Wards Cove Packing Company, Inc. v. Atonio Brief Amici Curiae

    No. 87-1387

In  t h e

Isatprane (Emtrt of tlje United States
O c t o b e r  T e r m , 1988

W a r d s  C o v e  P a c k in g  C o m p a n y , In c .,
C a s t l e  & C o o k e , In c .,

Petitioners,
—v.—

F r a n k  A t o n i o , et al.,
Respondents.

BRIEF OF AMICUS CURIAE 
NATIONAL ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED PEOPLE

G r o v e r  G . H a n k i n s *
General Counsel 

Sa m u e l  M. W a l t e r s  
Assistant General Counsel 

N a t i o n a l  A s s o c ia t io n  f o r  t h e  
A d v a n c e m e n t  o f  C o l o r e d  P e o p l e  

4805 Mt. Hope Drive 
Baltimore, Maryland 21215 
(301) 486-9191 '

and
A l f r e d  W. B l u m r o s e n  
15 Washington Street 
Newark, New Jersey 07102 
(201) 648-5332
Counsel fo r  Amicus Curiae

♦Counsel of Record 
November 4, 1988



1

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES.............................................  in

INTEREST OF AMICUS CURIAE.................................  1

SUMMARY OF ARGUMENT.........................................  2

ARGUMENT......................................................................  4

I. Title VII unqualifiedly prohibits segregation of 
employees or applicants which deprive or tend to 
deprive any individual of employment opportu­
nities or otherwise adversely affect his status 
because of ra c e ..................................................... 4

II. The facts found by the District Court establish
segregation of workers by race by the employer 5

III. The combination of segregated recruiting and
hiring channels, segregated job assignments, and 
refusal to consider minorities for promotion or 
transfer to white jobs establish a violation of 
Title V II ................................................................  6

IV. The so-called “ over representation” of minori­
ties in lower paying jobs, plus their exclusion 
from higher paying white jobs, does constitute 
illegal segregation under Title V II...................... 8

V. There can be no “ business necessity” justifica­
tion for maintaining job segregation.................. 11



11

PAGE

VI. This Court should affirm the holding of the 
Court of Appeals on the ground that illegal seg­
regation has been established rather than dismiss 
the writ as improvidently g ran ted ...................... 15

CONCLUSION................................................................... 16



in

TABLE OF AUTHORITIES

Cases: PAGE

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1974)............................................................................ 4, 10, 13

Connecticut v. Teal, 457 U.S. 440 (1982).......................  11

Corning Glass Works v. Brennan, 417 U.S. 189 (1974) . 12

Dothard v. Rawlinson, 433 U.S. 321 (1977)...................  13

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)............ 10

Furnco Construction Co. v. Waters, 438 U.S. 567
(1978)................................................................................11, 13

Griggs v. Duke Power Co., 420 F.2d 1225 (4th Cir.
1970), reversed in part, 401 U.S. 424 (1971)................ 7

Griggs v. Duke Power Co., 401 U.S. 424 (1971)..........4, 7, 10

Johnson v. Santa Clara County Transportation Agency,
107 S. Ct. 1442 (1987)..................................................... 10

Local 189, United Papermakers v. United States, 416 
F. 2d 980 (5th Cir. 1969)................................................. 9

Los Angeles Water and Power Co. v. Manhart, 435 U.S.
702 (1978)........................................................................  11

McDonnell Douglas v. Green, 411 U.S. 732 (1973) . .7, 12, 14

Miller v. International Paper Co., 408 F.2d 283 (5th Cir.
1969)..................................................................................  9

Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971) 11

Texas Department o f Community Affairs v. Burdine,
450 U.S. 248 (1981) 8



IV

PAGE

Teamsters v. United States, 431 U.S. 333 (1977) . .4, 7, 11, 12

United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d 
Cir. 1971)........................................................................... 9, 13

United States Postal Service v. Aikens, 460 U.S. 711 
(1983)................................................................................. 8, 14

United Steelworkers v. Weber, 443 U.S. 193 (1979) . . . .  10

Watson v. Fort Worth Bank and Trust, 487 U .S .____ ,
108 S. Ct. 2777 (1988).....................................................  10

Statutes:
42 U.S.C. Sec. 2000e, et seq., Civil Rights Act of 1964. 4

Regulations:
43 Fed. Reg. 19,260, 19,269 (May 4, 1978)...................... 3

Uniform Guidelines on Employee Selection Procedures- 
1978, 29 C.F.R. Sec. 1607.4(C)(1)................................ 11

Other Authorities:
Blumrosen, The Legacy o f Griggs: Social Progress and 

Subjective Judgments, 63 Chi. Kent L. Rev. 1 (1986) 16

Blumrosen, Seniority and Equal Employment Opportu­
nity: A  Glimmer o f  Hope, 23 Rutgers L. Rev. 268 
(1969)................................................................................  4, 9

Blumrosen, Strangers in Paradise: Griggs v. Duke Power 
Co. and the Concept o f Employment Discrimination,
71 Mich. L. Rev. 59 (1972)...........................................  12



In the

gatprEtttt (Eourt of the 13titled States
O c t o b e r  T e r m , 1988 

No. 87-1387

W a r d s  C o v e  P a c k in g  C o m p a n y , In c .,
C a s t l e  & C o o k e , In c .,

Petitioners,
—v.—

F r a n k  A t o n i o , et al.,
Respondents.

BRIEF OF AMICUS CURIAE 
NATIONAL ASSOCIATION FOR THE 

ADVANCEMENT OF COLORED PEOPLE

INTEREST OF AMICUS CURIAE

Amicus curiae National Association for the Advancement of 
Colored People (NAACP) is an organization dedicated to the 
furtherance of racial equality and social and economic justice in 
this country. To promote these ends, the NAACP and its mem­
bers engage in activity protected by the United States Constitu­
tion, including petitioning the government for the redress of 
grievances. The NAACP and its members throughout the 
United States for more than twenty years have assisted workers 
in utilizing Title VII of the Civil Rights Act of 1964 to challenge 
employment discrimination against minorities and women. The 
NAACP has urged the Congress to strengthen Title VII and 
other provisions of the Civil Rights Act of 1964.



2

Open and notorious segregation of Black workers into infe­
rior jobs was one of the hallmarks of the system of segregation 
and discrimination in the South before the Civil Rights Act was 
adopted. Because of the litigation under Title VII, many of the 
overt forms of discrimination, such as hiring from dual segre­
gated labor markets, discrimination in job assignments, and 
discriminatory refusals to allow Blacks into better paying jobs, 
have been abandoned. However, there still remain circum­
stances in which minorities are restricted today, in precisely the 
same manner as in earlier years.

For the reasons explained below, the opinions of the District 
Court and Court of Appeals, for differing reasons, may permit 
the continued existence of blatant job segregation. The 
NAACP urges this Court to correct the errors of both the Dis­
trict Court and the Court of Appeals, and to reaffirm that the 
evil of job segregation remains unlawful under Title VII.

This amicus curiae brief is filed with the consent of the par­
ties, whose letters of consent have been filed with the Clerk of 
the Court.

SUMMARY OF ARGUMENT

Certiorari was granted to consider three questions relating to 
the concept of discrimination under Title VII of the Civil Rights 
Act of 1964 that deals with neutral practices which have a “ dis­
parate impact” on minorities or women.* 1 This case does not

1 The questions presented are:
1. Does statistical evidence that shows only a concentration of 

minorities in jobs not at issue fail as a matter of law to establish dis­
parate impact of hiring practices where the employer hires for at-issue 
jobs from outside his own work force, does not promote-from-within 
or provide training for such jobs, and where minorities are not under­
represented in the at-issue jobs?

2. In applying the disparate impact analysis, did the Ninth Circuit 
improperly shift the burden of proof to petitioners?

3. Did the Ninth Circuit commit error in allowing plaintiffs to chal­
lenge the cumulative effect of a wide range of non-racially motivated 
employment practices under the disparate impact model?



3

involve such practices. It involves racial segregation in hiring, 
job assignments, and promotions against Filipino and Alaskan 
Native workers in favor of whites.2 The employers hired minor­
ity workers through separate procedures and channels from 
those used to hire whites. They assigned minority workers to 
lower paying jobs and refused to consider them for promotion 
or transfer to white jobs. Whites were hired through separate 
procedures and channels from those used to hire minorities into 
higher paying jobs and were separately housed and fed from 
minorities. These facts, established by the District Court, con­
stitute racial segregation in violation of the statute.

The courts below did not recognize the job segregation of 
minorities as a violation of Title VII. The District Court dis­
counted evidence of segregation of minorities in low paying 
jobs as “ over-representation” of minorities. It then analyzed 
several employment practices separately but never examined the 
interaction between segregated hiring, job assignment, and the 
refusal to consider minorities for promotion or transfer. The 
Court of Appeals analyzed employment procedures under the 
disparate impact principle and reversed the District Court. In 
applying the impact principle, it recognized a “ business neces­
sity” defense to the maintenance of job segregation. This is not 
the law. Job segregation is illegal.

This court granted Certiorari to consider questions relating to 
the application of impact theory. However, the facts— 
segregation in hiring, job assignments, and refusal to transfer 
or promote minorities—make this case an inappropriate vehicle 
to resolve questions concerning disparate impact theory. The 
District Court analysis was clearly erroneous, and the Court of 
Appeals committed error in allowing a “ business necessity” 
defense to segregation.

Since the Court of Appeals found for the employees, albeit 
on an erroneous theory, its judgment should be affirmed. This

2 Both Alaskan Natives and persons of Filipino descent are considered 
as being in separate racial groups from whites for the purposes of the 
Federal reporting policies. See 43 Fed. Reg. 19,260, 19,269 (May 4, 
1978).



4

Court should remand, making clear that the segregation which 
has been established in this case is illegal and cannot be 
defended on grounds of business necessity.

THE ARGUMENT

I. TITLE VII UNQUALIFIEDLY PROHIBITS SEGREGA­
TION OF EMPLOYEES OR APPLICANTS WHICH 
DEPRIVE OR TEND TO DEPRIVE ANY INDIVIDUAL 
OF EMPLOYMENT OPPORTUNITIES OR OTHER­
WISE ADVERSELY AFFECT HIS STATUS BECAUSE 
OF RACE

The language of Sec. 703(a)(2), makes it an unlawful employ­
ment practice for an employer to:

“ . . . limit, segregate or classify his employees or appli­
cants for employment in any way which would deprive or 
tend to deprive any individual of employment opportuni­
ties or otherwise adversely affect his status as an employee, 
because of such individual’s race . . .”

Overt and current job segregation on the basis of race has 
never been defended before this Court. In the earliest cases 
under Title VII, employers admitted pre-act segregation against 
blacks, but stated that segregation had ended, and the post-act 
situation was justified by seniority or testing practices.3 None of 
the cases previously before this Court involved an employer 
who hired minorities through recruiting practices separate from 
those used to hire whites, assigned them to lower paying jobs 
and then, as a matter of general policy, refused to consider 
them for promotion or transfer to the better “ white” jobs. The 
refusal to consider minorities for promotion out of segregated 
jobs is illegal per se as maintaining segregation.

3 Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper 
Co. v. Moody, 422 U.S. 405 (1974); Teamsters v. United States, 431 
U.S. 333 (1977); Blumrosen, Seniority and Equal Employment Oppor­
tunity: A Glimmer o f  Hope, 23 Rutgers L. Rev. 268 (1969).



5

II. THE FACTS FOUND BY THE DISTRICT COURT 
ESTABLISH SEGREGATION OF WORKERS BY RACE 
BY THE EMPLOYER

The facts found by the District Court establish that the defen­
dants did segregate employees and applicants in ways which 
deprived them of employment opportunities because of their 
race.4 The District Court found:

(1) Employees were segregated by race, with whites holding 
better, higher paying jobs and Alaskan Natives and Filipinos 
holding lower paying laborer and cannery jobs.5

(2) Filipinos and Alaskan Natives have been recruited from 
Alaskan Native communities and a local union in Seattle com­
posed mainly of workers of Filipino extraction.6

(3) They have been assigned to do low paid labor and can­
nery work.7

(4) The jobs done by these workers are characterized as “ Fil­
ipino jobs,” or “ Eskimo jobs,” or “ native” jobs.8

4 References throughout are to the opinions appearing in appendices 
to the Joint Appendix. For convenience, the reference to Joint Appen­
dix is omitted when referring to the opinions of the Courts below. 
Appendix I contains the opinion of the District Court, which also 
appears in 34 EPD 5 34,437. Appendix III contains the Court of 
Appeals’ first opinion of Aug. 16, 1985, also appearing in 768 F.2d 
1120 (9th Cir. 1985). Appendix V contains the en banc opinion of the 
Court of Appeals of Feb. 23, 1987, appearing in 810 F.2d 1477 (9th 
Cir. 1987). Appendix VI contains the decision of the panel of the 
Court of Appeals on remand from the Court en banc, of Sept. 2, 1987, 
appearing in 827 F.2d 439 (9th Cir. 1987) as to which certiorari has 
been granted.

5 District Court findings #105 (1-36), #109 (1-38). See also Atonio (VI- 
18) 827 F.2d 439 at 444, (“The statistics show only racial stratification 
by job category.” ) See also, Atonio (III-9) 768 F.2d 1120, 1124.

6 The District Court findings #90 (1-32), #105 (1-36), #109 (1-38); A to­
nio (V-6-7) 810 F.2d at 1479.

7 Id.
8 District Court finding #135-141 (1-76-80); Atonio (VI-33) 827 F.2d at 

447.



6

(5) The employer does not consider members of the plaintiff 
class for employment, promotion, or transfer to the higher pay­
ing jobs held by whites, regardless of their possible qualifica­
tions.9

(6) Whites have been recruited primarily from the lower 48 
states for the higher paying jobs.10 11

(7) The whites had superior residential and eating facilities.11

(8) The pay of white workers, both unskilled and skilled, was 
higher than that of Alaskan Native and Filipino workers.12

(9) When Filipino and Alaskan Native workers sought to 
apply for the white jobs, they were brushed off with a variety of 
excuses relating to the timeliness of their applications.13

III. THE COMBINATION OF SEGREGATED RECRUIT­
ING AND HIRING CHANNELS, SEGREGATED JOB 
ASSIGNMENTS, AND REFUSAL TO CONSIDER 
MINORITIES FOR PROMOTION OR TRANSFER TO 
WHITE JOBS ESTABLISH A VIOLATION OF TITLE 
VII

The employers devised segregated labor markets. For the 
higher paying jobs, they recruited whites from the lower 48. For 
the low paying jobs, they recruited minorities from the local vil­
lages or the Filipino union. They assigned minorities to the

9 District Court finding #86 (1-30), #89 (1-31), #110 (1-39). White jobs 
are filled from Seattle and Astoria. District Court findings #86 (1-30), 
#112 (1-39). The employers do not promote from within. District Court 
Finding #112 (1-39). “ Defendant’s cannery workers and laborers do 
not form a labor pool for other jobs at defendant’s facilities.” District 
Court finding #110 (1-39). See also Question Presented #1 on which 
certiorari was granted, note 1, supra.

10 District Court finding #86 (1-30).

11 District Court findings #148, 149 (1-81-84).

12 Atonio (III-91) 768 F.2d at 1124.

13 District Court findings #150-172 (1-84-94).



7

lower paying cannery and labor jobs, and whites to the higher 
paying jobs. They did not permit minority employees promo­
tion or transfer to better jobs.14 Thus the employers segregated 
the plaintiff class through its hiring practices, and maintained 
that segregation through job assignment practices and through 
refusal to consider minorities for promotion and transfer. 
These facts were all found by the District Court. This blanket 
refusal to consider minorities for better jobs locked them into 
the lower paying jobs for which they had been hired.15

This obvious violation of Title VII was obscured because of 
the efforts of the courts below to fit this case of brutal segrega­
tion into the framework of disparate impact or disparate treat­
ment.16 The concept of disparate impact was intended to 
address facially neutral practices.17 The concept of disparate 
treatment was intended to order the proofs in an individual case 
of discrimination.18 But these categories were never intended to 
be exclusive.19 They were not developed in, nor have they been 
applied to, cases of current work force segregation.

The emphasis on the proof process can obscure the ultimate 
issues of discrimination. In United States Postal Service v.

14 The concentration of minorities in the lower paying jobs and the 
denial of any consideration for promotion or transfer establishes a vio­
lation of Title VII, even though some whites were also in the lower 
paying jobs. Teamsters v. United States, 431 U.S. 333 at 337-338 
(1977). See also, Griggs v. Duke Power Co., 420 F.2d 1225 at 1247 (4th 
Cir. 1970), reversed in part, 401 U.S. 424 (1971), Sobeloff, J., dissent­
ing.

15 Teamsters v. United States, 431 U.S. 345, 349-350 (1977) deals with 
a case of pre-act segregation perpetuated by post-act operation of a 
seniority system. In this case, post-act segregation is perpetuated by a 
refusal to consider those segregated for promotion or transfer to white 
jobs.

16 District Court (1-96-107). Court of Appeals: Atonio (III-15, 43-47) 
768 F.2d 1125, 1131; (V-9-12) 810 F.2d 1480; (VI-4-9) 827 F.2d at 442.

17 Griggs v. Duke Power Co., 401 U.S. 424 (1971).

18 McDonnell Douglas v. Green, 411 U.S. 732 (1973).

19 Teamsters v. United States, 431 U.S. 338 at 358 (1977).



8

Aikens,20 this Court criticized the district court for addressing 
the existence of a prima facie case when all the evidence was in, 
rather than dealing with the question of discrimination vel non. 
In Texas Department o f Community Affairs v. Burdine,21 this 
Court noted how the lower court’s procedural rulings harbored 
a substantive error. The same errors were committed here.

IV. THE SO-CALLED “ OVER-REPRESENTATION” OF 
MINORITIES IN LOWER PAYING JOBS, PLUS 
THEIR EXCLUSION FROM HIGHER PAYING 
WHITE JOBS, DOES CONSTITUTE ILLEGAL SEGRE­
GATION UNDER TITLE VII

The District Court addressed skills requirements for the 
“ white jobs” as matters of disparate treatment requiring proof 
of intent.22 On that issue, it examined the statistics showing the 
disparity between the large number of minorities in the lower 
paying jobs and their absence in the “ white” jobs. It dis­
counted this evidence, calling it “ over-representation” because 
minorities were only a tiny fraction of the total population of 
Alaska, Washington and Oregon.23 The District Court then 
viewed individual instances of rebuffed applicants, word of 
mouth recruiting among whites, racial labels, segregated hous­
ing and eating facilities as either justified or insignificant. It 
noted that “ this is not a promotion from within case,” 24 but did 
not find that all minorities were unqualified for the “ white 
jobs.” 25

20 460 U.S. 711, 715-717 (1983).

21 450 U.S. 248, 258-259 (1981).

22 The District Court treated skills requirements as subjective and 
therefore not subject to the disparate impact rule. District Court (I- 
102).

23 District Court findings #103 (1-35), #105 (1-36), #107 (1-37), #109 
(1-38-39), #121 (1-42).

24 District Court (1-114).

25 Any such finding would have been inconsistent with the District 
Court’s conclusion that some of the “ at issue” jobs were unskilled. 
District Court finding #134 (1-75).



9

The Court of Appeals in reviewing the District Court stated:
Thus, when considering the skilled positions, the [dis­

trict] court found that statistics which merely highlight the 
segregation of whites and nonwhites between the at-issue 
and cannery worker jobs, without more, could not serve to 
raise an inference that the segregation is attributable to 
intentional discrimination against any particular race.26

To summarize, the District Court identified the “ over- 
representation” of minorities in the lower paying jobs. This 
“ over-representation” was then relied upon to deemphasize the 
comparison of the number of minorities in lower paying jobs 
with whites in higher paying jobs. This “ over-representation” 
is a euphemism for segregation. Treating segregation as “ over­
representation” obscured segregation as a violation.27

The argument that because plaintiffs are segregated they are 
entitled to no relief because they are over-represented is disin­
genuous. In early Title VII cases, employers did not argue they 
were entitled to keep Blacks in lower paying jobs because they 
had so many of them.28 Where the employer uses segregated 
recruiting processes to hire minorities or women into lower pay­
ing jobs and then refuses as a matter of policy to consider them 
for promotion or transfer, nothing more is needed to establish a 
violation of Title VII.29 This case is not analogous to Watson v.

26 Atonio (VI-16) 827 F.2d at 444.

27 District Court finding #121 (1-42) treated “ over-representation” as a 
reason not to credit statistics comparing proportions of minorities in 
lower paying jobs with whites in higher paying jobs.

28 Local 189, United Papermakers v. United States, 416 F.2d 980 (5th 
Cir. 1969); United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d 
Cir. 1971). In the early years under Title VII, the EEOC frequently 
obtained promises of “ promotion from within” to end job segrega­
tion. Blumrosen, Seniority and Equal Employment Opportunity: A 
Glimmer o f  Hope, 23 Rutgers L. Rev. 268, 273-274, 303 (1969).

29 “And it is unthinkable that a citizen of this great country should be 
relegated to unremitting toil with never a glimmer of light in the mid­
night of it all.” Gwin, J. in Miller v. International Paper Co., 408 F.2d 
283 (5th Cir. 1969). The sentiment is applicable to Alaska.



10

Fort Worth Bank and Trust,30 where four justices were con­
cerned with the risk of finding discrimination when it did not 
exist. Rather it is its opposite—a failure to see discrimination 
when it is blatant.

The Court of Appeals compounded the error of the District 
Court in the statement quoted above. It assumed that proof of 
segregation in hiring and assignment along with the refusal to 
allow promotion and transfer was not enough to show a viola­
tion of the statute, but that, in addition, intentional discrimina­
tion had to be shown.31 This double burden, a requirement of 
showing both segregation and discrimination, is not warranted. 
The statute makes segregation itself illegal.

The statute is intended to assist those who have been segre­
gated to break out of their situations, not to permit the fact of 
segregation to justify restrictions against them. The segregation 
into low paying jobs does not constitute favored treatment as 
the term “ over-representation” suggests; rather, it constitutes 
the continued exploitation of minority workers trapped into 
low paying jobs. This Court has repeatedly said that the objec­
tive of the statute is to open opportunities to those who have 
traditionally been denied them.32 In this case, the group interest 
of minorities in freedom from job segregation is identical to the 
interest of each individual minority group member.

30 487 U.S______ _ 108 S. Ct. 2777 (1988).

31 . . statistics which merely highlight the segregation of whites and 
nonwhites between the at-issue and cannery worker jobs, without 
more, could not serve to raise an inference that the segregation is 
attributable to intentional discrimination against any particular race." 
[emphasis added] Atonio (VI-16) 827 F.2d at 444.

32 Griggs v. Duke Power Co., 401 U.S. 424, 426, 429-432 (1971); Albe­
marle Paper Co. v. Moody, 422 U.S. 405, 417-418 (1975); United 
Steelworkers v. Weber, 443 U.S. 193, 202-203 (1979); Ford Motor Co. 
v. EEOC, 458 U.S. 219, 228 (1982); Johnson v. Santa Clara County 
Transportation Agency, 107 S. Ct. 1442 (1987).

The Uniform Guidelines on Employee Selection Procedure, while 
supporting the “ bottom line” concept with respect to employers who 
employ at the availability level, expressly states that this concept is 
inapplicable to those employees who have been subject of prior restric­
tions on promotional opportunity. Uniform Guidelines on Employee



11

This Court has frequently noted that the statute proscribes 
discrimination against individuals.33 In Connecticut v. Teal,34 
the court stated that the employer could not “ cancel out’’ dis­
crimination against some minorities by promoting others. Simi­
larly in Furnco35 and Teamsters,36 this Court held that the hiring 
or promotion of some minorities does not permit an employer 
to discriminate against others. In this case, each individual 
minority worker is a victim of the unlawful segregation of 
minorities. This deprivation of individual rights cannot be justi­
fied by a claim that the concentration of minorities in segre­
gated jobs constitutes “ over-representation.’’

V. THERE CAN BE NO “BUSINESS NECESSITY’’ JUSTI­
FICATION FOR MAINTAINING JOB SEGREGATION

The Court of Appeals reviewed the District Court’s analysis 
of the facts from the perspective of the disparate impact princi­
ple, with its corollary defense of business necessity. The Court 
of Appeals said:

. . . While the district court discounted the comparative 
statistics in evaluating the claims of intentional discrimina­
tion in skilled jobs we find them sufficiently probative of 
adverse impact. The statistics show only racial stratifica­
tion by job category. This is sufficient to raise an inference

Selection Procedures-1978, 29 C.F.R. Sec. 1607.4(C)(1) provides that 
the “ bottom line” is not a justification “where the selection procedure 
is a significant factor in the continuation of patterns of assignment of 
incumbent employees caused by prior discriminatory employment 
practices.”

33 Connecticut v. Teal, 457 U.S. 440 (1982); Los Angeles Water and 
Power Co. v. Manhart, 435 U.S. 702 (1978). Phillips v. Martin- 
Marietta Corp., 400 U.S. 542, 543-544 (1971) held that an employer 
could not justify exclusion of women with young children on the 
grounds that it hired many other women.

34 457 U.S. at 452-456 (1982).

35 Furnco Constr. Corp. v. Waters, 438 U.S. 567 at 579 (1978).

36 Teamsters v. United States, 431 U.S. 324, 341-342 (1977).



12

that some practice or combination of practices has caused 
the distribution of employees by race and to place the bur­
den on the employer to justify the business necessity o f  the 
practices identified by the plaintiffs, [emphasis added]37

This analysis contained an error of law in assuming, without 
discussion, that the defense of business necessity was available 
in a case where the employer knowingly creates and maintains 
job segregation and does not consider minority workers for 
advancement into white jobs. The statute does not permit the 
defense of “ business necessity” in this type of case.

The “ business necessity” defense was developed by this 
Court as a component of the concept that practices with dispar­
ate impact on minorities are illegal.38 But it has no relevance to 
cases of overt discrimination. Any economic advantage which 
the employer may derive from such segregation is simply ille­
gal.39 The “ legitimate business reason” test was developed in 
McDonnell Douglas as a method of ordering proof where the 
issue of the employer’s motive is clearly drawn between two 
possibilities, one legal and one illegal. Neither test is required to 
be applied to practices which segregate minorities in hiring, 
assignment, promotion, and transfer.40 Here, it is clear that the 
employer regularly and normally treated minorities less favor­
ably than whites.

The recruitment and hiring practices of the employer pro­
duced a segregated work force. The no-promotion policy main­
tained that segregation. There is no justification for this refusal 
to consider incumbent minority employees for promotion or

-37 Atonio (VI-18) 827 F.2d at 444.

38 See Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co., 
and the Concept o f  Employment Discrimination, 71 Mich L. Rev. 59, 
81-84 (1972).

39 Compare Corning Class Works v. Brennan, 417 U.S. 189, 205 
(1974).

40 The closest this Court has come to addressing a situation such as this 
is Teamsters v. United States, 431 U.S. 349 (1977).



13

transfer to “ white” jobs for which they may be qualified.41 The 
statute does not provide a Bona Fide Occupational Qualifica­
tion (BFOQ) defense for racial discrimination.42 The business 
necessity claim in a race case must be construed in a most lim­
ited way, so as not to defeat the purpose of the statute.43 Even 
where the statute does provide for a BFOQ defense, this Court 
has been careful to limit the scope of that defense to preserve 
the thrust of the prohibition on discrimination.44 While an 
employer may demonstrate that it could not recruit an inte­
grated labor force for a specific job because of availability, it 
cannot simultaneously refuse to consider the people it hires into 
a segregated job for other opportunities without violating Title 
VII.45-

These facts as a matter of law constitute the maintenance of a 
segregated work force which denied minorities opportunities 
for advancement. Intentional segregation is established by

41 These practices were not found to constitute a bona fide seniority 
system. Compare District Court finding #101 (1-35).

42 See Sec. 703(e)(1). The District Court appeared to apply a lose form 
of a BFOQ defense by its suggestions that many members of the class 
do not speak English, and prefer to fish rather than work in the sum­
mer time. District Court Finding #100 (1-34). The “business necessity” 
defense of Griggs has not been applied to cases of overt discrimination 
by this Court. In fact, Albemarle Paper Co. v. Moody, 422 U.S. 405 
(1975) suggests that claims of business necessity would not justify overt 
discrimination.

43 United States v. Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir. 
1971).

44 Dothard v. Rawlinson, 433 U.S. 321, 333 (1977).

45 In Furnco Constr. Co. v. Waters, 438 U.S. 567 (1978), the employer 
justified its policy of not hiring at the gate on the grounds that it 
needed some information about the applicants’ capabilities before hir­
ing them. This argument cannot justify a blanket refusal to consider 
incumbent employees for promotion where these employees are well 
known to the employer. Furnco’s caution against courts restructuring 
an employer’s recruitment and hiring practices has no application to a 
case where segregation exists. In Furnco, the employer’s statistics sug­
gested a lack of discriminatory intent. Here, the promotion and trans­
fer policies themselves constitute illegal maintenance of segregation.



14

proof of the fact of segregation by race in the hiring process and 
job assignments, along with its knowing maintenance by refus­
ing to permit promotions and transfers.46 All of the opinions 
below assumed that the facts in this case had to be fitted into 
the mold of either disparate treatment or disparate impact. As a 
consequence they treated separately these facts concerning seg­
regation in hiring, assignment, and refusal to permit promotion 
or transfer, which, taken together, establish segregation in vio­
lation of Title VII.47

As it did in Aikens, this Court should make clear that the 
lower courts must decide ultimate issues of segregation or dis­
crimination vel non when all the evidence is before them. When 
faced with blatant segregation, the lower courts need not fit the 
case into categories of disparate impact or disparate treatment. 
There can be no valid reason for the conscious maintenance of a 
racially segregated work force which flowed from the refusal to 
allow transfer and promotion to white jobs.

46 The decision to conduct all hiring in the lower 48 for white jobs, and 
not to consider applications from incumbent minority employees dur­
ing the time they are employed, obviously makes it easier for whites 
than minorities to make applications.

47 The District Court did not properly apply that aspect of McDonnell 
Douglas v. Green which deals with statistics. McDonnell Douglas 
states that “ [ojther evidence which may be relevant to any showing of 
pretext includes facts as to . . . petitioner’s general policy and practice 
with respect to minority employment. On the latter point, statistics as 
to petitioner’s employment policy may be helpful to a determination of 
whether petitioners’s refusal to rehire respondent in this case con­
formed to a general pattern of discrimination against blacks. (411 U.S. 
at 804-805). In the accompanying footnote, the Court stated that, 
“ [t]he District court may, for example, determine after reasonable dis­
covery that, ‘the [racial] composition of defendant’s labor force is 
itself reflective of restrictive or exclusionary practices.’ ” Id. at 805 
(citation omitted). Contrary to these suggestions, the District Court 
found that such evidence established “ over-representation,” not dis­
crimination. This was an error of law.



15

VI. THE COURT SHOULD AFFIRM THE HOLDING OF 
THE COURT OF APPEALS ON THE GROUND THAT 
ILLEGAL SEGREGATION HAS BEEN ESTABLISHED 
RATHER THAN DISMISS THE WRIT AS IMPROVI- 
DENTLY GRANTED

This court granted Certiorari to consider questions which 
relate to disparate impact theory. But the application of that 
theory to the facts of this case would permit a business necessity 
defense to a case of overt segregation.48 This is the substantive 
error embedded in the application of the disparate impact anal­
ysis to a case of job segregation. Thus, the Court of Appeals 
reasoning is in error.

While this Court could dismiss the writ as improvidently 
granted, to do so would leave uncorrected the error of the 
Court of Appeals in permitting a business necessity defense to 
job segregation. The error of the Court of Appeals should be 
corrected lest it generate other efforts to evade Title VII. At the 
same time, the Court of Appeals correctly overturned the Dis­
trict Court’s analysis that “ over-representation” of minorities 
detracted from the proof of discrimination. In this, the holding 
of the Court of Appeals should be affirmed. Therefore, the 
NAACP urges the Court to correct both the plain error of the 
District Court in its failure to appreciate the significance of the 
facts concerning job segregation, and the error of law of the 
Court of Appeals in recognizing a business necessity defense to 
maintenance of job segregation. This can be accomplished by 
affirming the Court of Appeals’ holding and remanding with 
instructions that the evidence of segregated hiring, job assign­
ments, and refusals to consider minorities for promotion and 
transfer constitute a violation of the statutory prohibition on 
segregation.

48 The statement of Question Presented #1, note 1, supra, assumes the 
legitimacy of the “ no promotion” rule which is illegal under the facts 
of this case.



16

CONCLUSION

A generation after Title VII of the Civil Rights Act was 
adopted, changed circumstances, some resulting from its imple­
mentation, have created new problems of interpretation. The 
improvement in minority and female employment under the 
statute, as interpreted by this Court, has moved the issues from 
those crude forms of discrimination of the 1960’s to more sub­
tle limitations on minority and female employment.49 But this 
case is not the proper vehicle to examine these subtle questions. 
It is a case of crude, currently maintained, segregation. To treat 
this case otherwise will permit an overt discriminator to rely on 
defenses tailored to more refined cases, and, thus, permit con­
tinued racial segregation. Pockets of continued segregation 
remain, as this case illustrates. Congress directly prohibited seg­
regated employment practices such as those found to exist in 
this case by the District Court. The plaintiffs are entitled to the 
full protection of the Civil Rights Act of 1964.

Respectfully submitted,

G r o v e r  G . H a n k i n s *
General Counsel

Sa m u e l  M . W a l t e r s  
Assistant General Counsel 

N a t i o n a l  A s s o c ia t io n  f o r  t h e  
A d v a n c e m e n t  o f  C o l o r e d  P e o p l e  
Special Contribution Fund, and

A l f r e d  W . B l u m r o s e n

* Counsel o f  Record

49 Blumrosen, The Legacy o f  Griggs: Social Progress and Subjective 
Judgments, 63 Chi. Kent L. Rev. 1 (1986).



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