Hamm v. City of Rock Hill Brief for Respondent

    No.

1st the

(Emtrt rtf %  Inttrd States
October Term, 1984

P . E . Bazemore, et al.,

y.
Petitioners,

W illiam C. F riday, et al.,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

E dward D. R eibman
108 North Eighth Street 
Allentown, Pa. 18101

Cressie H. Thigpen, Jr.
Thigpen, Blue & Stephens 
Suite 214
Hallmark Building 
Raleigh, North Carolina 27601

J ulius LeVonne Chambers 
R onald L. E llis 
E rio Schnapper*

NAACP Legal Defense & 
Educational Fund, Inc.

16th Floor
99 Hudson Street
New York, New York 10013

Counsel for Petitioners
*Counsel of Record



QUESTIONS PRESENTED

(1) Did the court of appeals err in 
holding that it is both legal and 
constitutional for a state to intentional­
ly pay black employees less than white 
employees in the same job, so long as the 
original decision establishing that 
discriminatory wage differential was not 
itself the subject of a timely charge or 
action?

(2) Did the court of appeals err in 
holding that statistics may not be treated 
as probative evidence of discrimination 
unless the statistical analysis considers 
every conceivable non-racial variable?

(3) Did the court of appeals err in 
holding that a state may satisfy its obli-

l



gation to desegregate a de jure system by 
adopting a freedom of choice plan that 
fails?

(4) Did the court of appeals err in 
holding that an employer may immunize 
itself from liability under Title VII by 
delegating its employment decisions to 
discriminatory a third party?

(5) Did the court of appeals err in 
denying class certification in this case?

i i



PARTIES

The petitioners in this action are: P. 
E. Bazemore; James E. Wright; George E. 
McDaniel; Plese Corbett; Calvin Hargrave; 
Fred Belfield, Jr.; W. N. Payton, Jr.; L. 
C. Cooper; Chester L. Bright; Johnnie 
Jones, III; Lloyd L. Peace; James P. 
West; E. C. Short; Haywood E. Harrell; D. 
B. Waymer; Roosevelt Lawrence; Booker T.
McNeill; Richard M. Edwards; L. E.
Baldwin; Leroy James; Robert L. Lancas-
ter; Henry Revel1, Jr.; Clifton M. Grimes;
Chester Stocks; Avant P. Coleman; Percy W. 
Williams; W . C . Stroud ; Elizabeth Ivey, 
Administratrix of the Estate of D. 0.

m



Ivey, deceased; Cassius S. Williams; 
Samuel Taylor; Fletcher Barber; R. E. 
Wilkins; J . H. Wallace; Eva L. Greene, 
Administratrix of the Estate of Cleo Rich 
Greene; Warren G. Barnes; Hoover M. 
Royals; Thelma Graves Turner, Administra­
trix of the Estate of J. A. Turner; S. T. 
Lloyd; Hernando F. Palmer; Clifton Parker; 
W. F . Wright; Clarence Stockton; Earl G. 
Swann; I . W. Murfree; J . M . Spaulding; 
Mary C . Martin; Alma C. Hobbs; Martha B. 
Thomas; Ann Coston; Esther B . Roscoe; 
Minnie B. Taylor; Jo Ann Fleming; Jeanette 
B . Sherrad; Inez W. Foster; Carrier 0. 
Lindsey; Geraldine H. Ray; Mary I. Parham; 
Dianne Stanley and Dorothy M . Mobley; 
Louise P. Slade; Marilyn White; Pennie P.

iv



on their ownBattle; Joyce P . Hunter, 
behalf and on behalf of all others 
similarly situated; Timothy Bazemore; 
Eddie Watford; Willie Ryan; Alice Ballance 
and Herbert White, on their own behalf 
and on behalf of others similarly situ­
ated; Mary B. Crawford and Essie Moore, on 
their own behalf, and on behalf of all 
others similarly situated; Deborah Jean 
Hart, by her father and next friend, James 
Hart; Herman Hinton, by his father and 
next friend, James Hinton; Bernice Staton 
and Marian Staton, by their father and 
next friend James Staton, on their own 
behalf and on behalf of all others 
similarly situated.

The respondents are: William C.
Friday, President of Consolidated Univer­
sity of North Carolina;

v



John T. Caldwell, Chancellor of North 
Carolina State University? George Hyatt, 
Jr., Director of North Carolina Agricul­
tural Extension Service? The Board of 
Trustees of the University of North 
Carolina, a body politic and corporate? 
The University of North Carolina, a body 
politic and corporate? agd Crawford 
Amick, Hassell Thigpen and James G. 
Martin, County Commissioners, on their 
own behalf and on behalf of all others 
similarly situated.

The United States of America, John R. 
Block, Secretary of Agriculture, and Dr. 
Mary Nell Greenwood, Deputy Director, 
Science and Education Administration 
Extension, were also plaintiffs in the 
proceedings below.

v i



TABLE OF CONTENTS

Page
Questions Presented ...............  i
Parties ............................ iii
Table of Authorities .............  xiii
Opinions Below ................   2
Jurisdiction ......................  2
Statutes and Constitutional

Provisions Involved............. 3

Statement of the Case ............. 4
Reasons for Granting the Writ .... 13

I. Certiorari Should Be 
Granted to Resolve a 
Conflict Among The 
Circuits As to Whether 
The Application Of 
Racially Motivated 
Wage Scales Violates 
Title VII or the Four­
teenth Amendment.......  13

VI 1



Page
II. Certiorari Should Be

Granted To Resolve A 
Conflict Among The 
Circuits As To The 
Admissibility of Sta­
tistical Evidence of 
Intentional Racial 
Discrimination .........  29

III. The Decision Of The 
Court Of Appeals Is In 
Conflict With Green
v. School Board Of New 
Kent C o u n t y 391 O.S.
430 (1968) .............. 44

IV. The Decision Of The 
Court Of Appeals 
Raises An Important 
Question As To The 
Meaning Of General 
Building Contractors 
v. Pennsylvanfi7~458
U.S. 375 ( 1982) ........  49

V. The Decision Of The
Court Of Appeals Is 
In Conflict With Eisen 
v. Carlisle & Jacque-
H n ,  417 U.S. 196
(1974) ....... .........  55

Conclusion  ...... .......  58

v i  1 1



Page

APPENDIX

Judgment on Class-Wide Claims,
August 20, 1982.......... 1a

District Court, Memorandum of 
Decision (Class-wide Claims),August 20, 1982 ................  3a

Order of Dismissal as to Certain 
Individual Claims, August 
20' 1982................. 208a

Judgment, September 17, 1982....... 213a
District Court, Memorandum of 

Decision (Individual Claims),
September 17, 1982 .........   216a

Opinion of the Court of Appeals,
December 10, 1984 .............. 346a

Order of the Court of Appeals 
Denying Rehearing and Rehear­
ing En Banc, April 15, 1985 .... 482a

IX



TABLE OF AUTHORITIES

Cases; Page
Arizona Governing Committee v.

Norris, 77 L.Ed.2d 1236
(1983).......................  53,54

Bartlett v. Berlitz School of 
Languages, 698 F.2d 1003 
(9th Cir. 1983).............. 21

Berry v. Board of Supervisors
of Louisiana State University,
715 F.2d 971 (5th Cir. 1983). 19

Bowman v. County School Board 
of Charles City County, 382 
F.2d 326 (4th Cir. 1967).....  45

Brown v. Board of Education, 347
U.S. 483 (1954)......  .......  45

Cajidas v. Banco de Ponce, 791
F. 2d 464 (1st Cir. 1984).....  24

Calcote v. Texas Educational
Foundation, 578 F.2d 1251 (6th 
Cir. 1978 )....................  19

Chrisner v. Complete Auto Transit
645 F .2d 1251 (6th Cir. 1981).. 41

Clark v. Olinkraft, 556 F.2d 1219
(5th Cir. 1977)................  20

Corning Glass Works v. Brennan,
417 U.S. 18 (1974)............. 27

County of Washington v. Gunther,
452 U.S. 161 (1981)........... 24,25

x



42
Craik v. Minnesota State Univer­

sity Board, 731 F.2d 465 (8th 
Cir. 1984)...................

Davis v. Califano, 613 F.2d 957
(D.C. Cir. 1980).............. 37,42

Delaware State College v. Ricks,
449 U.S. 250 (1980)............ 20

DiSalvo v. Chamber of Commerce,
598 F.2d 593 (8th Cir. 1978)... 21

Dothard v. Rawlinson, 433 U.S. 321
(1977).................  29,31,34,35

Dumas v. Town of Mount Vernon,
612 F.2d 974 (5th Cir. 1980).. 23,24

Eisen v. Carlisle & Jacquelin
417 U.S. 156 (1974) . ..........  55,58

Falcon v. General Telephone,
626 F .2d 369 (5th Cir. 1980).. 39

General Building Contractors v. 
Pennsylvania, 458 U.S. 375 
(1980).....................  49,50,55

General Telephone Co. v. EEOC,
446 U.S. 318 (1980)........ 12

Green v. School Board of New 
Kent County, 391 U.S. 430 
(1968)...  10,44,46,47,43

Griqqs v. Duke Power, 401 U.S.
424 (1971) ...................  44,50

Guardians Association v. Civil 
Service Commission, 630 
F. 2d 79 (2d Cir. 1980).......  38

xi



Guardians Association v. Civil 
Service Commission, 633 F.2d 
232 (2d Cir. 1980) .............  37

Hall v. Ledex, 669 F.2d 3978
( 6th Cir. 1982)................  59

Hunter v. Underwood, 85 L.Ed.2d
222 (1985) ....................  28

International Union of Electri­
cal Workers v. Westinghouse,
631 F.2d 1094 (3d Cir.
1980).......................... 22

Laffey v. Northwest Airlines,
Inc., 567 F.2d 429 (D.C.
Cir. 1976).....................  18,25

Lamphere v. Brown University,
685 F.2d 743 (1st Cir.
1982) .....   18

Norman v. Missouri Pacific Rail­
road, 414 F.2d 73 (8th Cir.
1969).........   17,25

Payne v. Travenol Laboratories,
Inc., 673 F.2d 788 (5th Cir.
1962)........................... 39,40

Perez v. Laredo Junior College,
706 F.2d 731 (5th Cir.
1983) ......      19

Xll



Roberts v. North American Rock­
well Corp., 650 F.2d 823 
(8th Cir. 1981)..... ..........  23

Satz v. ITT Financial Coro.,
619 F. 2d 738 (8th Cir.'
1980)..........................  21

Seqar v. Smith, 738 F.2d 1249
(D.C. Cir. 1984) .............. 36

Teamsters v. United States,
431 U.S. 324 (1977) .....  27,29,30,31 ,

35,39
Trout v. Lehman, 702 F.2d 1044

(D.C. Cir. 1983)........... 36,42
United Airlines v. Evans, 431

U.S. 533 (1977) .........  16,18,19,
20,21,23

Other Authorities:
Equal Pay Act.....................  27
Title VI Civil Rights Act of

1964 ........ ........... ...... 3, 10
Title VII Civil Rights Act of

1964.........................  passim

28 U.S.C. § 1254( 1 ) .............. 3
42 U.S.C. § 1981 .......    50
42 U.S.C. § 2000d................. 3

- xiii -



42 U.S.C. § 2000e-2 ( a)............ 3
42 U.S.C. § 2000e-5(e)...........  4
Fourteenth Amendment, U.S. Consti­

tution ................  passim
7 C.F.R. 15.3(b) (6) (i)............ 47
Rule 23, Federal Rules of Civil

Procedure .....................  5 5,58
Ore. Rev. Stat. § 137.350........  25

xiv



No. ______
IN THE

UNITED STATES SUPREME COURT 
October Term, 1984

P. E. BAZEMORE, et al.,

v.
WILLIAM C. FRIDAY, et al.,

Petitioners,

Respondents.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners P. E. Bazemore, et al., 
respectfully pray that a Writ of Certio­
rari issue to review the judgment and 
opinion of the United States Court of 
Appeals for the Fourth Circuit entered in 
this proceeding on December 10, 1984



2

OPINIONS BELOW

The opinion of the court of appeals 
is reported at 751 F.2d 662 and is set out 
at pp. 346a-481a of the Appendix. The 
order denying rehearing, which is not 
reported, is set out at p. 482a. The 
district court's memorandum of decision of 
August 20, 1982, regarding class claims, 
which is not reported, is set out at pp. 
3a-207a of the Appendix. The district 
court's memorandum of decision regarding 
individual claims, dated September 17, 
1982, is set out at pp. 216a-345a.

JURISDICTION

The judgment of the court of appeals 
was entered on December 10, 1985. A
timely petition for rehearing and sugges­
tion for rehearing en banc was denied by 
an evenly divided court on April 15, 1985. 
Jurisdiction of this Court is invoked 
under 28 U.S.C. § 1254(1).



3

STATUTES AND CONSTITUTIONAL 
_____ PROVISION INVOLVED

Section 601 of Title VI of the 1964 
Civil Rights Act, 42 U.S.C. § 2000d, 
provides:

No person in the United States 
shall, on the ground of race, 
color, or national origin, be 
excluded from participation in, 
be denied the benefits of, or 
be subjected to discrimination 
under any program or activity 
receiving Federal financial 
assistance.

Section 703(a) of Title VII of the 1964 
Civil Rights Act, 42 U.S.C. § 2000e-2(a), 
provides in pertinent part

It shall be an unlawful 
employment practice for an 
employer —
(1) to fail or refuse to hire 

... any individual or 
otherwise to discriminate 
against any individual 
with respect to his 
compensation, terms,
conditions, or privileges 
of employment, because of 
such individual's race, 
color, religion, sex, or 
national origin....



4

Section 706(e) of Title VII of the 1964 
Civil Rights Act, 42 U.S.C. § 2000e-5(e), 
provides in pertinent part;

(e) A charge under this 
section shall be filed 
within one hundred and 
eighty days after the 
alleged unlawful employ­
ment practice occurr­
ed . . « e

Section 1 of the Fourteenth Amendment 
provides, in pertinent part, "No state 
shall ... deny to any person within its 
jurisdiction the equal protection of the 
laws."

STATEMENT OF THE CASE

This is an action seeking to redress 
intentional racial discrimination in the 
operation of the North Carolina Agricul­
tural Extension Service. ("NCAES") NCAES 
is a federally funded state agency which 
provides assistance to farmers throughout



5

North Carolina, and which organizes and 
assists the system of 4-H clubs in that 
state. Prior to 1965 NCAES was a de jure 
segregated agency operating along strictly 
racial lines. There were separate black 
and white offices in each county, with 
each servicing exclusively black and white 
citizens respectively. The several 
thousand state assisted 4-H clubs were 
also organized along racial lines. It was 
the avowed policy of the defendant to pay 
black workers lower salaries than were 
paid to whites in the same positions. The 
black and white offices were merged in 
1965, but the differences in the salaries 
of the black and white employees per­
forming the same jobs were never elimi­
nated, and no steps were taken to merge 
the separate all-white and all-black 4-H 
clubs operating side by side in communi­
ties throughout the state.



6
This action, commenced in 1971 in the 

United States District Court for the 
Eastern District of North Carolina, was 
initially filed by private plaintiffs, 
including NCAES employees, seeking to 
redress a variety of forms of intentional 
racial discrimination alleged to exist at 
NCAES. In 1972 the United States of 
America intervened as a plaintiff in the 
action, advancing essentially the same 
claims as the individual plaintiffs. 
Following a lengthy trial the district 
court rejected on the merits all the 
claims of both the United States and the 
private plaintiffs. On appeal a divided 
panel affirmed the decision of the 
district court; Judge Phillips, dissent­
ing , insisted that the denial of relief 
was an error as a matter of law.

A timely petition for rehearing was 
filed, together with a suggestion for 
rehearing en banc. Five members of the



7
fourth circuit voted to grant rehearing en 
banc, Judges Winter, Murnaghan, Sprouse, 
Ervin, and Phillips. The court of appeals 
was evenly divided on the petition, and 
rehearing en banc was therefore denied.

This case presents several somewhat 
interrelated claims of intentional 
discrimination. First, the plaintiffs 
alleged that the different salary scales 
established prior to 1965 for black and 
white workers hired prior to 1965 still 
remained in effect, and that blacks hired 
before 1965 continued to be paid less than 
white colleagues holding the same posi­
tions. The district court and the court of 
appeals concluded that pre-1965 pay
differentials for black and white workers

1
indeed remained in effect, but both 
courts held that the continued use of such 
differentials violated neither Title VII

1

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



8
2

nor the Fourteenth Amendment. Judge
Phillips dissented, insisting that those
salary differentials were both illegal and

3
unconstitutional.

Second, the plaintiffs alleged that 
NCAES engaged in intentional racial 
discrimination in fixing the salaries of 
workers hired after 1965, and in determin­
ing raises for pre-1965 hires. The 
plaintiffs introduced statistics demon­
strating that the average salaries of 
white workers were consistently higher 
than the average salaries of black workers 
in the same jobs and with the same amount 
of seniority and education. Both courts 
below concluded that proof that black and 
white workers holding the same position 
were paid different salaries was as a 
matter of law devoid of evidentiary 
significance, and could provide no support

2
122a, 380a-82a.
462a-66a.



9
for the claims of intentional racial

4
discrimination in compensation. Again 
Judge Phillips dissented, arguing that 
such statistical evidence clearly demon­
strated intentional racial discrimination

5
in compensation.

Third, the plaintiffs alleged that the 
defendants had engaged in intentional 
racial discrimination in selecting the 
County Chairmen, the salaried official 
responsible for supervising the NCAES 
office in each county. The record showed 
that between 1965 and 1981 no black had 
ever been appointed to a county chairman­
ship for which a white male also applied; 
of 123 appointments in this period, only 6 
went to blacks, and only one black County 
Chairman was appointed prior to 1976. The 
court of appeals agreed that there was 
evidence of discrimination, but concluded

4 '
5 131 a - 13 6 a , 389a,  392a.

448a -46 2a .



10

that any discrimination was on the part of 
local officials to whom NCAES delegated 
decisions between black and white appli­
cants, and that NCAES was immune from

6
liability for such discrimination.

Fourth, the plaintiffs asserted that 
continued state assistance to several 
thousand single race 4-H clubs violated 
both Title VI and the Fourteenth Amend­
ment. Following the enactment of Title VI, 
the defendants had adopted a freedom of 
choice plan that failed; there were 1,474 
all-white clubs in 1965, and 1,348 
all-white clubs in 1980. Despite this 
Court's decision in Green v. School Board 
of New Kent County, 391 U.S. 430 (1968), 
both courts below held that NCAES was
under no obligation to take any steps to

7
desegregate the clubs. Judge Phillips 
dissented, contending that the majority

6
j  4 1 2 a - 13 a .

1 6 5 a - 1 8 4 a ,  4 2 4 a ,  n .  1 2 8 .



- 1 1 -
opinion erred in refusing to comply with 

8
Green.

Fifth, the private plaintiffs
presented individual claims of
discrimination in compensation or in
promotion to the position of County
Chairman. Both courts below regarded the
resolution of these claims as controlled
by their views of the merits of the

9
related class-wide claims.

Finally, the district court believed
class certification in a private Title VII
case was impermissible if, as here, the
United States had filed a pattern or

10
practice action. Judge Phillips insisted

8
q 469a-481a.

218a, n.70, 380a. Petitioners believe 
that this position was essentially 
correct. Reversal by this Court on the 
pattern and practice issue would neces­
sarily require reversal of disposition of 
the individual claims. For that reason, 
the disposition of the individual claims 
is encompassed within questions 1, 2 and

45a



12

that this reasoning was inconsistent with
General Telephone Co. v. EEOC, 446 U.S. 

11
318 (1980), and the majority declined to 

1 2
defend it. The majority, however, held
that denial of certification was proper,
because it rejected on the merits the
legal claims which petitioner sought to
present on behalf of the claims. Judge

13
Phillips again dissented.

Petitioners sought rehearing en banc 
on each of these issues, and five members 
of the court of appeals voted to rehear 
all of them en banc.

1 1
4 32a-33a.

1 2
372a-73a. 

1 3
426a-33a



13
REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED 
TO RESOLVE A CONFLICT AMONG THE 
CIRCUITS AS TO WHETHER THE 
APPLICATION OF RACIALLY 
MOTIVATED WAGE SCALES VIOLATES 
TITLE VII OR THE FOURTEENTH 
AMENDMENT

The decision in this case marks a 
clear and dangerous departure from what 
until now has been the uniform view of 
seven circuits regarding the legality of 
racial discrimination in salaries. For 
fifteen years every appellate court which 
has considered this issue has concluded 
that, where an employer intentionally 
establishes different salaries for white 
and black employees because of their 
race, that practice violates Title VII and 
the Fourteenth Amendment, where applic­
able, as long as that pay differential 
remains in effect. Every prior decision 
has held discrimination in compensation to



14
be continuing violation, recurring anew 
with each pay period.

The panel opinion in this case now 
adopts the opposite rule. The facts with 
regard to this issue are not in dispute. 
Prior to 1965, when many of the petition­
ers were initially hired, North Carolina's 
Agricultural Extension Service was 
operated as a dje jure segregated system. 
Black employees worked in separate 
offices, serviced only black citizens, and 
were deliberately paid less than white 
employees doing the identical work in the 
white offices. In 1965 the offices were 
merged, but no changes were made in the 
salaries; black and white employees 
worked side by side performing the same 
duties but continued to receive different 
salaries. Both courts below found that 
these racially based salary differentials 
continued well past 1971, the year in



- 15 -
14

which this action was filed, and petiti­
oners contend that those disparities

15
persist to this day. The fourth circuit, 
however, held that these practices 
violated neither Title VII nor the 
Fourteenth Amendment. (80a-82a). The 
majority opinion holds, not only that 
North Carolina is free to pay blacks hired 
prior to 1965 less than whites for the 
rest of their lives, but that the state 
may in the future give black employees 
smaller raises than comparable whites so 
long as those raises are based on the 
racially motivated pay schedules esta­
blished in the past. (390a).

14 30a-31 a, 122a, 201a, 359a, 360a.
1 5 The fourth circuit noted, "the Extension 

Service admits that, while it had made 
some adjustments to try to get rid of the 
salary disparity resulting on account of 
pre-Act discrimination, it has not made 
all the adjustments necessary to get rid 
of all of such disparity." 390a.



16
The majority below believed that this 

extraordinary conclusion was required by 
this Court's decision in United Airlines 
v. Evans, 431 U.S. 533 (1977), a reading 
of Evans that has been expressly rejected 
by several other circuits. The fourth 
circuit reasoned that the only discrimi­
nation in compensation forbidden by Title 
VII or the Fourteenth Amendment is an 
employer's initial decision establishing 
the level of compensation for an indi­
vidual or position; the continued appli­
cation of that racially based rate of pay, 
which may recur over years or even 
decades, was held to be entirely lawful. 
Judge Phillips dissented, insisting that 
Evans did not sanction the use of a 
"pattern of salary discrimination that 
carries forward differentials originating" 
prior to the adoption of Title VII or 
prior to the commencement of the relevant 
limitations period. (462a-466a). But the



17
majority held that the Constitution 
forbids only the creation, but not the 
implementation, of separate and unequal 
wage scales for blacks and white,, and 
concluded that the Congress that adopted 
Title VII did not wish to affect the 
salaries of blacks then being paid less 
than whites for doing the same work, but 
intended to leave an entire generation of 
women and minorities in that inferior 
position so long as they continued to hold 
the same jobs that they held in 1965.

Seven circuits over 15 years have 
uniformly rejected this interpretation of 
Title VII and the Fourteenth Amendment. As 
early as 1969, in a decision joined by 
then circuit judge Blackmun, the eighth 
circuit held in Norman v. Missouri Pacific 
Railroad, 414 F.2d 73, that discrimination 
in compensation was a "continuing" 
violation of the law. 414 F.2d at 84-85. 
The controversy in Norman concerned



18

pre-Act pay differentials that dated from 

1918. 414 F,2d at 7 6, 81. In Laffey v. 

Northwest Airlines, Inc., the District of 
Columbia circuit also concluded that 
discrimination in salaries was a contin­

uing violation, and afforded relief to 

correct pay differentials that had been 
established in 1947 and that had first 
been applied to the lead plaintiff in 
1953. 567 F.2d 429, 437-38, 473 (D.C. Cir. 
1976).

This Court’s decision in United 
Airlines v. Evans made clear that claims 

of continuing violations were to be 

closely scrutinized, but until the instant 

case all circuits remained in agreement 
that Title VII forbade the application as 

well as the creation of a racially based 
compensation scheme. In Lamphere v. Brown 
University the first circuit held that 
Evans did not permit an employer to pay



a female employee a lesser wage based on a 

discriminatory pre-Act salary schedule:

A discriminatory ... decision, 
made prior to the effect ive 
date of the Act, but implement­
ed post-Act, is actionable .... 
[A] decision ' to hire an 
individual at a discriminatori- 
ly low salary can, upon 
payment of each subsequent pay 
check, continue to violate the 
employee’s rights.

685 F . 2d 743, 747 (1st Cir. 1982). Twice
since this Court's decision in Evans, the

fifth circuit has held that salary
discrimination is a continuing violation,
and that, in addition to the original
decision establishing a salary scale,

"each discriminatory pay check violates
the act." Berry v. Board of Supervisors of

Louisiana State University, 715 F.2d 971,
16

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

-] g
Berry discussed Evans at 715 F.2d at 971. 
A similar interpretation of Evans can be 
found in Perez v. Laredo JuniorCollege, 
706 F.2d 731, 733-34 (5th Cir. 1983). In 
Calcote v. Texas Educational Foundation, 
578 F.2d 95'(5th Cir. 1978) a black and a 
white with similar credentials were hired



-  20

669 P . 2d 3 9 7  ( 6 t h  C i r . 1 9 8 2 )  , t h e  p l a i n -

t i f f  c o m p l a i n e d  t h a t  when she was named t o

a s u p e r v i s o r y  p o s i t i o n  s he  was p a i d  o n l y

t w o - t h i r d s  o f  t h e  s a l a r y  g i v e n  t o  men i n

t h a t  j o b .  T h e  d e f e n d a n t  a s s e r t e d  t h e

a c t i o n  was u n t i m e l y ,  s i n c e  t h e  p l a i n t i f f

h a d  n o t  f i l e d  h e r  c o m p l a i n t  w i t h  EEOC

u n t i l  o v e r  a y e a r  a f t e r  h e r  s a l a r y  was  
1 7

f i x e d .  T h e  s i x t h  c i r c u i t  r e j e c t e d  t h a t  

c o n t e n t i o n ,  i n s i s t i n g  " t h e  d i s c r i m i n a t i o n  

was c o n t i n u i n g  i n  n a t u r e .  H a l l  s u f f e r e d  a

t o  do t h e  same work bu t  g i v e n  d i f f e r e n t  
j o b  t i t l e s  and s a l a r i e s . The F i f t h  
c i r c u i t  h e l d  t h a t  t h e  d e f e n d a n t  was i n  
v i o l a t i o n  o f  T i t l e  V I I  even though l a t e r  
i t  p l a c e d  b o t h  e m p l o y e e s  i n  t h e  same  
c l a s s i f i c a t i o n ,  s i n c e  each k e p t  " h i s  p r i o r  
s a l a r y  l e v e l . "  578 F . 2 d  a t  9 6 - 9 7 .  I n  
C l a r k  v .  O l i n k r a f t , 556 F . 2d 1 2 1 9  ( 5 t h  
C i r .  1 9 7 7 ) ,  d e c i d e d  s h o r t l y  a f t e r  E v a n s , 
t h e  f i f t h  c i r c u i t  u p h e l d  t h e  p l a i n t T f f T s 
c o n t e n t i o n  t h a t  s a l a r y  d i s c r i m i n a t i o n  i n  
1 9 7 4 ,  a l t h o u g h  based on wages e s t a b l i s h e d  
i n  1 9 6 4 ,  was "a c o n t i n u i n g  and u n l a w f u l  
employment p r a c t i c e  i n  v i o l a t i o n  o f  T i t l e  
V I I . "  556 F . 2 d  a t  1 2 2 2 .

T h e  d e f e n d a n t  r e l i e d  i n  p a r t i c u l a r  on 
D e l a wa r e  S t a t e  C o l l e g e  v. R i c k s , 449 U.S. 
250 ( 1 9 8 0 ) .  See 669 F . 2 d  a t  3 99.



21

denial of equal pay with each check she 

received." 669 F.2d at 398.

Similarly, the eighth circuit has

reiterated since Evans its view that

salary discrimination is a continuing
violation. In Satz v. ITT Financial

Corp., 619 F .2d 738 (8th Cir. 1980), the
plaintiff did not file a charge with EEOC
until more than 180 days after her
employer set her salary at a level lower

than that of men doing the same work. The

court of appeals rejected the employer's

contention that the charge was untimely,

holding that "[t]he practice of paying
discriminatorily unequal pay occurs not
only when an employer sets pay levels, but
as long as the discriminatory differential

18
continues." 619 F.2d at 743. In Bart-

See also Di Salvo v. Chamber of Commerce, 
598 F. 2d 593, 595 (8th Cir. 1978) (salary 
discrimination claim upheld despite the 
fact that the disputed salary was fixed 
more than 180 days prior to the filing of 
a charge.)



22
l e t t  v .  B e r l i t z  S c h o o l  o f  L a n g u a g e s , 698

F . 2d 1 003 ( 9 t h  C i r .  1 9 8 3) , t h e  e mpl oy e r

made p r e c i s e l y  t h e  a r g u m e n t  s u s t a i n e d  by

t h e  f o u r t h  c i r c u i t  i n  t h i s  c a s e ,  t h a t  o n l y

t h e  o r i g i n a l  a c t i o n  e s t a b l i s h i n g  an
19

e m p l o y e e ' s  wages v i o l a t e s  T i t l e  V I I .  The  

n i n t h  c i r c u i t  r e j e c t e d  t h a t  c o n t e n t i o n ,  

h o l d i n g  t h a t  " p a y i n g  l o we r  wages t o  f e ma l e  

e m p l o y e e s  on e a c h  p a y d a y  c o n s t i t u t e s  a 

' c o n t i n u i n g  v i o l a t i o n ' " .  698 F . 2 d  a t  

1 0 0 4 .  The t h i r d  c i r c u i t  d e a l t  w i t h  c l a i m s  

s i m i l a r  t o  t h o s e  i n  t h e  i n s t a n t  c a s e  i n  

I n t e r n a t i o n a l  Uni on o f  E l e c t r i c a l  Worker s  

v. Wes t  i n g h o u s e , 6 3 1  F . 2 d  1 094 ( 3 d  C i r .  

1 9 8 0 ) ,  i n  w h i c h  t h e  p l a i n t i f f s  a l l e g e d  

t h a t  t h e  e m p l o y e r ' s  wage s c a l e s ,  w h i c h  

p r o v i d e d  t h e  l o w e s t  s a l a r i e s  f o r  p r e d o m i ­

n a n t l y  f e m a l e  j o b s ,  h a d  b e e n  e s t a b l i s h e d

S e e  698 F . 2 d  a t  1 0 0 5  n .  1 :  " B e r l i t z ' s 
p r i m a r y  argument i s  t h a t  t h e  l i m i t a t i o n s  
p e r i o d  s h o u l d  r u n  from t h e  d a t e  t h e  
p l a i n t i f f s  became [empl oyees]  b e c a u s e  i t  
was a t  t h i s  t i m e  t h a t  t h e i r  a l l e g e d l y  
d i s c r i m i n a t o r y  wages were s e t . "



23

as the result of an intentional policy to

discriminate against women. 631 F.2d at

1097. The third circuit held that those

allegations stated a cause of act ion under

Title VII, despite the fact that the
salary scales at issue had been created in

the 1930's, a generation prior to the
adoption of Title VII itself.

The division in the circuits on this
issue is typical of the widespread
disagreements among the lower courts as to
the meaning of United Airlines v. Evans.

The fifth circuit has aptly described

those subsequent interpretations of Evans

as "inconsistent and confusing". Dumas v.
Town of Mount Vernon, 612 F.2d 974, 977
(5th Cir. 1980). The courts of appeals
are also divided, for example, over

20
whether or when discrimination in hiring 
____

Compare, Roberts v. North American 
Rockwell Corp, 650 F .2d 823 (8th Cir. 
1981) (hiring discrimination a continuing 
violation not subject to the rule in 
Evans) with Dumas v. Town of Mount Vernon, 
612 F.2d 974 (5th Cir. 1980) (hiring



24
21

o r  d i s c r i m i n a t i o n  i n  p r o m o t i o n s  c o n s t i t u t e  

c o n t i n u i n g  v i o l a t i o n s  o f  t h e  l a w.

The f o u r t h  c i r c u i t . ' s d e c i s i o n  i n  t h i s  

c a s e ,  u n l e s s  o v e r t u r n e d ,  w i l l  l a r g e l y  

e m a s c u l a t e  t h e  s t a t u t o r y  and c o n s t i t u ­

t i o n a l  p r o h i b i t i o n s  a g a i n s t  r a c i a l  

d i s c r i m i n a t i o n  i n  c o m p e n s a t i o n . B o t h  

T i t l e  V I I  and t h e  F o u r t e e n t h  Amen d me n t ,  

wh e r e  a p p l i c a b l e ,  f o r b i d  an e m p l o y e r  t o  

i n t e n t i o n a l l y  a s s i g n  a l o w e r  wage t o  a 

p a r t i c u l a r  p o s i t i o n  b e c a u s e  most o r  a l l .  o f  

t h e  e mpl oy ees  i n  t h a t  p o s i t i o n  a r e  b l a c k  

o r  f e m a l e .  S e e  C o u n t y  o f  W a s h i n g t o n  v .  

G u n t h e r, 4 5 2  U . S .  1 6 1  ( 1 9 8 1 ) .  B u t  s u c h

d i s c r i m i n a t o r y  wage s y s t e m s  o r d i n a r i l y  

wer e e s t a b l i s h e d ,  a s  was t h e  c a s e  i n

d i s c r i m i n a t i o n  i s  not  a c o n t i n u i n g  v i o l a ­
t i o n  and i s  t h u s  s u b j e c t  t o  t h e  r u l e  i n  
E v a n s ) .

2 1 Compare Dumas, s u p r a  (p r o m o t i o n  d i s c r i m i ­
n a t i o n  i s  a~ c o n t i n u i n g  v i o l a t i o n  n o t  
s u b j e c t  t o  t h e  r u l e  i n  E v a n s ) w i t h  
C a j i d a s  v .  Banco de P o n c e , 741  F . 2 d  464,  
4 6 9 - 7 0  ( 1 s t  C i r .  1 984)  ( E v a n s  i s  a p p l i c ­
a b l e  t o  some bu t  not  a l l  d i s c r i m i n a t i o n  
i n  p r o m o t i o n s ) .



- 25 -
22

Gunther, long prior to the adoption of

Title VII or the beginning of the limita­

tions period relevant to the constitu- 
23

t.ional claim. If, as the fourth circuit 

has held, only the creation of such 

discriminatory wage scales, but not their 

application, is unlawful, then Gunther 

and the principle it establishes would be 
a dead letter.

The same is true of the statutory and 

constitutional prohibitions against 
intentional racial discrimination in the 
fixing of salaries for particular em­

ployees. Unlike discrimination in

promotions or assignments, the effects of 
which are often obvious to all involved,

The existence of a separate position for 
female prison guards dated from pricr to 
1 955. See note at Ore. Rev. Stat. 
§ 137.350

See, e.g. Norman v. Missouri Pacific 
Railroad, 414 P.2d 73, 84-85 (8th Cir. 
1969) (system established in 1930's); 
Laffey v. Northwest Airlines, Inc., 567 
F . 2d 429, 437-38 (D.C. Cir. 1978) (system 
established in 1947).



26

t h e  e x i s t e n c e  o f  d i s c r i m i n a t i o n  i n  

c o m p e n s a t i o n  i s  o n l y  r a r e l y  a p p a r e n t ,  

s i n c e  t h e  v i c t i m s  o f  t h a t  p r a c t i c e  u s u a l l y  

do n o t  know t h e  s a l a r i e s  o f  t h e i r  w h i t e  

c o l l e a g u e s ,  and o r d i n a r i l y  h ave no method 

o f  c o m p a r i n g  t h e i r  wa ges  w i t h  t h o s e  o f  

o t h e r s  d o i n g  t h e  same work.  I n  a s u b s t a n ­

t i a l  p r o p o r t i o n  o f  a l l  r e p o r t e d  T i t l e  V I I  

wage c o m p e n s a t i o n  c a s e s ,  t h e  p l a i n t i f f s  

were u n a b l e  to d e t e c t  t h a t  s t a t u t o r y  v i o ­

l a t i o n  u n t i l  i t  was a l r e a d y  t o o  l a t e  to  

f i l e  a c h a r g e  w i t h  r e g a r d  t o  t h e  i n i t i a l  

a c t i o n  e s t a b l i s h i n g  t h e i r  s a l a r i e s .

The f o u r t h  c i r c u i t  d e c i s i o n  i s  

m a n i f e s t l y  i n c o r r e c t .  I t  i s  s i m p l y  

i n c o n c e i v a b l e  t h a t  t h e  C o n g r e s s  w h i c h  

adopt ed t h e  1 964 C i v i l  R i g h t s  A c t  i n t e n d e d  

t o  p r o v i d e  no r e d r e s s  f o r  b l a c k s  who wer e  

t h e n  b e i n g  p a i d  l e s s  t h a n  w h i t e s  f o r  t he  

same w o r k .  I t  i s  e q u a l l y  u n l i k e l y  t h a t  

C o n g r e s s  i n t e n d e d  t o  p r o h i b i t  j u d i c i a l  

s c r u t i n y  o f  t h e  p r e - A c t  o r i g i n s  o f  s a l a r y



27

scales when it clearly contemplated such 

inquiries into the original purposes of 

pre-Act senority systems. See Teamsters 

v. United States, 4 3 1 U . S . 3 2 4 , 356 

(1977). The fourth circuit's holding that 

Title VII does not forbid the continued 

use of racially based pre-Act salary 

scales is squarely contrary to this 

Court's resolution of the same question 
under the Equal Pay Act. In Corning Glass 
Works v. Brennan, 417 U.S. 188 (1974), 

this Court held unlawful pre-Act discri­

minatory salary scales that remained in 
effect after the adoption of the Equal Pay 
Act:

The differential ... reflected 
a job market in which Corning 
could pay women less than men 
for the same work. That the 
company took advantage of such 
a situation may be understand­
able as a matter of economics, 
but its differential neverthe­
less became illegal once 
Congress enacted into law the 
principle of equal pay for 
equal work.



28

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

As a matter of constitutional law, the 
decision of the fourth circuit — - that the 

Fourteenth Amendment forbids only the 
adoption, but not the implementation, of a 

racially motivated practice —  flies in 

the face of a century of Supreme Court 

decisions. This Court has repeatedly held 

unconstitutional the application of state 
laws adopted for racial reasons, no matter 

how old the laws themselves. The rule 

whose implementation was condemned in 

Hunter v. Underwood, 85 L.Ed. 2d 222 
(1985), for example, had been established 
by the Alabama Constitutional Convention 

of 1901, even some eighty years before 
Underwood filed suit. If the North 

Carolina legislature had in 1964 fixed 

petitioner Bazemore's salary by statute, 
intentionally setting it at a lower level 
because of his race, every court in the

land would have struck down that law as



29

unconstitutional. Surely the result is no 

different where, as here, the racially 

motivated state practice complained of was 

taken pursuant to an administrative 
decision rather than a state statute.

I I .  C E R T I O R A R I  SHOULD BE 
GRANTED TO RESOLVE A CONF L I C T  
AMONG THE C I R C U I T S  AS TO THE  
A D M I S S I B I L I T Y  OP S T A T I S T I C A L  
EVIDENCE OF I NTENTI ONAL  R A C I A L  
DISCRIMI NATION

The fourth circuit decision in this 
case revives, and gives conclusive weight 
to, the very objection to the use of 
statistical evidence that this Court 
expressly rejected in both Dothard v. 
Rawlinson, 433 U.S. 321 (1977) and Team­
sters v. United States, 431 U.S. 324 
(1977). In Dothard the plaintiff relied 
on population statistics to show that an 
employer's hiring criteria had an adverse 
impact on women. The defendant urged that 
such data be deemed insufficient, arguing



30

that an analysis of actual applicants 
might have yielded a different result. The 
Court held that such speculation about the 
possible effect of a more refined statis­
tical analysis was not an adequate basis 
for rejecting the plaintiffs' statistics:

The plaintiffs in a case such 
as this are not required to 
exhaust every possible source 
of evidence.... if the 
employer discerns fallacies or 
deficiencies in the data 
offered by the plaintiff, he is 
free to adduce countervailing 
evidence of his own. In this 
case no such effort was made. 
433 U.S. at 331.

Similarly, in Teamsters the employer 
objected to the significance of evidence 
that it employed a far smaller proportion 
of minorities than were present in the 
population. The employer insisted that 
half a dozen factors not considered in the 
plaintiff's analysis might have explained 
away that disparity, and presented an 
expert on statistics to criticize the



31
24

plaintiff's methodology. But the employer 
adduced no statistics of its own indi­
cating that the methodology it advocated 
would have yielded any different result, 
and this Court concluded that the plain-
tiff itself was under no obligation to
“fine tun [e]" its statistics. 431 U.S. at
342 n. 23.

The fourth circuit in this case 
sustained precisely the unsubstantiated 
speculation objection disapproved in 
Dothard and Teamsters. The plaintiffs 
here adduced uncontroverted evidence that 
the average salaries of whites and blacks 
in the same job were consistently dif­
ferent, with the white average invariably 25
higher. This disparity was true for all
24

See Brief for Petitioner T.I.M.E.-D.C., 
Inc., pp. 18-20.

25 The disparities in the wages of Associate 
Agricultural Agent, the single largest job 
title, were typical:

Average Average
Salary Salary

Year of Whites of Blacks Difference



32
jobs, persisted for over a decade, and was
present even when the experience and
education of the employees was cons i- 

26
dered. An expert retained by the
defendant's conducted his own analysis of 
the data, and also concluded that at least 
until the mid-1970*s there was a disparity 
between the salaries of blacks and whites 
in the same jobs. (387a). The fourth 
circuit, however, concluded that these 
disparities were "unacceptable as evidence 
of discrimination." (391a). It was of no 
significance, the court of appeals held, 
that the employer consistently paid whites 
more than similarly educated and experi-

1970 $ 9,876 $ 8,956 $ 9201971 10,241 9,558 682
1973 10,292 9,797 4951974 10,244 9,840 4041976 12,711 1 1,885 8261978 14,754 13,518 1,2361980 15,253 14,485 7581981 17,035 15,849 1,186
App. 1562; GX 95, 98; PX 50, 100.
App. 399-418; GX 122-24.



3 3

enced blacks doing the same work; no 
statistical analysis was entitled to any 
weight unless it considered "all measur­
able variables thought to have an effect 
on salary." (391a). (Emphasis added) The 
trial judge had speculated that there were 
at least nine additional variables that 
might have explained the disparities 
(133a), and the majority on appeal 
thought this speculative possibility fatal 
to plaintiffs claims. (389a-91a).

Judge Phillips correctly dissented 
from this aspect of the panel decision 
below, insisting that statistical evidence 
could not be rejected

for failure to include a number 
of other independent variables 
merely hypothesized by defen­
dants.......[T]o apply such a
rule generally would effective­
ly destroy the ability to 
establish any Title VII pattern 
or practice claim by this means 
of proof . . . [ I ] t will 
always be possible for Title 
VII defendants to hypothesize 
yet another variable that might 
theoretically reduce a race- 
effect coefficient demonstrated



34

by any multiple repression 
analysis that could be con­
ceived. (448a-49a).

Judge Phillips stressed,, as did this Court 
in Dothard, that there was no "evidence 
that the inclusion of other variables 
would in fact reduce" the disparities the 
wages of blacks and whites in the same 
job. (450a) (Emphasis in original). 
Correctly recognizing the substantial 
impact the majority opinion would have on 
the use of statistics in any future Title 
VII case, five members of the fourth 
circuit voted to rehear this case en banc.



f

The decision of the fourth circuit 
sustaining the very speculation objection 
disapproved in Dothard and Teamsters is 
in square conflict with the decisions of 
the five courts of appeals that have 
dutifully followed the opinions of this 
Court. The District of Columbia circuit, 
citing Dothard and Teamsters, has 
rejected the fourth circuit's rule that 
statistical evidence should or can be 
rejected merely because it does not 
analyze every conceivably relevant factor:

2 7 The majority opinion rejected the indivi­
dual claims of salary discrimination on a 
similar theory. Petitioners offered 
statistical comparisons of their wages 
with the wages of white agents with the 
same education hired at the same time into 
the same jobs. The majority dismissed 
that evidence on the ground that such 
comparisons did not also consider possible 
additional job qualificat ions or dif­
ferences in job performance. (378a- 
379a). Both the majority and Judge 
Phillips agreed that the district court's 
decision rejecting the individual claims 
would have to be reversed if there was 
proof of a pattern and practice of salary 
discrimination. (380a, 467a).



36

[U]nquantified, speculative and 
theoretical objections to the 
proffered statistics are 
properly given little weight by 
the trial courts 'When a 
plaintiff submits accurate 
statistical data, and a 
defendant alleges that relevant 
variables are excluded, 
defendants may not rely on 
hypothesis to lessen the 
probative value of plaintiff's 
statistical proof* Rather, 
defendant . , . must either 
rework plaintiff's statistics 
incorporating the omitted 
factors or present other 
proof undermining plaintiff's 
claims.' 28

Similarly, in a promotion discrimination
case, the District of Columbia circuit
insisted, contrary to the position of

29
fourth circuit in the instant case, that 
in a comparison of black and white
O Q Trout v. Lehman, 702 F.2d 1044, 1 102 (D.C. 

Cir. 1983), vacated on other grounds sub
non.__ Lehman v. Trout, 79 L.Ed.2d 732
(1984). See also Segar v . Smith, 738 F. 2d 
1 249, 1277 (D.c: Cir. 1984) cert, den.
____  U.S. ____ ( 1985). (Omission of a
variable does not affect validity of the 
statistics absent proof that the omission 
affected the outcome of the analysis.)

29 See, n. 27, supra.



37

employees "not every conceivable factor
relevant to a ... decision must be
included in the statistical case in order

3 0to make out a prima facie case."

The second circuit has also rejected 
the fourth circuit rule. In Guardians 
Association v. Civil Service Commission, 
630 F . 2d 79 (2d Cir. 1980), the defendant 
responded to evidence that its tests had 
an adverse impact on minorities by 
"hypothesiz [ing] some situations in which 
[the] statistics might be misleading ... 
but present[ed] no evidence to show that 
this occurred." 630 F.2d at 88 n. 7. The 
second circuit dismissed that objection 
out of hand:

To accept such unsupported 
possibilities, and require the 
plaintiffs to refute every 
circumstance that could explain 
the disparate impact shown by 
the statistics, would create an 
onerous burden of proof, far in

30
Davis v. Califano, 613 F.2d 957, 964 (D.C. 
Cir. 1980).



33
excess of the Title VII 
standard as interpreted by the 
Supreme Court,, See Dothard v. 
Rawlinson....

Id. Later in the same litigation the city 
again chose to object to a statistical 
analysis without offering a more complete 
analysis of its own. The second circuit, 
quoting Dothard at length, again rejected 
that approach:

We see no justification for 
holding plaintiffs to an 
unrealistic standard regarding 
the "completeness" of their 
statistical showing.... [I]t 
is not inappropriate to expect 
a public employer to come 
forward with evidence ... even 
where the plaintiffs* showing 
has been somewhat modest.... 
[D]efendants offered no 
persuasive evidence of dif­
ferences in preparation or 
content that would cast doubt 
on [their statistical] conclu­
sion© ...

Guardians Association v. Civil Service 
Commission,, 633 F. 2d 232, 240 n. 13 (2d 
Cir. 1980).



39

The fifth circuit has adhered to the 
same view of statistical evidence as the 
District of Columbia and second circuits. 
In Falcon v. General Telephone, 626 F.2d 
369 ( 5th Cir. 1980), rev'd on other 
grounds 457 U.S. 147 (1982), the fifth 
circuit interpreted Teamsters

to mean that once the plaintiff 
has offered some evidence that 
is probative of disparity that 
may be statutorily significant, 
it is then the defendant's 
burden to come up with more 
specific statistical evidence 
to rebut the plaintiff's 
proof.

626 F . 2d at 381. (Emphasis added.) This 
requirement that statistics be rebutted 
with evidence, not merely with speculative 
objections, was applied in Payne v. 
Travenol Laboratories, Inc., 673 F. 2d 788 
(5th Cir. 1982), which also relied on 
Teamsters. The defendant in Payne 
responded to evidence that white appli­
cants were hired at a higher rate than



40
black applicants by hypothesizing that 
black applicants might have failed in 
disproportionate numbers to actually 
attend scheduled interviews. The fifth 
circuit agreed that this was an important 
consideration, but rejected defendant's 
argument because the defendant had 
adduced no evidence of any such dispro­
portion :

[A] comparison of referred 
applicants to actual hires 
omits an important variable: 
how many applicants Travenol 
failed to interview because 
they did not show up. Theo­
retically, this point is well 
taken, but its major premise is 
speculative.... [T]he record 
indicates there was no evidence 
how many applicants did not 
keep their interview dates.

673 F . 2d at 822. The defendant in Payne 
also speculated that the number of black 
applicants might be inflated because 
blacks might have filed more duplicate 
applications than whites. Again the fifth 
circuit rejected that sort of objection,



41

insisting that a defendant come forward
with evidence to support its contentions
that a more complete statistical analysis

31
would have yielded different results.

The rule expressly adopted by the 
second, fifth and District of Columbia 
circuits has been applied by at least two 
other courts of appeals. In Chrisner v. 
Complete Auto Transit, Inc., 645 F.2d 1251 
(6th Cir. 1981), the plaintiffs, in 
seeking to prove that a two year experi­
ence requirement would have an adverse 
impact on female applicants, adduced 
evidence as to the proportion of men and 
women employed in the industry involved. 
The sixth circuit, citing one of the

_
" [T]here was no testimony that 
black duplicates occurred at a 
greater rate than white dupli­
cates, and we are unwilling to 
make such an assumption without 
evidence in the record to support 
it."

673 F .2d at 822.



42
32

District of Columbia cases noted above*, 
held this evidence "sufficiently proba­
tive" of disparate impact to establish a 
prima facie case, and stressed that the 
defendant had failed to offer "coun­
tervailing evidence" to rebut the infer­
ence that arose from the plaintiff’s 
rather general data. 645 F.2d at 1259. In 
Craik v, Minnesota State University Board, 
731 F . 2d 465 (8th Cir. 1984), the defen­
dant criticized a statistical analysis 
offered by plaintiff because it had 
included some administrators among the 
teachers whose treatment was at issue. The 
eighth circuit, again citing one of the
District of Columbia opinions mentioned 

33
earlier, dismissed that objection, noting 
that the defendant had declined to offer

Davis v. Califano is cited at 645 F.2d at 
1259 n. 7; see n. 30, supra.
Trout v. Lehman is cited at 731 F.2d at 
477 n. 15.

33



43
any evidence as to the impact of correct-

34
ing this over inclusion.

The panel decision in the instant 
case has the practical effect of forbid­
ding the use of statistics in the fourth 
circuit to prove either intentional 
discrimination or disparate impact. As 
Judge Phillips noted in his dissent, no 
statistics could ever be sufficiently 
complete to meet the majority's standard, 
since it will always be possible for a 
defendant or a court to conceive of some 
other factor that might have been con­
sidered in any statistical analysis. 
Without the use of statistics, proof of 
discriminatory intent will often be 
impossible. Since statistics are the only

"The effect of the inclusion of such a 
small proportion of administrators is not 
obvious, and the defendants chose not to 
rework the multiple regression analyses on 
a corrected data base in order to demon­
strate that the result would be more 
favorable to them." 731 F.2d at 477 n. 
15.



44

method by which a plaintiff can establish 
that a test or job requirement had a 
disparate impact, the fourth circuit's 
decision effectively nullifies Griggs v. 
Duke Power Co. , 401 U.S. 424 ( 1971 ). In 
Maryland, Virginia,. West Virginia and the 
Carolinas today,the enforcement of Title 
VII has been severely impeded. Certiorari 
should be granted to correct that situa­
tion and to resolve the inter-circuit 
conflict created by the decision below.

III. THE DECISION OF THE COURT 
OF APPEALS IS IN CONFLICT WITH 
GREEN V. SCHOOL BOARD OF NEW 
KENT COUNTY, 391 U.S. 430 
(1968)

The panel decision in this case marks 
the resuscitation of a fourth circuit 
remedial doctrine unanimously condemned by 
this Court some 18 years ago.

In Green v. School Board of New Kent 
County, 391 U.S. 430 (1968), the officials 
of the d[e jure segregated school system



45
adopted, in response to Brown v. Board of 

Educat ion, a "freedom of choice" plan 

which left students in the schools to 
which they had originally been assigned on 

the basis of race, but permitted them to 

transfer elsewhere on their own initia­
tive. Not a single white child chose to 

attend a black school, and 85% of all 
black children remained in black schools. 
The plan "operated simply to burden 

children and their parents with a respon­
sibility which Brown II places squarely on 
the School Board." 391 U.S. at 441-42. 
The fourth circuit held, however, that 
that manifestly unsuccessful freedom of 

choice plan fully satisfied the require­
ments of Brown, and that there was no 

longer any actionable violation of the 
constitution. See Bowman v. County School 

Board of Charles City County, 382 F .2d
326, 327-28 (4th Cir. 1967).



46

This Court unanimously reversed, 

holding that freedom of choice plans were 

only acceptable if they in fact disestab­

lished the cie j ure system that the state 
had created?

The burden on a school board 
today is to come forward with a 
plan that promises realistical­
ly to work, and promises 
realistically to work now . . . 
[ I ] f [freedom of choice] fails 
to undo segregation, other 
means must be used to achieve 
this end. The Board must be 
required to formulate a new 
plan ... which promise[s] 
realistically to convert 
promptly to a system without a 
"white" school and a "Negro" 
school, but just schools.

391 U.S. at 437. Following the decision 

in Green, the United States Department of 
Agriculture adopted regulations governing 
the desegregation of programs such as the 
North Carolina 4-H clubs:

In administering a program 
regarding which the recipient 
has previously discriminated 
against persons on the ground 
of race ... the recipient must 
take affirmative action to



47

overcome the effects of prior 
discrimination.

7 C.F.R. § 1 5.3 {b ) ( 6 ) (.i ) . The requirements 

of this regulation parallel those of Green 

itself.
The 4-H clubs in North Carolina were

for years operated on a strictly de lure
35

segregated basis. Separate all-black and 

all-white clubs existed in the same 

communities. In 1965 state officials 

adopted a freedom of choice plan similar 

to that in Green, and in North Carolina 

that plan failed just as it had in Green 

itself. In 1965, prior to the adoption of 

the freedom of choice plan, there were 
1,474 all-white 4-H clubs; after 15 years
of freedom of choice there were 1,343

36
all-white clubs. Between 1972 and 1980

The history of Extension Homemaker Clubs, 
which are also supported by NCAES, is 
essentially similar to that of the 4-H 
Clubs.
App. 1806, 2237; Ex. 11, 115; 472a.



48

the number of single race clubs in

racially mixed communities declined by 
3 7

less than 2%. Far from converting the 

North Carolina system from "black" clubs 

and "white" clubs to just clubs, the 

freedom of choice plan had what Judge 
Phillips accurately described as only a 
"minimal" effect. (471a).

The panel opinion in the case did not 
suggest that the 1965 freedom of choice 
plan had succeeded. Rather, the majority 

adopted precisely the position taken by 
the fourth circuit in Green itself —  that 

a state which establishes a cle jure 

segregated system need do no more to meet 

its legal obligations than refrain from

new additional acts of discrimination.
38

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

37 App. 1807, 1813; 472a.
3 8 The evidence also clearly indicated a 

pattern of post-1965 intentional racial 
discrimination in the recruiting of club 
members (475a-77a). Again, the majority 
evidently bel ieved that the very existence 
of a freedom of choice plan fully remedied



49
noted in his dissent, the opinions below 

do not even purport to find that the 

defendants satisfied the requirements of 

Green or of the Department of Agriculture 

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

majority was apparently of the view that 
the fourth circuit is somehow free to 
refuse at will to enforce either Green or 

the duly promulgated applicable federal 
regulations. No reasons were given by the 
majority for its refusal to do so, and no 

legitimate basis for that action is 
conceivable.

IV. THE DECISION OF THE COURT 
OF APPEALS RAISES AN IMPORTANT 
QUESTION AS TO THE MEANING OF 
GENERAL BUILDING CONTRACTORS 
v. PENNSYLVANIA, 458 U.S. 375 
(1982)

Three years ago in General Building 
Contractors v. Pennsylvania, this Court

any injuries that might be occasioned by 
such ongoing discrimination.



50

held that section 1981 permits an employer 
to delegate its hiring decisions to a 
third party which engages in intentional 
racial discrimination. In rejecting 
Pennsylvania's argument that section 1981 
imposed a non-delegable duty to hire on a 
non-racial basis, the Court stressed that 
liability under section 1981 required 
proof of discriminatory intent on the part 
of the employer.

The fourth circuit decision in this 
case extends the holding in General 
Building Contractors to Title VII, despite 
the fact that Title VII, unlike section 
1981, contains no such intent require­
ment. Griggs v. Duke Power Co, 401 O.S. 
424 (1971).In selecting County Chairmen, 
NCAES followed one of two procedures. In 
most instances NCAES made the decision 
itself, approving only a single applicant 
and forwarding his or her name to elected 
county officials for a pro forma ratifi-



51

cation. In some cases, however, NCAES 
would recommend several candidates to the 
county officials, and delegate to those 
local authorities the final selection.

The record in this case made clear 
that county officials invariably exercised 
any such delegated authority in a racial 
manner and the Court of Appeals did not 
hold otherwise. In every instance in 
which NCAES recommended both a black and a 
white applicant, the county officials 
chose to select the white applicant. As a 
result, although blacks account for 25% of 
the full agents, the position from which 
County Chairmen are chosen, only 2.6% of 
the County Chairmen selected between l962 
and 1981 were black. (406a).

The fourth circuit, however, con­
cluded that Title VII permitted NCAES to 
delegate its selection decisions to 
discriminatory county officials. NCAES, 
it held, was "not separately responsible



52

for the appointment" decisions made by 
such county officials. (412a). So long 
as NCAES "recommended® blacks as well as 
whites, the agency was not legally 
accountable if, as invariably occurred, 
county officials chose only whites. In 
the fourth circuit's view it was irrele­
vant that this delegation practice had a 
100% adverse impact on black applicants or 
that NCAES officials must have been aware 
of the county level discrimination. Nor 
did the fourth circuit think it important 
that in this case NCAES resorted to 
delegation in a racially selected manner.
Although NCAES approved only a single

39
applicant in 83% of all cases, NCAES has 
never recommended a black for a job which 
a white male had applied without also 
recommending at least one white male as

NCAES recommended only a single applicant 
in 94 of 113 cases. See charts following 
419a.



53
40

well. The court of appeals insisted that 
NCAES was immune from liability so long as 
it was "recommending" a substantial number 
of blacks, regardless of whether the 
counties were invariably and predictably 
rejecting all of those black applicants.

The decision below is squarely 
inconsistent with this Court's opinion in 
Arizona Governing Committee v. Norris,, 77 
L.Ed.2d 1236 (1983). In Norris, the
defendant insisted that it could not be 
held liable for discrimination engaged in 
by independent operators of a pension plan 
funded by the defendant employer. This 
Court rejected that contention, holding 
that under Title VII "employers are 
ultimately responsible for the 'compensa­
tion, terms, conditions, [and] terms of 
employment'." 77 L.Ed.2d at 1292. It 
reasoned, "We do not think it makes
4Q " “

In the only two instances in which NCAES 
recommended only a black for a position 
for which a white had applied, the white 
applicant was a woman. Id.



54
any . difference . . . that the 
employer engaged third parties to provide 
a benefit rather than directly providing 
the benefit itself." Id. at 1292 n. 21. 
The decision here whether to promote to 
County Chairman blacks as well as whites 
is as central to the employment rela­
tionship, and as non-delegable, as was the 
decision in Norris whether to provide to 
female employees the same pensions that 
were accorded to male workers.

The fourth circuit decision in this 
case is an open invitation for employers 
to evade the requirements of Title VII. 
Under the principles of the decision 
below, an employer is free to delegate to 
a third party any employment decision that 
might violate the law. Thus, while an 
employer may not select its workers on the 
basis of a non-job related discriminatory 
test, it could legally delegate hiring 
authority to an agency or individual that



55

utilized that very test. Such a rule 
represents a radical and unwarranted 
extension of General Building Conractors 
and should be reconsidered by this Court.

V .  THE D E C I S I O N  OF THE COURT OF 
APPEALS I S  IN  CONFLICT WITH E IS E N  
V. C A R L IS L E  & JAC QU ELIN , 4 1 7  U . S .  
156 (1974)

A decade ago in Eisen v. Carlisle & 
Jacquelin, 417 U . S .  156 (1974), this C o u r t  

made clear that Rule 23 class actions were  

not to be limited to claims which a c o u r t  

had already decided were meritorious. "In 
determining the propriety of a class 
action, the question is not whether the 
plaintiff or plaintiffs . . . will 
prevail, but rather whether the require­
ments of Rule 23 are met." 417 U . S .  at 
178. Eisen reiterated the purpose and 
standards of Rule 23, which was framed to 
provide an opportunity f o r  the resolution 
of class-wide claims, some o f  which would, 
of course, inevitably prove unsuccessful.



56
The district court decision in this

case denied certification on grounds which
41

the fourth circuit declined to sustain.
The panel majority, however, insisted that 
this case could not be certified as a 
class action because there were no 
meritorious class claims. Petitioners 
alleged a class-wide state practice of 
perpetuating pre-Act intentional wage 
discrimination; the fourth circuit denied
certification as to that issue because it

42
believed the practice to be lawful. 
Petitioners alleged that the state had a 
non-delegable duty to select County 
Chairmen on a racially neutral basis; the

The district court held (1) that no class 
action could be maintained in a private 
Title VII action if the United States 
filed a related pattern and practice 
action (44a-46a), and (2) that no class 
action could ever be maintained on behalf 
of employees working at different loca­
tions. (43a-44a). Judge Phillips describ­
ed the errors underlying this reasoning in 
his dissent. (426a-433a).
Compare, 369a with 380a-82a.



57

f o u r t h  c i r c u i t  d e n i e d  c e r t i f i c a t i o n  as to

t h a t  i s s u e  b e c a u s e  i t  b e l i e v e d  t h e r e  was 
43

no s u c h  d u t y .  P e t i t i o n e r s  a l l e g e d  t h a t

t h e  c o n t i n u e d  o p e r a t i o n  o f  o v e r  a t h o u s a n d

s i n g l e - r a c e  4 - H  c l u b s  v i o l a t e d  b o t h  t h e

C o n s t i t u t i o n  and t h e  a p p l i c a b l e  f e d e r a l

r e g u l a t i o n s ?  c e r t i f i c a t i o n  was d e n i e d  on

t h e  g r o u n d  t h a t  t h e  f o u r t h  c i r c u i t

b e l i e v e d  t h e  o p e r a t i o n  o f  t h o s e  c l u b s  to
44

be e n t i r e l y  l e g a l , ,

On t h e  f o u r t h  c i r c u i t ' s  v i e w ,  c l a s s  

c e r t i f i c a t i o n  c a n n o t  be g r a n t e d  u n l e s s  th e  

p a r t y  s e e k i n g  c e r t i f i c a t i o n  p r o v e s , o r  a t  

l e a s t  a l l e g e s , a " l e g a l l y  c o g n i z a b l e  

w r o n g . "  ( 3 7 2 a ) .  I n  t h i s  c a s e  t h e  c o u r t  

b e l o w  c o n c l u d e d  t h a t  t h e  f a c t s  - in t h e  

r e c o r d  d i d  n o t  c o n s t i t u t e  a " l e g a l l y  

c o g n i z a b l e  w ro n g"  b e c a u s e  t h e  f o u r t h  

c i r c u i t  r e j e c t e d  on t h e  m e r i t s  p e t i ­

t i o n e r s '  c o n t e n t i o n s  a s  t o  t h e  l e g a l

43" "

4 4  3 6 9 a ~ 3 7 0 a .

3 7 0 a - 3 7 1 a .



58
principles applicable to those facts. But 
Rule 23 is available for the litigation of 
"common issues of law" as well as common 
issues of fact. The decision below that 
there were no "legally cognizable wrongs" 
constitutes, not a finding that there were 
no such common issues of law, but an 
adverse resolution of those very common 
issues. Eisen forbids denial of class 
certification on such a basis.

CONCLUSION

For the above reasons a writ of cert­
iorari should issue to review the judgment 
and opinion of the fourth circuit.

Respectfully submitted,

EDWARD D. REIBMAN
108 North Eighth Street
Allentown, Pa. 18101
CRESSIE H. THIGPEN, JR. 
Thigpen, Blue & Stephens 
Suite 214 
Hallmark Building 
Raleigh, North Carolina 27601



59 -

J .  LEVONNE CHAMBERS 
RONALD L .  E L L I S  
E R IC  SCHNAPPER *
NAACP L e g a l  D e f e n s e  &

E d u c a t i o n a l  Fund* I n c .  
1 6 t h  F l o o r  
99 Hudson S t r e e t  
New Y o r k ,  New Y o rk  1 0 0 1 3

COUNSEL FOR PETITIONERS 
* Counsel of Record

July 15, 1985



Hamilton Graphics, Inc.™200 Hudson Street, New York, N,Y.— (212) 966-4177