General Telephone Company of the Southwest v. Falcon Brief Amicus Curiae

    No. 81-574

In  T he

jtrme (Emtrt of % Inttrxi States
October Term, 1981

Gen er a l  T e l e p h o n e  Co m pan y  of t h e  So u th w est ,
Petitioner, v. ’

Mariano  F a lcon .

On Writ of Certiorari to the United States Court of Appeals 
for the Fifth Circuit

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., AND 

THE MEXICAN AMERICAN LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICI CURIAE

Vilma S. Martinez 
Morris J . Baller 
Carmen A. E strada 

28 Geary Street 
San Francisco, California 

94108

J ack Greenberg 
J ames M. Nabrit, III 
Charles Steven Ralston 
P atrick 0 . P atterson 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Barry L. Goldstein 
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005 
(202) 638-8278 

Counsel of Record
Counsel for Amici Curiae

W i l s o n  - Epes P r i n t i n g  Co.. In c . - 789-0096 - W a s h i n g t o n . D.C. 20001



TABLE OF CONTENTS
Page

Table of Authorities...................................................... —- 11

INTEREST OF AM ICI........................... ....... ...............  1

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

ARGUMENT  ............ ........ ....... ....... ........... ...............- 4
I. The Writ Should Be Dismissed as Improvidently

G ranted............... ....... ........ ............... ............ .......  4
II. A Title VII Class Action May Properly Be Main­

tained on Behalf of a Broad Class When the Re­
quirements of Rule 23 Are Satisfied ............- ..... 8
A. The Fifth Circuit’s Standard Permitting Cer­

tification of Broad Classes in Employment 
Discrimination Actions Is Consistent with 
the Class-Based Nature of Discrimination, 
and it Effectuates the Purposes of both Title
VII and Rule 23 ........... ............ ....... -...... . 8
1. Unlawful Discrimination Is Class-Based.. 8
2. Congress Expressly Approved the Use of

Broad-Based Class Actions in Title VII 
Cases ........ ............... .................... ...............  9

3. The Fifth Circuit’s Broad, Policy-Based
Standard Is Consistent with Rule 23.......  14

B. The Artificial and Inflexible Rules Proposed 
by General Telephone Are Inconsistent with
the Purposes of both Title VII and Rule 23.... 19
1. The “Commonality” and “Typicality” Re­

quirements------- ----------- ------------------- 21
2. The “Adequacy of Representation” Re­

quirement .......... ........ ........... ,...................  24
C. The District Court and the Fifth Circuit Cor­

rectly Applied Rule 23 in this Case............... 27

CONCLUSION................................... .................... ...... . 30



11

TABLE OF AUTHORITIES
Cases: Page

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) --------------- .......----- ___ _______ ,1,13-14, 23-24

Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974) ...............      10

Allen, v. Amalgamated Transit Union Local 788,
554 F.2d 876 (8th Cir.), cert, denied, 434 U.S.
891 (1977) ..........       6

American Tobacco Co. v. Patterson, No. 80-1199,
cert, granted, 49 U.S.L.W. 3931 (June 15, 1981).. 14

Arlington Heights v. Metropolitan Housing Devel­
opment Corp., 429 U.S. 252 (1977) ......................  22

Armour v. City of Anniston, 597 F.2d 46 (5th Cir.
1979) , vac. and rem., 445 U.S. 940 (1980)... . 18

Armour v. City of Anniston, 622 F.2d 1226 (5th
Cir. 1980) _______ ______ ________ ________  18

Armour v. City of Anniston, 654 F.2d 382, 384
(5th Cir. 1981) ............ ...................... ......... .........  19

Berenyi v. Immigration and Naturalization Serv­
ice, 385 U.S. 630 (1967)___________________  27

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th
Cir. 1969)____________ ____ _______ _______  8

Camper v. Calumet Petrochemicals, Inc., 584 F.2d
70 (5th Cir. 1978)................................. ............ . 18

Castaneda v. Partida, 430 U.S. 482 (1977) ...........  29
Clark v. Alexander, 489 F.Supp. 1236 (D.D.C.

1980) .......... ......................... ...... ....................... .....  23
Columbus Board of Education v. Penick, 433 U.S.

449 (1979) .................... ......... ........... .... ............ . 23
Coopers & Lybrand v. Livesay, 437 U.S. 463

(1978)__________________________________  4
County of Washington v. Gunther, 101 S. Ct. 2242

(1981) _______________ ________________ 10, 13-14
Cox v. Babcock & Wilcox, 471 F.2d 13 (4th Cir.

1972) __       6
Crawford v. United States Steel Corp., 660 F.2d

663 (5th Cir. 1981) ___   6
Crawford v. Western Electric Co., Inc., 614 F.2d

1300 (5th Cir. 1980) ................... ......... ........ .... 9, 18, 29



Ill

Davis v. Califano, 613 F.2d 957 (D.C. Cir. 1979)—. 23
Deposit Guaranty National Bank v. Roper, 445

U.S. 326 (1980) .......................... ..... ............. ........  22
Dothard v. Rawlinson, 433 U.S. 321 (1977) ........ . 14
Du Shane v. Conlisk, 583 F.2d 965 (7th Cir.

1978) ........ ..............................................................  7
East Texas Motor Freight v. Rodriguez, 431 U.S.

395 (1977) ............ .......... ...... .... ..........1,9,17,22,24,26
Ford v. United States Steel Corp., 638 F.2d 753

(5th Cir. 1981) ...... ........... ................ ................. . 19
Franks v. Bowman. Transportation Co., 424 U.S.

747 (1976) .... ................ ......... ........... ............ __.,1,13, 24
Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980).......  18
General Building Contractors v. Pennsylvania, No.

81-280, cert, granted, 50 U.S.L.W. 3300 (Oct.
19, 1981)...... ....................... ...... ........ .. ......... ..... . 14, 24

General Telephone Co. v. EEOC, 446 U.S. 318
(1980) .... .............. .................. ......... ............ ...... 9,26-27

Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir.
1978) __________ __ ______________ ______  6

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..1, 10, 14 
Groves v. Insurance Co. of North America, 433 F.

Supp. 877 (E.D. Pa. 1977)___________ _____ 6
Guardian Association v. Civil Service Commission 

of City of New York, No. 81-431, cert, granted,
50 U.S.L.W. 3547 (Jan. 11, 1982) .......................  14, 24

Hall v. Werthan Bag Corp., 251 F.Supp. 184
(M.D. Tenn. 1966)...... ....... ...... .... .....................  16-17

Hansberry v. Lee, 311 U.S. 32 (1940) _________  22
Harris v. Palm Springs Alpine Estates, Inc., 329

F.2d 909 (9th Cir. 1964) ____ __ __________  7
Hodge v. McLean Trucking Co., 607 F.2d 1118

(5th Cir. 1979) ............. .................. ................... 18
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) ...................13-14,23-24, 26
James v. Stoekham Valves & Fittings, Inc., 559 

F.2d 310 (5th Cir. 1977), cert, denied, 434 U.S.
1034 (1978) .

TABLE OF AU THO RITIES— Continued
Page

23



iv

TABLE OF AU THO RITIES— Continued
Page

Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.
1968) ........... ........... ................ ...............................  11-12

Johnson v. Georgia Highway Express, Inc., 417
F.2d 1122 (5th Cir. 1969) ..................... ............ 11, 15-17

Keyes v. School District No. 1, 413 U.S. 189
(1973) ..................................... ........................ ....... 23

King v. Gulf Oil Co., 581 F.2d 1184 (5th Cir.
1978) ........... ............... ............ ............... ....... .......  19

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) .... ................. ....... .... .......... .............. .... 10, 23-24

Mullaney v. Anderson, 342 U.S. 415 (1952)...........  7
Muskelly v. Warner & Swasey Co., 653 F.2d 112

(4th Cir. 1981) ....... ....... ................................. .....  6
Norwalk CORE v. Norwalk Redevelopment

Agency, 395 F.2d 920 (2d Cir. 1968) ....... .........  21
Oatis v. Crown Zellerbach Corp., 398 F.2d 496

(5th Cir. 1968) _____ _____ ______________  10-12
Payne v. Travenol Laboratories, Inc., 565 F.2d

895 (5th Cir. 1978) _____ ______ ___________  15, 19
Penson v. Terminal Transport Co., 634 F.2d 989

(5th Cir. 1981) ___________ _____ ___ _____ _ 19
Phillips v. Joint Legislative Committee, 637 F.2d

1014 (5th Cir. 1981)________ __ __________  26
Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) ....... ...  16-17
Pullman-Standard v. Swint, No. 80-1190, cert.

granted, 49 U.S.L.W. 3788 (April 20, 1981)....... 14
Rivera v. City of Wichita Falls, 665 F.2d 531

(5th Cir. 1982),................... ... ............ ...... ...........  23
Rogers v. Paul, 382 U.S. 198 (1965) ............ .........  8
Rosado v. Wyman, 322 F.Supp. 1173 (E.D.N.Y.), 

aff’d on other grounds, 437 F.2d 619 (2d Cir.),
rev’d on other grounds, 397 U.S. 397 (1970)...... . 22

Rowe v. General Motors Corp., 457 F.2d 348 (5th
Cir. 1972) ___ ________________ _______ _ 29

Royal v. Missouri Highway and Transportation
Comm., 655 F.2d 159 (8th Cir. 1981) ______ _ 23

Sanders v. John Nureen & Co., Inc., 463 F.2d 1075 
(7th Cir.), cert, denied, 409 U.S. 1009 (1972).... 6



V

Satterwhite v. City of Greenville, 578 F.2d 987 
(5th Cir. 1978) (en banc), vac. and rem., 445
U.S. 940 (1980) ____*...... ............... .................18

Scott v. University of Delaware, 601 F.2d 76 (3d
Cir.), cert, denied, 444 U.S. 931 (1979)___ ___  25

Shepard v. Beard-Poulan, Inc., 617 F.2d 87 (5th
Cir. 1980) ................... ...........................................  18

Smith v. Liberty Mutual Insurance Co., 569 F.2d
325 (5th Cir. 1978) ....... ... ...... ............................  18

Sosna v. Iowa, 419 U.S. 393 (1975) .........................  8
State of Connecticut v. Teal, No1. 80-2147, cert.

granted, 50 U.S.L.W. 3244 (Oct. 5, 1981) ..... .....  14
Trafficante v. Metropolitan Life Insurance Co.,

409 U.S. 205 (1972) ......... ....... ....... ........... .......  10
United Air Lines, Inc. v. McDonald, 432 U.S. 385

(1977) .............................   7
United States v. Johnston, 268 U.S. 220 (1975)__  27
United States v. United States Steel Corp., 520 

F.2d 1043 (5th Cir. 1975), cert, denied, 429
U.S. 817 (1976) ............. ........ .............. ....... .... . 19

United Steelworkers of America v. Weber, 443
U.S. 193 (1979)..........................................  9

Vuyanich v. Republic National Bank of Dallas, 82
F.R.D. 420 (N.D. Tex. 1979)___________  12

Washington v. Davis, 426 U.S. 229 (1976) ..... ..... . 22, 24
Wells v. Ramsey, Scarlett & Co., 506 F.2d 436

(5th Cir. 1975)______ _______ _____________  18
Wheeler v. American Home Products Corp., 582

F.2d 891 (5th Cir. 1977) ____ __ ____ ___ _ 6
White v. Dallas v. Independent School District, 581

F.2d 556 (5th Cir. 1978) (en banc) ...... ............  1
Zipes v. Trans World Airlines, No. 78-1545, Slip

Opinion (Feb. 24, 1982) .......... ............. ...............  6,14
Statutes and Rules:

Fed. R. Civ. P. 15(c) ............................................... 7
Fed. R. Civ. P. 17(a) ..................      7
Fed. R. Civ. P. 21 ....................    2,6-7
Fed. R. Civ. P. 23 ............... passim

TABLE OF AU THO RITIES—Continued
Page



VI

TABLE OF AU THO RITIES— Continued
Page

Equal Employment Opportunity Act of 1972, Pub.
L. 92-261, 86 Stat. 103 (1972) ....... .....................  11, 13

Fair Labor Standards Act, 29 U.S.C. § 216 (b).... . 9
Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seq. ......... ........... passim
Truth in Lending Act, 15 U.S.C. § 1640(a) ..... .....  9
42 U.S.C. § 1981 ....,....... ....... ....................... .............  24

Legislative History:
117 Cong. Rec. 38030 (1971) ...................... ..........  11
118 Cong. Rec. 3808 (1972) .......................     12
118 Cong. Rec. 4942 (1972) ____      12
118 Cong. Rec. 4944 (1972) .. ...........   12
118 Cong. Rec. 7166 (1972) ................    12
118 Cong. Rec. 7168 (1972) .................  12
118 Cong. Rec. 7564 (1972) ...............................   12
118 Cong. Rec. 7565 (1972) ___ _____ ____ .... 12
S. Rep. No. 867, 88th Cong., 2d Sess. (1964) .........  10
S. Rep. No. 92-415, 92d Cong., 1st Sess. (1971) ....... 8,12
Subcommittee on Labor of the Senate Committee

on Labor and Public Welfare, Legislative His­
tory of the Equal Employment Opportunity Act 
of 1972, (GPO: 1972) ............................ .......... . 11

Books and Journals:
.1. Bass, Unlikely Heroes (New York: Simon and

Schuster, 1981) .... ......... ........................................  10
Belton, Title VII of the Civil Eights Act of 1964:

A Decade of Private Enforcement and Judicial
Developments, 20 St. L.L.J. 225 (1976)........ . 14

Cover, For James Wm. Moore: Some Reflections 
on a Reading of the Rules, 84 Yale L.J. 718
(1975) ....................................................... .......... . 10

Developments in the Laiv— Class Actions, 89 Harv.
L. Rev. 1318 (1976) ......... ............. ............. .......  5,10

Developments in the Law—Employment Discrimi­
nation and Title VII of the Civil Rights Act of
1964, 84 Harv. L. Rev. 1109 (1971) ...................  13

Kaplan, Continuing Work of the Civil Committee:
1966 Amendments of the Federal Rules of Civil 
Procedure ( /) , 81 Harv. L. Rev. 356 (1967)....... 15-16



3A Moore’s Federal Practice (1979) ........... ........ . 7
3B Moore’s Federal Practice (1981) ____ ___ ___  21, 25
Note, Antidiscrimination Class Actions Under the 

Federal Rules of Civil Procedures: The Trans­
formation of Rules 23(b) (2), 88 Yale L.J. 868
(1979) ........ ...................... .....................................  8

F.T. Read and L.S, McGough, Let Them, Be Judged
(Metuchen, N .J.: Scarecrow Press, 1978).......  10

Wright and Miller, 7 Federal Practice a,nd Proce­
dure (1972) ............. ............. ....... ....... ....... .........  15, 21

Miscellaneous:
Advisory Comm. Notes, 39 F.R.D. 69 (1966)......... 15
Brief for the United States and the Equal Employ­

ment Opportunity Commission as Amici Curiae, 
Albemarle Paper Co. V. Moody, Nos. 74-389 and
74-428 ................. ....... ...... ........... ........... ........... . 13

Memorandum for the United States and Equal 
Employment Opportunity Commission as Amici 
Curiae, East Texas Motor Freight System, Inc.
V. Rodriguez, Nos. 75-651, 75-715, 75-718 ____17, 20-21

Brief for the United States and the Equal Employ­
ment Opportunity Commission as Amici Curiae,
Franks V. Bowman Transportation Co., Inc.,
No. 74-728 ..

vii

TABLE OF AUTHORITIES^— Continued
Page

13



I n  T h e

(Emtrl xd %  HHxntvb
October T e r m , 1981

No. 81-574

Gen er a l  T e l e p h o n e  Co m pan y  of t h e  So u t h w e st ,
Petitioner,

M ariano  F alcon .

On Writ of Certiorari to the United States Court of Appeals 
for the Fifth Circuit

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., AND 

THE MEXICAN AMERICAN LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICI CURIAE

INTEREST OF AMICI *
The NAACP Legal Defense and Educational Fund, 

Inc., is a nonprofit corporation whose principal purpose 
is to secure the civil and constitutional rights of black 
persons through litigation and education. For more than 
forty years, its attorneys have represented parties in 
thousands of civil rights cases, including many significant 
employment discrimination cases before this Court and 
the lower courts. See, e.g., Griggs v. Duke Power Co., 
401 U.S. 424 (1971) ; Albemarle Paper Co. v. Moody, 422 
U.S. 405 (1975) ; Franks V. Bowman Transportation Co., 
424 U.S. 747 (1976).

* The parties have consented to the filing of this brief. Their 
letters of consent have been filed with the Clerk.



2

The Mexican American Legal Defense and Educational 
Fund, Inc., is a nonprofit corporation whose principal 
purpose is to secure the civil and constitutional rights of 
persons of Mexican descent through litigation and educa­
tion. Since its founding in 1968, its attorneys have par­
ticipated in many lawsuits involving employment dis­
crimination in this Court and the lower courts. See, e.g., 
East Texas Motor Freight System, Inc. v. Rodriguez, 431 
U.S. 395 (1977) ; White v. Dallas Independent School Dis­
trict, 581 F.2d 556 (5th Cir. 1978) (en banc).

Amici believe that the Court’s decision in the case at bar 
may affect their representation of minorities in future 
cases. Amici further believe that their experience in em­
ployment litigation will assist the Court in this case.

SUMMARY OF ARGUMENT
Petitioner raises far-ranging issues of law and policy 

under Title VII and Rule 23. Seeking broad and severely 
restrictive pronouncements on these issues, Petitioner in­
vents a straw man—the totally unsubstantiated “across- 
the-board” class action—and urges the Court to tear it 
apart with artificial and inflexible rules that would 
severely undermine the ability of lower courts to exercise 
discretion in the application of Rule 23 to class action 
determinations and in the use of case management de­
vices in Title VII actions.

1. This is not an appropriate case in which to make 
such far-reaching decisions. The central issue of whether 
a class action is proper in this case may be reconsidered 
by the district court on remand from the Fifth Circuit. 
There is a substantial question as to satisfaction of the 
numerosity requirement of Rule 23(a) (1), which was not 
addressed by the Fifth Circuit or raised by Petitioner 
here, since it now appears that there are at most 13 class 
members. The district court might well choose to enter­
tain the claims of those 13 individuals by joining them 
under Rule 23(d) (2) or Rule 21. In any event, this case 
is a poor vehicle for this Court to use in prescribing gen­



3

eral standards for the hundreds of Title VII class actions 
brought each year in the lower courts. The writ should 
therefore be dismissed as improvidently granted.

2. Broad class actions are not only permissible in em­
ployment discrimination actions where the requirements 
of Rule 23 are met, but are favored as a matter of na­
tional policy and congressional intent. Congress has rec­
ognized that discrimination, where it exists, is inherently 
based on class-wide characteristics, and has approved the 
use of class actions to extfli^ate such discrimination. 
Broad civil rights actions are also fully consistent with 
the purpose of Rule 23.

3. The Fifth Circuit has conscientiously and carefully 
applied Rule 23 in determining whether broad class treat­
ment is proper for particular employment discrimination 
cases. It has never dispensed with the requirement that 
the criteria of Rule 23(a) be met as a prerequisite to the 
maintenance of Title VII class actions, nor would propo­
nents of Title VII enforcement suggest such a course. 
But equally important, the specific requirements of Rule 
23(a) must not be construed so rigidly or narrowly that 
class actions are eliminated or that district courts lose the 
discretion to apply Rule 23(a) properly to the facts of 
each case. The rules proposed by Petitioner—such as the 
artificial axioms that an employee can never properly 
represent a job applicant, or that a plaintiff whose case 
is decided under disparate-treatment theory can never 
represent a class whose claims are based on disparate- 
impact analysis:—would flatly prohibit many types of 
Title VII class actions that are often found proper by the 
lower courts.

4. The Fifth Circuit properly applied Rule 23 in this 
case. Its affirmance of the district court’s class deter­
mination, subject to reconsideration, was based on evi­
dence meeting the requirements of Rule 23. Petitioner’s 
attack on the ruling below as based only on a presump­
tion in favor of across the board class actions is mis­
directed.



ARGUMENT
I. THE WRIT SHOULD BE DISMISSED AS IMPROVI- 

DENTLY GRANTED.
The questions presented and the arguments made by 

General Telephone and the Department of Justice raise 
critical issues concerning the application of the class ac­
tion procedure of Rule 23, Fed. R. Civ. P., to actions 
brought under Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. § 2000e el seq., and other civil 
rights laws. Amici submit that this case does not provide 
an appropriate basis for resolving these critical issues. 
We therefore urge the Court to dismiss the writ of cer­
tiorari as improvidently granted.

First, the merits of the class case were remanded to the 
district court for a reconsideration of the plaintiffs’ and 
defendants’ statistics and the sufficiency of the evidence 
to support a finding of hiring discrimination. That re­
consideration may well result in narrowing the class held 
to have been affected by discriminatory hiring practices.1 
Therefore, the original class determination may be sub­
ject to reconsideration. The current class certification 
order is subject to revision both under the provisions of 
Rule 23(c) (1) and by the language of the order itself 
which stated, “. . . Defendant may at any time raise the 
issue of this provisionally-certified class during or after 
the presentation of the class claims and evidence at trial.” 
App. 51a. The issues in this case are not ripe for this 
Court’s review until there has been a final judgment on 
the merits.2

4

1 The court of appeals suggested that the period in which hiring 
discrimination occurred may have ended earlier than originally 
found by the district court. The case was remanded for a deter­
mination of the extent of that period. Appendix to the Petition for 
a Writ of Certiorari, pp. 27a-28a. (“App,”). Class membership will 
be affected by that determination.

2 See Coopers & Lybrand V. Livesay, 437 U.S. 463 (1978). It is 
particularly inappropriate for the Court to exercise its discretion 
to review this interlocutory order since there are few universally



5

Second, in the present case the issue of whether the 
case is properly a class action may well be moot. At the 
time the class was provisionally certified prior to the 
Phase I liability determination, the numerosity require­
ment of Rule 23(a) (1) was apparently met. However, 
a fte r a finding of liability for hiring discrimination at 
Phase I of the trial, only 13 individuals filed proof-of- 
claim forms to receive back pay and job security awards. 
Only those individuals were considered members of the 
class seeking relief a t  the Phase II trial. The existence 
of a class too numerous for individual joinder to be prac­
ticable has been considered perhaps the most fundamental 
requirement of Rule 23. Developments in the Law— Class 
Actions, 89 Harv. L. Rev. 1318, 1454 (1976). Here i t  is 
obvious that joinder is practicable since all the individuals 
who comprise the class are in effect joined. This Court’s 
review is unnecessary to disposition of the class members’ 
claims because the merits of the class hiring discrimina­
tion case were remanded to the tria l court and the inter­
ests of the 13 persons before tha t court will not depend 
on whether there is a class action.3 The issues presented 
and arguments made by General Telephone seek, in effect, 
an advisory opinion in favor of other employers, limiting 
other plaintiffs’ ability to m aintain broad class actions.4

applicable answers to the difficult and fact-sensitive problems faced 
by the district courts in applying- Rule 23. Each party seeking to 
obtain certification of a broad class action is required to satisfy the 
criteria of Rule 23 based on the facts of that party’s ease. Whether 
an employee can represent applicants in an employment discrimina­
tion action should therefore be determined on a case by case basis, 
not according to any inflexible rule. In this case the district court 
on remand may and indeed should reconsider whether Rule 23 (a) Is 
satisfied. While amici believe that the district court may properly 
hold that Falcon is a proper representative of the class, see Section 
II,C, infra, that issue is not appropriate for determination on this 
record by this Court.

3 If class certification were revoked, the 13 individuals would ap­
parently remain in the case as intervenors. See text infra.

4 The district court in the present case certified a class of Hispanic 
employees “who are employed and employees [sic] who have applied



6

The present case should be remanded to the trial court 
for a determination of whether the 13 individual claim­
ants should be allowed to intervene in the action pursuant 
to Rule 23(d) (2) or should be joined as plaintiffs pur­
suant to Rule 21, Rule 23(d) (2) provides that the Court 
may order that notice be given to class members allow­
ing them to intervene. Intervention in class actions is 
permitted by the Rule to strengthen the adequacy of rep­
resentation of the class15 and can be allowed even though 
the proposed intervenor is already an adequately repre­
sented class member.5 6 In employment discrimination 
cases, intervention by an applicant in a class action 
brought by an incumbent employee is proper.7 The inter­
veners are not required to exhaust administrative reme­
dies if the plaintiff or one or more class members have 
done so.8 On remand, the trial court may notify the 13 
applicants of their right to intervene in this case to pro­
tect their interests and to strengthen the representation 
of the class. Such intervention may be allowed whether

for employment in. the Irving Division of the Defendant Company, 
and no other division.” App. 48a. This case presents no issues con­
cerning the application of Rule 23 to a class which includes future 
applicants and employees. The class certified here included only 
present and former applicants and employees, and aside from plain­
tiff Falcon, only 13 such persons were found to be entitled to any 
relief.

5 Sanders V. John Nuveen & Co., Inc., 463 F.2d 1075 (7th Cir.), 
cert, denied, 409 U.S. 1009 (1972).

6 Groves V. Insurance Co. of North America, 433 F.Supp. 877 
(E.D. Pa. 1977).

7 Muskelly v. Warner & Swasey Co., 653 F.2d 112 (4th Cir. 1981). 
Cf. Goodman V. Schlesinger, 584 F.2d 1325 (4th Cir. 1978); Cox V. 
Babcock & Wilcox, 471 F.2d 13 (4th Cir. 1972).

8 Wheeler v. American Home Products Corp., 582 F.2d 891, 897 
(5th Cir. 1977) ; Allen v. Amalgamated Transit Union Local 788, 554 
F.2d 876 (8th Cir.), cert, denied, 434 U.S. 891 (1977) ; see Crawford 
V. United States Steel Corp., 660 F.2.d 663, 665-666 (5th Cir. 1981) ; 
Zipes V. Trans World Airlines, Inc., No. 78-1545, Slip Opinion, p. 7 
(Feb. 24, 1982) (the “filing [of] a timely charge . . . with the EEOC 
is not a jurisdictional prerequisite”).



or not the class representative continues to meet the re­
quirements of Rule 23.

Joinder of the 13 individual applicants pursuant to 
Rule 21 would also be proper in this case.® Under this 
Rule, a party can be added sua sponte by the court for 
remedial purposes even after judgment.9 10 Indeed, this Court 
has added parties under Rule 21 on appeal. Mullaney v. 
Anderson, 342 U.S. 415, 417 (1952). Since the original 
suit brought by Falcon in 1972 was timely commenced, 
joinder of the 13 individual applicants would relate back 
to the date of the original pleading and would not be 
barred by the statute of limitations.11

Considering the small number of individuals whose in­
terests are presently before the Court and the practica­
bility of joinder in this case, a remand to the district 
court for intervention or joinder of the parties would 
adequately protect their interests. In view of the Fifth 
Circuit’s remand for reconsideration of the merits of the 
case, and in view of the district court’s ability to recon­
sider the class ruling under its own order and Rule 
23(c) (1), this case does not present an appropriate basis 
for determining the important class action issues raised 
by Petitioner. Since this Court’s decision is unnecessary 
to the just disposition of the claims of members of the 
class whose existence is contested by Petitioner, amici 
submit that the writ of certiorari was improvidently 
granted and should be dismissed.

7

9 Rule 21 should be construed consistently with other rules which 
in substance provide for adding parties and bear a relation to 
changes in class actions under Rule 23. See Harris V. Palm Springs 
Alpine Estates, Inc., 329 F.2d 909 (9th Cir. 1964). The proper 
inquiry under Rule 21 is whether joinder will prejudice the non­
moving party and whether it will serve to avoid the multiplicity of 
suits. 3A Moore’s Federal Practice, jj 21.04[1], p. 21-25.

10 Du Shane V. Conlisk, 583 F.2d 965, 967 (7th Cir. 1978).
11 Rules 15 (C) and 17(a), Fed. R. Civ. P. See United Air Lines, 

Inc. v. McDonald, 432 U.S. 385 (1977).



8

II. A TITLE VII CLASS ACTION MAY PROPERLY BE 
MAINTAINED ON BEHALF OF A BROAD CLASS 
WHEN THE REQUIREMENTS OF RULE 23 ARE 
SATISFIED.
A The Fifth Circuit’s Standard Permitting Certifica­

tion of Broad Classes in Employment Discrimina­
tion Actions Is Consistent with the Class-Based 
Nature of Discrimination, and it Effectuates the 
Purposes of both Title VII and Rule 23.

1. Unlawful Discrimination Is Class-Based.
Where an employer maintains a policy of discriminat­

ing against a racial or ethnic group, that policy affects 
all members of that group who either work for the em­
ployer or seek to work for the employer. As the Senate 
Committee on Labor and Public Welfare recognized in its 
report on the bill which became the Equal Employment 
Opportunity Act of 1972:

The committee agrees with the courts that title VII 
actions are by their very nature class complain [t] s, 
and that any restriction on such actions would greatly 
undermine the effectiveness of title VII.

S. Rep. No. 92-415, 92d Cong., 1st Sess. 27 (1971) (foot­
note omitted). Just as this Court has held that black 
students may challenge discrimination in faculty employ­
ment to vindicate their interest in securing an educational 
environment free from all forms of racial discrimination, 
Rogers V. Paul, 382 U.S. 198, 200 (1965), so also may 
black and Hispanic workers challenge discrimination in 
all aspects of their work environment. See Sosna v. Iowa, 
419 U.S. 393, 413 n.l (1975) (White, J., dissenting) ; 
Note, Antidiscrimination Class Actions Under the Federal 
Rules of Civil Procedure: The Transformation of Rule 
23(b)(2), 88 Yale L.J. 868, 886 (1979).

In applying Title VII, the courts are necessarily con­
fronted with the task of dealing with class discrimina­
tion. “ [T]he evil sought to be ended is discrimination on 
the basis of a class characteristic . . . .” Bowe V. Colgate-



9

Palmolive' Co., 416 F.2d 711, 719 (7th Cir. 1969). Of course, 
“ [t]he fact that plaintiffs are members of the same race 
as the other employees and rejected job applicants . . .  is 
not enough in itself to require a finding under Rule 23 
that their representation was adequate or that their 
claims were typical of the class.” Crawford v. Western 
Electric Co., 614 F.2d 1300, 1304 (5th Cir. 1980). But 
“. . . suits alleging racial or ethnic discrimination are 
often by their very nature class suits, involving classwide 
wrongs. Common questions of law or fact are typically 
present.” East Texas Motor Freight System, Inc. v. Rod­
riguez, 431 U.S. at 405. The class-based nature of dis­
crimination should inform and guide a court’s discre­
tionary determination as to whether an action should pro­
ceed on a class basis.12

2. Congress Expressly Approved the Use of Broad- 
Based Class Actions in Title VII Cases.

The Civil Rights Act of 1964 was designed to eliminate 
pervasive racial and ethnic discrimination and the ad­
verse social and economic consequences of that discrimina­
tion. United Steelworkers of America v. Weber, 443 U.S. 
193, 202 (1979). In enacting Title VII of that Act, Con­
gress did not specifically address the use of class actions 
in enforcing the law against discrimination in employ­
ment.13 However, Congress “considered the policy against

12 In its brief amicus curiae in the present case, the Justice De­
partment fails to discuss both the class-based nature of employment 
discrimination and the relevant legislative history of Title VII. 
However, in a series of briefs to this Court over the course of the 
past decade, the Government has specifically emphasized these con­
siderations in related class action contexts. See nn. 16, 22, 25, 
infra. We note that the Justice Department’s concern with Rule 23 
as a litigant in Title VII cases is solely as a defendant, see General 
Telephone Co. v. EEOC, 446 U.S. 318 (1980), and that the Equal 
Employment Opportunity Commission declined to sign the brief 
filed by the Justice Department in the present case.

is while some statutes have specific provisions governing class 
actions, see, e.g., the Fair Labor Standards Act, 29 U.S.C. § 216(b), 
and the revised Truth in Lending Act, 15 U.S.C. § 1640(a), gen­
erally Congress does not consider the place of class actions in the



10

discrimination to be of the ‘highest priority’,” Alexander 
V. Gardner-Denver Co., 415 U.S. 36, 47 (1974),
and “indicated [that] a ‘broad approach’ to the definition 
of equal employment opportunity is essential to overcom­
ing and undoing the effect of discrimination.” County of 
Washington V. Gunther, 101 S. Ct. 2242, 2252 (1981), 
citing S. Rep. No. 867, 88th Cong., 2d Sess. 12 (1964). 
See Trafficante v. Metropolitan Life Insurance Co., 409 
U.S. 205, 209 (1972). As this Court stated in Griggs v. 
Duke Power Co., supra, “Congress provided in Title VII 
of the Civil Rights Act of 1964, for class actions for en­
forcement of provisions of the Act,” id. at 425, and “ [t]he 
objective of Congress in the enactment of Title VII . . . .  
was to achieve equality of employment opportunities and 
remove barriers that have operated in the past to favor an 
identifiable group of white employees over other em­
ployees.” Id. at 429-30 (emphasis added). See also Mc­
Donnell Douglas Corp. V. Green, 411 U.S. 792, 800-01 
(1973).

Soon after the passage of the Civil Rights Act of 1964, 
the courts of appeals were called upon to determine the 
proper application of class action procedures to Title VII 
cases. As in other areas of racial discrimination law, the 
Fifth Circuit led the way.14 In Oatis v. Crown Zellerbach 
Corp., the first appellate application of Rule 23 to a Title 
VII case, the Fifth Circuit recognized that

[rjacial discrimination is by definition class discrim­
ination, and to require a multiplicity of separate, 
identical charges before the EEOC, filed against the 
same employer, as a prerequisite to relief through

statutory enforcement scheme. Developments in the Law—Class 
Actions, 89 Harv. L. Rev. at 1359. Therefore, in applying the class 
action device to a particular statutory scheme, the courts ordinarily 
must look to the policy underlying the statute. See generally Cover, 
For James Wm. Moore: Some Reflections on a Reading of the 
Rides, 84 Yale L. J. 718 (1975).

See F.T. Read and L.S. McGough, Let Them Be Judged 
(Metuchen, N .J.: Scarecrow Press, 1978); J. Bass, Unlikely Heroes 
(New York: Simon and Schuster, 1981),



11

resort to the court would tend to frustrate our system 
of justice and order.

398 F.2d 496, 499 (5th Cir. 1968) ; see also Jenkins V. 
United Gas Corp., 400 F.2d 28 (5th Cir. 1968). In 1969, 
the Fifth Circuit applied the rationale of Oatis and 
Jenkins in concluding that in appropriate circumstances 
Rule 23 would permit “an ‘across the board’ attack on 
unequal employment practices alleged to have been com­
mitted by the appellee pursuant to its policy of racial 
discrimination.” Johnson V. Georgia Highway Express, 
Inc., 417 F.2d 1122, 1124 (5th Cir. 1969). The Court 
determined that Title VII and Rule 23 would be best 
served by a broad approach to the use of class actions in 
fair employment cases. Id. Three years later, Congress 
indicated its approval of the Fifth Circuit’s approach. In 
1972, Congress amended Title VII by enacting the Equal 
Employment Opportunity Act of 1972. The bill which 
originally passed the House precluded class actions by 
providing that

[n]o order of the court shall require the admission 
or reinstatement of an individual . . .  or the payment 
to him of any back pay, if such individual . . . 
neither filed a charge nor was named in a charge or 
amendment thereto. . . ,15

The Senate Committee on Labor and Public Welfare 
specifically reviewed and rejected the restrictions on class 
actions proposed by the House bill. That committee re­
ported out a bill known as the “William bill,” S. 2515, 
which did not place any restriction on class actions. 117 
Cong. Rec. 38030 (1971). The committee’s report stated 
that the bill

is not intended in any way to restrict the filing of 
class complaints. The committee agrees with the 
courts that title VII actions are by their very nature 
class complain [t] s,1'6 and that any restriction on such 16

16 Subcommittee on Labor of the Senate Committee on Labor and 
Public Welfare, Legislative History of the Equal Employment Op­
portunity Act of 1972 at 332 (GPO: 1972).



12

actions would greatly undermine the effectiveness of 
title VII.

S. Rep. No. 92-415, 92d Cong., 1st Sess. 27 (1971). In 
footnote 16, the Committee cited with approval the Fifth 
Circuit’s decisions in Oatis and Jenkins. After agreeing 
to a compromise substitute bill, 118 Cong. Rec. 3808 
(1972), Senator Williams placed in the record a section- 
by-section analysis explaining his bill as amended. This 
analysis demonstrates that the Senate committee’s original 
position favoring class actions was preserved:

it is not intended that any of the provisions contained 
[in § 706] are designed to affect the present use of 
class action lawsuits under Title VII in conjunction 
with Rule 23 of the Federal Rules of Civil Procedure. 
The courts have been particularly cognizant of the 
fact that claims under Title VII involve the vindica­
tion of a major public interest, and that any action 
under the Act involves considerations beyond those 
raised by the individual claimant. As a consequence, 
the leading cases in this area to date have recognized 
that Title VII claims are necessarily class action 
complaints. . . .

118 Cong. Rec. 4942 (1972). See 118 Cong. Rec. 7166, 
7564. The Williams bill then passed the Senate. 118 
Cong. Rec. 4944 (1972).

In reconciling S. 2515 with H.R. 1746, the conference 
committee adopted the Senate position on class actions. 
The section-by-section analysis of that committee’s agree­
ment recites the language quoted just above in its entirety 
and adds: “A provision limiting class actions was con­
tained in the House Bill and specifically rejected by the 
conference committee.” 118 Cong. Rec. 7168, 7565 
(1972).

The congressional policy underlying the enactment of 
Title VII in 1964 and the express legislative history of the 
1972 amendments demonstrate Congress’ intention that 
the class action device be fully used in Title VII actions. 
Vuyanich v. Republic National Bank, 82 F.R.D. 420, 429- 
30 (N.D. Tex. 1979). The broad approach to Title VII



13

class actions adopted by the Fifth Circuit, followed by 
other courts, and approved by Congress “goes a long way 
toward effectuating the public interest.” Developments 
in the Law—Employment Discrimination and Title VII of 
the Civil Rights Act of 196k, 84 Harv. L. Rev. 1109, 1220 
(1971).16

General Telephone disputes the relevance of the 1972 
legislative history. Brief, p. 43 n.97. It is true that, in 
interpreting § 703(h) of Title VII, this Court has relied 
upon the legislative history of the 1964 Act and not the1 
1972 Act. County of Washington V. Gunther, 101 S. Ct. 
at 2251 n.16; International Brotherhood of Teamsters v. 
United States, 431 U.S. 324, 354 n.39 (1977). However, 
the legislative history of the 1972 Act was deemed of little 
relevance in those cases because Congress did not amend 
or reenact § 703(h) in 1972. Equal Employment Oppor­
tunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103. 
However, the provisions authorizing Title VII actions by 
private litigants are contained in § 706, which was 
amended and reenacted in 1972. Accordingly, the Court 
should look to the legislative history of the 1972 Act in 
construing § 706 in the present case, as it has looked to 
the legislative history of the 1972 Act in construing § 706 
in other cases. See Franks V. Bowman Transportation 
Co., 424 U.S. at 763-64; Albemarle Paper Co. v. Moody, 
422 U.S. at 414 (maintainability of class actions under

16 In previous cases the Solicitor General has relied on the legisla­
tive history of the 1972 amendments—stating, for example, that 
“any restriction on [class] actions would greatly undermine the 
effectiveness of Title VII”—as indicating the broad approach to 
class actions mandated by Congress. Brief for the United States and 
the Equal Employment Opportunity Commission as Amici Curiae, 
Albemarle Paper Co. V. Moody, Nos. 74-389 and 74-428, p. 33, quot­
ing S. Rep. No. 92-415, 92d Cong. 1st Sess. 27 (1972) ; Brief for the 
United States and the Equal Employment Opportunity Commission 
as Amici Curiae, Franks v. Bowman Transportation Co., No. 74-728, 
p. 22. In stating the views of the Justice Department in this case, 
the Solicitor General did not refer to any of the legislative history 
on which his. predecessors relied in determining the appropriate ap­
plication of the class action procedure to Title VII cases.



Title V II); Zipes V. Trans World Airlines, No. 78-1545, 
Slip Opinion at 8.

Finally, General Telephone argues that allowing “pri­
vate attorneys general” to bring broad-based class actions 
undermines the purposes of Title VII. Brief, pp. 30-40. 
First, as the prior discussion indicates, Congress has de­
termined otherwise, and the Court should decline the com­
pany’s invitation to second-guess Congress. Second, Gen­
eral Telephone is wrong. Private enforcement actions, and 
especially private class actions, have been the primary 
mechanism for developing and enforcing Title VII law. 
Belton, Title VII of the Civil Rights Act of 1964-: A 
Decade of Private Enforcement and Judicial Develop­
ments, 20 St. L. L.J. 225 (1976). In fact, with the single 
exception of Teamsters V. United States, all of the land­
mark Title VII decisions of this Court announcing the 
standards for proving and remedying systemic discrimi­
nation have been made in cases brought by private plain­
tiffs.17

14

3. The Fifth Circuit’s Broad, Policy-Based Stand­
ard Is Consistent with Rule 23.

The Fifth Circuit’s broad approach to Title VII class 
actions is based on its recognition that most actions at­
tacking “unequal employment practices alleged to have 
been committed . . . pursuant to [a] policy of racial dis­
crimination” raise common questions of fact and law and 
present claims which may be addressed in a class action,

17 See, e.g., Griggs V. Duke Power Co.; Albemarle Paper Co. v. 
Moody, Franks v. Bowman Transportation Cor, Dothard v. Rawlin- 
son, 433 U.S. 321 (1977) ; County of Washington V. Gunther. More­
over, the Court has granted certiorari in five currently pending cases 
involving issues of systemic discrimination. Every one of those cases 
was initially brought by private plaintiffs, State of Connecticut V. 
Teal, No. 80-2147, 50 U.S.L.W. 3244 (Oct. 5, 1981); Pullman- 
Standard V. Swint, No. 80-1190, 49 U.S.L.W. 3788 (April 20, 1981); 
American Tobacco Co. V. Patterson, No. 80-1199, 49 U.S.L.W. 3931 
(June 15, 1981) ; General Building Contractors v. Pennsylvania, 
No. 81-280, 50 U.S.L.W. 3300 (Oct. 19, 1981) ; Guardians Associa­
tion V. Civil Service Commission of the City of New York, No. 81- 
431, 50 U.S.L.W. 3547 (Jan. 11, 1982).



15

even where the specific discriminatory practices which 
flow from that policy may affect class members in differ­
ent ways. This standard is aptly characterized as policy- 
based : the scope of the class may be defined by the reach 
of the effects of the employer’s policy of employment dis­
crimination. Johnson V. Georgia Highway Express, 417 
F.2d at 1124; see also App. 12a, quoting Payne V. Trave- 
nol Laboratories, Inc., 565 F.2d 895, 900 (5th Cir. 1978).

The Fifth Circuit’s application of Rule 23 in Johnson 
and subsequent cases is consistent with the basic policies 
which guided the revision of Rule 23 in 1966. As the 
Advisory Committee on the Federal Rules stated in its 
Note concerning amended Rule 23(b) (2) :

Action or inaction is directed to a class within the 
meaning of this subdivision even if it has taken effect 
or is threatened only as to one or a few members of 
the class, provided it is based on grounds which have 
general application to the class.

Illustrative are various actions in the civil-rights 
field where a party is charged with discriminating 
unlawfully against a class, usually one whose mem­
bers are incapable of specific enumeration.

39 F.R.D. 69, 102 (1966).
Rule 23 is not intended to restrict a class action only 

to those individuals who each suffer the effects of a policy 
of racial discrimination in precisely the same way. An 
action meets the requirements of Rule 23(b) (2) and the 
requirements of Rule 23(a)18 “even if [the challenged 
policy] has taken effect or is threatened only as to one 
or a few members of the class. . . .” Moreover, the Rule 
“is intended to function as an effective vehicle for the 
bringing of suits alleging racial discrimination.” Wright 
and Miller, 7 Federal Practice and Procedure § 1771, 
p. 662 (1972). See Kaplan, Continuing Work of the Civil

18 An action described in the Advisory Committee’s Notes as meet­
ing the requirements of Rule 23(b) would also meet the require­
ments of Rule 23(a). Rule 23(b) only becomes relevant if the 
requirements of Rule 23(a) have been satisfied.



16

Committee: 1966 Amendments of the Federal Rules of 
Civil Procedure (I),  81 Harv. L. Rev. 356, 389 (1967).19

In reaching its decision on the permissible scope of 
Title YII class actions in Johnson V. Georgia Highway 
Express, the Fifth Circuit relied upon Potts V. Flax, 313 
F.2d 284 (5th Cir. 1963), and Hall V. Werthan Bag Corp., 
251 F.Supp. 184 (M.D. Tenn. 1966). A broad class action 
was permitted in Potts V. Flax because “ [i]t sought ob­
literation of the policy of system wide racial discrimina­
tion,” even though this required the issuance of “suitable 
declaratory orders and injunctions against any rule, reg­
ulation, custom or practice having any such consequence.” 
313 F.2d at 289 (emphasis added). In Hall v. Werthan 
Bag Corp., the court held that a class could properly 
include both applicants and incumbent employees since 
both suffered from aspects of a discriminatory policy:

Racial discrimination is by definition a class dis­
crimination. If it exists, it applies throughout the 
class. This does not mean, however, that the effects 
of the discrimination will always be felt equally by 
all the members of the racial class. For example, if 
an employer’s racially discriminatory preferences are 
merely one of several factors which enter into em­
ployment decisions, the unlawful preferences may or 
may not be controlling in regard to the hiring or 
promotion of a particular member of the racial class. 
But although the actual effects of a discriminatory 
policy may thus vary throughout the class, the ex­
istence of the discriminatory policy threatens the 
entire class. And whether the Damoclean threat of 
a racially discriminatory policy hangs over the racial 
class is a question of fact common to all the members 
of the class.

251 F.Supp. at 186.

19 Professor Kaplan stated that the “new subdivision (b)(2), 
[was built] on experience mainly, but not exclusively, in the civil 
rights field.” Since Professor Kaplan was the reporter to the Ad­
visory Committee from its organization in 1960 until July 1, 1966, 
his article is generally accorded authoritative status.



17

The Advisory Committee specifically cited Potts V. Flax, 
and Professor Kaplan specifically cited Hall v. Werthan 
Bag Corp.,20 as illustrative of the appropriate use of the 
class action rule.21 In both Potts and Hall, as in Johnson 
and the present case, the courts approved class actions 
whose scope was determined by the full reach of a policy 
of racial discrimination, not by only one manifestation of 
that policy. The Fifth Circuit’s policy-based approach 
permits class actions to proceed, where Rule 23 is satis­
fied, in a manner which deals effectively with the class- 
based nature of employment discrimination,22 and which 
satisfies the congressional goal of terminating the prac­
tices and effects of discrimination as quickly, thoroughly 
and efficiently as possible.

General Telephone argues that the Fifth Circuit has 
ignored Rule 23 in Title VII cases. To the contrary, the 
Fifth Circuit has applied its policy-based approach in a

20 Advisory Committee Note, 39 F.R.D. at 102; Kaplan, Continuing 
Work of the Civil Committee: 1966 Amendments of the Federal 
Rules of Civil Procedure ( /) , 81 Harv. L. Rev. at 389 n.128.

21 In its brief amicus curiae in support of General Telephone, 
Republicbank Dallas correctly observes that the “origin of the 
across-the-board approach was Potts v. Flax. . . Brief, p. 17 n.10. 
However, the Republicbank Dallas argues that this decision pre­
ceded the amendment of Rule 23 and contravenes the commonality 
and typicality requirements of the Rule as amended. Id. This argu­
ment illustrates the “180-degree-wrong way” approach to Rule 23 
proposed by Republicbank Dallas and General Telephone. Both the 
Advisory Committee Notes and the authoritative article by the 
reporter for that Committee expressly approved Potts v. Flax as 
the type of class action Rule 23 was designed to permit. See n.2ft 
supra.

22 The Government has previously agreed that “ [m]ost Title VII 
actions are by their very nature class actions, since they involve 
claims of discrimination on the basis of class characteristics.” 
Memorandum for the United States and Equal Employment Op­
portunity Commission as Amici Curiae, East Texas Motor Freight 
System, Inc. v. Rodriguez, Nos. 75-651, 75-715, 75-718, p. 14. The 
Court’s opinion in Rodriguez endorsed the Government’s position on 
this issue. 431 U.S. at 405.



18

manner fully consistent with Rule 23. In its only en banc 
decision on a Title VII class action issue since Rodriguez, 
the Fifth Circuit held that the named plaintiff could not 
represent a class because she “has never suffered any 
legally cognizable injury . . .  in common with the 
class. . . .” Satterwhite V. City of Greenville, 578 F.2d 
987, 992 (1978), vac. and rem., 445 U.S. 940 (1980). 
In Satterwhite the en banc court stated that “the con­
tinued vitality of [Rule 23] depends upon compliance with 
the procedural requirements of Rule 23 and the constitu­
tional mandates of Article III.” 578 F.2d at 998. The 
Fifth Circuit has repeatedly stressed in Title VII actions 
that “ [w] hether a class should be certified depends entirely 
on whether the [proposed class] satisfies the requirements 
of Fed. R. Civ. P. 23.” Garcia V. Gloor, 618 F.2d 264, 
267 (1980) ; Crawford V. Western Electric Co., 614 F.2d 
at 1304.

Moreover, far from applying a blanket rule approving 
class actions in all Title VII cases, the Fifth Circuit has 
often held that class actions should not be certified where 
specific requirements of Rule 23(a) have not been met. 
That court has ruled, for example, that Title VII actions 
could not be maintained as class actions because of a 
failure to satisfy the “numerosity” requirement of Rule 
23(a) (1), Garcia V. Gloor, 618 F.2d at 267; Hodge v. 
McLean Trucking Co., 607 F.2d 1118, 1121 (1970) ; the 
“commonality” and “typicality” requirements of Rules 
23(a)(2) and (3), Shepard v. Beard-Poulan, Inc., 617 
F.2d 87, 89-90 (1980) ; Armour V. City of Anniston, 597 
F.2d 46, 50 (1979);23 Camper v. Calumet Petrochemicals, 
Inc., 584 F.2d 70, 71-72 (1978); Smith v. Liberty Mutual 
Insurance Co., 569 F.2d 325, 329-30 (1978) ; and the 
“adequacy of representation” requirement of Rule 23(a) 
(4), Crawford v. Western Electric Co., 614 F.2d at 1304- 
05; Wells v. Ramsey, Scarlett & Co., 506 F.2d 436, 437 23

23 Like the decision in Satterwhite, the Fifth Circuit’s decision in 
Armour was vacated and remanded, 445 U.S. 940 (1980). See 
Armour v. City of Anniston, 622 F.2d 1226 (1980).



19

(1975). The Fifth Circuit has also determined that named 
representatives failed to carry their burden of demon­
strating that the action should proceed on a class basis, 
King v. Gulf Oil Co., 581 F.2d 1184, 1186 (1978), 
Armour V. City of Anniston, 654 F.2d 382, 384 (1981), 
and that the “standing” requirement may limit the relief 
to which a class is entitled, Payne v. Travenol Labora­
tories, 565 F.2d at 898. Finally, the Fifth Circuit has 
carefully instructed lower courts in using the broad array 
of devices available under Rule 23 to insure that Title VII 
class actions proceed manageably and appropriately. 
United States v. United States Steel Corp., 520 F.2d 1043, 
1050-52 (1975), cert, denied, 429 U.S. 817 (1976) (sub­
classes) ; Penson v. Terminal Transport Co., 634 F,2d 989, 
994 (1981) (notice and opt-out provisions); Ford V. 
United States Steel Corp., 638 F.2d 753, 761-62 (1981) 
(substitution of named representatives).24

B. The Artificial and Inflexible Rules Proposed by 
General Telephone Are Inconsistent with the Pur­
poses of both Title VII and Rule 23.

General Telephone incorrectly argues that the Fifth 
Circuit has misapplied the commonality, typicality and 
adequacy requirements of Rule 23(a). In order to correct 
this imagined pattern of judicial abuse, General Tele-

24 General Telephone also attempts to cast doubt on the impartial­
ity of the Fifth Circuit’s application of Rule 23 in fair employment 
cases. The company states that the Fifth Circuit “has not reversed 
a district court class certification based on the across the board 
presumption.” Brief, p. 10 n.5. First, the Fifth Circuit has rarely 
had an opportunity to consider a defendant’s claim that a district 
court’s class certification decision in a Title VII case was improper. 
We are aware of only two such cases. In United States v. United 
States Steel Corp., the Fifth Circuit vacated the district court’s 
class certification and remanded for a further determination as to 
the appropriateness of the action proceeding on a class basis. 520 
F.2d at 1050-51. The second case is the one presently before this 
Court. Moreover, the Fifth Circuit on numerous occasions, as indi­
cated in the text, has ruled against a plaintiff’s claim that a lower 
court’s refusal to certify a class was improper.



20

phone invites this Court to apply a series of rigid rules 
to prohibit the maintenance of Title VII class actions in 
many circumstances: (1) A plaintiff who has suffered
from an employer’s discriminatory policy may not rep­
resent employees who have also so suffered if the plain­
tiff suffered from a practice defined as unlawful under a 
“discriminatory impact” theory while the other employees 
suffered from a practice defined as unlawful under a “dis­
criminatory treatment” theory, Brief, pp. 24-25; (2) 
Even if the plaintiff and other employees all suffer from 
illegal discriminatory treatment, the plaintiff may not 
represent the other employees where different company 
managers or supervisors were responsible for the treat­
ment, Brief, p.27; (3) Even if the plaintiff and other 
employees all suffer from illegal use of criteria that have 
a discriminatory impact and are unrelated to job perfor­
mance, the plaintiff may not represent the other em­
ployees where the criteria are different, Brief, p. 26; and 
(4) Even if the plaintiff and prospective class members 
suffered from the same form of discrimination (whether 
discriminatory impact or discriminatory treatment) and 
from the same application of the discrimination (whether 
the same criteria or the same company manager), a 
plaintiff who is presently employed may not represent a 
class containing applicants as well as employees because 
there is a potential conflict between the interests of the 
plaintiff and the class. Brief, pp. 27-28.20 25

25 The Justice Department, while rejecting General Telephone’s 
“conflict of interest” rule as overly restrictive, Brief, p. 19 n.17, 
has proposed its own rigid rule^or Title VII class actions: “The 
named plaintiff may represent a class only if the proof he will make 
with respect to the employment practice he attacks is substantially 
probative of the discrimination allegedly practiced against the class 
as a whole.” Id., p. 16; see id., pp. 18-19. The Justice Department 
has apparently devined new meaning in Rules 23(a) (2) and (3) 
since 1976, when it noted “confusion as to the interpretation of the 
typicality provision” and doubt as to whether “it imposes an in­
dependent requirement in addition to other provisions of Rule 
23(a)” and, most importantly, noted that “ [m]ost Title VII actions 
are by their very nature class actions, since they involve claims of



21

1. The “Commonality” and “Typicality” Require­
ments.

The requirements of commonality and typicality do not 
inexorably lead, as General Telephone would have it, to 
a rigid set of universal rules. The commonality require­
ment of Rule 23 (a) (2)

seems unnecessary, since, in addition to the prerequi­
sites of subdivision (a), an action can be maintained 
as a class action under Rule 23 only if it satisfies the 
requirements of at least one of the three types of 
class actions provided for by subdivision (b).
. . . [T]he existence of common questions is implicit 
in a finding under subdivision (b). . . .

3B Moore's Federal Practice f  23.06-1, p. 23-171; see 
also Wright and Miller, 7 Federal Practice and Procedure 
§ 1763, p. 609. Moreover, Rule 23(a) (2)

does not require that all questions of law and fact 
raised by the dispute be common; nor does it estab­
lish any quantitative or qualitative test of common­
ality. All that can be devined from the rule itself 
is that the use of the plural “questions” suggests that 
more than one issue of law or fact must be common 
to members of the class.

Id., § 1763, pp. 603-04 (footnote omitted). See Norwalk 
CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 
937 (2d Cir. 1968).

Similarly, the “typicality” requirement of Rule 
23(a) (3) does not lead to any inflexible standards. “As 
one court conservatively stated, there ‘may be some doubt 
as to the precise meaning of the clause.’ ” 3B Moore’s 
Federal Practice If 23.06-2, p. 23-185; see Wright and 
Miller, 7 Federal Practice and Procedure § 1764, p. 611. 
It appears that the typicality requirement was “designed 
to buttress the fair representation requirement in Rule

discrimination on the basis of class characteristics.” Memorandum 
for the United States and Equal Employment Opportunity Commis­
sion as Amici Curiae, East Texas Motor Freight V. Rodriguez, Nos. 
75-651, 75-715, 75-718.



22
23(a) (4),” id., p. 612, quoting Rosado V. Wyman, 322 
F.Supp. 1173, 1193 (E.D.N.Y.) (Weinstein, J.), aff’d 
on other grounds, 437 F.2d 619 (2d Cir.), rev’d on other 
grounds, 397 U.S. 397 (1970).

The requirements of Rule 23(a) should be applied in a 
manner consistent with the overall purposes of Rule 23: 
(a) to provide a mechanism for the efficient resolution 
of many individual claims in a single action; (b) to 
eliminate repetitious litigation and possibly inconsistent 
adjudication involving common questions, related events, 
or requests for similar relief; and (c) to establish an 
effective procedure for persons who would be unable to 
vindicate their rights in separate lawsuits because of the 
cost.28 In addition, Rule 23 must be implemented in a 
manner consistent with due process, Hansberry v. Lee, 
311 U.S. 32 (1940), and with the substantive law upon 
which the action is based. See section II,A,2, supra. To 
apply the commonality and typicality requirements in the 
restrictive and inflexible manner urged by General Tele­
phone would establish barriers to class litigation which 
would undermine the basic purposes of Rule 23 and 
would frustrate the intent of Congress.

Moreover, “ [cjommon questions of law or fact are 
typically present” in employment discrimination cases 
because such suits “are often by their very nature class 
suits, involving classwide wrongs.” East Texas Motor 
Freight V. Rodriguez, 431 U.S. at 405. As this court has 
emphasized, proof of discriminatory intent must “often 
be inferred from the totality of relevant facts . . . .” 
Washington v. Davis, 426 U.S. 229, 242 (1976) ; see 
Arlington Heights V. Metropolitan Housing Development 
Corp., 429 U.S. 252, 266-68 (1977). Thus, contrary to 
the assertion of General Telephone, Brief, p. 32, a plain­
tiff claiming discriminatory treatment has a direct self- 
interest in demonstrating that other persons were simi­
larly victimized and that other practices were affected by * 39

26 Deposit Guaranty National Bank V. Roper, 445 U.S. 326, 338-
39 (1980).



23

discriminatory motive. See Keyes v. School District No. 1, 
413 U.S. 189, 208 (1973) ; Columbus Board of Education 
V. Penick, 443 U.S. 449, 458 n.7 (1979). Even in an 
individual Title VII case, the plaintiff may rely upon 
proof of “a general pattern of discrimination.” McDon­
nell Douglas Corp. v. Green, 411 U.S. at 805; Davis v. 
Califano, 613 F.2d 957, 960-66 (D.C. Cir. 1979).

General Telephone is also wrong in asserting that a 
plaintiff whose claim depends upon proof of discriminatory 
treatment may not represent class members whose claims 
depend upon proof of adverse impact. First, the relevant 
proof in effect and intent cases is often quite similar. 
The plaintiff may establish a prima facie case of dis­
parate impact or disparate treatment through the use of 
statistical evidence. See Teamsters V. United States, 431 
U.S. at 339 n.20. Second, the employer’s rebuttal evi­
dence may be the same in an intent case as in an effect 
case. While the good faith of an employer may present 
a total defense in a discriminatory treatment case, evi­
dence of good faith in a discriminatory impact case may 
“open[] the door to [an] equit[able]” defense. Albe­
marle Paper Co. v. Moody, 422 U.S. at 422. Indeed, the 
court’s determination of whether to apply an Intent stand­
ard or an effect standard may well depend more upon the 
nature of the defense than upon the nature of the plain­
tiff’s claim.27 In attempting to establish a prima facie

27 For example, if plaintiff shows that a company’s promotional 
selection procedure has a significant adverse impact on black em­
ployees, the company may present evidence either that the selections 
were made pursuant to objective criteria or that its supervisors 
exercised their subjective discretion in a fair and non-discriminatory 
manner. There is a fine line between evidence regarding fair imple­
mentation of a subjective standard and the implementation of objec­
tive criteria. The court may well have to analyze employment prac­
tices under both intent and effect standards. See James v. Stock- 
ham Valves & Fittings, Inc., 559 F.2d 310 (5th Cir. 1977), cert, 
denied, 434 U.S. 1034 (1978); Rivera V. City of Wichita Falls, 665 
F.2d 531, 535 n.5 (5th Cir. 1982) ; Royal V. Missouri Highway and 
Transportation Comm., 655 F.2d 159 (8th Cir. 1981) ; Clark V. 
Alexander, 489 F.Supp. 1236 (D.D.C. 1980).



24

ease, the plaintiff often does not know whether the case 
ultimately will turn on an intent analysis or an effect 
analysis.®8 Thus, the prudent plaintiff may present evi­
dence establishing a violation under both standards. 
Third, where the plaintiff presents a prima facie discrim­
inatory impact case which the defendant rebuts by show­
ing that the criteria causing the impact are job related, 
the plaintiff may prevail by showing that the criteria are 
“merely [used] as a ‘pretext’ for discrimination.” Albe­
marle Paper Co. V. Moody, 422 U.S. at 425, citing 
McDonnell Douglas Corp. V. Green, 411 U.S. at 804-05. 
“Pretext” can be demonstrated by proof of intentional 
discrimination. Finally, questions of remedy—e.g., the 
availability of back pay and retroactive seniority, and 
the appropriate scope of affirmative action—generally are 
the same regardless of the underlying theory of liability. 
See Albemarle Paper Co. V. Moody, 422 U.S. at 418-21; 
Franks V. Bowman Transportation Co., 424 U.S. at 770- 
80; Teamsters V. United States, 431 U.S. at 363-76.

2. The “Adequacy of Representation” Requirement.
The adequacy requirement of Rule 23(a) (4) insures 

that the absent class members will not be deprived of due 
process and that they will accordingly be bound by the 
final judgment. The adequacy issue must be examined 
in the context of each case. East Texas Motor Freight v. 
Rodriguez, 431 U.S. at 405-06. 28

28 This uncertainty is compounded by changing standards of fair 
employment law. See, e.g., Teamsters V. United States, supra (plain­
tiff, following more than 30 decisions of six courts of appeals, 
litigated the case under an effect standard only to lose because of a 
failure to prove intent) ; Washington v. Davis, supra (plaintiff 
prevailed on an impact theory in the court of appeals but lost in 
this Court because of a failure to prove intent). In this term the 
Court has granted petitions for certiorari in two cases which raise 
the question whether a violation of 42 U.S.C. § 1981 requires proof 
of intent. General Building Contractors Ass’n V. Pennsylvania, 
supra-, Guardinas Ass’n V. Civil Service Commission of the City of 
New York, supra.



25
General Telephone urges this Court to adopt a per se 

rule: Regardless of the particular facts of a case, an 
employee may not represent a class including applicants 
where there is a potential for conflict over future promo­
tional opportunities,29 30 As the Justice Department cor­
rectly points out, such an inflexible rule would virtually 
eliminate class litigation under Title VII. Brief, p.19, 
n.17. Moreover, General Telephone’s position ignores the 
interest of black and Hispanic employees in securing a 
discrimination-free work environment, including their in­
terest in eliminating discrimination against black and 
Hispanic applicants for employment. See section IRA, 
supra.m

Furthermore, the courts are “aware of the irony that 
a dismissal for inadequacy of representation may as a 
practical matter . . . result in no representation at all of 
the class interest.” 3B Moore’s Federal Practice If 28.07 
[2], p. 23-221. It is in the interest of General Telephone 
and other employers, but not in the interest of the victims 
of unlawful practices, to limit the scope of class repre­
sentation by establishing rigid per se rules restricting the 
application of Rule 23(a) (4). The adoption of such arti­

29 Scott v. University of Delaware, 601 F.2d 76 (3d Cir.), cert, 
denied, 444 U.S. 931 (1979), cited by General Telephone, is inap­
posite. In Scott, the plaintiff took inconsistent positions with respect 
to his claim and the claims of the applicant class which he sought 
to represent. It is the “assertion of these inconsistent positions 
[which] necessarily forecloses any contention that [the plaintiff’s] 
claims are typical . . . [or that he is] an adequate representative 
of the unnamed members of the class seeking employment.” 601 
F.2d at 86 (footnote omitted).

30 General Telephone appears to assume that blacks and Hispanics 
will act like proverbial crabs in a barrel, pulling each other down in 
order to advance themselves. Is it not more reasonable to assume 
that minority employees would be motivated to remove all discrimi­
natory practices, and to eliminate the threat of harm to and the 
implicit badge of inferiority on all minorities? If a company dis­
criminates in its hiring policies, is it not reasonable for a minority 
employee to think that the discriminatory treatment might extend 
to the company’s promotional policies as well ?



26

ficial and inflexible rules would result in the denial of 
relief to victims of unlawful discrimination.31

The rigid rules proposed by General Telephone for the 
application of Rule 23(a) would frustrate the purposes 
of both Rule 23 and Title VII. Contrary to General Tele­
phone’s assertions, nothing in East Texas Motor Freight 
V. Rodriguez,32 33 General Telephone v. EEOC,ss or any

31 For example, persons who did not apply for jobs due to an 
employer’s discriminatory practices may be entitled to relief under 
Title VII. Teamsters V. United States, 431 U.S. at 367. Rejected 
applicants are permitted to represent classes including persons who 
were deterred from applying; “if this were not the case, most such 
persons would go without relief entirely, since it is unlikely that 
one of them would sue and qualify as a class representative.” 
Phillips v. Joint Legislative Committee, 637 F.2d 1014, 1024 (5th 
Cir. 1981). See also Justice Department Brief, p. 2. Under General 
Telephone’s theory, such classes would be prohibited since there 
might be potential competition between the representative and the 
class for a limited number of job openings. General Telephone’s 
rule would have the same result as a “per se prohibition of relief to 
nonapplicants [which] could thus put beyond the reach of equity 
the most invidious effects of employment discrimination. . . .” 
Teamsters v. United States, 431 U.S. at 367.

32 In Rodriguez the Court held that, where the named plaintiffs’ 
claims had been resolved against them on the merits prior to a 
decision on class certification, they were not “members of the class 
they purported to represent” and therefore could not maintain a 
class action. 431 U.S. at 403-04. See Rule 23(a), Fed. R. Civ. P. 
(“[o]ne or more members of a class may sue or be sued as repre­
sentative parties” if the numerousity, commonality, typicality and 
adequacy requirements are satisfied) (emphasis added). Addition­
ally, the Court held that the plaintiffs in Rodriguez did not satisfy 
the adequacy requirement of Rule 23(a)(4) because they failed to 
move for class certification, and because their interests directly con­
flicted with the interests of the proposed class members, who had 
voted by a large majority to reject the relief the plaintiffs were 
seeking. 431 U.S. at 404-05. In the present case, by contrast, plain­
tiff Falcon was at all times a member of his class, he moved for 
and obtained certification before trial, and there is no indication of 
any actual conflict of interest.

33 In General Telephone v. EEOC, the Court held that the Equal 
Employment Opportunity Commission may maintain civil actions



27

other decision of this Court supports the imposition of 
such artificial and inflexible rules. The lower courts thus 
should be permitted to continue to use their sound discre­
tion in applying Rule 23 to the cases before them.

C. The District Court and the Fifth Circuit Correctly 
Applied Rule 23 in this Case.

General Telephone has made no “obvious and excep­
tional showing of error” by either of the courts below. 
Berenyi v. Immigration and Naturalization Service, 385 
U.S. 630, 635 (1967).34 To the contrary, the record in 
this case fully supports both the district court’s class 
certification and the Fifth Circuit’s affirmance of that 
certification.

General Telephone asserts that “there was no evi­
dence . . . that the same individuals were responsible for

seeking relief for the victims of unlawful employment practices with­
out complying with Rule 23. 446 U.S. at 333-34. In distinguishing 
EEOC actions from private class actions, the Court noted that the 
typicality requirement of Rule 23(a)(3) “is said to limit the class 
claims to those fairly encompassed by the named plaintiff’s claims,” 
and that under the adequacy requirement of Rule 23(a)(4), “con­
flicts might arise, for example, between employees and applicants 
who ware denied employment and who will, if granted relief, com­
pete with employees for fringe benefits or seniority.” 446 U.S. at 
330-331. Thus, while Rules 23(a) (3) and (a) (4) may well preclude 
a black male plaintiff, for example, from representing a class con­
taining white females complaining of sex discrimination, the EEOC 
may properly bring a Title VII enforcement action on behalf of 
both groups. See Justice Department Brief, pp. 19-20 n.17. But 
the Court’s opinion in General Telephone V. EEOC does not suggest 
that the claims of black applicants may not be “fairly encom­
passed” by the claims of black employees, nor does it suggest that 
class certification should be denied on the basis of mere speculation 
about possible conflicts of interest.

34 It is not the role of this Court to sit as a second-tier appellate 
court “review[ing] the evidence and discuss[ing] specific facts.” 
United States v. Johnston, 268 U.S. 220, 227 (1975). This Court 
“cannot undertake to review concurrent findings of fact by two 
courts below in the absence of a very obvious and exceptional show­
ing of error.” Berenyi V. Immigration and Naturalization Service, 
385 U.S. at 635.



28

hiring and promotion decisions.” Brief, p. 27. However, 
the record shows that the first-line supervisors have a 
critical role in both the hiring and the promotion systems. 
The employment interview conducted by the person who 
would be the applicant’s supervisor is considered an im­
portant part of the selection process. The first-line super­
visor also participates in the actual hiring decision.35 36 
JA 168-70. Similarly, a second-line supervisor testified 
that he “take[s] recommendations [for promotion to 
management positions] from the first line foremen,” JA 
86, that the “people who are promoted . . . are . . . recom­
mended . . .  by the first line supervisors,” JA 87, and 
that employees are evaluated primarily by the first-line 
supervisors, JA 96. See App. 21a n .ll, 36a.

Furthermore, as the district court found, the “criteria 
used to rate and to promote are subjective and are not 
based on objective criteria.” 86 App. 36; see App. 22a-23a. 
Initial hiring is also based on subjective criteria. JA 168- 
70.37 Both the hiring and the promotional processes are 
implemented by the overwhelmingly white supervisory 
and managerial workforce at the Irving Division—only 
one of the 66 persons in management and salaried posi­

35 This selection process is described in the affirmative action 
plan. The plan states that its “ [s]election procedure will be very 
similar to our normal hiring procedures.” JA 169.

36 Jake Goldstein, a second-line supervisor, described the criteria
used to select people for management: . . we go on the man’s past
experience, his past record, and any kind of experience he may have 
had relating to any type of supervisor work.” JA 87. Mr. Goldsten 
also had a “belief” that college education might be a factor. JA 101.

37 General Telephone asserts that the plaintiff relied “exclusively 
on a disparate impact theory” for proving hiring discrimination, 
whereas his promotional claim was based on a disparate treatment 
theory. Brief, p. 24. In fact, the plaintiff relied upon similar statisti­
cal evidence to support both claims, and it appears that the plaintiff 
did not try the claims on different theories. Transcript, Oct. 21, 
1976, p. 3. As discussed in Section II,B, supra, the same evidence 
may sometimes lead to a conclusion of either disparate treatment or 
disparate impact.



29

tions is Mexiean-American or black. App. 38a; Tran­
script, Oct. 21, 1976, pp. 204-05, 255-56, 268. Such a sys­
tem with largely standardless discretion “is susceptible 
of abuse.” Castaneda v. Partida, 430 U.S. 482, 497 
(1977) ; Rowe V. General Motors Corp., 457 F.2d 348, 359 
(5th Cir. 1972).88 The Fifth Circuit properly concluded 
that, in view of the “similarity of interests” between 
those Mexican-Americans denied promotion and those de­
nied hire at the Irving Division, it was proper for the 
district court to certify a class including both applicants 
and employees.89 App. 13a. The Fifth Circuit also af­
firmed the district court’s limitation of the class to the 
Irving location. App. 14a-15a. The Fifth Circuit did not 
reflexively “presume,” as General Telephone implies, that 
a class action was appropriate simply because a Mexican- 
American claimed national origin discrimination. Rather, 
the court properly applied Rule 23 to the facts of this case 
and concluded that the class certified by the district 
court was appropriate and should be affirmed.

88 The potential for discrimination in a subjective system is 
illustrated in this case. The personnel administrator, Delores 
Cameron, testified that the company has “stressed to supervisors 
continuously” the need to recruit minorities and to contract minority 
groups or individuals in order to “obtain applicants” ; “employees 
were used generally to attempt to recruit minorities.” Transcript, 
pp. 332-33. Two white supervisors, Mr. Goldsten and Mr. Sumner, 
testified at trial. Mr. Goldsten stated that he was “not real familiar 
with” the policy of General Telephone to encourage minority appli­
cants. JA 112. In response to the question, “Have you ever been 
requested by the company to assist in any maimer of recruiting 
Mexican-Americans or other minorities?” Mr. Sumner stated, “No, 
sir, I haven’t.” Transcript, p. 254. Both Mu*. Goldsten and Mr. 
Sumner testified that they did not have any Mexican-American 
friends who did not work at the company. JA 103-04; Transcript, 
p. 253.

39 The Fifth Circuit distinguished Crawford v. Western Electric 
Co., 614 F.2d at 1304, where it had rejected an expanded class be­
cause the plaintiff did not share with the employees he sought to 
represent “similar functions, collective bargaining representatives, 
physical locations, or supervisory personnel.. . . ”



CONCLUSION
The writ should be dismissed as improvidently granted. 

Alternatively, the Fifth Circuit’s decision should be af­
firmed.

Respectfully submitted,

V ilma S. Martinez 
Morris J . Baller 
Carmen A. E strada 

28 Geary Street 
San Francisco-, California 

94108

J ack Greenberg 
J ames M. Nabrit, III 
Charles Steven Ralston 
P atrick 0 . Patterson 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Barry L. Goldstein 
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005 
(202) 638-3278 

Counsel of Record
Counsel for Amici Curiae