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»



IN THE UNITED STATES COURT OF APPEALS 
FOR TIIE FOURTH CIRCUIT

No. 72-12G7

JOSEPH P. MOODY, et al.,
Appellants,

v.
ALBEMARLE PAPER COMPANY, et al.,

Appellees.

On Appeal 
Eastern

From the'United States District Court For The 
District of North Carolina, Wilson Divxsion

I

REPLY BRIEF FOR APPELLANTS

I
Introduction

In order to return this case to its proper perspective, 
i.t is necessary to make comments on several rather remarkable 
statements contained in Employer's Brief at page 8. Employer 
states for example, "It is, of course, true historically that 
oy custom in the community, employees segregated themselves, 
so that in this mill, lines of progression were predominantly 
white or black." However, the racial segregation of Employer- 
work force was not merely the result of "custom," rather, it



-2-

wns the result of the defendants' formal policy of strictly

Employer's discriminatory hiring practices and locked into

by the collective bargaining agreement jointly negotiated 
and administered by Employer and the Union.

Employer concedes that the white lines ' eventually led 
to higher paying jobs but quickly points out, in an apparent

'lessly myopic must realize that the system simultaneously 
excluded blacks from the higher paying jobs solely on account 
of their race and irrespective of their ability to "read or

write."
Finally, it must be noted that the system does roc 

merely "discriminate as the word is now understood . . . .

segregating its employees prior to the enactment of Title VII 
Black employees did not "segregate themselves"into the lower 

paying positions. They were assigned to those positions by

attempt at justification, " . . .  the blacks at the mill have 
enjoyed, for at least 25 years, some of the highest paying
jobs in the Roanoke Rapids Area . . .  The system reserved 
these obviously coveted jobs for blacks." Ail but the hope-

it is now unlawful.



-3~

II

THE EMPLOYER'S TESTING PROGRAM IN 
FACT HAS A DIFFERENTIAL IMPACT WITH 
RESPECT TO JOB APPLICANTS IN THAT IT 
1IAS A RACIALLY DISPARATE EFFECT.

Employer states flatly at page 11 of its Brief that 
"Employer's testing program did not operate to disqualify 
qualified Negroes at a substantially higher rate than 
qualified White Employees." Stated simply, this is false. A 
recent study by E.F. Wonderlic, the maker of one series of 
tests in issue in this case— Wonderlic, Series A and B made
in the wake of the Supreme Court decision in Griggs v. Duke

•*
Power Company, 401 U.S. 424 (1971) affirmatively establishes 
that the Wonderlic Test has a racially disparate impact.

The 1972 Negro Norms, A Study of 38,452'Job Applicants
for Affirmative Action Programs-'7,' complied by E.F. Wonderlic

and Associates, Inc. states at p.3:
The vast amount of data studied in 
this report confirms that a very 
stable differential in raw scores 
achieved bv Negro Applicant Populations 
exists. (Emphasis Added). Where 

^ E d u c a t i o n ,  Sex, Age,■Region of Country 
and/or Position Applied For are held 
constant, Negro - Caucasian Wonderlic



\ • .
\

“4~

Personnel Test Score differentials are 
consistently observed. These mean score 
differentials are, as other researchers 
have noted in the study of mental ability, 
about one standard deviation apart when 
comparisons of Caucasian and Negroes are 

. studied.
This disparate effect can be compensated 
for through the use of percentile 
evaluation of normative groups or through 
the use of point conversion similar to 
those used with age. A CONVERSION 01 8
POINTS WILL ALMOST UNIVERSALLY CORRECT 
FOR THE "DISPARATE EFFECT". (Emphasis in 
the Original. i_

Even the Respondents recognize (at page 13 of their
Brief) that Plaintiffs Exhibit 10 shows that for the
Wonderlic A, blacks averaged 17 and whites 24.9%; 96% of
whites passed while only 64% of blacks passed. For the
Wonderlic B, blacks averaged 14.8 and whites.21.9. On the
Revised Beta Examination, blacks averaged 104.20 and whites«
107.56. These figures clearly illustrate the differential 
impact of the Employer's testing program. The differential 
of 8 pcints found in the Wonderlic studv cited above is 
almost precisely the differential established m  the instant

case.
FurfLermore, there can be no 

Court’s Decision in Gri.ggs v. Duke 
Wonderlic Test used at Albemarle's

doubt after the Supreme 
Power Co., supra, that the 
Roanoke Rapids Mill operate



in practice to eliminate from further consideration far more
black than white job candidates. After noting that the
Wonderlic was neither "directed [n]or intended to measure the
ability to learn to perform a particular job or category of
jobs, "the Supreme Court went on to cite approvingly several
decisions of the EEOC—^ which had found that the use of the
Wonderlic Test, among others, resulted in the rejection of a
disproportionate number of black job applicants. 401 U.S. at
430, n.6. The Court felt that these differences in test
scores were "directly traceable to race" and were the results
of the limited educational opportunities available to blacks:

Basic intelligence must have the means 
of articulation to manifest itself fairly 
in a testing process. Because they are 
Negroes, petitioners have long received 
inferior education in segregated schools 
and this Court expressly recognized these 
differences in Gaston County v. United 
States, 395 U.S. 285 (1969). 401 U.S. at
430.

As in the instant case, Gaston County was concerned with black 
living in North Carolina. Even more important, though, is 
that the Court in Griggs had no specific data before it as to 
the differential impact of the Wonderlic test; nonetheless, it 
was ruled unlawful. With the evidence in Plaintiff's

—^Unnumbered Decision, Dec. 2, 1966, CCII Empl. Prac. Guic 
Par. 17,304.53; Decision 70-552, Feb. 19, 1970, CCII Empl. Prac 
Guide, Par. 6139.



Exhibit 10, then, it is clear that the instant case is even 
stronger than was Griggs on the issue oi. differential impact. 
The conclusion of the Supreme Court that the Wonderlic test 
as an employment screening device does indeed have an adverse 
impact on blacks in inescapable. This conclusion has been

i J
affirmed bv the recent study of the maker of the Wonderlic 

x-eferred to above.
Employer recognizes this conclusion in its Brief at 

page 12. Employer there claims, however, that the expert 
testimony of Dr. Katzell "indicates that the Supreme Court’s 
conclusion in this respect may have been too broad." Employer 
claims further that according to its (mis)reading of 
Dr. Katzell's testimony appearing at page 1358 of the 
Appendix, "a particular test may or may not 'in a given labor 
market disqualify disproportionately any particular group 
of people." As reference to the record reveals, however, 
the employer has completely misunderstood the point of 
Dr. Katzell’s testimony which in fact reads as follows 

(Appendix p. 1358):
[0]ne thing we found was that there is 
not a stable picture about the validity 
of tests for ethnic groups or the 
fairness of such tests of different 
ethnic groups from one situation to the 
next. (Emphasis added).

-G“



-7-

Dr. Katzell said nothing whatsoever about the likelihood of 
blacks scoring better or worse than whites on the tests. 
Rather, he was addressing himself to the fact that the 
different scores of blacks and whites might or might not be 
reflected in different job performances. That, of course, 
goes to the issue of the test's ultimate validity. But it 
has nothing to do with the question whether the test will 
disproportionately screen blacks. Among psychologists, 
"validity" and "fairness" are words of art which can in no 
way be interpreted to mean the same 'thing as "differential 
impact", regardless of respondents' false claim based on 
their misreading of Dr. Katzell’s testimony. It is clear 
that Dr. Katzell never questioned the conclusions of the 
Supreme Court with respect to the differential impact of the 

V7onderlic Personnel Test.
The Revised Beta Examination, the other test used by the 

Employer in this case, cannot be regarded as being free from 
all discriminatory effects simply because it is non-verbal 
in nature. This argument may be deceptively appealing, but 
it is entirely incorrect. Another non-verbal test, the SR/\ 
Non-Verbal Test was found to have "significantly favored 
\whites" and was ruled unlawful in Hicks v. Crown Zellerbach



-8~

Corp., 319 F.Supp. 314 (E.D. La. 1970), order issued, 321 
F.Supp. 1241 (E.B. La. 1971). The Bennett Mechanical 
Aptitude Test, an essentially non-verbal test of mechanical 
comprehension which relies primarily on diagrams and 
pictorial representations rather than on verbal questions, was 
disapproved in Griggs v. Duke Power Co., supra, and Hicks v. 
Crown Zellerbach Corp., supra, both cases brought under 
Title VII. Tests such as these have generally been found to 
be discriminatory in operation-^/ and can only be justified if 
they are valid and job-related.

A final point must be made in reference to the require­
ment of proving the discriminatory differential impact of 
employment tests. After noting the comparative pass rates 
for blacks and whites on the Wonderlic A and- B, Employer goes 
on (at page 13 of its Brief) to claim that "the point is that 
abstract statistics such as these are absolutely meaningless 
in terms of proving discrimination." (Emphasis in original). 
That statement is clearly wrong and simply goes to show 
Employer's misunderstanding of the law on this issue. 
Plaintiffs do not claim that a mere difference in black and 
white pass rates proves that a test is illegal. We simply

-Sep, e.g. Kirkpatrick, Ewen, Barrett and Katzell,
Testing and Fair Employment, (Plaintiffs Ex. 2G) page 5:
"It has been established that Negroes usually score lower 
on tests than do whites. . . . "

i



— 9-

sny, cis did the Supreme Court in Griggs, that a difference in 
passing rates indicates that the tests are adversely 
affecting blacks. Under Griggs, this is critical insofar as 
it shifts the burden to the respondent to justify its tests 
of fairness and validity. For that reason, the basis 
statistical information as comparative test scores is highly 

meaningful— but by no means conclusive.

Ill
THE TIFFIN STUDY WAS FAR TOO LIMITED 
TO JUSTIFY THE CONTINUED USE OF THE 
EMPLOYER'S TESTING PROGRAM FOR EVERY 
POSITION THROUGHOUT THE ROANOKE RAPIDS 
MILL.

.Even if plaintiffs concede arguendo that the Tiffin study 
\7as valid and reliable, common sense and a moment's reflection 
(not to mention administrative regulations and elementary 
principles of law) will reveal that the district court errea 
in failing to restrict the use of the Employer's testing 
program to those jobs and tests for which the Tiffin report 
perhaps showed validity. Clearly, Employer is aware that his 
tests must be validated; but, paradoxical.ly, it now claims 
that since the tests may be valic. for some job groups they 
should therefore be approved for all job groups. jhis is 

sheer nonsense.

(



-10-

Employer in its Brief at .pages 30-31 have totally ignored 
and failed to answer three of Plaintiffs' most important points: 
(1) that the Employer continues to use the tests for lines of 
progression which were not even studied by Dr. Tiffin 
(Plaintiffs' Brief p. 35); (2) that the Employer uses the
tests for one department where the Tiffin study showed 
absolutely no validity at all (Plaintiffs' Brief, p. 36); and 
(3) that even where the tests may have been validated the 
Employer failed to limit their use only to the extent 
validated (Plaintiffs' Brief, pp. 37-38). These are strong 
claims, critical to a fair disposition of this case, and can 
be neither lightly dismissed nor simply ignored as Employer has 
chosen to do. For example, as pointed out in our main brief, 
the Tiffin report covered only 8 of the 14 lines of progression 
at the Mill for which the tests are required (Stip. of Facts #12). 
These 8 lines include only 201 of the 464 job slots in tested 
lines of progression; the other 6 lines subject to the tests, 
with 263 job slots, were not in any way studied by Dr. Tiffin 
(Stip. of Facts #12). It is simply incorrect to assume that 
the tests have been properly validated for these 6 lines of 
progression.

hs for the tests themselves, both the Beta and Wonderlic
\\ \ . # . 
tests were claimed to be valid for only two of the ten job
\  |

m  \

1\



-11-

groups studied. Only one of the tv;o tests were claimed to 
be valid for seven of the other job groups. Neither test was 
found to have any validity at all for the last remaining 
group. Indeed, in two instances tests were found to have a 
negative relationship to job performance— that is, persons who 
scored poorly on the tests appeared to do better on tne job 
than persons who scored well (all conclusions taken from 
Defendant's Exhibit 3, p. 2; Appendix, p. 1566).

Even Dr. Tiffin was well aware of the limited scope of the 
validation study and recommended that the testing program be 
used only for those jobs as to which it had been studied and 
validated (Appendix, p. 438). Nonetheless, notwithstanding 
the results of the validation study and Dr. Tiffin's own 
recommendations, the District Court concluded that Employer 
had carried its burden of proof and refused to order any 
modification whatsoever in the Employer's testing procedure.
In its Brief for this Court, Employer has advanced only one 
argument in support of the conclusions reached by the District 
Court with respect to the permissible scope of the Employer's 
testing program. That argument is primarily based on Employer's 
belief that legitimate business necessity requires that

>'i

employees entering the bottom jobs of certain skilled lines or 
progression have the potential to successfully perform the 
higher jobs in that line(Employer's Brief, pp. 30-31).



-12-

support of this claim Employer offers a portion of the EEOC
Guidelines, Section 1607.4(c)(1) to the effect that:

If joh progression structures and 
seniority provisions are so established 
that new employees will probably, 
within a reasonable period of time and 
in a great majority of cases, progress 
to ci higher level, it may be considered 
that candidated are being evaluated for 
jobs at that higher level.

V7e do not dispute that point; but a moments reflection will 
show it has no applicability to this case. Dr. Tiffin's 
study covers such a limited portion of the jobs and lines of 
progression at Employer's plant and found so few valid 
relationships even for those jobs, that no reasonable person 
could say that a majority of employees'wi11 ever be required 
to move into those jobs. Therefore, Employer has expanded 
its test requirements far beyond any limit which could be 
rationally justified by promotional possibilities.
Moreover, in so doing the Employer has acted contrary to its 
ov.pn interest in that it has screened out people with high 
potential for many lines of progression.h more obvious case 
of irrational and discriminatory test use cannot be imagined.

1 ' •



13

THE FAILURE OF THE TIFF IK STUDY TO 
CONDUCT AN ADEQUATE JOB ANALYSIS 
NEGATES EMPLOYER'S ASSERTIONS THAT 
ITS TESTING PROGRAM SUCCESSFULLY 
PREDICTS JC3 PERFORMANCE.

It is not necessary to be fully familiar with tecnnical 
psychological concepts and sophisticated terminology in order 
to appreciate the fact that a careful analysis of any job is 
needed before a test can be said to demonstrably predict who 
will or will not succeed at that job. Common sense is enough.
A test may measure something, but that "something" must be the 
skills, abilities, or knowledge the job candidate must have if 

the test is to be at all useful to the employer. Yeu 
Employer (at p. 23 of its Brief) blithely state that "there 
was absolutely no reason for Dr. Tiffin to have conducted an 
analysis of employer's jobs and the fact that he did net make 
such a futile study has nothing whatever to do with the 
validity of his study, or whether the testing requirements were 
job related." This startling claim is apparently based on 
Employer's confused belief that it is somehow very Important 
that Dr. Tiffin was employed not to develop his own battery of 
tests but only to check on a testing program devised by

IV

someone else and already in use (Employer’s Brief, p. 22)



-3.4-

Kotiling could be further from the truth. The EEOC Guidelines, 
Section 1607.4(a), require that "[ejach person using tests to 
select from among candidates for a position. . . shall have 
available for inspection evidence that the tests are being 
used in a manner which does not violate Section 1607.3"
(Emphasis Added). Furthermore, this "evidence" of a test's

/ / ’
validity is defined to be "empirical data demonstrating that 
the test is predictive of or significantly correlated with 
important elements of work behavior which comprise or are 
relevant to the job or jobs for which candidates are being 
evaluated" (Section 1607.4(c)). And finally, the absolute 
necessity for a precise job analysis is clearly mandated in 
Section 1607.5(b)(3): "The work behaviors or the criteria
of employee adequacy which the test is intended to predict or 
identify must be fully described;. . . [w]hatever criteria are 
used they must represent major or critical work behaviors as 
revealed by careful job analyses" (Emphasis Added).

Not only is it certain that a job analysis will be 
required for cases involving employment testing that are 
brouglit under Title VII and the EEOC Guidelines, but courts 
also have ruled that it will be necessary— indeed critical—  

for cases brouglit under 42 U.S.C. §1981. Western Addition 
Community Organization v. Alioto, 340 F.Supp. 1351 (N.D. Cal.



- 15 -

1972). If the necessity of a complete job analysis is 
crucial for cases where the EEOC Guidelines are at most 
persuasive, it is clear that the same must be true for actions 
brought under Title VII. Even without the clear mandate of 
the EEOC Guidelines, however, it is very difficult indeed to 
imagine how a test is to be validated absent an analysis ori /'/. ' I
complete description of the very job for which the test is to 

be \ised.



- 16 -

V

THE ARGUMENTS HADE BY DEFENDANTS IN 
SUPPORT'OF THE DISTRICT COURT'S DENIAL 
OF BACK PAY INCORRECTLY ANALYZE THE
a pp lica ble equitable considerations,
MISCONCEIVE THE BREADTH OF THE DISTRICT 
COURT'S DISCRETION AND FAIL TO PROPERLY 
UNDERSTAND THE RELATIONSHIP OF TRIAL AND 
APPELLATE COURTS.

In their arguments resisting plaintiffs back pay c..ai 
the defendants have made several honest admissions which we 
welcome. Employer has admitted its historical tradition of 

employment discrimination, or more precisely, that its 
employees "segregated themselves,” with the whites naturally 
segregating themselves into the higher-paying jobs. (Employee's 

Brief at 8). Employer also points out, in the midst of its 
demonstration of its "good faith," that it t^ice renegotiated 
its discriminatory job seniority system after July 2, 19S5,

t

each time failing to eliminate or effectively modify its 
unlawful provisions. (Employee's Brief at 9). Finally, it 
concedes that its seniority system was the same as that of all 

other paper-mills (Id.)- a not very high standared of 
comparison.!/ The Union, for its part, admits that it

—7See e.g. , wirks v . Crown Zellc_rbach_Co., 310 F.Supp. 53G
(E.D. La. 1970); nnA\ 189 v. United States, 416 F.2d 9B0 (5th Cir. .1969) , .
1 Georgia Kraft Co., 328 F.Supp. (N.D. Ga. 19/0); Lone . 
f r^t C^.T~4ToT.2d 557 (5th Cir. 1971); U.S 

\ Co. , 319 F.Supp. 161 (E.D. Va. 19 ).



-17-

recognized the racially discriminatory features of the
collective bargaining agreement at the time of both the
1965 and 1968 contract negotiations, but could do nothing
about those features. (Union's Brief at 10-11).

But the defendants do not, of course, concede the back
pay issue, even on these facts. They raise three additional
arguments against back pay which require our reply.
I\. Failure To Show Exact Circumstances And Amount Of 
Individual Loss Arc Not A Grounds On VThich Back Pay Should 
Be Denied.

Defendants insists that the plaintiffs' class is barred
from back pay recovery'- by a failure of proof of loss by
individuals in proven amounts. In effect, the defendants
ask this Court to rule that, where unlawfully-imposed economic

‘ 5 /loss to a protect class has been conclusively proved,— 
monetary relief should be barred unless, as part of their 
first evidentiary showing, plaintiffs are able to prove the 
exact circumstances and amount of that loss of each individual 

class member.
The harsh rule proposed by defendants is at odds with 

established practice in the labor relations field and with 
general notions of equity and fairness.

5/ .—1 See pp. 17-20 of Plaintiffs' M a m  Brief.

T



-18-

The appellate courts have rejected the defendants' 
theory -in the closely similar context of Section 10(c) of 
the National Labor Relations Act, 29 U.S.C. §10(c). In that 
setting, a showing of unlawful employer conduct gives rise to 
a presumption that back pay is due to the injured employee.

As the Sixth Circuit has held,
"It is the rule that where the issue 

before the Board is the amount of an 
employer's liability arising out of its 
unfair labor practices, the burden is 
upon the employer to show that there is 
no liability, or that such liability should 
be mitigated. The findings or an unfair 
labor practice is presumptive proof that 
some back pay is owed."

N.L.R.B. v, Reynolds, 399 F.2d 668 669 (6th Cir. 1970) .
Accord, N.L.R.B. v. Robert Haws Company, 403 F.2d 969, 981 
(6th Cir. 1970); Trinity Valiev Iron & Steel.Co, v. N.L.R.B^, 
401 F.2d 1161, 1168 (5th Cir. 1969). And see NhL.R.B. ...v-.
Miami Coca-Cola Bottling Co., 360 F.2d 569, 575-576 (5th Cir. 
1966); and N.L.R.B. v. Mastro Plastics Corn., 354 F.2d 170,
179 (2nd Cir. 1965) pointing out the impracticality of 
presenting numerous individual claims founded on a common 

discrimination.
We recognize, of course, that certain factual differences 

distinguish back pay awards under Section 10(c) from bacr. 
pay under Section 706(g) of Title VII. But the underlying



19-

reasons for the development of the doctrine in NLRn cases 
is equally applicable to the Title VII situation. Those 
reasons are essentially equitable considerations of fairness 

in apportioning economic loss.
Nobody disputes that the class of /ilbemarle's black 

er.nloyees has suffered severe economic loss. The loss nas 
occurred, and cannot be wished away. The present question is 
simply who will bear the loss: the discriminatory employer and
union, or - because of the inherent uncertainties surrounding 
proof of a host of individual claims, each involving complex 
factors and events long past - the victims of the discriminatory 
practices? then this choic is made, equity requires that the 
discriminates not be made to pay again for the discriminating 
employer's unlawful conduct. Cf. Story Parchment Co, v .
Paterson Co., 282 U.S. 555, 563 (1931); Trinity Valley Iron 
& Steel Co. v. N.L.R.B., supra at 1168.

With the debatable assertion that the defendants have not 
been enriched because of the loss inflicted on the plaintiffs' 
class, Employer contends that back pay would be inequitable 
to it. v ■ (Employer's Brief at 39). But Title VII back pay is 
statutory. It does not depend upon a theory of unjust 
enrichment. It arises from the economic loss of the victim of 
discrimination, not from the illegal gain of the discriminating 
party.



-2 0-

Plaintiffs ' proof of class discrimination and class 
economic loss shifted the burden to the defendants. If 
defendants have evidence showing that individual class 
members are not entitled to monetary relief or that individual 
back pay awards are to be mitigated, the defendants should
have full opportunity to present those claims. But it would

\ 7
be ci clear injustice for the Court to award no back pay to any 
class member, where the facts clearly show that most or all 
class members have been severely injured in a financial sense 
by an intolerable form of discrimination.
B . In Light Of The Purpose Of Title VII Discretion Should 
Be Exercised In Fabor Of awarding Back Pav Where Ecor.or.-iic 
Loss Is Established And Special Circumstances Do Not Exist.

Employer and the Union join in reiying on the trial
judge's broad discretion and equitable factors for its
exercise here as grounds for upholding the denial of back pay.

«
For the most part, we have already dealt with these arguments 
and pass over them here.6/

Both defendants place great emphasis on the recent 
decision of the Court of Appeals for the Fifth Circuit in

— Principal Brief pp. 47-54. We note in passing, however, 
Albemarle's extraordinary suggestion in its Brief (at p.41) 
that if it had known of its potential back pay liability, it 
might not have persisted in its discriminatory practices. This 
is a telling commentary on the depth of its "good faith" 
commitment to comply with lav;. If anything, that admission 
serves primarily to buttress our argument that back pay is 
necessary to make Title VII work (See Principal Brief at 42).



-21-

LcBlanc v. Sout'.hcrn Bell Tel. & Tel. Co ., F. 2d 4 FEP

Cases 818 (5th Cir. 1972), aff1ing, 333 F.Supp. 602 (E.D. La. 
1970). That decision affirmed a trial court's exercise of 
discretion in denying hack pay under Title VXI despite finding 
a violation of the Let. Defendants' reliance is misplaced.
In LeBlanc, the discriminatory employer's practices were
compelled by state protective lav; for femaleswhich the 
employer had obeyed in good faith. Judge Heebe carefully 
specified that circumstances as the reason for his 
discretionary denial of back pay. 333 F.Supp. at 610. 
Employer's conduct is a far cry from that of the employer in 

LeBlanc.
A recent decision in the Ninth Circuit clarifies the

issue in LeBlanc in a logical and sensible manner. The case,
Schaeffer v. San Diego Yellow Cabs, Inc., . ;.F.2d___ , 4 FEP

«
Cases 946 (1972), like LeBlanc, involved a claim for back pay
as part of the remedy for an employer's discriminatory practice
in conformity with a state female protective law. The Ninth

\  'Circuit denied back pay for that period of time when the 
employer's conduct could be legitimately deemed in good faith 
as of the time when the employer learned that the Ninth Circuit 
had invalidated the state statue because it contravened 
Title VII.—^ The Court of Appeals directed an award of back 
pay from that date forward, reversing the district court's denial

--Rosenfold v. Southern Pacific Co., 
('9th Cir. 1971)

444 F .2d 12 9,



This Court need not quarrel with the principle of the 
LeBlanc and Schaeffer casco in order to award back pay here. 
Those cases stop far short of endorsing a district judge's 
denial of back pay in theprescnt circumstances. The instant 
appeal is cast against a history of flagrant, deliberate race 
discrimination. The issue in this case, therefore, is far 
removed from the difficult question of whetner an employer 
should be made to pay for its good faith compliance with a 
compulsory state law which, until after the enactment of
Title VII, had been perceived as for the benefit of the 

protected class.
The Union purports to find support for its broad view of

the district court's discretion in the verbal distinction 
between "must" and "may" in Section 706(g) of Title VII.
(Union's Brief, p. 23). This argument stands on treacherous 
footing. In attempting to decipher the Congressional intent 
embodied in Title VII, such close verbal analysis is of little 
value. hs several courts have noted, Title VII had a tortured 
and cloudy legislative history which was marked by strained 
compromise at many stages. See, je.c[-, Voutsis v. Union Csrbj.be 
Corp., 452 F .2d (2nd Cir. 1971); Beverly v. Lone Star Lead 
Construction Co., 436 F.2d 1136 (5th Cir. 1971). In 
compromising the deep divisions within Congress, the bill s



-23-
i

draftsmen often resorted to generalities and ambiguities, of 
which Section 706's'may" is one.

The short answer to the Union's attempt to draw the
distinction between "may" and "must" is found in Newman v.

iPiqqie Park Enterprises, Inc. 390 U.S. 400 (1968) in which 
the Supreme Court held that a prevailing plaintiff in an

f /
f 7action brought under Title IX of the Civil Rights Act of 

1964, 42 U.S.C. Section 2000a is entitled to an award of
attorney's fees unless special circumstances make such an

:|award unjust. The Supreme Court reached this result 
notwithstanding that Section 2000a-3(b) provided that fees 
"may" be awarded in the discretion of the court. The Newman 
principle has been applied in Title VII cases. See Lea v .
Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Robinson v. 
Lorillard Corp., 444 F.2d 791 (1971).-
C . Where District Courts Have Abused Its Discretion In 
Effectuating The Purposes of Remedial Legislation, Courts Of 
7^ppea3s Must Establish Guidelincs For Them To Follow.

The Union also tenders an argument against back pay
which is founded on its views of the relationship between
appellate and inferior courts in the federal system. (Union's
Brief, pp. 23-24). Proper respect for the broad remedial
powers of the district courts in equity, according to this
argument, demands deference to the district court's exercise
of discretion here.



-24-

Tho argument loses sight of another principal aspect of 
the federal judicial system. Appellate courts do not sit 
merely to review error under established law. It is the 
concurrent function of the court of appeals to set standards 
of law to guide the district courts' exercise of discretion 
and administration of the laws. In particular, the appellate- 
courts - more than the trial courts - have the heavy 
responsibility of defining rules of law and interpreting 
unclear statutory provisions. The court of appeals has no 
more typical task than to construe relatively new statute 
like Title VII. Nor has this Court any more significant duty 
than to assure that major federal enactments like Title VII 
receive a construction which will effectuate their statutory 
purpose and provide private parties victims and perpetrators—  

some guidelines concerning the statute's specific, predictable 
demands. In discharging these functions, the court of 
appeals must, of course, set rules of law for the various 
district courts to follow. Wien a rule of law is appropriate 
in light of .these considerations, the appellate court cannot 
abdicate its responsibility to a lower court's "discretion."
With deference, we submit that the Union's argument calls for 
such an abdication.

I



-25-

Thc Union analogizes to the "broad discretion which may 

be exercised by a federal trial judge to remedy antitrust 
violations. V7o too find the antitrust analogy instructive.
The antitrust laws are among the most highly developed federal 
statutes, in terns of their clarification by federal appellate 
courts. Elaborate guidelines have been formulated, within 
which the district court may determine the exact nature of 
appropriate relief. See e.g.., Standard _Oil of New Jersey.yn 
U.S., 221 U.S. 1, 55 L.Ed. 619 (1911). The exercise of a 
trial court's informed discretion, within the framework of 
established antitrust law, is in fact much like the result we 
seek. But the essentially arbitrary action of the district 
court in denying back pay here has little in common with the 

analogy that the Union proposes.

VII . x
THE REQUIREMENT IMPOSED BY THE 
DISTRICT COURT THAT PLAINTIFFS 
AND THEIR CLASS FILE NOTICE OF 
CLAIM WAS HIGHLY INAPPROPRIATE UNDER 

\ THE CIRCUMSTANCES OF THIS CASE.

Plaintiffs and the amicus, EEOC, have argued that the 
Court abused its discretion in requiring plaintiff and their 
class to file notice of claims with respect to back pay and 
'failing to do so by a date certain these claims would be 
forever barred. Plaintiffs further submit that the Court

\



--2G-

committed this fundamental error initially by holding that this 
action falls under Rule 23(b)(3) rather than 23(b) (2). in 
the recent case of Hammond v. Powell, No. 72-1033 (4th Cir.
June 2b, 19/2) this Court stated that although an action might 
technically be classified both as a Rule 23(b)(3) and as a 
Rule 23(b) (2) action the suit should where feasible be 
treated as one under 23(b)(2) rather than (3). Slip Op. p. 5, 
n . 3.

The notice of claim requirement came on the eve of trial 
and at the time when the Court had in effect a rule serverely 
circumscribing communication between class members and 
potenuial class members and the attorneys which were to represent 
them for all purposes except for back pay if a class member
did not file a notice of claim.

The dangers of the notice of claim requirement in class 
action cases has been considered in' one of the cases cited by 
the employer, je.cp Korn v. Franchard Corp., 50 F.R.D. 57 
(S.D. N.Y. 13/0) . In Korn, the court noted the inconsistency 
in providing that a member who fails to request exclusion shall 
be included in tne class and on the other hand, barring 
recovery by members of the class who fail to opt out■and file 
no.notice of claim. Korn also noted the policy of protecting
smaller claimants who may not be able to articulate their

\ \ \ '  , 4
claims with the precision of more sophisticated litigants as

\



applicable to using the notice of claim requirement. This 
policy is, of course, singularly important, in cases such as the 
one sub judice which involves numerious individuals unlearned 
in the law and operating under a mile of court wnich Prohibited 
attorneys representing the class from consulting with said

individuals.



CONCLUSION

WHEREFORE, for the reasons stated in Plaintiffs'- 
Appellants' Main Brief and their Reply Brief, appellants 
respectfully pray the Court to reverse and remand the case to 
the District Court for the entry of appropriate relief.

Respectfully siibmitted,
n/

AL-f, P rf /. !p
ROBERT BELTON 
J. LeVONNE CHAMBERS 
Chambers, Stein, Ferguson & 
Banning
237 West Trade Street 
Charlotte, North Carolina 28202

T . T . CLAYTON 
Clayton and Ballance 
Post Office Box 236 
Warrenton, North Carolina

CONRAD O'. PEARSON 
203'1/2 East Chapel Hill Street 
Durham, North Carolina
JACK GREENBERG 
WILLIAM L. ROBINSON 
MORRIS J. BALLER 
ERIC C. SCHNAPPER 
10 Columbus Circle 
New York, New YTork 10019

Attorneys for Appellants