Furnco Construction Corporation v. Waters Brief Amici Curiae

    F. »* '  *

• K  '■■'
• (■' ■ ■ ,

■i ,;-c ■■v...
, v . r ‘ v>

. y-; ■ t .. • v ./
' L '■•'{< ■ ' ' -l /

k
'  ' , V*.

* \ >-*• J

v--
' »-. \

No. 77-369

' Jit iltt j&tjsttme (î ourt of flte Wiiitoi plates
-; , , - ' ’ ‘ v 7 ; - > *■><■ \% . i ' .  . * V

' ;;:V' '.'r' October T erm , ‘1977 . j '■Vv: '.v,.'-- .■■>■ ',.a 'v.: " ;,a ,7
"•..v-. ■■■ <: .* i. .r*'vVv"*V,. !' 1 ’ ■•: - ; - ; ' " / :--j  - 1 ./ ■..

■ '■> '  - r  ■ ' ■ '  ■ ■ v  • - . ; , v

"V ' ' ' ' F urnco Construction Corporation, petitioner ■
v.,.a v'. / ' ' " y -.

■’ i. v;! ' y . ' '■ * WILLIAM W  ATERS, ET A L . : \ .  : H. ■ ' . v . ' , < \ ; Z . V 
' ; . r — .— {!

-v-“ ̂  ;

t‘ 7*;.»

7

'! 4 •' isvi* * .>£••• V J \  • APPEALS FOR

‘ • • ------ ------- ■ 1 ■v:-. ' ," "; ■-*...v
j BRIEE FOR THE UNITED STATES AND THE EQUAL EMPLOYMENT

o n  Wr i t , o f  c e r t i o r a r i  t o  t h e  u n i t e d  s t a t e s  c o u r t  o f
APPEALS FOR THE SE V E N T H  CIRCUIT J -  : , , ,

v-v

OPPORTUNITY COMMISSION AS AMICI CURIAE

: v r
f \ r

•/

* -15
j ■ . /  ,-tv V -

. . ' V ' , l :

' v- , ^  \ -
■  ̂ , 0  ■ ’ •*,; ■’ .

'  : m  :> •: - . i ” 1

'Ul* ' fi •
S'

'•t
A B N E R  W . SIB A L,

i i) 1' ^  v, " General Counsel,

_ W A D E  H . JtcC REE, Jr.,
’ '  Solicitor General,

/  D R E W  S. DAY S, I I I .
Assistant Attorney General, ,

.... t,' B R IA N  K. LANDSBERG , -i { ‘ 
ROBERT J. R E IN ST E IN ,

- ; .• Attorneys,
■ '  , (A; Department of Justice,
J ' 1/ —■!'.1 Washington, D.C. 20530.
\  i-y.-y - y '' -er.. > ■' ’ ’ .■ "■ ■. ■ \ ■

•• ,'r  r —

. 1 '< . C ; .  Equal Employment Opportunity Commission,
•• • ••'• F ' Washington, D.C. 20506. v  / V  ■ y - i .  .

i ^ • • ' '  ^ i  . * ■ '

/  T. .

•• -'f ■

•' ,V<-.
i f - - ■ I , | -s'. A •

*\y
V ■ ,V-  ̂"A ,

" ' . v  ■
—  V >  ' . . 

' r * S'- ^ ,
; </ r. ,... ̂  V - ** • fr ‘ ' *” ' . ' - 'j

j / , ; .r v 
-••c c. ' " v ;

■ o ;
t /. ; ’ ;  ; •

", / i :  : . :y  V.

* i ; •'

/ t /  • ' . ••’ , ■ .;  t ■ •  ̂ 1 >, v!.. « t . ;/
m  / ;  ’ •/• • 1 ,  ,/4 », -  t . V ' ;  A K I* .

'  - .v r - % .  - ■i . - - ' ^ V  ' . ' / O  V - ,  V

V:' .  V 1. ? ; ' '
- ' V ' . A  ' ' -  ‘ - ■ . ■ t- •

• ; , s’ : - >r r->., . 1 -

• ' r . - ■v . ■* A ■ ,!'■ •• . ; 1 ■ . ’ ■ . - M '. \
> • . .  ̂ >,*• , . ;* . V • .

► -  - r



f the United States and the Equal Employment page

criminatory reason rebutting the inference 
of racial discrimination arising from t.ho 
exclusion of all black bricklayers from its 
hiring supervisor’s list and the resulting 
failure to offer employment to Smith and
Sam uels-------------------------------------------

B. Furnco's practice of hiring only by supervisor’s 
reference was properly found on this record 
to be a legitimate non-discriminatory policy 
rebutting the inference of discrimination 
raised by its refusal to accept the applica­
tion of Nemhard at the gate-------------------

Conclusion

CITATION’S

Albemarle Paper Co. v. Moody, 422 U.S. 405-------- 12,
Batiste v. Furnco, 503 F. 2d 447, certiorari denied, 420

U.S. 928_____________________________________
Baumgartner v. United States, 322 U.S. 665-------------
Baxter v. Savannah Sugar Refining Corp., 495 F. 2d

437, certiorari denied, 419 U.S. 1033--------------------
Brown v. Gaston Country Dyeing Machine Co., 457 F.

2d 1377, certiorari denied, 409 U.S. 982----------------
Castaneda v. Partida, 430 U.S. 482------------------ 9,14

mMk,



M J a S ,



October T erm , 1977

F urnco Construction Corporation, petitioner

W illiam  W aters, et al,

C E R T IO R A R I TO THE EXITED  S T A T E S  COURT OP 
APPEALS FOR THE SE V E N TH  CIRCUIT

BRIEF FOR THE UNITED STATES AND THE EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION AS AMICI CURIAE

IN T E R E ST  OF T H E U N IT E D  STATES A N D  T H E  EQUAL  
EM PLOYM ENT O PPO R TUN ITY  COMMISSION

* Federal enforcement of Title V II of the Civil 
Rights Act of 1961 lias been vested by Congress in the 
Equal Employment Opportunity Commission, the De­
partment of Justice and the Civil Service Commission. 
The Equal Employment Opportunity Commission has 
authority to bring civil actions against private em­
ployers under 42 U.S.C. (Supp. V) 2000e-5(f) (1). 
The Attorney General has enforcement responsibility 
when the employer is a state government, govern-



mental agency, or political subdivision. ^  u.o.^. 
(and Supp. V) 2000c-6. This case raises questions 
concerning the substantive reach of Title ^ I I ,  the 
resolution of which may affect federal administration 
and enforcement of the Act.

STATEM EN T

Furnco Construction Corporation (“Furnco”) is a 
large contractor specializing in steel mill and blast 
furnace relining. In  August 1971, Furnco entered into 
a contract with Interlake, Inc., to reline the larger of 
Interlake’s two blast furnaces. Furnco’s superintend­
ent, Joe Dacies, had authority to hire bricklayers for 
the Interlake job. The choice of which bricklayers to 
hire was committed totally to Dacies’ discretion (Pet. 
3; Tr. 668-669, 693, 769).1 Dacies had worked in the 
bricklaying trade since 1946 and had been a job super­
intendent for Furnco since 1965 (Tr. 768). His gen- 
nl.ni -rvT>«i<->+ir>o ia fn biTR bricklavers from a list which

court.

s 's



Dac-ies “ [o]nce in a while” accepts recommendations 
from foremen or other superintendents (Tr. 770), 
but he does not accept or consider written or job-site 
applications from bricklayers because he always has 
enough men “on [his] list” to fill the jobs (Tr. 773). 
Dacies justifies his practice, which is common in the 
firebrick industry (Tr. 35-38),2 primarily as a meas­
ure to ensure the hiring of competent firebrick workers 
(Tr. 771-772).

Although he had worked with black bricklayers 
on firebrick jobs (Tr. 343-344, 359-360, 773, S73), 
Dacies’ list consisted entirely of white persons (Tr. 
777-778).3 But before the Interlake job started, 
Dacies was advised by Furnco’s general manager, 
John Wright, that he should try to have at least 16 
percent of the work done by competent black brick­
layers (Tr. 675, 777-778). The company adopted this 
“ affirmative action” goal in response to a suit by 
black bricklayers who had not been hired for a ‘I960 
Furnco job (the Batiste litigation) (Tr. 673-674).4 The

2Furnco expects its superintendents to hire bricklayers known 
by them and they generally do so (Tr. 669-672). If  this method 
does not produce enough workers'for the job, superintendents are 
expected to seek recommendations from other superintendents and 
workers (Tr. 671). On several occasions, some of Furnco's super­
intendents hired bricklayers who applied at the jobsite and also 
hired bricklayers who had no prior experience in firebrick work 
(Tr. 234-236,* 314-315, 324-335, 509-510, 516, 561-563).

3 Petitioner characterizes Dacies' list as “various notes,'’ but con­
cedes that “the names contained on such notes were of white 
bricklayers” (Pet. Br. 34, n. 29).

4 See Batiste v. Furnco, 503 F. 2d447 (C.A. 7), certiorari denied, 
420 U.S. 928.



gOcil was intended to preclude additional lawsuits and 
was limited to Cook County where the company had 
been sued (Tr. 674—675).

Since Wright had stated that Furnco “would like 
to have black people on the job” (Tr. t7t) and theie 
were no blacks on Dacies’ list, Dacies obtained refer­
ences of black bricklayers from another J  urnco super­
intendent in the area.3 Between August 26 and Sep­
tember 27, 1971, Dacies hired four blacks who had 
been recommended to him and 37 whites from his 
list (Joint Exh. 1; Tr. 781-786). These 41 bricklayers 
were hired on a staggered basis. The first four brick­
layers hired (between August 26 and September 8) 
were white, then a black was hired on September 9; 
15 bricklayers were hired between September 10 and 
18, of whom two were black; and 21 were hired be­
tween September 21 and 27, including one black 
(.Joint Exh. 1). While this hiring was taking place, 
Furnco was in settlement negotiations with the 
Batiste plaintiffs (Tr. 677). The negotiations broke 
down in late September 1971, and Wright advised

5 Dacies testified that lie, contacted the other superintendent “to 
see if he had black bricklayers that could do parts of this job in 
the blast furnace work. lie  said he thought that he had a few 
that could make it. lie  subsequently gave me some names and 
telephone numbers and I called them ’ (J r . 778). 11 hen asked 
whether Interlake was the first job for which Dacies had ever 
hired black bricklayers, Dacies said: “I thought maybe it was the 
South Works job that I started to run * * * I thought there was 
two of them. I don't recall exactly, because I quit the job subse­
quently, very shortly after” (Tr. 875). Petitioner cites no other 
authority for its statement that Dacies hired “several’ blacks on 
this earlier job (Pet. Br. 8 n. S, citing l r .  875).



Dacies to consider the Batiste plaintiffs when hiring 
resumed (Tr. 677-678, 778-779). Between October 12 
and 27, 1971, Dacies hired 14 more bricklayers, includ­
ing seven blacks involved in the Batiste case (Joint 
Exh. 1; Tr. 781-786). Overall on the Interlake job, 
55 bricklayers were hired, 44 whites selected from 
Dacies’ list and 11 blacks recommended to him by 
Wright and another Furnco superintendent. The work 
of the black bricklayers constituted 13.3 percent of 
the total man-days expended on the job (Joint Exh.

William Smith, Donald Samuels and Robert Hem- 
hard are three black bricklayers who unsuccessfully 
sought employment on the Interlake job (Pet. App. 
A17). Smith, a bricklayer for 30 years, had worked 
on many firebrick jobs; Furnco conceded his quali­
fications (Tr. 311-314). Before the Interlake job, 
Smith had worked with Dacies four times—1958, 1962, 
1969 (for Furnco) and 1970-1971 (for Furnco) (Tr. 
343-346, 359-360). On one of these jobs, Smith super­
vised Dacies (Tr. 785). Smith’s name did not, howev­
er, appear on Dacies’ list. Samuels was a bricklayer 
for 17 years (Tr. 227), and liad worked on 6-8 fire­
brick jobs (Tr. 229), including one for Furnco in 
1969-1970 on which Dacies also worked (Tr. 234, 
874)/' Samuels’ name also did not appear on Dacies’ 
list. A/emhard had been a bricklayer for 29 years; he 
had worked on one firebrick job for about two years, 
but not with Dacies or Furnco (Tr. 66-69, 72).

Although Smith and Samuels had worked on certain Furnco 
i with Dacies, they had been hired by other superintendents 
. 235-236, 314-316).

KKW1 s % •. ■C-S J9& S

u pffiOguSBSraS -im

SSI £&§j( SISi|kS||j |l|||§$51
illilfiiflS faBai tf® l mm



Since neither Smith nor Samuels was included on 
Dacies’ list, they were not among the past Furnco 
bricklayers whom Dacies called using his normal pro­
cedures. I f  any black bricklayers had been on Dacies’ 
list, they would have been called by him and offered 
employment (Tr. 777-778). Smith and Samuels as 
well as Nemhard each applied for work at the Inter­
lake job by going to the job-site in August 1971, be­
fore construction began (Tr. 73-74, 250, 32/)- Each 
returned to the job-site on a number of occasions din­
ing construction (Tr. 74-77, 251-259, 328-331). They 
applied “at the gate” because this is how they had 
been hired on earlier firebrick jobs (Tr. 12, 229-236, 
311-316, 327). Nemliard also sent a written appli­
cation to Furnco (Tr. 77-78).

Samuels and Nemhard were never hired on the 
Interlake job. Smith's attempt to obtain work by 
applving at the gate was also unsuccessful; but on 
October’12, 1971 (Tr. 350), he was hired at W right’s 
suggestion as one of the Batiste plaintiffs. After ex­
hausting their administrative remedies before the 
Equal Employment Opportunity Commission, Smith, 
Samuels and Nemhard brought suit against Furnco 
under Title V II of the 1964 Civil Rights Act. Sam­
uels and Nemhard claimed that they were not hired 
because of their race; Smith claimed that he was dis- 
criminatorily denied employment until the job was 
near completion.

Following an evidentiary hearing, the district court 
entered judgment for Furnco (Pet App. C). Focus­
ing solely upon Furnco’s refusal to consider respond-



outs’ applications at tho job-site and in writing, the 
court held that this practice was racially neutral, 
was not a pretext for excluding black bricklayers, did 
not have a disproportionate effect on black brick­
layers,7 and was justified as a business necessity (Pet. 
App. A1G-A18).8

The court of appeals reversed (Pet. App. A), hold­
ing that Smith, Samuels and Xemliard had each es­
tablished a prima facie case of discrimination under 
McDonnell Douglas Corp. v. Green, 411 TJ.S. 792, and 
that the company's policy of hiring only bricklayers 
known by or recommended to its superintendent was 
neither legitimate nor non-discriminatory. The court 
viewed the practice as fraught with the potential for 
arbitrary and discriminatory decisions especially in 
light of the alternative of accepting applications in 
writing and checking references. The court held that 
because of historical discrimination against blacks, 
‘*it is prima facie racial discrimination to refuse 
to consider the qualifications of a black job seeker 
before hiring from an approved list containing

7 The district court found that 5.7 percent of the bricklayers in 
the relevant labor force were minorities, relying on 1960 data in 
the “Chicago plan” which includes the five counties surrounding 
Cook County (Pet. App. A16). The court excluded respondents’ 
evidence that the bricklayers’ local union in Cook County was 
13-14 percent black in 1973, and stated that, even if accepted, 
this figure would not be probative evidence of racial discrimina­
tion because 13.3 percent of the work at the Interlake job was 
performed by blacks (Pet. App. A1G and n. 1).

8 Five other black bricklayers joined this lawsuit. The district 
court held that their claims were without merit (Pet. App. A16- 
A18), and the court of appeals affirmed (Pet. App. A3-A5).

■

1



„,ly the names Of White bricklayers ( 1 H  A 
V7) Responding to the company s argun ‘
here was no racial imbalance on the Interlake 101- 
■he court stated that respondents had no chance to 
considered for most of the jobs winch -
)retained to be filled by white bricklayers from Dac _ 
all-white list (Pet. App. AS). The court conclude.^ 
“ [Y]is-a-vis the white bricklayers em ployed n 84-87 
percent of the jobs, racial discrimination is establ^hed 
under the principle of McDomMDowlas d  ft. App.

A S - A S ) .  SO M M A E y  o r  ARG UM ENT

Both the district court and the court of appeals 
erred in treating the claims of the three responc- 
onts as identical. Although each respondent is a black 
bricklayer with proven competence, and c a n  was 
unable to secure employment on the Inter ass .1°) 
),v applying at the gate, a crucial factual diffcienc .
distinguishes Smith’s and Samuels’ claim from Nem- 

oi.. -i-u Smniipls had each worked \Mth



names ot wmie " J
pcared on Dacies' list were called directly to work by 
the superintendent. Since Smith's and Samuels names 
did not appear,-they did not have the same employ­
ment opportunity afforded to similarly situated white 
bricklayers who had worked-with Paeies. The all- 
white composition of Dacies hiring list, paiticulail} 
when coupled with the totally subjective process by 
which it was compiled, is prima facie evidence of in­
tentional discrimination against black brickla>ers, in­
cluding Smith and Samuels, who had worked with 
Dacies and Furnco. International Brotherhood of 
Teamsters v. United States, 431 U.S. 324, 337-342 and 
n. 23; Castaneda v. Partida, 430 U.S. 4S2, 494-499.

Furnco presented no evidence to rebut this prima 
Yn pvnlanation was offered why Smith and

IIpH | | PiIEglI'r.'f■. Vi ,Y ; ’jll§fImmptf



Samuels or other competent black bricklayers were 
omitted from the supervisor’s hiring list, and from 
the employment opportunity that concededlv would 
have followed from inclusion on the list. Furnco’s 
refusal to take applications at the gate, while perhaps 
a legitimate nondiscriminatory policy, is not disposi­
tive of the claims of Smith and Samuels, whose ap­
plications at the gate merely emphasize their avail­
ability to accept the employment opportunities offered 
to white bricklayers who had worked with Dacies. 
Nor is the individual injury which they suffered as 
a result of discrimination negated by Furnco’s hiring 
of other black bricklayers through other mechanisms. 
Both Smith and Samuels are entitled to Title V II 
relief because they presented an unrebutted prnna 
facie case based upon their discriminatory exclusion 
from the supervisor’s list and the resulting failure of 
Furnco to offer them early employment at the Inter- 

job. See McDonald v. Santa Fe Trad Trans­
portation Co., 427 U.S. 273, 281-283.

B. The claims of respondent Nemhard have a com­
pletely different factual basis and require a separate 
disposition under Title V II. Unlike the claims of 
Smith and Samuels, the claim of Nemhard has no 
connection with the racial composition of Dacies’ 
hiring list. Nemhard never worked with Furnco or 
Dacies and could not possibly have appeared on 
Dacies’ list of persons with whom he had previously 
worked. Nemhard’s claim of discrimination is based 
upon the alleged illegality of Furnco’s refusal to take 
applications at the gate.



By demonstrating tliat ho was qualihed, applied, 
was rejected, and that other bricklayers were hiied 
in his stead, Xemhard made out a prima facie case of 
racial discrimination. McDonnell Douglas Corp. v. 
Green, 411 U.S. 792, 802. Furnco proved that it did 
not consider any written or job site applications lor 
the Interlake job, but hired only bricklayers known 
by or recommended to its job superintendent. An em-

- reasonably 
v will enhance

plover of highly skilled craftsmen may 
assume that a hiring by reference polio 
the overall quality of its workforce. Firsthand knowl­
edge of an employee’s past performance is a reasonable 
measure of future performance, and employers of 
skilled craftsmen may understandably weight their 
employment decisions in favor of their own knowledge 
of the past performance of individuals rather than 
depend on the recommendations of strangers. See 
IVaters v. Wisconsin- Steel Works of Intevnuhonnl 
Harvester Co., 502 F. 2d 1309, 1320 (C.A. 7). Here, 
in findings that are not clearly erroneous, the district 
court found Furnco’s reasons for rejecting applica­
tions at the Interlake job justified by the evidence. 
Thus, on this record, Furnco met its burden of rebut­
tal under McDonnell Douglas v. Green, supra.

Our conclusion that Title V II does not as a per 
se matter require employers to abandon a ‘'hiring 
from within” policy, does not mean that such policies 
are insulated from Title V II scrutiny in their appli­
cation. As with subjective hiring practices generally, 
such a policy is unlawful if it is discriminatorily ap-



plied or lias an exclusionary effect on minorities. See 
Gates v. Georgia-Pacific Co., 492 F. 2d 292 (C.A. 9). 
Furnco's hiring policy was not diseriminatorily ap­
plied against Nemhard because he had never worked 
for Dacies or Furnco and liecause no outside appli­
cant, of any race, was hired on the Interlake job. 
Similarly, Nemhard failed to prove that the rejection 
of outside applicants was a pretext for racial dis­
crimination. Blacks were hired on the Interlake job 
in a proportion at least comparable to their apparent 
representation in the labor force. Of course, even if 
applied neutrally, a “hiring from within” policy would 
be vulnerable under Title V II if it had an exclu­
sionary effect on minorities. See Griggs v. Duke Power 
Co., 401 U.S. 424, 429-431. However, such a challenge 
must be premised on a showing that the practice did 
exclude minorities disproportionately. See Albemarle 
Paper Co. v. Moody, 422 U.S. 403, 423. Minorities 
were not shown to have been disproportionately ex­
cluded from the Interlake job. Since Nemhard has 
not shown that Furnco's hiring practices were inten­
tionally discriminatory against him or had an ex­
clusionary effect on minorities as a class, his rejec­
tion was not shown to be the product of unlawful 
discrimination.

A R G U M EN T

THE JUDGMENT OF THE COURT OF AITEALS SHOULD BE 
AFFIRMED AS TO RESPONDENTS SMITH AND SAMUELS 
BUT REVERSED AS TO RESPONDENT NEMHARD

All three respondents are blacks who have worked 
as bricklayers from between 17 and 30 years, who have



prior experience in firebrick work, and who took every 
reasonable step to make known their desire to work 
at Furnco’s Interlake job. Although the applications 
of all three were rejected, the district court and the 
court of appeals were in error in treating their claims 
as identical. The respondents are not similarly situ­
ated. Smith and Samuels had worked with Dacies on 
Furnco jobs, but were omitted from his list of com­
petent bricklayers with whom he had previously 
worked and thereby denied otherwise virtually certain 
employment on the Interlake job. Xemhard never 
worked for a Furnco supervisor and his sole claim is 
that the refusal to take his application at the gate was 
the result of discrimination.

A. FURNCO FAILED TO SHOW A LEGITIMATE XON-DISCRIMIXATOItV  

REASON REBUTTING T H E  IN FER ENCE OF RACIAL DISCRIMINATION  

ARISING FROM TIIE  EXCLUSION OF ALL BLACK BRICKLAYERS FROM 

ITS H IR IN G  SUPERVISOR'S LIST A N D  T H E  RESULTING FAILURE TO 

OFFER EM PLOYM ENT TO SM IT H  A N D  SAMUELS

Respondents Smith and Samuels established a prima 
facie case of discrimination based upon their exclu­
sion from Dacies’ list of qualified bricklayers with 
whom he had previous working experience. Smith had 
been a bricklayer for 30 years, while Samuels had 17 
years’ experience. Both had extensive experience in 
firebrick work. Both had worked on prior Furnco jobs 
with Dacies, and Smith had even supervised Dacies. 
Both bricklayers had therefore demonstrated their 
competence in service with the Furnco supervisor 
charged with the hiring for the Interlake job.

| H |



m

who had worked competently on earlier 
superintendents did not 
a new job began. Under 
they were called directly 

who maintained a hiring list 
job, the list was

Bricklayers
firebrick jobs with Furnco's 
have to apply for work when 
the company’s hiring p 
by the superintendent, 
for that purpose. On the Interlake 
compiled and utilized by Fades, who determined ac­
cording to his own personal judgment which of his 
prior employees would he called to work. Such a h ir­
ing system, controlled by the unreviewable and sub­
jective judgment of one man, is susceptible of dis- 

nimsp. Castaneda, v. Partida, 4-10 U.S

1 &&mm
B i t s

S j* A>:
§ 1 1 m »̂|jf. -i-’i |

; , d f 2 f § §'mmmi mmSM w3



874.10 Fnrnco presented no evidence to rel)ut this 
prima. facie case. Although Dneies testified, lie did 
not. attempt to explain why his hiving list was all- 
white or why Smith and Samuels were omitted from

I t  is undisputed that Dacies had worked with black 
bricklayers on firebrick jobs; no claim has been made, 
let alone proven, by Dacies or Furnco that every 
black bricklayer with whom Dacies worked was less 
competent than the whites on his list. Indeed, given 
the conceded qualifications of Smith (who actually

10 The courts of appeals have repeatedly recognized that, while 
subjective evaluations of supervisors are not per sc unlawful 
under Title VII, they provide “a ready mechanism for discrimi­
nation.'’ Rowe v. General Motors Cor/)., 457 F. 2d 348, 359 (C.A. 
5). See also, e.g., Heed v. Arlington Hotel Co., Inc.. 47(5 F. 2d 
721. 724 (C.A. 8), certiorari denied, 414 IT.S. 854. When those 
subjective evaluations are applied in a manner which results in 
significant racial disparities, there is prima■ facie evidence of a 
violation of Title VII. Rowe v. General Motors Corp., supra,' 
Brown x. Gaston County Dyeing Machine Co., 457 F. 2d 1377.1382 
(C.A. 4), certiorari denied. 409 U.S. 982: United States v. Beth­
lehem Steel Corp., 440 F. 2d 052, 055 (C.A. 2) ; Equal Employ­
ment 0 pportunify Commission, v. Detroit Edison Co., 515 F. 2d 
301, 313 (C.A. 0), vacated and remanded on other grounds. 431 
V.S. 951; Baxter x. Savannah Sugar Refining Corp., 495 F. 2d 437 
(C.A. 5), certiorari denied, 419 U.S. 1033. See generally B. Sehlei & 
P. Grossman, Employment Discrimination Law, Ch. 0 (1970).

11 I t appears from Dacies’ testimony that the exclusion of blacks 
from his hiring list was his standard procedure. Before the In­
terlake job, Dacies had called at most two black bricklayers for 
work during his entire career as a firebrick superintendent (see 
n. 5. supra).



job) and Samuels, such a 
s. The burden was on 

cnee of intentional dis- 
Partida, supra, 430 U.S. 

not met.
Samuels’ claims do not turn on 

ico’s refusal to accept appli- 
;h and Samuels did 
and did request em- 
! arc merely evidence 
> employment oppor- 
hite bricklayers who 

biit withheld from similarly
bricklayers

supervised Dacies on one 
claim would have been frivolou 
Furnco “to dispel the infer 
crimination” (Castaneda ~\ 
at 497-498), and that burden was 

Thus, Smith’s and 
the legitimacy of F  
cations at the gate.

at the Interlake job site ; 
their efforts at the gate 
ailability to accept the

appear 
ployment, 
of their av
tunities offered to competent v 
worked with Dacies,
•situated black bricklayers. Doth blacl 
were similarly situated to white bricklayers who had 

s and Furnco and who did not liai e
the Interlake job but were called di- 

had not discriminated on racial 
o- the hiring list, that list would 

petent black briek- 
tels and, as Dacies 
layers would have 

Interlake job. Smith and Samuels 
rie out an unrebutted prima facie 

tunity to be hired 
ce. See McDonald 

427 U.S. 273,

worked with Dacie; 
to apply for 
rectly. I f  Dacies 
grounds in compiling 
have contained the names 
layers including Smithy an 
acknowledged, those blacl 
been hired for the 
have therefore mac 
case that they were 
from Dacies’ list be 
v. Santa Fe Trail Transput 
281-283.

Furnco is not exonerated from lia 
and Samuels because its overall hiring 
layers on the Interlake job compaics



''nicii it is conienueci tlicit blacks as a group were 
treated worse than whites as a group. The question 
is whether two blacks, as individuals, were treated 
differently from similarly situated whites because of 
their race. Smith and Samuels were denied the op­
portunity to be hired at the beginning of the In ter­
lake job because of Davies’ discrimination against 
black bricklayers who had worked with him and 
Furneo. This overt discrimination suffered by two 
individuals did not disappear simply because Dacies, 
having been instructed to hire some blacks on the 
Interlake job, obtained the names of other black 
bricklayers and hired them.

Our conclusion that Smith and Samuels are the 
victims- of purposeful discrimination is not impaired 
by the district court’s finding that Furnco’s hirinsr 
practices at the Interlake job were racially neutral 
and were not applied pretextually against black brick­
layers (Pet. App. A18). The district court disposed 
of the claims of all three respondents in a unitary 
fashion without regard to the factual differences that 
distinguished their claims or their differing posture 
with respect to Furnco’s hiring processes. Thus the 
district court held that Smith’s and Samuels’ claims 
were sufficiently answered by the legitimate policy of 
refusing to take applications at the gate even though 
similarly situated white bricklayers were hired with­
out any application whatsoever (Pet. App. A17-A18). 
The district court overlooked entirely the all-white 
composition of Dacies’ hiring list and did not con-



U  M f e K ®

s id e r S m ith 's  a n d  S am u e ls’ r ig h t »  >>» — —
sam e as w hite  hvieklayevs w ho had

D a d o s  an d  Fuvneo.  ̂ ( lis tric t co u rt and
A lthough the  eri<>i of rp;11o

the  c o u rt of ap p ea ls  h i fa ilin g  to  analy se  .
V I I  claim s o f S m ith  an d  S am uels m  1*  - of tl > _ 
specia l p o s tu re  w ith  resp ec t to  D a n e s  all-w l • 
i r , i s t  m av  in  p a r t  he a ttr ib u ta b le  to  r e s p o n d » 

aiiecre.1 illeg a lity  o£ F u rn co  s P ^ u  

tice  ofSre je c tin g  ap p lica tio n s  “ a t the  g a te ,” we do not 
believe th a t  th is  is an  a p p ro p r ia te  ease io r  a rernanc 
K esponden ts dad a r g - -  t h e - r t s  lielow th a t D a n is

of p a s t qualified  em ployees ”
S am uels  u t i „.a ted  a n d  a ll of the  fac ts
'riiisi issue w as tu n y  u u &iUtu ,

ia te  d e te rm in a tio n  have bcei
believe th a t  the  question

is C ourt. 'W hether th e re  was
:hese resp o n d en ts
de te rm in ed  1)}' mi
o rd ing  to govern-
miedct v. P a rtu la ,

necessary tor c 
elicited.” We 
should be deci 
purposeful discrimination agamsi 
is a question of ultimate fact to 1: 
evaluation of evidentiary facts a 
ing legal standards. See, c..g., Go

i> See Brief for Plaintiffs-Appcllants
l ’laintiffs-Appellants 5 n. y  .

is facies testified that lus hinn; 
supra). He did not offer any legiti 
and conceded that he had workei 
layers. Petitioner 
on Dacies’ list were more
with whom he w<-------
qualifications (see p. o, . 
racial hypothesis for tlm 
Furnco lias not advanced it.

has never suggested mar mi »■ 
competent than every blf 

orked. This is not surprising in h< 
supra). If there is any ] 
total exclusion of blacks



supra; Norris v. Alabama, 294 U.S. 587; v.
Ford Motor Co., 516 F. 2d 416 (C.A. 5). Cf. Baum­
gartner v. United States, 322 U.S. 665, 670-671. lhe 
evidentiary facts relating to Smith’s and Samuels 
claims have been found and are not disputed on this 
record; the conclusion of disparate treatment based 
on race follows as a matter of law.

' 1 f-:p i |



Ci Z rth lt  iT w a s  a fiuaUfied firebrick worker, tad

r : r :tions in firebrick work were hired -stead . In  a 
nrivate non-class action such as this, pioo - 
qualified minority applicant was denmd 
Lhon there were available vacancies vill, absent e 
plana tion from the employer, create an inference
------------------------
nr 11 Douglas, supra, 411 U j  ,
fusal to hire Nemhard was demonstrably not ba.
on -a lack of qnalificattos or o vtmarm.e, S

teniationalBrotherhood of 
states 431 U.S. 324, 358 n. 44. Nemhard had made
hhf^threshold prinm facie ^

>0 proved that it did not consider 
Lte applications for the Interlake 
,d only bricklayers known by or 
job superintendent. An employer 
aftsmen may reasonably assume 
aference policy will enhance the 
* workforce. Firsthand knowledge 
st performance is a reasonable, if 
;ure of future performance; and 
■ understandably weight their deci- 
heir own knowledge of past per-



formance rather than depend on the recommendations 
of strangers. A policy which favors prior employees 
over new applicants is not per se unlawful under Title 
V II. See Waters v. Wisconsin Steel Works of Inter­
national Harvester C o 502 F. 2d 1309, 1320 (C.A. 7) 
Here, the district court found that such factors as the 
special skills required at the Interlake job, the speed 
at which the job was to be done, and the cost to Furnco 
if the work was faultily completed, prevented Furnco 
from hiring persons not known by it to be expel i- 
eneed and highly qualified” or from engaging in “on- 
tlie-job training” (Pet. App. A14-A15). While these 
findings may be subject to dispute, they are not clearly 
erroneous. Thus, on the record here, Furnco met its 
burden of rebuttal under McDonnell DouglasA The

15 McDonnell Douglas docs not identify the precise nature of 
the burden which is shifted to the employer to rebut the individ­
ual's pnma facie case. We believe that the employer has the 
burden of showing both what its reasons are for rejecting the 
application and that those reasons are legitimate, i.e., that they 
grow out of the needs of its business. The employer, in our view, 
bears the burden of persuasion on both issues. Here, the com­
plainant has proven that the two most common legitimate rea 
sons for rejection (lack of vacancies'and qualifications) do not 
nnnlv. See Teamsters, supra, 431 U.S. at 358 n. 44. If  there is a



eel in holding that 
legitimate reason, unrelated 

s rejection.
facially legitimate policy is not immune 

its application. The faciall) nen- 
risor’s reference 

pplied with racially discrimi- 
, But the facts of this case 
ent view of the court of ap- 

of not considering written 
i was applied discriminatorily 

applicants. No applicant “at the gate,” 
considered for employment at 
to accept applications does not 

n+ivntprl hv a desire to maintain

court of appeals therefore err 
Furnco did not establish a 
to race, to justify Nemhard’i 

Furnco’s
from scrutiny in
tral policy of hiring only by superv 
would be unlawful if W _ 
natory purpose or effect, 
do not support the appar 
peals that Furnco’s policy 
or job-site applications 
against black : _ _ 
white or black, was 
Interlake. The refuse 
appear to have been 1 
an all-white work fc 
stricted to the all-white list; Dacies 
bricklayers who were recommended t 
representation on the job compares fa 
in the apparently available labor forceR esponden ts

” ^ 7 o u r t  of appeals eorrc'ctly held that the district court 
erred in excluding respondents' evidence concerning the ram i 
composition of the available labor force but that Ins error j 
not prejudicial. Blacks were not under-represented on the R e  ­
late job whether the available labor force is 5 7 percent black as 
contended by petitioner, or 13-14 percent black as contended b> 
respondents.^As we have noted (supra, p. 4) three blacks were 
among the twenty bricklayers hired during the first three weeks «t 
the Interlake job. We would view Nemhard s claims very dirtei- 
entlv if Dacies had filled all of the early positions with white . 
while at the same time rejecting new applicants and then hue 
blacks only during the tail-end portion of the job. Lndei those c 
cumstances, it could be concluded that Furnco's policy of rejecting 

ivnc Hnsicrned to reserve the best long-term jobs foi

}ipy\ I

MMKWBSWB

1 1 1 m
.



did not prove that the company placed an artificial 
ceiling on the number of blacks it would hire. Re­
spondents thus did not show that Furnco’s policy of 
rejecting new applications was a pretext for racial 
discrimination against black applicants without prior 
experience. Thus, while experienced black bricklayers 
like Smith and Samuels were the victims of disparate 
treatment based upon race, black applicants without 
prior experience with Dacies or Furnco were not. 
See Waters v. Wisconsin Steel Works of Interna- 
national Harvester Co., 502 F. 2d 1309, 1321-1322 
(C.A. 7).

Irrespective of motivation, a policy of “hiring from 
within” may lead to discriminatory results if minori­
ties are under-represented in a company or industry.17 
See Gates v. Georgia-Pacific Corp., 492 F. 2d 292 
(C.A. 9). The use of a policy that has a disproportion­
ately adverse impact on minorities or which per­
petuates the effects of past discrimination violates 
Title V II unless it is justified by business necessity.18

17 Congress “intended to prohibit all practices in whatever form 
which create inequality in employment opportunity due to dis­
crimination on the basis of race, religion, sex, or national origin.” 
Franks v. Bowman Transportation Co., 424 U.S. 747, 763. See 
also, e.g., A ashvillr. Gas Co. v. Satty , No. 75-536, decided Decem­
ber 6, 1977; Dothard v. Rawlinson, 433, U.S. 321, 328-329.

18 In contrast, an individual who suffers purposeful discrimina­
tion need not prove that other members of the group to which 
ho belongs were also the victims of discrimination. Of course, one 
method of establishing purposeful discrimination against individ­
uals is by proving that the employer engaged in a pattern of

(Continued)



L in d u stry -w id e  law suit, a i.u  
challenge F u v n eo ’s h ir in g  policy 

In te r la k e . On th a t  job, th e re  
Jlg  th a t  F u v n e o ’s policy  of re- 
• re su lted  in  the  d isp ro p o rtio n a te  
b rick lay ers  o r p e rp e tu a te d  the ef- 
r in a tio n .19 K em h ard  d id  n o t dem on- 
, th a t  a t th e  tim e  of th e  In te r la k e  
hack  b rick lay ers  co n stitu ted  sub- 
1in 1?, n e rcen t of the  pool of com-

class-wide discrimination, buch proor cieaus a 
tn p t io n  that individual ntemho.s of .ho c as, tvoro 
tinis of discrimination. Teamsters, supra, 431 U.b. 
Franks v. Bowman Transportation Cos up i a ,  - 

». The potential impact of tf reference system of h 
petuating past discrimination is emphasized by the 
Nicholas Popovic, the president of the brick ayers 
covers Cook County, who worked in the brickky g 
35 years before becoming a union official ( l i .  - -  •
was a supervisor on many jobs, and his standard hi 
was to call directly experienced firebrick workers fioi 
ho maintained (Tr. 47-19). Mr. Popovic never w, 
black bricklayer on a firebrick job cither as a supei

br =o: 431 U.S. at 348-350; f t *  
U.S. at 429-431.



In  the absence of proof of discriminatory treatment 
or effect, tlie availability of alternative hiring- prac­
tices does not render Furnco's policy of rejecting 
applicants at the gate unlawful. The court of appeals 
concluded that a policy of accepting written applica­
tions and checking recommendations is both “ reason­
able” . and “ feasible” (Pet. App. A6), a conclusion 
that would be highly relevant, and perhaps disposi­
tive, if Furnco had the burden of justifying its ex­
isting practice as a business necessity. See, e.g., United 
States v. Bethlehem Steel Corp., 146 F. 2d 652, 662 
(C.A. 2); Robinson v. Lorillard Covp., 444 F. 2d 791, 
799-800 (C.A. 4), certiorari denied, 404 U.S. 1006. 
But the business necessity defense arises only upon 
a showing that the challenged practice has an adverse 
impact on racial or other prohibited grounds; that 
showing has not been made.21 Furnco's only burden 
was to demonstrate that the alternative it chose was 
legitimate and nondiscriminatory. McDonnell Douglas 
y. Green, supra, 411 U.S. at 802. That burden was 
met, and in these circumstances, the availability of a 
feasible alternative did not require, or in itself per­
mit, the district court to find a Title V II violation.22

21 For this reason, it is unnecessary to determine whether the 
district court erred in concluding that Furnco’s practices “were 
justified as a business necessity in that they were necessary for 
the safe and efficient operation of Furnco's business” (Pet. App. 
A20-A21).

22 Respondents did not show that the alternative practice advo­
cated by the court of appeals would have resulted in a greater 
representation of blacks on the Interlake job—a showing which 
might indicate that Furnco’s practice of rejecting applicants was 
a pretext for discrimination. See Albemarle Paper Co. v. Moody, 
supra, 422 U.S. at 425.



CONCLUSION

The judgment of the court of appeals should be
affirmed as to respondents Smith and Samuels and
reversed as to respondent Nemhard.

Respectfully submitted.
W ade H. M cCree, J r . ,

Solicitor General.
D rew  S. D ays, I I I ,
Assistant Attorney General.
B rian  K . L andsberg,
R obert J. R e in s t e in ,

Attorneys.
A bner W. S ibae,

General Counsel,
Equal Employment Opportunity 

Commission.

M arch