Local 862, International Union v. Ford Motor Company Petition for Writ of Certiorari

    IN  T H E

j$upr?mi> (Emtrt of %  Inttefc B lato
O ctober T e r m , 1974

L ocal 862, I n te r n a t io n a l  U n io n , U n ited  A u to m o b ile , 
A erospace  an d  A g r ic u ltu a l  I m p l e m e n t  W orkers 

of A m e r ic a , Petitioner
v.

F ord M otor C o m p a n y  and  D olores M arie  M eadow s

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

THE SIXTH CIRCUIT

J oseph  L. R a tih , J r.
J o h n  S ilard  
E l lio tt  C. L ic h t m a n  

R atjh , S ilard  & L ic h t m a n  
1001 Connecticut Aye., N.W. 
Washington, D.C.

J o h n  A. P illio n  
S t e p h e n  I . S chlossberg  
M. J a y  W h it m a n  

8000 East Jefferson Avenue 
Detroit, Michigan

Of Counsel: Counsel for Petitioner
H erbert L . S egal

Louisville, Kentucky

Press of B yron S. A dams Printing, Inc., W ashington, D. C.



INDEX

Page
Opinions B elow ...............................................................  1
Jurisdiction ...............................    2
Question Presented .............   2
Statement ........................      2
Reason for Granting the Writ ......................................  10
Conclusion ............................      15
Appendix A—Decision of Court of Appeals, January

24, 1975 ..................................................  la
Appendix B—Judgment of District Court, December

12, 1973 .........   22a
Appendix C—Judgment of Court of Appeals, January

24, 1975 ..................................................  24a
Appendix D—Order of Court of Appeals Denying

Rehearing, March 24, 1975 ..................... 26a
Appendix E—New York Times, January 13, 1975 ----- 27a

TABLE OF CITATIONS
C ases :

Banks v. Chicago Grain Trimmers, 389 U.S. 9 1 3 .......  10
Bigelow v. RKO, 327 U.S. 251 ......................................  13
Brown v. Board of Education, 344 U.S. 1 ....... ............ 10
DeFunis v. Odegaard, 416 U.S. 312..............................  11
EEOC v. Detroit Edison Co., — F.2d —, 10 FEP Cases

239,150 .................................     0
Franks v. Bowman Transportation Co., 495 F.2d 398

(5th Cir. 1974), No. 74-728, U.S. Supreme Court. .3, 8,
10,12

Hunter v. Ohio, 396 U.S 879 ........................................... 10
Jurinko v. Edmon L. Wiegcmd Co., 477 F.2d 1038 (3d 

Cir.), vacated, 414 U.S. 971 (1973), reinstated, —- 
F.2d —, 7 FEP 787 ..........................................  5



11 Index Continued

Page
Milliken v. Bradley, 418 U.S 717, 745 ............................  12
Storey Parchment Co. v. Paterson Parchment Paper 

Co., 282 U.S. 555 ......................................................  12
Swann v. Charlotte-MecJclenhurg Board of Education,

402 U.S. 1, 2 6 ............................................................  12

M isc e lla n e o u s  :

Cooper and Sobol, “ Seniority and Testing Under Fair 
Employment Laws,”  82 Harv. L.Rev. 1598, 1678- 
1679 (1969) .............................................................. 9

Blumrosen, ‘ ‘ Seniority and Equal Employment Oppor­
tunity”  23 Rutgers L.Rev. 268, 305, 307, 311-312 
(1969) .......................................................................  9

Prosser, Law of Torts, 4th ed., p. 3 3 ............................  13



IN  T H E

Bupnmt (tart of tip Irnt^
O ctober T e r m , 1974

No.

L ocal 862, I n te r n a t io n a l  U n io n , U n ited  A u to m o b ile , 
A erospace and  A g ricu ltu al  I m p l e m e n t  W orkers 

op A m e r ic a , Petitioner
v.

F ord M otor C o m p a n y  and  D olores M arie  M eadow s

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

THE SIXTH CIRCUIT

Local 862, International Union, U A W  (hereafter 
Union), petitions for a writ o f certiorari to review the 
judgment o f the United States Court o f Appeals for 
the Sixth Circuit in this case.

OPINIONS BELOW

The opinion o f the Court o f Appeals (App. A, infra 
p. la )  appears at 510 F.2d 939. The opinion of the



2

District Court appears at 62 E.R.D. 98. The judgment 
o f the District Court appears in App. B, infra  p. 22a.

JURISDICTION

The judgment o f the Court of Appeals (App. C, 
infra  p. 24a) was entered on January 24, 1975, and re­
hearing was denied on March 24, 1975 (App. D, infra 
p. 26a). The jurisdiction o f this Court is invoked under 
28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether in remedying Title V I I  violations by an 
employer discriminatorily refusing to hire women, Dis­
trict Courts may require the offending employer to hold 
harmless from  pay losses in work reduction situations 
both the wronged discriminatees and the unoffending 
incumbent workers, instead o f giving preferential sen­
iority-layoff protection to either group o f employees.

STATEMENT

This is a ease of employment discrimination involving 
a question as vital to the future o f Title V I I  as any yet 
presented to this Court since the statute’s enactment a 
decade ago. Like many recent oases under Title V II , 
this case below presented a variety o f questions con­
cerning the scope of the class action, the prerequisites 
for individual back pay recoveries, the appropriate 
statute o f limitations, etc. But after the EEOC filed 
an amicus brief in the Court of Appeals highlighting 
the question o f retroactive seniority for diserminatees, 
the opinion o f the Court reached the crucial issue: 
whether in ordering the hiring of a group o f diserim- 
inatees courts should require that they be granted 
retroactive seniority which may cause the layoff in



3

work reduction periods of incumbent employees wbo 
have long been earning their seniority protection. 
Faced with that same question the Fifth  Circuit in 
Franks, which is here on grant o f certiorari (No. 74- 
728), has ruled against retroactive or constructive sen­
iority for the discriminatees. The Sixth Circuit in the 
present case expressly rejects the Fifth Circuit result, 
but remands the issue for District Court consideration 
o f “ policy questions”  without guidance in their resolu­
tion. W e urge grant o f certiorari so the Court may 
consider a remedial alternative overlooked by the Fifth 
and the Sixth Circuit rulings, an alternative which 
avoids future layoff losses both for the discriminatees 
who should long ago have been hired with seniority pro­
tection and for  the incumbent employees who have 
meanwhile been earning their seniority rights on the 
job. A  brief review of the facts will set the case in 
proper perspective:

1. In October o f 1969 the Ford Motor Company 
opened the Ford Truck Plant, a new production facility 
in Jefferson County, Kentucky. Among nearly one 
thousand initial employees hired for production jobs 
there were no women. Plaintiff Meadows was one of 
the women denied hiring soon after the plant opened. 
Having filed a complaint with the Equal Employment 
Opportunity Commission and having exhausted its pro­
cedures, Ms. Meadows in 1971 filed this class action 
against the Company and against U A W  Local 862, the 
collective bargaining representative of the employees. 
The Complaint asserted that by a rule against hiring 
applicants weighing less than 150 pounds the Company 
was practicing sex discrimination. As late as 1973 there 
were still hardly any women on the work force, al­
though there had been some 1,414 women among the



4

30,000 persons who had requested employment since 
the plant opened in 1969.1

2. On January 16, 1973, the District Court found in 
its ruling on plaintiff’s summary judgment motion 
that the Company’s weight rule excluded from  hiring 
about 70% of women applicants but only 20% of the 
men, and that actually hiring exceptions had been 
made for some men who did not weigh 150 pounds. 
Finding that the weight limit operates in a sex-dis­
criminatory fashion and that no business justification 
for the requirement was shown by the Company, the 
District Court granted summary judgment for the 
plaintiff enjoining the continued application o f the 
weight standard. However, the Court’s final judg­
ment ( infra, p 22a) provided no relief other than 
preferential hiring for the 31 rejected women appli­
cants who had responded to a public notification or­
dered by the Court. The District Court denied them 
back pay on the ground that it could not determine 
with certainty that any particular woman applicant 
would have been hired but for the Company’s sex- 
discriminatory rule. The Court also declined to pro­
vide them retroactive seniority, notwithstanding plain­
t iff ’s plea (Complaint, p. 5) for the “ adjusted senior­
ity ”  to which she and other discriminatees “ would 
have been entitled”  but for the wrongful denial of 1

1 Although the Complaint had alleged that UAW Local 862, 
petitioner herein, acquiesced in the Company’s sex discrimination 
practice, the claim was not pursued with any evidentiary support. 
Accordingly, the District Court found that the Union had played 
no part in the hiring practice, and its final judgment (infra, p. 
22a) dismissed with prejudice as to the Union. Nevertheless, that 
judgment was appealed without qualification and the Union was 
given the status of a party in the ensuing Court of Appeals 
proceedings (see infra, p. 10, n. 3).



5

their hiring applications. Some o f the 31 discrim- 
inatees have been hired pursuant to the District Court’s 
judgment, but are currently vulnerable to layoff be­
cause their seniority does not date from  their hiring 
rejections.

3. In the Court o f Appeals the initial briefs o f the 
parties focused chiefly on the back pay issue and on 
limits which the District Court had placed upon the 
class whose members would benefit from  its decree. 
While plaintiff asserted (Br. for Plaintiff-Appellant, 
p. 7) that the District Court had “ refused to consider 
seniority adjustment for hired class members” , she 
went no further than to point out that since “ the men 
hired in 1969 or 1970 are no longer in entry level jobs” , 
she and other beneficiaries of the decree would be “ re­
quired to start and remain at a competitive disadvan­
tage with those male applicants who were unlawfully 
preferred by Ford in the period from 1969-1973”  {id., 
p. 19).

A fter the initial briefs were filed, the EEOC entered 
the case in the Court of Appeals with an amicus brief. 
Therein, the agency supported various claims made 
by the plaintiff and gave special emphasis to the se­
niority issue (Br. pp. 8-9). It asserted that by denying 
the seniority which plaintiff and her class “ would have 
accrued”  but for the Company’s conduct, the District 
Court “ failed to provide the full relief for victims of 
discrimination which Congress intended.”  Noting 
that seniority is “ crucial”  in determining whether a 
discriminatee will remain employed in any layoff situa­
tion, the EEOC urged (id., pp. 10-11) that consistent 
with the Third Circuit’s ruling in Jurinko (477 F.2d 
1038) any discriminatee is entitled to be hired with a 
constructive or retroactive seniority date as of the time 
o f her original rejection for employment. The



6

EEOC emphasized (id., p. 12) that otherwise the dis- 
cmninatees “ will continuously suffer from  less job 
security and poorer upward mobility than those men 
who filed applications at the same time and were hired, 
merely because they were prevented from commencing 
employment and accumulating seniority by F ord ’s 
discriminatory weight requirements. ’ ’ However, hav­
ing so stated, the E EO C’s brief then added a comment 
(p. 12, n. 9) concerning the difficult problem o f the 
impact of a retroactive seniority grant on the existing 
work force:

Nor will granting such seniority work injustice 
towards other employees previously hired. Such 
seniority merely allows the women an opportunity 
to compete for future job vacancies on the basis 
of their ability to perform  and their adjusted se­
niority; it would not permit “ bumping”  of male 
incumbents from  positions they presently occupy. 
Bing v. Roadway Express, Inc., supra, 485 F.2d 
at 450; United States v. Hayes International 
Corp., supra, 456 F.2d at 116; Local 189, United 
Papermahers and Paperworkers v. United States, 
supra, 416 F.2d at 988. Furthermore, the fact 
that some employees’ expectations would be frus­
trated by the awarding o f seniority adjustments 
does not stand in the way o f such relief. “  . . . 
Title Y I I  guarantees that all employees are en­
titled to the same expectations regardless of ‘ race 
color, religion, sex, or national origin.’ Where 
some employees now have lower expectations than 
their co-workers because o f the influence o f one of 
these forbidden factors, they are entitled to have 
their expectations raised even i f  the expectations 
o f others must be lowered in order to achieve the 
statutorily mandated equality o f opportunity.”  
Robinson v. Lorrillard Corp., supra, 444 F.2d 
at 800 .

In this posture the seniority issue reached the Court 
below for disposition.



7

4. The opinion by Judge Edwards for the Court of
Appeals makes a lengthy analysis o f the hack pay issue 
and concludes that the District Court erred in refusing 
a back pay award. The Court then addresses the se­
niority problem but is apparently unable to resolve it. 
On the one hand, the Court remands for reconsideration 
the District Court’s denial o f retroactive seniority and 
goes so far as to disapprove the Eifth Circuit decisions 
•—including Franks—which have that result. On the 
other hand, the Court emphasizes that “ the burden of 
retroactive seniority for determination o f layoffs would 
fall directly upon other workers who have themselves 
had no hand in the wrongdoing found by the District 
Court. ’ ’ In  sum, the Court returns the seniority ques­
tion to the District Court for its consideration of “ the 
policy questions involved,”  offering its own meager 
guidance in the following terms (infra, pp. 19a-21a) :

Whatever the difficulties o f determining back 
pay awards, the award o f retroactive job seniority 
offers still greater problems. Seniority is a sys­
tem of job security calling for reduction o f work 
forces in periods of low production by layoff first 
o f those employees with the most recent dates of 
hire. It is justified among workers by the concept 
that the older workers in point of service have 
earned their retention o f jobs by the length of 
prior services for the particular employer. From 
the employer’s point o f view, it is justified by the 
fact that it means retention o f the most experi­
enced and presumably most skilled of the work 
force. Obviously, the grant of fully retroactive 
seniority would collide with both of these prin­
ciples.

In addition, where the burden o f retroactive pay 
falls upon the party which violated the law, the 
burden of retroactive seniority for determination



8

of layoff would fall directly upon other workers 
who have themselves had no hand in the wrong­
doing found by the District Court.

There is, however, no prohibition to be found in 
the statute we construe in this case which prohib­
its retroactive seniority and, of course, the remedy 
for the wrong o f discriminatory refusal to hire 
lies in the first instance with the District Judge. 
Dor his guidance on this issue we observe, how­
ever, that a grant of retroactive seniority would 
not depend solely upon the existence o f a record 
sufficient to justify back pay under the standards 
o f the Back Pay Section o f this opinion. The 
court would, in dealing with job seniority, need 
also to consider the interests of the workers who 
might be displaced as well as the interests of the 
employer in retaining an experienced work force. 
W e do not assume, as our brethren in the Fifth 
Circuit appear to (Local 189, AFL-C IO , GLC v. 
United States, 416 F.2d 980, cert, denied, 397 TJ.S. 
919 (1970)), that such reconciliation is impossible, 
but as is obvious, we certainly do foresee genuine 
difficulties. See also Jurinko v. Edmon L. W ie- 
gand Co., 477 F.2d 1038 (3d Cir.), vacated, 414 
TJ.S. 971 (1973), reinstated, — F.2d — , 7 F E P  
787 (3d Cir. 1974). Cf. Local 189, supra; Franks 
v. Bowman Transportation Co., 495 F.2d 398 (5th 
Cir. 1974).

On remand the District Judge may desire to 
hear the policy questions involved in this problem 
before remanding the individual claims to the 
Master. For purposes of that hearing notice 
should be given to the employees likely to be a f­
fected and intervention should be allowed from 
appropriate representatives.

W hat we have said concerning job seniority does 
not, of course, apply to the fringe benefits of em­
ployment. Where vacation schedules or pension



9

rights (or other fringe benefits) are determined
by date of hire, we perceive no reason why that 
date in these cases should be other than the date 
which the trial court fixes as the date when the 
employee would have been hired, absent the illegal 
hiring practice which the District Court has iden­
tified and enjoined.

5. Unlike the Fifth Circuit’s ruling in Franks, which 
is pending on certiorari before this Court, the ruling 
by the Sixth Circuit in the present case declines to con­
clude that “ reconciliation is impossible”  between the 
seniority-layoff protection of the incumbent workers 
and those o f a class o f discriminatees ordered to be 
hired by a District Court decree under Title V II . But 
the Court returns the issue to the District Court, 
essentially without guidance or assistance in the eon- 
cededly difficult task. While rejecting the Scylla- 
Charybdis assumption espoused by the Franks ruling 
in its preference for the incumbent employees, the 
Sixth Circuit provides no workable alternative. And in 
a more recent ruling the same Court again avoids the 
issue, declining on procedural grounds to grant retro­
active seniority to discriminatees. EEOC  v. Detroit 
Edison Co., —  F.2d — , 10 FED Cases 239, 250.

However, there is an alternative, originally sug­
gested by scholarly analyses o f Title V II , which does 
not threaten the layoff either of incumbent workers or 
newly hired discriminatees.2 That is the “ front pay”  
remedy which requires the wrongdoing employer to 
hold both groups harmless from layoff losses in work

2 See Cooper and Sobol, “ Seniority and Testing Under Fair Em­
ployment Laws,”  82 Harv. L. Rev. 1598, 1678-1679 (1969) ; Blum- 
rosen, “ Seniority and Equal Employment Opportunity” , 23 
Rutgers L. Rev. 268, 305-307, 311-312 (1969).



10

reduction situations. W e proceed to urge the grant of 
concurrent review with Franks, for consideration of 
a viable alternative to the seniority-layoff impasse 
which that Court resolved against the discriminatees 
and the Court below was unable to resolve.

REASON FOR GRANTING THE WRIT
Concurrent Review Should Be Granted with Franks (No. 74- 

728) for Consideration of a Viable Alternative to the Se­
niority-Layoff Impasse Which the Fifth Circuit Resolved 
Against the Discriminatees and the Court Below Was 
Unable To Resolve

Following grant o f certiorari on a question o f public 
importance this Court has frequently granted concur­
rent review in companion cases presenlting related and 
illuminating aspects o f the same question. See, e.g., 
Brown  v. Board of Education, 344 U.S. 1 (1952). W e 
urge that course here because the limited contentions in 
Franks may foreclose approval o f the best remedy 
available in that case as well a;s this. Concurrent con­
sideration with Franks will help to illuminate a major 
remedial option which neither circuit court seems to 
have recognized: a remedy which requires the wrong­
doing employer to protect from  layoff losses both 
those against vbiom he discriminated and his incumbent 
employees, rather than subjecting either group to wage 
losses in work reduction situations.3

8 In this case the brief amicus by the EEOC emphasized the 
seniority rights issue and the Court of Appeals reached that issue 
in its opinion. Since the issue directly affects the rights of the in­
cumbent workers who are members of the IJAW and are repre­
sented by it in collective bargaining, the Union is here a proper 
party to invoke review. In like circumstances this Court has 
granted intervention to affeeted third parties not previously in 
the case, so as to permit their filing of certiorari petitions. See 
Banks v. Chicago Grain Trimmers, 389 U.S. 913; Hunter v. Ohio, 
396 U.S. 879. In the present case no leave for intervention is



11

This Court’s timely consideration o f that remedy is 
vitally necessary. The Court doubtless perceived last 
term during its consideration of DeFunis (416 U.S. 
312) the undesirable character o f remedies for past dis­
crimination which throw the burden either upon the 
wronged minority or upon other blameless citizens. I f  
in the employment area there is a better solution, 
surely it should be preferred over one which is unjust 
either to the discriminatee or the incumbent worker. 
Thus, i f  the discriminatees are hired without the same 
protection against losses in work reduction situations 
which they would have had but for their employment 
rejection, the key Congressional purpose to provide full 
Title Y I I  remediation is frustrated. As the Conference 
Committee emphasized (see 118 Cong. Rec. 7168) sec­
tion 706(g) is intended to assure “ that persons 
aggrieved by the consequences and effects o f  the unlaw­
ful employment practice be, so far as possible, restored 
to a position where they would have been were it not 
for the unlawful discrimination.”  A  recent article 
which describes layoff o f women who were hired at

needed to permit the filing of this petition because the Union is 
already a party in the case. Although the District Court dis­
missed the Union, it was thereafter captioned as a defendant- 
appellee in all briefs in the Court of Appeals as well as in the 
opinion of that Court; it was given notice of all proceedings; it 
requested leave to appear by letter of May 20, 1974 from counsel 
Segal to James A. Higgins, Clerk, and participated in the oral 
arguments; and it filed a petition for rehearing which was en­
tertained by the Court of Appeals. Finally, that Court expressly 
recognized (p. 19) that “ employees likely to be affected”  by the 
disposition of the seniority problem have a right to participate 
by “ appropriate representatives.”  Since the Union is such a 
representative and a recognized party in the Court below, it prop­
erly presents this petition addressed to that Court’s treatment of 
the vital senioriy issue.



12

General Motors because o f alleged past sex discrimina­
tion, dramatically shows how illusory may be a 
“ remedy”  which provides no layoff protection to dis­
criminatees. See App. E, infra  p. 27a. Given this 
Court’s definitive ruling in Swann (402 TJ.S. 1, 26) 
that to remedy school segregation there must be de­
segregation in actuality rather than mere theory, we 
cannot believe that in the employment area this Court 
would affirm the ruling in Franks which may leave the 
discriminatee without job or pay.

On the other hand it would also be unjust if, after 
years spent in earning seniority on the job, the faultless 
incumbent employees were subjected to layoff in favor 
o f discriminatees hired with seniority retroactive to 
the time when they were denied hiring. Only last year 
a majority o f this Court declined to put the desegrega­
tion burden upon suburban school districts “ not shown 
to have committed any constitutional violation. ’ ’ Milli- 
ken v. Bradley, 418 IT.S. 717, 745. Considering that 
the incumbent employees are in no way at fault for the 
employer’s Title V I I  violation, a remedy which corrects 
the employer’s wrongdoing at the expense o f 'those 
employees is unjust and unwise.

Accordingly, we will urge for the Court’s considera­
tion a third and better option, which requires that fol­
lowing reinstatement o f discriminatees the offending 
employer hold harmless against layoff losses both the 
discriminatees and his incumbent employees hired 
after the discriminatees’ original rejection from  em­
ployment. That remedy properly puts the full burden 
upon the wrongdoer rather than his victims or other 
unoffending employees. It is a familiar rule o f lawT 
that the full remedial burden shall be on the offending 
party. Such seminal decisions as Storey Parchment



13

(282 U.S. 555) and Bigelow  (327 TT.S. 251) apply the 
rule as between the wrongdoer and his victim. The 
rule equally applies as between the wrongdoer and 
third parties; where the wrongdoer has done intentional 
harm he is liable to third parties as much as to the 
immediately injured party, because “ having departed 
from  the social standard o f conduct, he is liable for the 
harm which follows from his act”  (Prosser, Law of 
Torts, 4th ecL, p. 33). Thus there is every reason o f 
equity and justice for placing the full burden upon the 
employer who violated Title V II , requiring him to pro­
tect both the discriminatees and his incumbent work 
force against layoff losses in periods of work reduc­
tion. The save harmless remedy would operate, of 
course, only in the area o f overlapping seniority be­
tween discriminatees and incumbents with less sen­
iority; when an entire plant shuts down or layoff 
reaches up the seniority ranks beyond the date when 
the discriminatees were wrongfully rejected for hiring, 
the normal rules would apply and no member o f  either 
group could claim protection against layoff.4

No more than avoiding the increased cost o f “ back 
pay”  to discriminatees, should employers who violate 
Title V I I  avoid the cost of “ front pay”  in layoff sit­
uations. Indeed, the latter may be the lesser burden, 
since employers have a variety of available means to 
cushion future wage obligations which they do not have 
in meeting accrued back pay required by a Title V I I

4 I f  it is suggested that the employer’s save harmless duty 
guarantees pay to both groups but not necessarily the work itself, 
we would respond with the common observation that employers 
find work for employees whom they must pay. However, if re­
duction in the work force may actually sometimes become necessary 
then many employees may themselves opt for layoff with pay, and 
for any others equitable arrangements can be made.



14

decree. Faeed with restrictions on layoff actions, em­
ployers can reduce new hiring, encourage retirement, or 
otherwise hedge against employee idle time by adjust­
ments made through the established collective bar­
gaining process. In cases where employers are re­
quired to “ red circle”  some of their employees they 
have developed a variety o f means for meeting the extra 
costs, sometimes even by ultimate resort to price in­
creases. W hile we would not welcome that recourse, it 
still seems a preferable result that society at large 
finance the correction o f massive and historical social 
wrongs rather than innocent individual workers and 
families least able to absorb the costs o f social reform.

In sum, the seniority impasse in Title Y I I  cases is 
neither as inexorable as the F ifth  Circuit holds in 
Franks nor as difficult as the Sixth Circuit suggests in 
its present ruling. Grant o f review will permit us to 
demonstrate that the seniority rights o f all can be safely 
preserved by measures of judicial relief which place 
the full economic burden on the wrongdoing employer 
whose actions created the remedial issue. Surely on 
a matter of such import this Court will want to con­
sider a remedy which does not make one group of work­
ers bear the burden for securing the rights o f other 
equally blameless employees.



15

CONCLUSION

For the reason stated the writ should be granted.

Respectfully submitted,

J oseph  L. Ratth, Jr.
J o h n  S ilard  
E llio tt  0 .  L ic h t m a n  

R atth, S ilard  & L ic h t m a n  
1001 Connecticut Ave., N.W. 
Washington, D.C.

J o h n  A. F illio n  
S t e p h e n  I. S chlossberg  
M . J a y  W h it m a n  

8000 East Jefferson Avenue 
Detroit, Michigan

Counsel for Petitioner
Of Counsel:

H erbert L . S egal  
Louisville, Kentucky



APPENDIX



la

APPENDIX A

Nos. 74-1258-59
UNITED STATES COURT OE APPEALS 

EOR THE SIXTH CIRCUIT

D olores Marie Meadows,
Plaintiff-A ppellant,C ro ss-Appelle e,

v .

F ord Motor Company,
Defendant-Appellee, Gross-Appellant,

L ocal 862, I nternational Union, United A utomobile, 
A erospace and A gricultural I mplement W orkers op 
A merica; and I nternational Union, U nited A uto­
mobile, A erospace and A gricultural Implement 
W orkers op A merica, Defendants-Appellees.

A p p e a l  from the United States District Court for the 
Western District of Kentucky, Louisville Division

Decided and Filed January 24,1975
Before: E dw ards  and M il l e r , Circuit Judges, and Mc­

A ll is t e r , Senior Circuit Judge.
E d w ard s , Circuit Judge. Plaintiff appeals from tlie de­

nial of back pay and retroactive seniority after the District 
Court for the Western District of Kentucky had found that 
she and the class of women job applicants she represents 
had been denied jobs, in violation of the prohibition against 
sex discrimination in employment contained in Title VII of 
the Civil Rights Act of 1964, 42 U.8.C. §§ 2000e to 2000e-15 
(1970), as amended, 42 U.S.C. §§ 2000e to 2000e-17 (Supp. 
II, 1972). She also claims that the class involved was un­
duly restricted by the District Judge and that he ordered 
an inadequate amount of attorney fees.

This controversy arose when defendant Ford Motor Com­
pany began hiring employees for a new Ford Truck Plant



2a

in Jefferson County, near Louisville, Kentucky. Plaintiff 
Meadows applied for a production line job on October 10, 
1969. She was not hired and heard nothing concerning her 
application but learned that Ford had hired over 900 .men 
and no women. She then filed a charge of discrimination 
before the Equal Employment Opportunity Commission on 
January 14, 1970, alleging that the Ford Motor Company 
and Local 862, UAW;1 were discriminating against her and 
other women similarly situated. The EEOC issued her a 
notice of right to sue and plaintiff Meadows filed this action 
in the District Court alleging that Ford employed a 150 lb. 
limitation on production line hires so as to eliminate women.

The case was heard by discovery and the taking of depo­
sitions. The District Judge entered findings of fact and 
conclusions of law on August 29, 1973, and followed by a 
final judgment which recorded his critical holdings as fol­
lows :

2. There are thirty-one (31) members of the Class 
represented by the Plaintiff in the instant action; the 
names, address and telephone numbers of the said 
members of the class are attached hereto and made a 
part hereof as if fully copied herein.

3. The use by the Defendant under the circumstances 
before the Court of the 150 pound weight requirement 
for eligibility for employment on its production line at 
its Kentucky Truck Plant constitutes an unlawful em­
ployment practice pursuant to the terms of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000e-l et seq. (sic).

4. Neither the Plaintiff nor any member of the class 
is entitled to any award of damages. Plaintiff is 
awarded its costs herein expended and counsel fees in 
the sum of $11,500.00.

1 Local 862, International Union, United Automobile, Aerospace 
and Agricultural Implement Workers of America.



3a

5. The Defendant, Ford Motor Company, be and 
hereby is permanently enjoined and prohibited from 
applying the 150 pound weight requirement for eligi­
bility for employment on its production line at its 
Kentucky Truck Plant.

6. The names of the Plaintiff and the thirty-one (31) 
members of the class represented by the Plaintiff shall 
be placed by the Defendant in a priority employment 
pool in the order of the dates of their original appli­
cation for production employment. The names of all 
other applicants for production employment are to be 
placed in a general pool in accordance with the present 
practice of Defendant. As production employment 
positions become available, Defendant shall select 
names from the two pools of applicants at a. set ratio 
of one name from the priority pool for every three 
names from the general pool, and these individuals are 
to be notified by the Defendant of the job openings as 
they occur and given a reasonable opportunity to ap­
pear for a pre-employment physical examination and 
the other processes regularly required of such appli­
cants.

The District Judge defined the class of plaintiffs as those 
women who had applied for jobs at the Kentucky Truck 
Plant between April 1, 1971, and April 13, 1972, and who 
were refused jobs.

The District Judge also retained jurisdiction of the case 
to supervise implementation of his judgment.

The record showed that the two union defendants exer­
cised no control over Ford hiring practices and the case as 
tio them was dismissed by the District Court. No appeal 
was taken from this decision.

The Ford Motor Company waived its appeal from the 
portion of the District Judge’s judgment finding it guilty 
of discriminatory practices and requiring it to terminate



4a

them and to establish a priority system for offering em­
ployment to some 31 identified discriminatees.

On this appeal we deal only with plaintiffs’ complaints 
1) that the District Judge’s judgment by refusing back pay 
and retroactive seniority failed to make them whole and 
failed to deter similar discrimination in the future, 2) that 
the District Judge defined the class of discriminatees too 
narrowly, and 3) that the attorney fees awarded did not 
consider all of the work performed in this litigation.

Back P ay

The District Judge’s reasoning on the back pay issue is 
set forth in an opinion as follows:

However, having determined that liability for dis­
crimination exists is not the same as finding that an 
award of money damages is in order. Indeed, the 
Court has found absolutely no authority for awarding 
money damages in a case like the present one. Under 
the relevant statutê , 42 U.S.C. § 2000e(5), (sic) the 
only money damages that can be awarded are in the 
form of back pay. No court whose decision has been 
reported has been willing to award back pay to a group 
of persons who were never in the employ of the em­
ployer-defendant in the first place. Back pay has been 
awarded in cases of discriminatory refusal to promote 
or to transfer, and to some individuals who were dis­
criminate rily denied jobs in the first instance, but in 
all of these situations, the amount of speculation as to 
just who was damaged and how much has been mini­
mal. For instance, in the case of Bowe v. Colgate, 416 
F. 2d 711 (C.A. 7, 1969), it was quite clear as to which 
persons were damaged and how they should be com­
pensated. That is not the case here. Assuming that 
the class of plaintiffs can be more or less exactly de­
fined, there is no way to calculate which of them would 
have been hired, or when, or what other circumstances



5a

would have intervened in the meantime1. In other 
words, there is no basis on which an award in any 
amount can be justified. Although all reductions of 
legal injury to money damages are somewhat specu­
lative, in other cases, the damaged party is absolutely 
identified, which is not the case here. The fact that 
Ford has been found guilty of sexual discrimination 
does not mean that it must pay whatever damages to 
which the Plaintiff believes that she is entitled. Un­
less the Court is directed to some authority to the 
contrary, it does not intend to make an award of money 
damages in this case.

The District Judge also entered the following conclusion 
of law:

6. The Court, being unable to determine from the 
records when plaintiff or any members of her class 
would have been employed, had it not been for the dis­
criminatory practices of the defendant, concludes that 
it is without authority to award any backpay or any 
monetary damages to plaintiff or any members o f her 
class. The only cases in which backpay has been 
awarded to a potential employee, who was discrimi­
nated against and not employed, are those involving 
individual employees where it was definitely shown 
that they would have been entitled, on a date certain, 
to be employed and after computation could be made 
of the wages to which they were entitled. See Dates 
v. Georgia Pacific Corporation, 326 F. Supp. 397 (D.C. 
Ore. 1970). Any award of damages in this case, there­
fore, would be speculative and must be denied.

We believe the District Judge was in error in concluding 
that the difficulties of ascertaining the amount of damages 
suffered deprived him of authority to award back pay. 
The statute relating to back pay is 42 U.S.C. § 2000e-5(g)



6a

(1970). The statutory language extant at the time this suit 
was filed was:

(g) If the court finds that the respondent has inten­
tionally engaged in or is intentionally engaging in an 
unlawful employment practice charged in the complaint, 
the court may enjoin the respondent from engaging in 
such unlawful employment practice, and order such 
affirmative action as may be appropriate, which may 
include reinstatement or hiring of employees, with or 
without back pay (payable by the employer, employ­
ment agency, or labor organization, as the case may be, 
responsible for the unlawful employment practice). 
Interim earnings or amounts earnable with reasonable 
diligence by the person or persons discriminated 
against shall operate to reduce the back pay otherwise 
allowable. No order of the court shall require the ad­
mission or reinstatement of an individual as a member 
of a union or the hiring, reinstatement, or promotion 
of an individual as an employee, or the payment to him 
of any back pay, if such individual was refused admis­
sion, suspended, or expelled or was refused employ­
ment or advancement or was suspended or discharged 
for any reason other than discrimination on account 
of race, color, religion, sex or national origin or in vio­
lation of section 704(a). 42 U.S.C. § 2000e-5(g) (1970).

The statute was reenacted in 1972, effective for all charges 
then pending with the EEOC, so as to add a statute of limi­
tations providing that, “ Back pay liability shall not accrue 
from a date more than two years prior to the filing of a 
charge with the Commission.”  42 U.S.C. § 2000e-5(g) 
(Supp. II, 1972), amending, 42 U.S.C. § 2Q00e-5(g) (1970).

The legislative history of this provision is also illumi­
nating :

Section 706(g)—This subsection is similar to the 
present section 706(g) of the Act. It authorizes the



7a

court, upon a finding that the respondent has engaged 
in or is engaging in an unlawful employment practice, 
to enjoin the respondent from such unlawful conduct 
and order such affirmative relief as may be appropri­
ate including, but not limited to, reinstatement or hir­
ing, with or without back pay, as will effectuate the 
policies of the Act. Back pay is limited to that which 
accrues from a date not more than two years prior to 
the filing of a charge with the Commission. Interim 
earnings or amounts earnable with reasonable dili­
gence by the aggrieved person(s) would operate to 
reduce the backpay otherwise allowable.

The provisions of this subsection are intended to give 
the courts wide discretion exercising their equitable 
powers to fashion the most complete relief possible. 
In dealing with the present section 706(g) the courts 
have stressed that the scope of relief under that sec­
tion of the Act is intended to make the victims of un­
lawful discrimination whole, and that the attainment 
of this objective rests not only upon the elimination 
of the particular unlawful employment practice com­
plained of, but also requires that persons aggrieved by 
the consequences and effects of the unlawful employ­
ment practice be, so far as possible, restored to a posi­
tion where they would have been were it not for the un­
lawful discrimination. 118 Cong. Bee. 7168 (1972) 
(Conference Beport) (Emphasis added.)

We approach decision of this issue, keeping in mind the 
classic treatment of the damage issue by the United States 
Supreme Court in the Story Parchment Go. case:

Where the tort itself is of such a nature as to preclude 
the ascertainment of the amount of damages with cer­
tainty, it would be a perversion of fundamental prin­
ciples of justice to deny all relief to the injured person, 
and thereby relieve the wrongdoer from making any 
amend for his acts. In such case, while the damages may



8a

not be determined by mere speculation or guess, it will 
be enough if the evidence show the extent of the dam­
ages as a matter of just and reasonable inference, al­
though the result be only approximate. The wrongdoer 
is not entitled to complain that they cannot be measured 
with the exactness and precision that would be possible 
if the case, which he alone is responsible for making, 
were otherwise. Eastman Kodak Co. v. Southern Photo 
Co., 273 U.S. 359, 379. Compare The Seven Brothers, 170 
Fed. 126, 123; Pacific Whaling Co. v. Packers’ Assn., 
138 Cal. 632, 638. As the Supreme Court of Michigan 
[Gilbert v. Kennedy, 22 Mich. 117, 130 (1871)] has 
forcefully declared, the risk of the uncertainty should 
be thrown upon the wrongdoer instead of upon the in­
jured party.

# # #
‘ ‘ To deny the injured party the right to recover any 

actual damages in such cases, because they are of a na­
ture which cannot be thus certainly measured, would be 
to enable parties to profit by, and speculate upon, their 
own wrongs, encourage violence and invite depredation. 
Such is not, and cannot be the law, though cases may be 
found where courts have laid down artificial and arbi­
trary rules which have produced such a result.”  Story 
Parchment Co. v. Paterson Parchment Paper Co., 282 
U.S. 555, 563-64 (1931).

We recognize, of course, that the words were spoken in 
the context of tort cases. But in tort and in discrimination 
cases the basic objective of damages is the same—to make 
the injured party whole to the extent that that can be done.

We also recognize that to some extent we write on a clean 
slate. No case exactly in point has been cited to us and we 
have found none. Most of the case law in which back pay 
awards have been granted because of unlawful discrimina­
tion in employment practices have involved either illegal dis­
crimination (via discharge or failure to promote) against



9a

employees who were union members or adherentsla or 
against employees who were Negroes.2

Here, of course, we deal with a record showing discrimi­
nation against women in hiring practices. Congress, how­
ever, appears to have modeled the remedial features of Title 
VII upon the National Labor Relations Act. See 110 Cong. 
Rec. 6549 (1964) (remarks of Sen. Humphrey). See gen­
erally Davidson, “ Bach Pay”  Awards Under Title VII of 
the Civil Rights Act of 1964, 26 R ut. L. R ev. 741 (1973) ; 
Note, Equal Employment Opportunity: The Bach Pay Rem­
edy Under Title VII 1974 U. III. L. F or. 379 (1974). In 
addition, the prohibition against sex discrimination is con­
tained in the same sentence of Title VII as the prohibition 
against race discrimination. 42 U.S.C. § 2000e-2 (1970), 
as amended, 42 U.S.C. § 2000e-2 (Supp. II, 1972). We be­
lieve, therefore, that the great amount of case law man­
dating back pay awards in these two situations which we 
have just cited is strong precedent for our instant case.

In this regard we find the leading Supreme Court case on 
back pay awards occasioned by illegal union discrimination 
in hiring practices to be instructive:

Second. Since the refusal to hire Curtis and Daugh­
erty solely because of their affiliation with the Union 
was an unfair labor practice under § 8(3), the remedial 
authority of the Board under § 10(c) became operative.

111 See, e.g., NLBB v. Jones & Laughlin Steel Corp., 301 U.S. 1 
(1937); NLBB v. Seven-Up Bottling Co., 344 U.S. 344 (1953); 
Radio Officers v. NLBB, 347 U.S. 17 (1953); Phelps Bodge Corp. 
v. NLBB, 313 U.S. 177 (1941).

2 See, e.g.. Head v. Timken Roller Bearing Co., 486 F.2d 870 
(6th Cir. 1973); Thorton v. East Texas Motor Freight, 497 F.2d 
416 (6th Cir. 1974) ; Johnson v. Goodyear Tire & Rubber Co., 491 
F.2d 1364 (5th Cir. 1974) ; Moody v. Albemarle Paper Co., 474 
F.2d 134 (4th Cir. 1973), cert, granted, 43 U.S.L.W. 3344 (U.S. 
Dec. 16, 1974) (No. 74-389); United States v. Bethlehem Steel 
Corp., 446 F.2d 652 (2d Cir. 1971).



10a

Of course it could issue, as it did, an order “  to cease 
and desist from such unfair labor practice ’ ’ in the fu­
ture. Did Congress also empower the Board to order 
the employer to undo the wrong by offering the men dis­
criminated against the opportunity for employment 
which should not have been denied them f

Reinstatement is the conventional correction for dis­
criminatory discharges. Experience having demon­
strated that discrimination in hiring is twin to dis­
crimination in firing, it would indeed be surprising if 
Congress gave a remedy for the one which it denied for 
the other. The powers of the Board as well as the re­
strictions upon it must be drawn from § 10(c), which 
directs the Board “ to take affirmative action, including 
reinstatement of employees with or without back pay, 
as will effectuate the policies of this Act.”  It could not 
he seriously denied that to require discrimination in 
hiring or firing to be “ neutralized,”  Labor Board v. 
Mackay Co., 304 U.S. 333, 348, by requiring the dis­
crimination to cease not abstractly but in the concrete 
victimizing instances, is an “ affirmative action”  which 
“ will effectuate the policies of this Act. ’ ’ Therefore, if 
§ 10(c) had empowered the Board to “ take such affirm­
ative action as will effectuate the policies of this Act,”  
the right to restore to a man employment which was 
wrongfully denied him could hardly he doubted. Even 
without such a mandate from Congress this Court com­
pelled reinstatement to enforce the legislative policy 
against discrimination represented by the Railway 
Labor Act. Texas $  N. 0. B. Co. v. Railway Clerks, 
281 U.S. 548. Attainment of a great national policy 
through expert administration in collaboration with 
limited judicial review must not be confined within 
narrow canons for equitable relief deemed suitable by 
chancellors in ordinary private controversies. Com­
pare Virginian By. v. Federation, 300 U.S. 515, 552. 
To differentiate between discrimination in denying em­



11a

ployment and in terminating it, would be a differentia­
tion not only without substance but in defiance of that 
against which the prohibition of discrimination is 
directed.

But, we are told, this is precisely the differentiation 
Congress has made. It has done so, the argument runs, 
by not directing the Board ‘ ‘ to take such affirmative ac­
tion as will effectuate the policies of this Act, ’ ’ sim- 
pliciter, but, instead, by empowering the Board “ to 
take such affirmative action, including reinstatement of 
employees with or without back pay, as will effectuate 
the policies of this Act.”  To attribute such a function 
to the participial phrase introduced by “ including”  is 
to shrivel a versatile principle to an illustrative appli­
cation. We find no justification whatever for attributing 
to Congress such a casuistic withdrawal of the author­
ity which, but for the illustration, it clearly has given 
the Board. The word “ including”  does not lend itself 
to such destructive significance. Helvering v. Morgan’s, 
Inc., 293 U.S. 121, 125, note. Phelps Dodge Corp. v. 
NLRB, 313 U.S. 177, 187-89 (1941).

The leading case in this circuit upon the award of back 
pay was written by Judge Miller in the context of a race 
discrimination case involving promotional opportunities:

The finding of discrimination by the district court, in 
addition to the nature of the relief (compensatory as 
opposed to punitive), and the clear intent of Congress 
that the grant of authority under Title YII should be 
broadly read and applied mandate an award of back 
pay unless exceptional circumstances are present.

Congress evidently intended that the award of back 
pay should rest within the sound discretion of the trial 
judge. Although appellate courts are loathe to interfere 
with the exercise of such discretion by a trial court, it is 
recognized that it is not free from appellate scrutiny. In



12a

Moody v. Albemarle Paper Co., 474 F.2d 134, 141 (4th 
Cir. 1973), [cert, granted, 43 U.S.L.W. 3344 (U.S. Dec. 
16, 1974) (No. 74-389)] the Fourth Circuit said:

Discretion in a legal sense necessarily is the re­
sponsible exercise of official conscience on all the 
facts of a particular situation in the light of the pur­
pose for ivhich the power exists. Bowles v. Goebel, 
151 F.2d 671, 674 (8th Cir. 1945) (emphasis added). 
Thus in determining the proper scope of the exercise 
of discretion, the objective sought to be accomplished 
by the statute must be given great weight. Hecht Co. 
v. Bowles, 321 U.S. 321, 331, 64 S.Ct. 587, 88 L.Ed. 754 
(1944). Where a district court fails to exercise dis­
cretion with an eye to the purposess of the Act, it 
must be reversed. Wirtz v. B. B. Saxon Co., 365 F.2d 
457 (5th Cir. 1966); Shultz v. Parke, 413 F.2d 1364 
(5th Cir. 1969).

We find no reasonable basis for denial of such relief on 
the present record. The 1968 change in Timken’s sen­
iority system does not ameliorate the injury already 
suffered. Good faith by Timken either during the 1965- 
68 period or thereafter is not a valid defense to a claim 
for back pay. The Court in Rowe v. General Motors 
Corp., 457 F.2d 348 (5th Cir. 1972), went to great 
lengths to emphasize the good faith of the defendant. 
Nevertheless, the court remanded the case, stating that 
the district court on reconsideration “ will of course, 
include the appropriate remedy, back pay, limited or 
full, etc., as needed to effectuate the Act. ’ ’ Id. at 360. 
Head v. Timken Roller Bearing Co., 486 F.2d 870, 
876-77 (6th Cir. 1973). (Footnote omitted.)

See also Thornton v. East Texas Motor Freight, 497 F.2d 
416 (6th Cir. 1974).



13a

Other circuits have reached similar results. Thus in the 
Georgia Power case the Fifth Circuit said:

2. Equitable Discretion

Title VII was enacted with the legislative objective 
of disestablishing the racial and sexual caste systems 
which had remained ingrained in the American econ­
omy since slavery and coverture. The Act, in authoriz­
ing courts to grant equitable relief to those who might 
be injured by its breach, expressly and impliedly in­
cludes the discretion to award back pay. Given this 
court’s holding that “  [a]n inextricable part of the res­
toration to prior [or lawful] status in the payment of 
back wages properly owing to the plaintiffs” , Harkless 
v. Sweeny Independent School District, 427 F.2d 319, 
324 (5th Cir. 1971), it becomes apparent that this form 
of relief may not properly be viewed as a mere adjunct 
of some more basic equity. It is properly viewed as an 
integral part of the whole of relief which seeks, not to 
punish the respondent but to compensate the victim of 
discrimination. See NLEB v. J. H. Rutter-Rex Mfg. 
Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969); 
Oil, Chemical and Atomic Workers, Inc. (sic) Union v. 
N.L.R.B., Part III, 144 U.S.App.D.C. 167, 445 F.2d 237 
(1971). Cf. Social Security Board v. Nierotko, 327 U.S. 
358, 66 S.Ct. 637, 90L.Ed. 718 (1946).19
United States v. Georgia Power Go., 474 F.2d 906, 921 
(5th Cir. 1974).

And the Fourth and Seventh Circuits have given an even 
broader reading to Title VII back pay entitlement in Moody 10 * * * * * * *

10 The relief provisions of Title VII were derived for a
similar provision in the National Labor Relations Act, 29
U.S.C.A. § 160(c). Monetary awards by the National Labor
Relations Board under this authority have been based upon
net back pay, and legislative history indicates that Congress
felt that the Title VII remedy should be similar. 110 Cong.
Rec. 6549 (1964); Developments —  Title VII, [84 Harv. L.
Rev. 1109] supra note 8, at 1259 n. 349.



14a

v. Albemarle Paper Co., 474 F.2d 137 (4th. Cir. 1973), cert, 
granted, 43 U.S.L.W. 3344 (II.S. Dee. 16,1974) (No. 74-389); 
Boive v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969).

In the Pettway case Judge Tuttle examined the practical 
problems of awarding back pay in another race discrimina­
tion case involving promotion rights in language which we 
commend to the attention of the District Judge on remand 
of our instant case:

3. Determination of the award. Having decided that 
the district court should grant back pay to the members 
of the class, a multitude of questions arise concerning 
the period of time encompassed by the back pay, the 
burden of proof, and the mechanics of computation. 
Some guidelines for the district court will be set forth.

Initially, we approve the district court’s intention of 
referring the back pay claims to a Special Master, Fed. 
R.Civ.P. 53. United States v. Wood, Wire & Metal 
Lathers Int. Union, Local 46, 328 F.Supp. 429, 441 (S.D. 
N.Y. 1971). However, the court and the parties may 
also consider negotiating an agreement. E.g., Johnson 
v. Goodyear Tire & Rubber Co., 349 F.Supp. 3, 18 (S.D. 
Tex. 1972), 491 F.2d 1364 (5th Cir. March 27, 1974); 
United States v. Wood, Wire & Metal Lathers, Int. Un­
ion, Local 46, supra 328 F.Supp. at 444 n. 3. An alter­
native is to utilize the expertise of the intervening 
Equal Employment Opportunity Commission to super­
vise settlement negotiations or to aid in determining 
the amount of the award.

%  #  #

This Court has recently addressed the issue of the 
burden of proof on back pay claims in Johnson v. Good­
year Tire & Rubber Co., supra, 491 F.2d 1364. This 
Court pointed out that once a prima facie case of dis­
crimination against the class alleged is made out, a 
presumption for back pay arises in favor of class mem­
bers. However, this presumption was found to be tern-



15a

pered by an initial burden on the individual employee 
to bring himself within the class and to describe the 
harmful effect of the discrimination on his individual 
employment postion:

“ Therefore, the class represented by Johnson, hav­
ing established a prima facie case of employment 
discrimination, is presumptively entitled to back pay. 
. . . Since, at the same time, the initial burden is now 
placed on the individual labor department employee 
to show that he is a member of the recognized class 
subject to employment discrimination, we think it is 
appropriate to offer some preliminary observations 
concerning the manner in which the presumption in 
favor of the class and the initial burden placed upon 
an individual employee may be reconciled by the dis­
trict court.

*  # *

“ The district court’s task will be further compli­
cated since the only criteria which Goodyear previ­
ously imposed for transfer have been found by this 
court to be invalid under Title VII. If an employee 
can show that he was hired into the labor department 
before April 22, 1971 and was subsequently frozen 
into the department because of the discriminatory 
practices established here, then rve think the individ­
ual discriminatee has met his initial burden of proof 
unless there are apparent countervailing factors 
present.”  Id. at 1379.

This holding is entirely consistent with, and flows from 
our decision in Georgia Power that the presumption in 
favor of a member of a class discriminated against does 
not per se entitle an employee to back pay without some 
individual clarification. 474 F.2d at 921-922.

This Court in Goodyear, then went on to detail the 
burden on the employer:

“ . . .  It will be incumbent upon Goodyear to show 
by convincing evidence that other factors would have



16a

prevented his transfer regardless of the discrimina­
tory employment practices. If Goodyear wishes to 
show that a labor department employee would not 
be qualified for any other job then its proof must be 
clear and convincing. Any doubts in proof should be 
resolved in favor of the discriminatee giving full and 
adequate consideration to applicable equitable prin­
ciples.”  Id. at 1379, 1380.

There, just as in this case, our prior decision in Cooper 
v. Allen, supra, 467 F.2d at 840, was instructive. In 
Cooper, the district court had placed the burden on the 
plaintiff to show, disregarding the discriminatory test­
ing, that he was the most qualified for the job which he 
was seeking back pay. This Court reversed:

“ On remand the City must prove by clear and con­
vincing evidence that, in the light of the enumerated 
qualifications, Cooper would not have been entitled to 
the job even had there been no requirement to take 
and pass the Otis test. That is, the City must show 
that the person actually hired was on the whole better 
qualified for the job.”  Id. at 840.

Reading these earlier decisions together, it is clear 
that the burden of proof formulated by this Court con­
ceives an initial lighter burden on the back pay claimant 
with a heavier weight of rebuttal on the employer. 
Therefore, the maximum burden that could be placed on 
the individual claimant in this case is to require a 
statement of his current position and pay rate, the jobs 
he was denied because of discrimination and their pay 
rates, a record of his employment history with the com­
pany and other evidence that qualified or would have 
qualified him for the denied positions, and an estima­
tion of the amount of requested back pay. The employ­
er’s records, as well as the employer’s aid, would be 
made available to the plaintiffs for this purpose. The



17a

burden then shifts to the company to challenge partic­
ular class members’ entitlement to back pay. Pettway 
v. American Cast Iron Pipe Co., 494 F.2d 211, 258-60 
(5th Cir. 1974). (Footnotes omitted.)

Judge Tuttle continued then to discuss the complexity of 
a back pay award in a discrimination case involving* denial 
of promotions. He then turned to the ingredients of back 
pay and his conclusion:

Finally, the ingredients of back pay should include 
more than “ straight salary.”  Interest, overtime, shift 
differentials, and fringe benefits such as vacation and 
sick pay are among the items which should be included 
in back pay. Adjustment to the pension plan for mem­
bers of the class who retired during this time should 
also be considered on remand.

Conclusion
The declaratory and affirmative injunctive relief 

should alleviate the perpetuated effects of the com­
pany’s intentional discrimination and testing and edu­
cational requirements. Back pay should compensate 
for economic losses suffered during the period of test­
ing and before the implementation of this decision. 
Nevertheless, two additional elements of relief are 
necessary. The district court should establish a com­
plaint procedure by which a member of the class may 
question the interpretation or implementation of the 
district court’s decree. See United States v. Georgia 
Power, supra, C.A. Nos. 12355, 11723, 12185. The pro­
cedure should include the filing of a complaint with the 
personnel department of the company and the proper 
committee of the Board of Operatives (described 
infra). Finally, the district court should retain this 
case on the docket for a reasonable time to insure the 
continued implementation of equal employment op­
portunities. Brown v. Gaston County Dyeing Machine



18a

Co., supra, 457 F.2d at 1383; Parham v. Southwestern 
Bell Telephone Co., supra, 433 F.2d at 429. Pettway v. 
American Cast Iron Pipe Co., supra at 263-64. (Foot­
notes omitted.)

Additionally, we note that two circuits have already en­
tered orders requiring affirmative action to make whole 
parties who have been discriminatorily refused employment 
at the hiring office. In a very recent case the Fifth Circuit 
said:

The remedies authorized in Title VII specifically in­
clude back pay. As indicated above, the purpose of 
Title VII is to make the discriminatee whole and elimi­
nate the effects of past discrimination as far as possible. 
Where the discriminatee has suffered economic injury 
in the form of lost wages, back pay is normally ap­
propriate relief. Harkless v. Sweeny Independent 
School District, 5th Cir. 1970, 427 F.2d 319, 324. Franks 
v. Bowman Transportation Co., 495 F.2d 398, 421 (5th 
Cir 1974).

See also, Moody v. Albemarle Paper Co., 474 F.2d 134 (4th 
Cir. 1973), cert, granted, 43 U.S.L.W. 3344 (U.S. Dec. 16, 
1974) (No. 74-389).

As we have already indicated, we believe that the District 
Judge erred in holding that he was without authority to en­
ter back pay awards to the discriminatees before him. In ad­
dition to the injustice to the victims of illegal discrimina­
tion, such a policy prohibiting back pay because of the diffi­
culty of computing it actually would encourage employers 
who had the inclination to disregard this act to do so with 
impunity, knowing that in the end the worst could happen 
to them is that they might be ordered to hire women wholly 
prospectively. We recognize the practical difficulties of de­
termining that actual damage has occurred. The initial 
burden of proof rests upon the job claimant to establish that 
she sought employment and that she was eligible for a then-



19a

existing job. She can, of course, take advantage of Ford em­
ployment records in establishing a prima facie case. At this 
point the burden would then shift to Ford to show a legiti­
mate business reason for the job refusal. Griggs v. Duke 
Power Co., 401 U.S. 424 (1971).

Assuming that eligibility for back pay was ascertained 
within the realm of reasonable probability (and no more 
can be asked here), evidence would also have to be taken 
pertaining to mitigating of damages because some of these 
claimants may have secured work in the meantime.

Reference of these back pay claims to a Special Master 
and pretrial conferences before him to narrow the fact dis­
putes which need actual testimony are practical answers to 
some of the problems presented by claims for back pay 
awards.

If eligibility and discriminatory refusal are established, 
then back pay should be fully awarded, including compen­
sation for fringe benefits then enjoyed by employees. See 
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 263 
(5th Cir. 1974).

Sestiobity

Whatever the difficulties of determining back pay awards, 
the award of retroactive job seniority offers still greater 
problems. Seniority is a system of job security calling for 
reduction of work forces in periods of low production by 
layoff first of those employees with the most recent dates of 
hire. It is justified among workers by the concept that the 
older workers in point of service have earned their reten­
tion of jobs by the length of prior services for the particu­
lar employer. From the employer’s point of view, it is 
justified by the fact that it means retention of the most 
experienced and presumably most skilled of the work force. 
Obviously, the grant of fully retroactive seniority would 
collide with both of these principles.



Ill addition, where the burden of retroactive pay falls 
upon the party which violated the law, the burden of 
retroactive seniority for determination of layoff would fall 
directly upon other workers who have themselves had no 
hand in the wrongdoing found by the District Court,

There is, however, no prohibition to be found in the 
statute we construe in this case which prohibits retroactive 
seniority and, of course, the remedy for the wrong of dis­
criminatory refusal to hire lies in the first instance with 
the District Judge. For his guidance on this issue we ob­
serve, however, that a grant of retroactive seniority would 
not depend solely upon the existence of a record sufficient 
to justify back pay under the standards of the Back Pay 
Section of this opinion. The court would, in dealing with 
job seniority, need also to consider the interests of the 
workers who might be displaced as well as the interests of 
the employer in retaining an experienced work force. We 
do not assume, as our brethern in the Fifth Circuit appear 
to (Local 189, AFL-GIO, CLC v. United States, 416 F.2d 
980, cert, denied, 397 U.S. 919 (1970)), that such reconcilia­
tion is impossible, but as is obvious, we certainly do foresee 
genuine difficulties. See also Jurinho v. Edwin L. Wiegand 
Co., 477 F.2d 1038 (3d€ir.), vacated, 414 U.S. 971 (1973), 
reinstated, ■— F.2d —t, 7 FEP 787 (3d Cir. 1974). Cf. Local 
189, supra; Franks v. Boivmun Transportation Co., 495 
F.2d 398 (5th Oir. 1974).

On remand the District Judge may desire to hear the 
policy questions involved in this problem before remanding 
the individual claims to the Master. For purposes of that 
hearing notice should be given to the employees likely to be 
affected and intervention should be allowed from appropri­
ate representatives.

What we have said concerning job seniority does not, of 
course, apply to the fringe benefits of employment. Where 
vacation schedules or pension rights (or other fringe bene­



21a

fits) are determined by date of hire, we perceive no reason 
why that date in these cases should be other than the date 
which the trial court fixes as the date when the employee 
would have been hired, absent the illegal hiring practice 
which the District Court has identified and enjoined.

T he Class

We affirm the determination of the class as set forth in 
the District Judge’s opinion and order, except that mem­
bership therein should also be allowed to applicants be­
tween April 1, 1971, and January 26, 1973, when the 150 
lb. rule was enjoined. We find no abuse of discretion in 
the District Judge’s refusal to accept an amendment to 
this complaint so as to add to the problems of these plain­
tiff’s and this plant (the Kentucky Truck Plant) the prob­
lems of applicants for employment at the Grade Lane Auto 
Assembly Plant. No present plaintiff applied for or was 
refused employment at the Grade Lane plant, and we do not 
perceive that reversal is mandated in the interests of 
judicial economy. Hopefully this case will supply appli­
cable precedent if indeed the same practices prevailed at 
Great Lane.

A ttobhey P ees

We likewise find no abuse of discretion in the District 
Judge’s award of attorney fees covering the work per­
formed up to the dates considered by him. The case has, 
however, required additional legal services thereafter both 
in the District Court and on appeal which were not dealt 
with by his judgment. We therefore vacate the fee portion 
of the judgment and remand this aspect of the appeal for 
further consideration.

The judgment of the District Court is affirmed as modi­
fied above, and the case is remanded to the District Court 
for further proceedings consistent with this opinion. Costs 
to appellants.



22a

Judgment—Entered December 12,1973

Pursuant to Findings of Fact and Conclusions of Law 
entered on August 23, 1973, it is hereby ordered, adjudged 
and decreed that:

1. The Findings of Fact and Conclusions of Law en­
tered by the Court in this Action on August 23, 1973, are 
hereby incorporated herein by reference, as if fully copied 
herein.

2. There are thirty-one (31) members of the Class rep­
resented by the Plaintiff in the instant action; the names, 
addresses and telephone numbers of the said members of 
the class are attached hereto and made a part hereof as if 
fully copied herein.

3. The use by the Defendant under the circumstances 
before the Court of the 150 pound weight requirement for 
eligibility for employment on its production line at its Ken­
tucky Truck Plant constitutes an unlawful employment 
practice pursuant to the terms of the Civil Rights Act of 
1964, 42 U.S.C. § 2000e-l et seq.

4. Neither the Plaintiff nor any member of the class is 
entitled to any award of damages. Plaintiff is awarded its 
costs herein expended and counsel fees in the sum of 
$11,500.00.

5. The Defendant, Ford Motor Company, be and hereby 
is permanently enjoined and prohibited from applying the 
150 pound weight requirement for eligibility for employ­
ment on its production line at its Kentucky Truck Plant.

6. The names of the Plaintiff and the thirty-one (31) 
members of the class represented by the Plaintiff shall be 
placed by the Defendant in a priority employment pool in 
the order of the dates of their original application for pro­
duction employment, The names of all other applicants 
for production employment are to be placed in a general 
pool in accordance with the present practice of Defendant. 
As production employment positions become available,

APPENDIX B



23a

Defendant shall select names from the two pools of appli­
cants at a set ratio of one name from the priority pool for 
every three names from the general pool, and these individ­
uals are to be notified by the Defendant of the job openings 
as they occur and given a reasonable opportunity to appear 
for a pre-employment physical examination and the other 
processes regularly required of such applicants.

7. Individuals from the priority pool called pursuant 
to this procedure are entitled to no preference in regard to 
regularly applied job requirements, and said individuals 
must meet other regularly applied employment require­
ments of the Defendant before production employment must 
be granted them by the Defendant.

8. The procedure outlined above shall be followed by 
the Defendant until all names in the priority pool have been 
exhausted, or until the expiration of 18 months from the 
date of this Judgment, whichever first occurs.

9. The three-to-one ratio established above in no way 
implies the defendant must, as a matter of general practice, 
employ one female for every three males employed for pro­
duction work, nor does this Judgment mean that the de­
fendant must establish a ratio of any type regarding the 
employment of males and females for such production work 
in the future.

10. This Court shall retain jurisdiction of this action 
for a period of 18 months following the entry of this Judg­
ment to insure the continued implementation of what now 
appears to be the defendant’s policy of equal employment 
opportunities at its Kentucky Truck Plant.

It is Further Ordered that this action is dismissed with 
prejudice as to the defendant, International Union, United 
Automobile, Aerospace and Agricultural Implement Work­
ers of America, Local 862.

(s) Chables M. A llex
December 11, 1973 United States District Judge
cc : Counsel of Record



24a

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

Nos. 74-1258 
74-1259

Delores Marie Meadows, Plaintiff-Appellant,
Gross-Appellee,

Y.

F ord Motor Company, Defendant-Appellee,
Cross-Appellant,

L ocal 862, I nternational U nion, U nited A utomobile, 
A erospace and I mplement W orkers of A merica; and 
International U nion, U nited A utomobile, A erospace 
and A gricultural Implement W orkers of A merica,

D efendants-App ellees.

Before: E dwards and Miller, Circuit Judges, and 
McA llister, Senior Circuit Judge.

Judgment

A ppeal from the United States District Court for the 
Western District of Kentucky.

T his Cause came on to he heard on the record from the 
United States District Court for the Western District of 
Kentucky and was argued by counsel.

On Consideration W hereof, It is now here ordered and 
adjudged by this Court that the judgment of the said 
District Court in this cause be and the same is hereby 
affirmed as modified and the case is remanded for further 
proceedings.

APPENDIX C



It is further ordered that Plaintiff-Appellant, Cross- 
Appellee recover from Defendant-Appellee, Cross Appel­
lant, the costs on appeal, as itemized below, and that 
execution therefor issue out of said District Court.

E ntebed by Obdeb oe the Cotjbt.

/ s /  J ohn P. IIehmas 
Clerk

Filed Jan. 24, 1975

Issued as Mandate:
Costs : To be recovered by Appellant,

Cross-Appellee
Filing fee ......... $ 50.00
Printing ...........$2,034.59

Total $2,084.59



26a

Nos. 74-1258-59
UNITED STATES COURT OP APPEALS 

POR THE SIXTH CIRCUIT

D olores Marie Meadows,
Plaintiff-Appellant, Cross-Appellee,

V . I'

F ord Motor Company,
Defendant-Appellee, Gross-Appellant,

L ocal 862, I nternational U nion, U nited A utomobile, 
A erospace and A gricultural I mplement W orkers op 
A merica; and I nternational Union, U nited A uto­
mobile, A erospace and A gricultural Implement 
W orkers op A merica, Defendants-Appellees.

Order

Before: E dw ards and M il l e r , Circuit Judges, and M cA l ­
l ist e r , Senior Circuit Judge.

On receipt and consideration of a petition for rehearing 
and suggestion for rehearing in banc filed by defendant- 
appellee, Ford Motor Company; and

On receipt of a motion to be allowed to file a petition for 
rehearing out of time filed by defendant-appellee, Local 
862, International Union, United Automobile, Aerospace, 
and Agricultural Implement Workers of America; and

Noting nothing in said petition and said motion which 
was not adequately considered and dealt with by the court 
in its previous opinion,

Said petition and said motion are hereby denied.
Entered by order of the Court
J o h n  P. H e h m a n  

Clerk

APPENDIX D

Filed March 24, 1975



27a

(New York Times, Jan. 13,1975, p. 43)

Q.M. SUIT FOCUSES ON SENIORITY ISSUE
Preferentially Hired Women Workers Seek to Keep Their Jobs 

as Layoffs Spread in the Business Slowdown

BY HUNKY WEINSTEIN 
SPECIAL TO THE NEW YORK TIMES

San F bancisco, Jan. 12—A Federal court lawsuit alleg­
ing sex discrimination at the General Motors Corporation 
assembly plant at Fremont, Calif., 40 miles south, of here 
has brought into sharp focus the difficulty in maintaining 
the gains of Equal Employment Opportunity legislation in 
a period when the economy is depressed.

And the suit has raised again the problem of attempting 
to reconcile preferential hiring with hard-won union seni­
ority rights during a business slowdown!.

Tomorrow, 2,300 of the 4,466 assembly line workers at 
the plant will be laid off. All 441 women hourly production 
workers will be laid off because none of them has worked 
at the plant long enough to have the seniority needed to 
avoid a layoff.

There were no women hired to do assembly line work 
at this plant until 1968, four years after the passage of 
Title 7 of the Civil Rights Act, which prohibited hiring dis­
crimination on the basis of race, religion, national origin or 
sex.

March Layoffs
In August, eight of these women sued General Motors 

alleging sex discrimination past and present. They were 
off in March along with a number of other workers and 
were not recalled until October. The suit seeks back pay 
and recall in addition to the work force at the plant for a 
number of women so that women would make up the same

APPENDIX E



28a

percentage of the work force they did prior to layoffs in 
March.

It also asks that the plant “ develop and implement an 
affirmative action program requiring population parity for 
women to be fully implemented within four years”  and that 
women be given increased opportunity for promotion into 
skilled jobs.

Four of the women plaintiffs are white, two are black, 
one is a Chicano and one is a Blackfoot American Indian. 
All but one of them work on the second shift—4 P.M. to 
midnight— in semiskilled jobs. No woman had a skilled 
assembly line job at the plant at the end of 1973, according 
to the latest available statistics, and the plaintiffs contend 
this is still the case.

General Motors and the United Auto Workers have been 
the subject of an extensive Equal Employment Opportunity 
Commission investigation since 1973.

General Motors contends that a layoff system based on 
seniority is authorized by Title 7. It also says that in the 
1964-68 period it “ was precluded from employing women as 
assembly workers by the limitations of state protective laws 
for women, ’ ’ such as those prohibiting women from lifting 
heavy loads and working overtime.

The legislative history of Title 7 on seniority systems is 
far from clear, according to most authorities. Addition­
ally, there have been two cases decided in Federal Appeals 
Court here that ruled that protective laws were not an 
adequate defense to discrimination in hiring on the basis of 
sex. These issues may be resolved when this case comes to 
a full trial on March 14.

On Friday, Federal District Judge Alfonzo J. Zirpoli re­
fused to grant the plaintiffs a temporary injunction that 
would have prevented them from being laid off tomorrow 
and would have also compelled General Motors to keep 230



29a

women oil the job in proportion to their percentage in the 
assembly line work force prior to layoffs.

The women, who are affiliated with a national organiza­
tion called the Coalition of Labor Union Women, proposed 
four alternative remedies to the layoff problem.

U A “  share the work”  plan that would keep both assembly 
line shifts working at 20 hours a week with 36 hours ’ pay 
guaranteed to everyone with more than a year’s seniority. 
It was stipulated that this would cost General Motors $26.9- 
million.

tf Shifts work alternate weeks with unemployment bene­
fits while off. This would cost the company $5.6-million.

tl After the layoffs, the same percentage of women work­
ing at the plant now would be rehired. This would cost 
General Motors $3.3-million.

If Voluntary inverse seniority, with high-seniority men 
volunteering to go out and collect SUB pay (a benefit pro­
viding under the latest contract for 95 per cent of regular 
pay for a period of time depending on seniority), while 
women would have a chance to keep working longer. This 
would have cost the company $200,000.

The union opposed all of the women’s four solutions on 
the ground they would violate seniority provisions as well 
as existing collective bargaining agreements.

There is a distinct possibility that the plaintiffs will ask 
to have the third remedy implemented at the full trial. 
This procedure is based on a Federal Court decision in 
Louisiana, called Watkins v. the Continental Can Company 
and the Steelworkers Union.

There, the judge ordered reinstatement and back pay for 
seven blacks laid off because of lack of seniority due to the 
company’s previously discriminatory hiring practices, 
based on a formula that would help maintain their steady



30a

percentage representation in the work force. The deci­
sion is now on appeal.

Judge Zirpoli seemed disposed toward the possibility of 
monetary remedies, which had been implemented in similar 
disputes in the past, rather than implementation of recall 
hiring that would give preference to women. But the ulti­
mate decision in this case will come at the earliest in March 
and perhaps months or even years later.



I 1 703-4 -75