (1972), is not in point. )

* Couching the issue in terms of plaintiff's “standing” adds noth-

ing to an analysis of the problem. As pointed out by the Court of )

Appeals for the Third Circuit in Hackett v. McGuire Brothers, Inc.,

supra, at 446, the statutory description, in Title VII, of a qualified

complainant, “a person claiming to be aggrieved” “shows a con-

gressional intention to define standing as broadly as is permitted ’

by Article III of the Constitution.” The issue thus necessarily re-

mains solely whether the requirements of Rule 23 of the Federal

Rules of Civil Procedure have been met. See Johnson v. Georgia s

Highway Express, Inc., supra, at 1124-25.

CNY Y HE NR |

13

There the individual plaintiff did not originally bring his

ease as a class action; eleven months later and after hav-

ing voluntarily left the company, he moved to change the

nature of his action to a class action, the district court

held the motion moot, and the court of appeals affirmed.

There was obviously lacking the vigorous effort to protect

the entire class from the inception of the action, that char-

acterized the instant case, and to the extent that the district

court might be deemed to have made a finding it was that

the individual plaintiff would not properly represent the

class; precisely the contrary elements were present in the

instant case.

Moreover, here again, even if the Heard case were in

point, it would reflect a conflict within the Sixth Circuit,

since in Tipler v. E.I. duPont deNemours & Co., supra,

another panel of the same circuit had specifically held

that the discharge of the named plaintiff did not prevent

the action from going forward, on behalf of those con-

tinuing in employment, against discrimination in promo-

tions and other incidents of employment. Here too, if in-

deed there is conflict at all, it is an intra-circuit rather than

an inter-circuit conflict which is asserted.

9. 42 U.S.C. § 1981: Petitioner’s criticism of the hold-

ing of the court of appeals in favor of the individual

plaintiff pursuant to 42 U.S.C. § 1981 is equally untenable.

Every court of appeals that has passed upon the question

since the decision of this Court in Jones v. Alfred H.

Mayer Co., 392 U.S. 409 (1968), has held § 1981 applicable

to racial discrimination, by private employers, against

blacks. Hackett v. McGuire Brothers, Inc., 445 F.2d 442

(3rd Cir. 1971); Young v. International Tel. ¢ Tel. Co.,

438 F.2d 757 (3rd Cir. 1971) ; Caldwell v. National Brewing

Co., 443 F.2d 1044 (5th Cir. 1971), cert. denied, 404 U.S.

a STAN AE MOL T

14

998 (1971); Boudreaux v. Baton Rouge Marine Contract-

ing Co., 437 F.2d 1011 (5th Cir. 1971); Sanders v. Dobbs

Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied,

401 U.S. 948 (1971); Waters v. Wisconsin Steel Works,

. 427 F.2d 476 (7th Cir. 1970), cert. denied, 400 U.S. 911

(1970); Brady v, Bristol Myers, 459 F.2d 621 (8th Cir.

1972).

’ “(The same right . . . to make and enforce contracts,”

in $1981, and “the same right . . . to inherit, purchase,

lease, sell, hold, and convey real and personal property,”

in § 1982, were both derived from the same sentence of

the same section (1) of the Civil Rights Act of 1866, This

Court, in Jones, construed §1982 to apply to private

discrimination, with no requirement that state action be

shown, and upheld the statute so construed as a valid exer-

cise of the power of Congress to implement the abolition

of slavery. There is no conceivable basis, in history or

logic, whereby these provisions can be fragmented so that

state action can be required for one to be invoked but not

the other. Each of the courts of appeals cited above, now

joined by that for the Fourth Circuit, has so held.

Moreover, this Court, in Jones, supra, at 442-43, n. 78,

expressly overruled Hodges v. United States, 203 U.S. 1

(1906), an earlier case suggesting that 4 1981 was inap-

plicable to employment discrimination in the absence of

state action. See Waters v. Wisconsin Steel Works, supra,

at 482. And, as a matter of principle, this rule in employ-

ment discrimination cases is an a fortiori application of

the principle of Jones. Restrictions on the right to dis-

pose of one’s labor without discrimination are even more

inherently badges of slavery than restrictions on the right

to own property; there have been societies, such as ancient

Greece and Rome, in which slaves were allowed to own

property, but restraints on freedom to use one’s labor as

£ rere eX o

PLE IRL ES NTT LR, eRe Ter

y

—

—

15

one wishes is inherent in slavery, indeed virtually the

definition of slavery. ri

’ It should also be noted that in its consideration of what

was to become the Equal Employment Opportunity Act of

1972, P.L. 92-261, the House Committee on Education and

Labor re-affirmed the intention of Congress in enacting

Title VII that remedies for employment discrimination

under other federal legislation would not be preempted,

and specifically cited with approval the decisions in Young

v. International Tel. & Tel. Co., and Sanders v. Dobbs

Houses, Inc., supra., stating that they “have affirmed this

Committee’s belief that the remedies available to the indi-

vidual under Title VII are co-extensive with the indi-

vidual’s right to sue under the provisions of the Civil

Rights Act of 1866, 42 U.S.C. § 1981, and that the two pro-

cedures augment each other and are not mutually ex-

clusive.” H.R. Rep. 92-238, pp. 18-19 (1971). See also the

recognition that “charges of discriminatory employment

conditions may still be brought under prior existing federal

statutes such as... the Civil Rights Act of 1866”, in the

expression of views of a minority of the Committee which

had unsuccessfully sought to make Title VII the exclusive

federal remedy for employment discrimination. Id., at 66.

Hence the decision of the court below on this issue is in

accordance with the intention of Congress and with the

decision of the courts of appeals of every other circuit that

has considered it; it is completely consistent with the de-

cisions of this Court; and it is correct as a matter of

principle. Every factor leads to the same conclusion ; there

are no uncertainties, and no conflicts, for this Court to

resolve.

Petitioner professes surprise, however, at the granting

of backpay to the individual plaintiff pursuant to 42 U.S.C.

a

§ 1981, suggesting that it had no way of anticipating or

meeting this issue in view of its understanding, at least

prior to Jones, that § 1981 applied only to state action.

This suggestion appears to be disingenuous. Petitioner ’

or its lawyers may have misunderstood 4 1981, but such

misunderstanding was by no means universal. Plaintiff's

complaint, filed in 1966 (two years before Jones) alleged

violations of § 1981 as well as of Title VII of the Civil

Rights Act of 1964. Moreover the case was not tried

until September 1970,* over two years after Jones and

over five months after Waters v. Wisconsin Steel Works,

supra. Plaintiff's attorneys made quite clear at the trial

that they were proceeding under both statutes. See, ¢.g.,

A82, A235. And an entire section (point V) of their brief :

in the Court of Appeals was devoted to the question of

the applicability of § 1981, and eight decisions of circuit

and district courts in point were cited. Petitioner's attor-

neys never responded to this issue, but they can scarcely

claim surprise at this late date.

The same considerations apply to their assertion that

they were denied the opportunity to plead the statute

of limitations to the claim under $1981. It is far from

clear that the applicable statute would have barred plain-

tiffs claim; but even if it were, there must eventually

come a time when defenses not asserted must be regarded

as waived. Cf. Rule 12 (h) (2), F.R.C.P. Even if peti-

tioner would have had some basis before or at the start of ’

the trial for asking permission to amend its answers in

order to plead the statute of limitations, the time for such

17

amendment 1s long since past. The policy against assertion

of state claims must have a counterpart in a policy against

assertion of stale defenses.

Petitioner is also mistaken when it asserts that the only

finding of the district court upon which the Court of

based its holding that § 1981 was applicable to

petitioner’s refusal to employ the plaintiff as a welder was

its statement, “Although Brown may have been originally

denied a welding job because of race. ...” (29). Petitioner

overlooks the finding of the district court “Brown asked

for employment as a welder and was given to understand

by supervisory people that it was premature to try to place

a Negro in a job as a welder with the defendant.” (28a).

Neither is there merit in petitioner’s objection to what

it regards as a “retroactive” application of the Jones

doctrine. As stated by the Court of Appeals for the Seventh

Cireuit in Waters, supra, at 484: “This argument is

sufficiently answered by the fact that the Supreme Court

has already applied the Jones case retroactively in Sullivan

y. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400,

24 L. Ed. 2d 386 (1969).”

3. Proof of Discrimination: Petitioner's challenge to

the decision of the court of appeals as to class discrimina-

tion is based upon misreading of the findings of the district

court, of the decision of the circuit court of appeals, and

of the applicable law.

The repeated references in the Petition for Certiorari

(pp. 3, 13, 21 ef seqg.), to “findings” of the district court

that petitioner had not engaged in racial discrimination in

violation of Title VII, have no basis whatever. There were

no such findings. If anything, a fair inference from the

court’s opinion would be that it did find such discrimina-

bar

tion: [“T]here are some statistics and some testimony

which show that, at least in prior years, welding and high

pay in the defendant’s shop were not for black men.” (30a).

“Advertisements for welders for at least two years have

been without regard to race.” (Jd.). (emphasis supplied).

“No black employees participated in the welder training

program until about 1968.” (27a). What the district court

did was to reach a conclusion of law, that the steps peti-

tioner had taken to treat blacks more fairly, most of them

recent and since institution of this lawsuit, justified refusal

of relief. (30a-3la).

Even if there had been a finding that petitioner had not

engaged in discrimination in violation of Title VII, it would

have been a finding of “ultimate fact” of which review

on appeal is not hampered by the “clearly erroneous” rule.

United States v. Jacksonville Terminal Co., 451 F.2d 418,

423-24 (5th Cir. 1971) Cert. denied, ——- U.S. —— (1972),

and cases there cited. Moreover, even if the court had

found that violations had ceased at the time of decision,

this would not necessarily have precluded relief where

there was a showing that the petitioner had been violating

the Act in the past. Parham v. Southwestern Bell Tele-

phone Co., 433 F.2d 421, 426, 429 (8th Cir. 1970); Jenkins

v. United Gas Corp., 400 F.2d 28, 33 (5th Cir. 1968);

Local 53 of Int’l Ass’n of Heat & Frost Insulators and

Asbestos Workers v. Vogler, 407 F.2d 1047, 1055 (5th Cir.

1969). But the court actually made no findings whatever

that can properly be read as absolving petitioner from

having violated Title VII, either in the past or in the

present.

The decision of the court of appeals is similarly mis-

construed by petitioner. It did not base its conclusion

solely on a single day's statistical tabulation (Petition,

pp. 3, 13, 21, 22), or on a comparison between those figures

and the population statistics of the area. (Id p. 3). It did

not impose racial quotas or require that “the racial make-up

of its various job categories shall become altered so as

to correspond to that of the surrounding community”

(Petition, p. 3, see also id., pp. 21, 27), or that preferences

be granted to minority employees (Id. pp. 27-30). And it

did not bolster its conclusion by referring to a lack of

“written objective criteria for promotion” (Petition, p. 31;

italics in petition). We return, then, from the imaginary

decision postulated by petitioner to the actual holding of

the case.

What the court of appeals did hold was that the over-

whelming statistical evidence of relegation of blacks with

almost no exceptions to the least skilled and poorest pay-

ing jobs (7a-9a) was at least presumptive evidence of racial

discrimination ; that it had not been rebutted by the peti-

tioner’s efforts since 1965 to hire and promote black em-

ployees (10a) ; and that the lack of objective standards for

hiring, pay increases and promotions (10a-12a), as well as

the passing on of news of vacancies by word of mouth in

a plant where job classifications were segregated, instead

of the posting of notices (12a), “serve to corroborate, not

to rebut, the racial bias pictured by the statistical pattern

of the company’s work force.” (12a). It also pointed out

that from 1958 to 1968, only one black employee was ad-

mitted to its after-hour training program (6a).

It is a truism that Title VII forbids concealed, as well

as overt, racial discrimination. Such discrimination often

can be most effectively proved through statistical evidence.

Indeed, at least one court of appeals has held statistical

evidence to have itself established a violation of Title VII

as a matter of law. Parham v. Southwestern Bell Tele-

phone Co., supra, at 426. The court of appeals in the in-

stant case did not go that far, basing its decision on the

20

failure of petitioner to rebut the inference to be drawn

from the statistics, together with the corroborating factors

set forth above (10a). But the courts of appeals have

repeatedly held, without exception, that such statistical

evidence is at least presumptive proof of discrimination.

United States v. Jacksonville Terminal Co., 451 F.2d 418,

442 (5th Cir. 1971), cert. denied, — v.s. — (1972). United

States v. Hayes International Corp., 415 F.2d 1038, 1041,

1043-44 (5th Cir. 1969); United States v. IBEW, Local 18,

428 F.d 144, 151 (6th Cir. 1970); Cert. denied 400 U.S.

943 (1970). Marquez v. Omaha District Sales Office, Ford

Division, 440 F.2d 1157, 1160-61 (8th Cir. 1971); Parham

v. Southwestern Bell Telephone Co., 433 F.2d 421, 426

(8th Cir. 1970); Jones v. Lee Way Motor Freight, Inc.,

431 F.2d 245, 247 (10th Cir., 1970), cert. denied, 401 U.S.

954 (1971).*°

The reliance by the court of appeals upon the other

corroborative evidence of discriminatory practices by de-

fendant was also in accord with precedent. The lack of

objective standards in hiring, classification and promotion

was held discriminatory in United States v. Bethlehem

Steel Corp., 446 F.2d 652, 655 (2d Cir. 1971); Rowe v.

veneral Motors Corp., 357 F.2d 348 (5th Cir. 1972); see

also United States v. Jacksonville Terminal Co., supra,

at 499. And the failure to post notices of openings for

better jobs with dependence upon word of mouth com-

munication by white employees and the resulting unlikeli-

hood of blacks learning of the opportunities in time, has

* As stated in Jones v. Lee Way Motor Freight, Inc., supra, at

247, “{i]n racial discrimination cases, statistics often demonstrate

more that the testimony of many witnesses, and they should be

given proper effect by the courts.” See also Alabama v. United

States, 304 F.2d 583, 586 (5th Cir. 1962), affirmed, 371 U.S. 37

(1962): “In the problem of racial discrimination, statistics often

tell much, and courts listen”

nee eee

<a

ee ee

21

similarly been held discriminatory in Parham v. Southwest-

ern Bell Telephone Co., supra, at 427, and United States

y. Sheet Metal Workers, Local 36, 416 F.2d 123, 137 (8th

Cir. 1969); Lea v. Cone Mills Corp., 301 F. Supp. 97

(DC NC 1969) aff'd in part and vacated in part per curiam,

438 F.2d 86 (4th Cir. 1971); Clark v. American Marine

Corp., 297 F. Supp. 1305 (E.D.La. 1969).

Petitioners assert, however, that the decision below con-

flicts with that of the Court of Appeals for the Fifth Cireuit

in United States v. Jacksonville Terminal Co., supra, at

446-48, But the court in that case clearly followed the

mainstream of decisions holding that statistical evidence

afforded prima facie proof of racial discrimination without

any necessity of a showing of individual discriminatory

acts. Id., at 422, 448-49. It did hold, but as to one issue only

(new hires), that the employer had met the burden of

rebutting the statistical evidence by showing that, because

of the unique facts of sharply declining employment in

the railroad industry, coupled with a pre-Act history of

restriction of certain positions to whites, the most ex-

perienced applicants for vacancies really were all white.

Id. at 445. But it declined to find any such rebuttal as to

promotiens and transfers (id. at 448 et seq.), and even as

to the new hires the court stated expressly:

“All of the persons so hired were white. In a stable

or expanding industry, this fact would be damning,

especially in regard to unskilled or semi-skilled posi-

tions... .” (Id. at 445).

There is no comparable explanation for the statistics

adduced in the instant case. Petitioner is engaged in a

stable or expanding industry.* The facts, with respect

* The total number of hourly employees rose, from 216 in Sep-

(anes 1969 (8a) to 230 in September, 1970 at the time of trial

both to initial assignments and to transfers and promo-

tions, are indeed “damning.”

Petitioner’s stress upon the fact that the employment

statistics reflected the work force on a single day (Sept. 3,

1969), is searcely well taken. The information was derived

from petitioner’s answer to plaintiff's interrogatories. The

interrogatories were filed on June 30, 1966 (A9), and not

answered by petitioner until September 18, 1969 (A15).

Petitioner itself selected the date as of which the data was

compiled. Nevertheless, if the figures at the time of trial,

over a year later, had shown less of a segregated pattern,

petitioner could have introduced such evidence, by way

of explanation or rebuttal, at trial. It did not.*

Such belated efforts at compliance with Title VII as

were undertaken by petitioner do not justify dismissal

of the action. The pattern of almost total segregation

of employees in low-paying jobs still persisted in Sep-

tember, 1969, over three years after the complaint had been

filed in the instant case and over four years after the

effective date of Title VII. The district court found “No

black employees participated in the welder training pro-

gram until about 1968.” (27a). Such progress as has

been made has occurred largely since the inception of this

action (13a; see also 31a), but the Court of Appeals noted

that if the action were prematurely dismissed members of

the class would run the risk that progress would abruptly

end. (13a). Accordingly, while it gave recognition to the

efforts of petitioner by not ordering injunctive relief, it

directed that the case be remanded to the district court

* The Personnel Director of petitioner testified as to the work

force as of the time of trial. The total number of black hourly

1970. No breakdown by job

(A384).

23

for retention on its docket for a reasonable time, directing

that if at the end of that time the court found that illegal

discrimination had been eliminated it might dismiss the

action but that if it found that the unlawful practices

were continuing it must order injunctive relief. (13a).*

This procedure was in conformity with that ordered by

the Eighth Cireuit in Parham v. Southwestern Bell Tele-

phone Co., supra. Moreover, later repentance does not

necessarily render even injunctive relief inappropriate,

much less the less stringent form of relief ordered by the

Court of Appeals. Parham, supra; Jones v. Lee Way

Motor Freight, Inc., supra, at 248; United States v. W. T.

Grant Co., 345 U.S. 629, 632-33 (1953); Rowe v. General

Motors Corp., supra.

4. Counsel Fees: petitioner also challenges the direction

of the Court of Appeals, in remanding the case to the

district court, to award the plaintiff costs and counsel fees.

The award of counsel fees in Title VII cases, and pre-

sumably also in 42 U.S.C. § 1981 cases, is discretionary;

nevertheless, where a refusal by a district court to award

counsel fees would be an abuse of discretion it is entirely

fitting that the Court of Appeals in remanding the case

direct that such an award be made. Economy of judicial

effort is served thereby.

The propriety of counsel fees in the circumstances of

this case is clear. The decision below is in accord with

precedent. While petitioner stresses that the plaintiff lost

on his individual Title VII claim, he won on his claim

under Sec. 1981 and, more importantly, he won a significant

* Contrary to petitioner’s assertions (Petition, pp. 3, 21, 27), the

Court of Appeals did not require that to establish compliance peti-

tioner must meet any racial quotas, achieve recial balance in job

categories, or give preferential treatment to racial minorities.

24

victory for the class of other black employees, present and

future, of the petitioner. In the almost identical circum-

stances of Parham v. Southwestern Bell Telephone Co.,

supra, the individual plaintiff failed with respect to his

personal claim, but succeeded in persuading the appellate

court to order a remand of the cause to the district court

to retain jurisdiction in order to ensure continued progress

toward equal employment. The court stated, at 429-30:

“Although we find no injunction warranted here, we

believe Parham’s lawsuit acted as a catalyst which

prompted the appellee to take action implementing

its own fair employment policies and seeking compli-

ance with the requirements of Title VII. In this sense,

Parham performed a valuable public service in bring-

ing this action. Having prevailed in his contentions

of racial discrimination against blacks generally prior

to February, 1967, Parham is entitled to reasonable at-

torney’s fees... .”

See also Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir.

1971) ; Robinson v. Lorillard Corp., 444 F.2d 791, 804 (4th

Cir. 1971), cert. dismissed, 404 U.S. 1006 (1972).

In the case of Title II (the public accommodations pro-

visions) of the same Civil Rights Act of 1964, identical

language as to counsel fees* was applied by this Court to

hold that it was an abuse of discretion to refuse to grant

such fees to the victorious plaintiff:

“When the Civil Rights Act of 1964 was passed, it

was evident that enforcement would prove difficult and

that the Nation would have to rely in part upon private

litigation as a means of securing broad compliance

with the law. A Title II suit is thus private in form

* Compare § 204(b), 42 U.S.C. § 2000a-3(b), with § 706(k), 42

U.S.C. § 2000e-6(k).

25

only. When a plaintiff brings an action under that

Title, he cannot recover damages. If he obtains an

injunction, he does so not for himself alone but also

as a ‘private attorney general,’ vindicating a policy

that Congress considered of the highest priority. If

successful plaintiffs were routinely forced to bear

their own attorneys’ fee, a few aggrieved parties would

be in a position to advance the public interest by in-

voking the injunctive powers of the federal courts.

Congress therefore enacted the provision for counsel

fees—not simply to penalize litigants who deliberately

advance arguments they know to be untenable but,

more broadly, to encourage individuals injured by

racial discrimination to seek judicial relief under

Title IT.

“Tt follows that one who succeeds in obtaining an

injunction under that Title should ordinarily recover

an attorney’s fee unless special circumstances would

render such an award unjust. Because no such cir-

cumstances are present here, the District Court on

remand should include reasonable counsel fees as part

of the costs to be assessed against the respondents.”

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400, 402-403 (1968) (footnotes omitted).

And even in the absence of specific statutory provision

for counsel fees, success on behalf of a class may itself be

sufficient reason for such an award. E.g., Mills v. Electric

Auto-Lite Co., 396 U.S. 375, 389-97 (1969).

26

CONCLUSION

As demonstrated above, the Court of Appeals in this

case did no more than remand the case to the district court

for entry of an order in conformity with the facts found

by the district court and to retain jurisdiction of the case

for entry of such future orders as might be necessary.

This remand—consistent with the decisions of other cir-

cuits—is merely an example of the Court of Appeals based

on the record as a whole exercising its supervisory ad-

ministrative responsibilities over the district courts to

ensure proper case management. The petition for a writ

of certiorari should be denied.

Respectfully submitted,

JacK GREENBERG

James M. Nasrit, III

Wii L. Rosinson

Morris J. BALLER

10 Columbus Circle

New York, New York 10019

J. LeVonne CHAMBERS

Rosert Be.ton

CuamBers, STEIN, Fercuson & LANNING

237 West Trade Street

Charlotte, North Carolina

Conrap O. Pearson

20314 E. Chapel Hill Street

P. O. Box 1428

Durham, North Carolina

Attorneys for Respondent.

Cf Counsel

ALBERT J. RosENTHAL

435 West 116 Street

New York, New York 10027

— vent Wg. *