Anderson v. Westinghouse Savannah River Company Amicus Brief
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April 23, 2003

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Brief Collection, LDF Court Filings. Anderson v. Westinghouse Savannah River Company Amicus Brief, 2003. 69737d3f-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/598a8476-481f-4b6c-a02b-2bdd160df4d9/anderson-v-westinghouse-savannah-river-company-amicus-brief. Accessed June 13, 2025.
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NO. 03-1150 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT VIRGINIA ANDERSON, et al., Plaintiffs-Appellants, -and- SHERMAN T. LOTT, VERNELLE PAYTON, LARRY COLEMAN, et al Plaintiffs, vs. WESTINGHOUSE SAVANNAH RIVER COMPANY, LLP, BECHTEL SAVANNAH RIVER, INC., THE BABCOCK & WILCOX SAVANNAH RIVER COMPANY, INC., and BRITISH NUCLEAR FUELS LTD. SAVANNAH RIVER CORP., Defendants-Appellees. On Appeal from the United States District Court for the District of South Carolina AMICUS BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. IN SUPPORT OF PLAINTIFFS- APPELLANTS E l a in e R. Jo n e s Director-Counsel N o r m a n J. C h a c h k in R o b e r t H. St r o u p NAACP L e g a l D e f e n s e a n d E d u c a t io n a l F u n d , In c . 99 Hudson Street, 16th FI. New York, NY 10013 (212) 965-2200 Counsel for Amicus DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER ENTITIES WITH A DIRECT FINANCIAL INTEREST IN LITIGATION Only one form need be completed for a party even if the party is represented by more than one attorney. Disclosures must be filed on behalf of individual parties as well as corporate parties. Disclosures are required from amicus curiae only if amicus is a corporation. Counsel has a continuing duty to update this information. Please file an original and three copies of this form. No. 03-1150 Caption: Anderson, et al., v. Westinghouse Savannah River Co., et al. Pursuant to FRAP 26.1 and Local Rule 26.1, NAACP Legal Defense & Educ£w h0 Amicus ( name of party/amicus) (appellant/appellee/amicus) makes the following disclosure: 1. Is party/amicus a publicly held corporation or other publicly held entity? □ YES 0 NO 2. Does party/amicus have any parent corporations? □ YES 0 NO If yes, identify all parent corporations, including grandparent and great-grandparent corporations: 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? □ YES 0 NO If yes, identify all such owners: 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(b))? □ YES 0 NO If yes, identify entity and nature of interest: 5. Is party a trade association? □ YES 0 NO If yes, identify all members of the association, their parent corporations, and any publicly held companies that own 10% or more of a member's stock: 6. If case arises out of a bankruptcy proceeding, identify any trustee and the members of any creditors’ committee: April 23, 2003 (date) l TABLE OF CONTENTS RULE 26.1 Corporate Disclosure Statement ........................................................... i Table of Contents ........................................................................................................ ii Table of Authorities.................................................................................................. iv Statement of Interest of Amicus Curiae ...............................................................viii Summary of Argument . ............. ...............................................................................1 Argum ent....................................... ................ ............................................................4 I. The District Court Erred in Granting Summary Judgment on Anderson’s Disparate Impact Claims .......................................... ....................................... 4 A. The District Court Incorrectly Defined a Prima Facie Case of Disparate Im p ac t................ 4 B. The CBPS Selection Process.....................................................................5 C. The District Court’s Definition of the Prima Facie Case Is C ontrary to Supreme Court A uthority......................... 6 D. District Court’s Definition Is Contrary to Congressional Intent............. 8 E. District Court’s Definition of the Prima Facie Case Imposes Higher Burden than the Supreme Court Has Imposed in “Intent” Cases . . . . 9 II. Neither the Statutory Language, nor Supreme Court Authority, Authorizes an Exception to § 703(a)(2) for Employment Practices Implemented by Multiple Decision-Makers ............................................................................13 A. The District Court Decision Improperly Excluded from Disparate Impact Analysis Employment Practices Implemented by Multiple Decision- Makers ................................................................................................. 13 ii B. The Statutory Language Provides No Such Exclusion.............................15 C. District Court’s Treatment of Disparate Impact Claims Is Inconsistent With § 70 Ts Incorporation of Respondeat Superior Principles . . . . 18 III. District Court Erred in Denying Class Certification of Disparate Impact Claims ...............................................................................................................21 A. Employer’s Reliance upon Multiple Decision-Makers Does Not Defeat Class Certification....................................................................... 21 B. Courts Have Routinely Certified Title VII Class Actions Requiring Individualized Determinations of Liability and Back Pay Relief . . 23 Conclusion.............. 28 Certificate of Compliance Certificate of Service iii TABLE OF AUTHORITIES Cases Cited Albemarle Paper v. Moody, 422 U.S. 405 (1975).................... ....................... 3, 7, 24 Allen v. Seidman, 881 F.2d 375 (7th Cir. 1989).............................................. .. 13 Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998)........................... 22 Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (6tn Cir. 1972) 20 Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999)...................................... 11, 22 Bazemore v. Friday, 478 U.S. 385 (1986) ............................................................. 10 Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395 (D.C. Cir. 1988)........................... .................................................................. 13 Caridad v. Metro North Commuter R.R., 191 F. 3° 283 (2d Cir. 1999).............. 23 Castaneda v. Partida, 430 U.S. 482 (1977) ................................................ 1,11,12 Connecticut v. Teal, 457 U.S. 440 (1982)............................................................. 7, 8 Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir.), modified on other grounds, 742 F.2d 520 (9th Cir. 1984).................... .............................................. 27 Dothard i;. Rawlinson, 433 U.S. 321 (1977) ............................................................... 7 Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997)............................................ 22 Faragher v. City o f Boca Raton, 524 U.S. 775 (1998).......................................... 19 Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) ......................... 3, 24, 25, 26 IV Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1 985 )....................... ...........................17 Griggs v. Duke Power Co., 401 U.S. (1971)................................................1, 6, 7, 9 Hamilton v. Carell, 243 F.3d 992 (6th Cir. 2 0 0 1 ) .................................................. 20 Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977).......... 1, 2, 10, 16, 18 Hill v. Western Electric Co., Inc., 672 F.2d 381 (4th Cir. 1982)..................... 26, 27 Holmes v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983)................... 22, 27 In t’l Bhd. o f Teamsters v. United States, 431 U.S. 324 (1977) . . . 2, 16, 18, 25, 26 James v. Stockham Valves and Fittings Co., 559 F.2d 310 (5th Cir. 1977) ........ 17 Johnson v. Uncle B en’s, Inc., 628 F.2d 419 (5th Cir. 1980), vacated on other grounds, 451 U.S. 902 (1981)................................. ........................... 17 Kirby v. Colony Furniture, 613 F.2d 696 (8th Cir. 1 9 8 0 )...................................... 27 Konradi v. United States, 919 F.2d 1207 (7th Cir. 1990) ..................... ................ 20 Larkin v. Pullman-Standard, 854 F.2d 1549 (11th Cir. 1988), vacated on other grounds, 493 U.S. 929 (1989) ...................................................... 13 Lilly v. Harris-Teeter Supermarket, 720 F.2d 326 (4th Cir. 1 9 8 3 ).......... 16, 17, 23 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) ....................... .. . 19, 20 Miller-El v. Cockrell,___U.S.___,71 U.S.L.W. 4095, 4101 (February 25, 2003). 12 Parson v. Kaiser Aluminum &Chemical Corp., 575 F.2d 1374 (5th Cir. 1978) . . 17 Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974).............. 27 v Pollard v. E. I. du Pont de Nemours & Co., 532 U.S. 843 (2 0 0 1 )....................... 22 Probe v. State Teachers'Ret. Sys., 780 F.2d 776 (9th Cir. 1986) ....................... 22 Robinson v. Lorillard Corp., 444 F. 2d 791 (4th Cir. 1971) ................................... 22 Robinson v Metro-North, 267 F.3d 147 (2d Cir. 2001) ........................................ 22 Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) ............................................ 11, 27 Shagor v. Upjohn, 913 F.2d 398 (7th Cir. 1990).................................................... 19 Shipes v. Trinity Industries, 987 F.2d 311 (5th Cir. 1993) .................................... 23 Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir. 1976)........................... 27 Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990)...................................................... 23 Turner v. Fouche, 396 U.S. 346 (1970) ................................................................. 12 United States v. Hazelwood Sch. Dist., 534 F.2d 805 (8th Cir. 1976)................... 16 United States v. Langley, 62 F.3d 602 (4th Cir. 1995)................................................9 United States v. T.I.M.E.-D.C., 517 F.2d 299 (5th Cir. 1975)............................... 16 United States v. United States Steel, 520 F.2d 1043 (5th Cir. 1975)..................... 27 Washington v. Davis, 426 U.S. 229 (1976)............................................................. 11 Watson v. Ft. Worth Bank & Trust, 487 U.S. 977 (1988)............................... 2, 18 Whitus v. Georgia, 385 U.S. 545 (1967)................................................................. 12 VI Statutes Cited Rule 23, Fed. R. Civ. P..................................................................................... .... 1, 42U.S.C. § 1981a (a )(1 ) .......................................................................................... 42 U.S.C. § 2000e(b)................................................................................................ 42U.S.C. § 2000e-2(a)(l).............. ......................................................10, 16, 17, 42 U.S.C. § 2000e-2(a)(2)..................................................14, 15, 16, 17, 18, 19, 42 U.S.C. § 2000e-2(e) ............................................................................................ 42 U.S.C. § 2000e-2(f) ............................................................................................ 42 U.S.C. § 2000e-2(g)............................................................................................ 42 U.S.C. § 2000e-2(h).................................................... ....................................... 42 U.S.C. § 20002-2(k)................................................................................... 8,9, Other Authorities Cited Interpretive Memorandum, 137 CONG. Rec. S. 15276 (October 25, 1991)........ 2 B. Lindemann & P. Grossman, Employment Discrimination Law 1629 (3rd ed. 1996) ............................................................................................................ Manual for Complex Litigation (Third) § 33.54 (1995) ............................. 24 22 19 21 21 15 15 15 15 15 . 9 26 26 Restatement (Second) of Agency §219(1) (1957) 19 STATEMENT OF INTEREST OF AMICUS CURIAE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND. INC. The NAACP Legal Defense and Educational Fund. Inc. (“LDP”) is a non-profit corporation established under the laws of the State of New York. It was formed to assist black persons in securing their constitutional rights through the prosecution of lawsuits and to provide legal services to black persons suffering injustice by reason of racial discrimination. For six decades LDF attorneys have represented parties in litigation before the Supreme Court and this Court involving race discrimination and particularly race discrimination in employment. Those cases include, inter alia, Griggs v. Duke Power Co., 401 U.S. 424 (1971), Albemarle Paper v. Moody, 422 U.S. 405 (1975), Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) and Bazemore v. Friday, 478 U.S. 385 (1986). LDF believes that its experience in, and knowledge gained from, such litigation will assist the Court in this case.1 An amicus brief is desirable in this appeal because it presents important questions regarding the interpretation of the disparate impact provisions of § 703(a)(2) of the Civil Rights Act of 1964 as well as important questions regarding 'No counsel for any party to this case authored this brief in whole or in part, and no person or entity, other than amicus, made any monetary contribution to its preparation. One of LDF’s counsel, Robert H. Stroup, served for a period of time as one of the counsel for plaintiffs in the district court. Fie has not participated in the representation of Virginia Anderson or any of the other plaintiffs since leaving Vladeck, Waldman, Elias and Engelhard in October, 2000. viii class certification of those disparate impact claims. These are issues which LDF has previously litigated in the Supreme Court and other federal courts and are the issues which are considered in this amicus brief Authority to file this brief is based upon the consent of all parties. IX SUMMARY OF ARGUMENT The district court erred both in granting summary judgment to defendant on Virginia Anderson’s disparate impact claims and in denying class certification on the disparate impact claims. The district court imposed inappropriate burdens upon the plaintiff, both as to stating a prima facie case of disparate impact under Title VII as well as to showing sufficient commonality under Rule 23 for class certification. The district court granted summary judgment to defendant on plaintiffs disparate impact challenges to the Competency Based Posting System (“CBPS”) on the basis that plaintiff failed to take into account “possible legitimate causes” for the significant racial disparities plaintiff showed in the selection rates of the qualified candidates for both interviews and final selection through the CBPS. Imposition of such a burden is inconsistent with a long line of United States Supreme Court cases defining plaintiffs burden to state a prima facie case of disparate impact. Under Griggs v. Duke Power Co., 401 U.S. 424 (1971) and its progeny, plaintiff more than met her burden to show a prima facie case. The burden imposed by the district court was an even greater burden than the Supreme Court has imposed for proof of a constitutional violation or a showing of intentional discrimination. See, inter alia, Castaneda v. Partida, 430 U.S. 482,495 (1977) and Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 (1977). 1 The district court also erred in concluding that employment practices implemented by “a multitude of diverse managers and supervisors” are not subject to Title VII’s disparate impact prohibitions. The court’s conclusion is contrary to the express language of Title VII, which provides no such exception to its definition of an “unlawful employment practice.” Congress created a number of express exclusions to that definition, but none of those exclusions cover practices implemented by multiple decision-makers. The district court’s conclusion is also contrary to Supreme Court precedent, which has held employment practices implemented by multiple decision-makers to be unlawful under Title VII. In both Hazelwood Sch. Dist., 433 U.S. 299 and Int 7 Bhd. o f Teamsters v. United States, 431 U.S. 324 (1977) the Supreme Court found practices implemented by a “multitude” of diverse managers and supervisors to be unlawful under Title VII. To allow such an exception to Title VII’s prohibitions on disparate impact would permit employers to escape those prohibitions altogether by simply appending to an objective employment practice a subjective element (or elements) implemented by multiple decision-makers as the employer did here. This is what the Supreme Court held was impermissible in Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 990 (1988). 2 The district court’s ruling is also inconsistent with Title VII’s incorporation of respondeat superior principles making an employer liable, without fault, for the decisions made by its agents acting within the scope of their employment and for the benefit of the employer. Such is plainly the situation presented here in the selections made by hiring managers as a part of the CBPS. Finally, the district court erred in denying class certification on the disparate impact claims. Because those claims are for equitable relief only, courts have almost universally recognized the propriety of class certification under Rule 23. Franks v. Bowman Transp. Co., 424 U.S. 747 (1976); Albemarle Paper v. Moody, 422 U.S. 405 (1975). Indeed, denial of class certification in these instances frustrates the central purpose of Title VII, to make the victims of discrimination whole from the consequences of the employer’s discriminatory acts. Nor is the necessity of individualized determinations of liability and/or relief grounds to deny class certification. Courts have routinely provided class certification in instances where individualized determinations of both liability and relief were necessary as part of “Stage II" of a class proceeding. 3 ARGUMENT I. The District Court Erred in Granting Summary Judgment on Anderson’s Disparate Impact Claims A. The District Court Incorrectly Defined a Prima Facie Case of Disparate Impact The district court erred as a matter of law when it granted summary judgment to the defendant on Virginia Anderson’s disparate impact claims. The district court found that plaintiff failed to make out a prima facie case of disparate impact and thereby granted summary judgment to the defendant without consideration of such matters as business necessity and lesser-impact alternatives. As to Anderson’s prima facie case, the district court ruled: Anderson’s claim clearly fails due to the lack of proof of causation. . . . Anderson appears to rely on statistical evidence which demonstrates statistically significant variation between the number of African-Americans who apply and the number who are successful at both the second and third step of the CBPS process. She concedes, however, that the underlying study did not control far- possible legitimate causes o f the variations and that additional proof o f causation, in the form o f other variables, is necessary.” (Emphasis added) 4 (A-12228-29). The district court erred in requiring that plaintiff control for “possible legitimate causes” for the racial disparities as part of her prima facie disparate impact case.1 B. The CBPS Selection Process The defendant’s Competency-Based Posting System (hereinafter “CBPS”) is a three-step process. Step 1 is the defendant's review of applicants’ resumes to determine which applicants meet defendant’s minimal job qualifications. Step 2 is the screening of the qualified candidates to select those to be interviewed. Step 3 is the selection of the successful candidate following the oral interview. Steps 2 and 3 are based upon the rating of candidates on a number of subjective criteria: “teamwork, leadership, communications, employee development, business results and self management.” (A-1569-70). Steps 2 and 3 are implemented by the manager who makes the final selection and two others chosen by that manager to participate in the screening process. During the applicable time period, the selecting managers were overwhelmingly 1 In fact, plaintiffs analysis in this case did take into account all of the objective criteria that the company used to screen candidates for promotion through the CBPS. Because her claims involve challenges to the disproportionate exclusion of African Americans from the interview process and from final selection, her statistical analysis uses as the relevant applicant pool those candidates who successfully passed Step 1—the determination by defendant that they were qualified for the job. Persons lacking the minimal qualifications for the job are not included in her analysis of Step 2 and Step 3. 5 white. Approximately 93% of the managers were white (A-11890-92). The workforce itself was approximately 20% African American (A-2299). Anderson individually challenged the CBPS regarding two selections. In one instance, Anderson was screened out at Step 2 when she was not selected for an interview, and in the other instance, she was screened out at Step 3 when she was not selected for the position after the interview. Her statistical evidence showed that African Americans were screened out at disproportionate rates at both steps. These results were statistically significant. (A-1650). C. The District Court’s Definition of the Prima Facie Case Is Contrary to Supreme Court Authority The district court’s imposition upon Anderson of the burden to consider other “possible legitimate causes of the variations” is contrary to a long line of United States Supreme Court authority, beginning with Griggs v. Duke Power Co., 401 U.S. 424 (1971). Interpreting § 703(a)(2) of Title VII as prohibiting “not only overt discrimination but also practices that are fair in form, but discriminatory in operation,”2 the Supreme Court in Griggs relied upon statistical disparities alone for proof of disparate impact. In Griggs, those statistics showed nothing more than that 2 The Supreme Court in Griggs, 401 U.S. at 426, 432 n.l interpreted § 703(a)(2) of Title VII as providing that “good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.” 6 34% of white males met the defendant’s high school graduation requirement, and that 12% of African-American males did so. Griggs, 401 U.S. at 430 n.6. The Supreme Court in Griggs did not require plaintiffs to take into account “possible legitimate causes” of these statistical variations in order to state a claim. Supreme Court decisions following Griggs have not imposed upon plaintiffs the burden to consider such “possible legitimate causes” for statistical disparities. Rather, the Supreme Court has repeatedly defined the plaintiff s burden in much more limited terms—simply to show that the challenged employment practice screened the protected class at rates significantly at variance with the non-protected class. Albemarle Paper v. Moody, 422 U.S, 405, 425 (1975) (Defendant’s burden to show that any given requirement has a manifest relationship to the employment in question arises “only after the complaining party or class has made out a prima facie case of discrimination, i.e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants.”); Dothard v. Rawlinson, 433 U.S. 321, 329 (1977) (The decisions in Griggs and Moody “make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern.”);3 Connecticut v. Teal, 3 The Supreme Court in Dothard held that plaintiffs made out a prima facie case when they showed that the challenged height requirement screened out 33.29% of the female applicants, but only 1.28% of the male applicants, for the counselor jobs at issue. Dothard, 433 U.S. at 329. Plaintiffs seeking the counselor jobs were not 7 457 U.S. 440, 445 (1982) (Court of Appeals decision correctly held that where “an identified pass-fail barrier denies an employment opportunity to a disproportionately large number of minorities and prevents them from proceeding to the next step in the selection process,” plaintiffs make out a pnma facie case of adverse impact and the employer must then show that the barrier is “job related.”)4 In this case, Anderson challenged the disproportionate exclusion of qualified applicants from Step 2 (screening for interviews) and Step 3 (final selection). Because Anderson’s analysis of the underlying pool began with the group of employees w'ho successfully passed “Step 1" (defendant’s determination that applicants met defendant’s minimal qualifications for the job) plaintiffs analysis takes into account the defendant’s objective qualifications for the position and is, therefore, even more than the Supreme Court has required for a prima facie case. D. District Court’s Definition Is Contrary to Congressional Intent Nor did Congress impose this additional burden when it amended Title VII in 1991 to specify the applicable burden of proof in disparate impact claims. 42 U.S.C. required to consider other “possible legitimate causes” for the statistical disparities. 4 In Teal, the Supreme Court again relied upon statistics similar to those relied upon by the plaintiffs in this case. There, 206 of 259 (79.54%) of the white applicants for the supervisory jobs at issue received a passing score on the written exam, while 26 of48 (54.16%) of the African-American applicants received a passing score. Teal, 457 U.S. at 443 n.4. Again, plaintiffs seeking the supervisory jobs in Teal were not required to rule out other “possible legitimate causes” for the disparities as part of their prima facie case. § 20002-2(k).'' There is no hint that Congress intended to overturn Griggs or its progeny when it defined the burden of proof for disparate impact in this amendment to Title VII. Indeed, the legislative history is just to the contrary. Interpretive Memorandum, 137 Cong. Rec. S. 15276 (October 25, 1991) (endorsing principles developed in Griggs v. Duke Power Co., 401 U.S. 424 (1971) and its progeny). Because Congress is presumed to enact legislation “with the knowledge of the interpretation that courts have given an existing statute,” and ‘“absent a clear manifestation of contrary intent, a newly-enacted or revised statute is presumed to be harmonious with existing law and its judicial construction,”’ United States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995) (citation omitted), it is proper for this Court to conclude that Congress intended for Title VII’s burden of proof to be harmonious with Griggs and its progeny. The district court’s imposition of a greater burden of proof was in error. E. District Court’s Definition of the Prima Facie Case Imposes Higher Burden than Supreme Court Has Imposed in “Intent” Cases The Supreme Court has not imposed a similar burden upon plaintiffs in related 5 Congress amended Title VII in 1991 to include the following provision: 42 U.S.C. § 2000e-2(k) Burden of proof in disparate impact cases (1)(A) An unlawful employment practice based on disparate impact is established under this subchapter only if— (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race. . . . 9 statutory or constitutional contexts. For example, in an “intent” case brought under § 703(a)(1) against a school district employer, the Supreme Court held that evidence of a significant disparity between the percentage of African Americans employed in defendant’s teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market constituted a pnma facie case. Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 (1977). The defendant in that case relied upon selection criteria similar to the criteria used by the defendant in this case: “personality, disposition, appearance, poise, voice, articulation, and ability to deal with people.”6 Nonetheless, the Supreme Court did not impose upon plaintiffs in Hazelwood a requirement that they prove more than plaintiffs have proven here—a significant statistical disparity in selection rates between the qualified pool and those selected to advance in the promotion process. In another Title VII “intent” case, Bazemore v. Friday, 478 U.S. 385 (1986), the Supreme Court did not impose upon plaintiffs the kind of burden the district court imposed in this disparate impact case. In Bazemore, 478 U.S. at 400, a pattem-or- practice case challenging salary' disparities, the Supreme Court held that it was not necessary' for plaintiffs statistical analysis to take into account “all measurable 6433 U.S. at 302. Defendant, as part of the Competency Based Posting System, asked its hiring managers to consider similar subjective factors, at both the resume- review step as well as during the oral interview: “teamwork, leadership, communications, employee development, business results and self management.” (A- 1570). 10 variables” in order to prevail on a claim of intentional race discrimination.7 See also, Anderson v. Zubieta, 180 F.3d 329, 342 (D.C. Cir. 1999) (holding that plaintiff s analysis for both disparate treatment and disparate impact claims need only consider “minimum objective qualifications” for position at issue); Segar v. Smith, 738 F.2d 1249, 1276 (D.C. Cir. 1984) (noting that even in disparate treatment case, employee need not take into account “specialized experience" requirements which were properly a part of defendant’s burden of production). In other contexts, too, whether the constitutional challenge was to the exclusion of African Americans from grand jury lists or their exclusion from petit juries as a result of a prosecutor’s use of peremptory' strikes, the Supreme Court has held that plaintiff makes out aprima facie case of intentional discrimination without the burden to rule out “possible legitimate factors” that would explain disparities in treatment. Castaneda v. Partida, 430 U.S. 482, 495(1977) (“Once the defendant [in a criminal prosecution] has shown substantial underrepresentation ofhis group [in selections for 7 In Washington v. Davis, 426 U.S. 229, 246-47 (1976) the Supreme Court acknowledged the lesser burden imposed upon plaintiffs in a disparate impact case compared to the burden in a constitutional claim requiring proof of intent. (“Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices.. . .[Title VII’s disparate impact analysis] involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution, where special racial impact, without discriminatory purpose, is claimed.”). 11 the grand jury], he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.”);8 Turner v. Fouche, 396 U.S. 346, 360 (1970) (noting that substantial disparity between percentage of African-American residents in county and of those on jury list made out a prima facie case of jury discrimination and it was the State’s burden to overcome that prima facie case); Whitus v. Georgia, 385 U.S. 545, 552 (1967) (stating that it was the State’s burden to offer testimony regarding the qualifications of the African Americans on the tax digest that explained the disparity between the 27.1% African Americans on the digest and the 9.1% on the grand jury' venire and the 7.8% on the petit jury venire); Cf, Miller-El v. Cockrell,__ U.S.___ , 71 U.S.L.W. 4095, 4101 (February 25, 2003) (observing in Batson challenge that “the statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors.”). The district court, then, plainly erred when it required plaintiff, as an element of her prima facie case, to take into account other possible “legitimate” criteria that might have explained the racial disparities arising from defendant’s practices at Step 2 and Step 3 of the selection process. If there were such criteria, it was defendant’s 8 The Supreme Court in Castaneda expressly noted that it was the State’s burden—and not a part of the plaintiffs’ prima facie case—to present evidence regarding qualifications, such as “literacy, sound mind and moral character, and criminal record.” Castaneda, 430 U.S. at 498-99. 12 burden to identify and present such evidence in rebuttal.9 II. Neither the Statutory Language, nor Supreme Court Authority, Authorizes an Exception to § 703(a)(2) for Employment Practices Implemented by Multiple Decision-Makers A. The District Court Decision Improperly Excluded from Disparate Impact Analysis Employment Practices Implemented by Multiple Decision- Makers In its order denying class certification, the district court concluded that Title VII’s disparate impact prohibitions did not apply to promotion systems such as the CBPS because the employer implemented this promotion system through multiple decision-makers. The district court concluded that instead of a neutral policy, 9 The district court did not suggest what the additional causes might be, nor has the defendant. Plaintiff cannot be faulted for her failure to evaluate the subjective criteria (“teamwork,” “leadership,” “communications,” “employee development,” “business results,” and “self management” ) relied upon by the defendant at Steps 2 and 3, as those are the very criteria challenged as unlawful. Anderson v. Zubieta, 180 F.3d at 342 (“If we were to require that the very factor that causes disparate impact be included in the comparison for purposes of establishing a prirna facie case, we would effectively define disparate impact analysis out of existence.”); Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1417-18 (D.C. Cir. 1988) (rejecting defendant’s contention that racial disparity in union admissions could be explained by minorities’ inability to satisfy union-established training requirement, since that requirement was precisely ‘ the discriminatory practice at issue. ’);” see also, Larkin v. Pullman-Standard, 854 F.2d 1549, 1555, 1580 (1 1th Cir. 1988), vacated on other grounds, 493 U.S. 929 (1989)(noting the impossibility of taking into account in statistical analysis “generalized” criteria such as “ability to get along with other employees.”) ; Allen v. Seidman, 881 F.2d 375, 381 (7th Cir. 1989)(It was sufficient for plaintiff to show that challenged employment practice caused an adverse impact, without having to “pinpoint particular aspects of it that were unfavorable to [members of the protected group].”). 13 here we have the intervening conscious decisions of a multitude of diverse managers and supervisors. It is the participation and conscious expression of choice by those managers and supervisors which renders this case distinguishable from the classic Griggs-type disparate impact case. (A-7909-10). Yet nothing in the language of Title VII or applicable case law suggests that practices, such as those challenged here, are exempt from Title VII’s disparate impact analysis. At issue here are completely subjective decisions made by a predominantly- white supervisory force in the performance of its assigned duties. The contested personnel actions were made within the scope of the managers’ employment and were made in furtherance of the defendant’s business. The district court’s decision excluding such actions from Title VII’s disparate impact analysis is inconsistent with Title VII’s express language as well as applicable Supreme Court authority. The fact that these actions were implemented by multiple supervisors and managers is not a reasoned basis consistent with Congressional purpose to exempt such practices from the reach of §703(a)(2). B. The Statutory Language Provides No Such Exclusion Section 703(a)(2) of Title VII provides that “it shall be an unlawful employment practice for an employer... to limit, segregate, or classify his employees 14 or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race. . . 42 U.S.C. § 20002-2(a)(2). Congress created a number of exceptions to Title VII’s definition of unlawful employment practices. For example, Congress excluded certain refusals to hire or employ persons in national security positions from the definition of unlawful employment practice. 42 U.S.C. § 200Qe-2(g). Congress also excluded from Title VII’s unlawful employment practices certain actions taken pursuant to a bona fide seniority or merit system. 42 U.S.C. § 2000e-2(h), certain bona fide occupational qualifications reasonably necessary to normal operations, 42 U.S.C. § 2000e-2(e), and actions taken with respect to an individual who is a member of the Communist Party of the United States. 42 U.S.C. § 2000e-2(f). However, Congress has provided no exclusion for practices implemented “through the conscious decisions” of multiple managers or other decision-makers. Neither when enacting Title VII in 1964, nor when amending it in 1991,10 did Congress provide any exceptions for employment practices implemented by multiple decision-makers. The district court has, effectively, amended § 703(a)(2) to provide an additional 10 See 42 U.S.C. § 2000e-2(k). 15 exclusion for employment practices implemented by “conscious decisions” of multiple decision-makers. Yet existing statutory language provides no such exception, and this Court should not endorse the creation of such an exception through judicial action. Nor does Supreme Court authority suggest that an exception to § 703(a)(2)’s disparate impact prohibitions exists for practices implemented by multiple decision makers. Rather, the Supreme Court has found a number of employer’s practices, implemented through multiple decision-makers, unlawful under § 703(a)(l) or (a)(2) and has affirmed the award of appropriate class-wide relief. In Hazelwood, 433 U.S. at 308-12, the Supreme Court held that an employer was liable under § 703(a)(1) for actions taken by twenty-three different school principals applying subjective standards in making hiring selections.11 And in Teamsters, 431 U.S. at 342-43, the Supreme Court found unlawful employment practices under § 703(a)( 1) that involved multiple decision-makers at fifty-one different terminals.12 Accord, Lilly v. Harris- 11 United States v. Hazelwood Sell. Dist., 534 F.2d 805, 810 (8th Cir. 1976) (“Since there are twenty-three principals in Hazelwood, there are twenty-three different hiring standards within the general instruction of the Board to hire the ‘most competent’ applicant.”). 12 United States v. T.I.M.E.-D.C., 517 F.2d 299, 304-05 (5th Cir. 1975) (noting that the employer operated fifty-one terminals in twenty-six states and three Canadian provinces and that “it was normal practice for the terminal to hire. . . .”). 16 Teeter Supermarket, 720 F.2d 326, 331,335 (4th Cir. 1983) (upholding certification of class challenge to a promotion system implemented by multiple supervisors); Griffin v. Carlin, 755 F.2d 1516, 1520, 1520 (11th Cir. 1985) (reversing dismissal of disparate impact challenges to promotion system that included recommendations of multiple advisory boards); Johnson v. Uncle Ben 's, Inc., 628 F.2d 419,426-2 7(5th Cir. 1980), vacated on other grounds, 451 U.S. 902 (1981) (reversing district court’s dismissal of challenge to employer’s use of subjective selection system implemented by multiple supervisors); Parson v. Kaiser Aluminum &Chemical Corp., 575 F.2d 1374, 1387 (5th Cir. 1978) (reversing dismissal of disparate impact claims arising from selections based upon recommendations made by general foremen and department superintendents); James v. Stockham Valves and Fittings Co., 559 F.2d 310,318 (5th Cir. 1977) (reversing rejection of claims challenging selections made by superintendents and foremen). § 703(a)(2) is designed to have a broader reach than § 703(a)(1). § 703(a)(1) prohibits intentional employment practices while § 703(a)(2) prohibits practices that are neutral on their face but discriminatory in operation. The statutory scheme provides no basis to make multiple-decision maker cases unlawful under the intent prohibitions of § 703(a)(1) but not under the disparate impact prohibitions of § 703(a)(2). If the employer’s reliance upon multiple decision-makers is no barrier to 17 liability under Hazelwood and Teamsters, it should be no barrier to liability here.13 The district court’s rule in this case permits employers to escape the prohibitions of § 703(a)(2) altogether by simply appending to an objective employment practice a subjective element (or elements) implemented by multiple decision-makers as the employer did here. The Supreme Court held a similar rule was impermissible in Watson v. Ft. Worth Bank & Trust, 487 U.S. 977, 990 (1988) (“If we announced a rule that allowed employers so easily to insulate themselves from liability under Griggs, disparate impact analysis might effectively be abolished.”). That is precisely what the district court did in this case. C. District Court’s Treatment of Disparate Impact Claims Is Inconsistent With § 701's Incorporation of Respondeat Superior Principles The district court’s conclusion that plaintiffs’ claims were not “bona fide”14 disparate impact claims also contravenes principles of respondeat superior incorporated by Congress into Title VII. Westinghouse is liable under respondeat superior principles for the employment practices of its multiple decision-makers. 13 Nor should an employer’s reliance upon multiple decision-makers defeat class certification of a disparate impact claim. It was no barrier to class relief in Hazelwood and Teamsters, and should not be here. 14 The district court so described plaintiffs disparate impact claims in its initial order denying class certification (A-7815) and retained that rationale in its modified order (A-7910-11). 18 § 703(a)(2) provides that it shall be unlawful for an “employer” to engage in unlawful employment practices, and the statute defines employer as “a person engaged in an industry affecting commerce.. . . and any agent of such a person.” 42 U.S.C. § 2000e(b). The Supreme Court has interpreted these statutory provisions as incorporating respondeat superior principles. Faragher v. City o f Boca Raton, 524 U.S. 775, 793 (1998) (“A ‘master is subject to liability for the torts of his servants committed while acting in the scope of their employment.”’ (quoting RESTATEMENT (SECOND) OF AGENCY § 219(1) (1957))); Meritor Savings Bank, FSB v. Vinson, A ll U.S. 57, 72 (1986) (relying upon RESTATEMENT § 219 to define parameters of corporate liability under Title VII). Consequently, an employer is liable, inter alia, for promotion decisions made by its supervisors. Faragher, 524 U.S. at 790 (‘There is nothing remarkable in the fact that claims against employers for discriminatory employment actions with tangible results, like hiring, firing, promotion, compensation, and work assignment, have resulted in employer liability once the discrimination was shown.”); see also, Shagor v. Upjohn, 913 F.2d 398, 405 (7th Cir. 1990) (“A supervisory employee who fires a subordinate is doing the kind of thing that he is authorized to do, and the wrongful intent with which he does it does not carry his behavior so far beyond the orbit of his responsibilities as to excuse the employer.”). 19 Respondeat superior imposes upon the employer no-fault liability for the unlawful employment practices of its supervisors acting, as here, within the scope of their employment. Hamilton v. Carell, 243 F.3d 992, 1001 -02 (6th Cir. 2001) (“Under the doctrine of respondeat superior, an employer is liable, despite having no fault whatsoever, for the acts of its employees taken within the scope of their employment.”); Konradi v. United States, 919 F.2d 1207, 1210 (7th Cir. 1990) (‘“Respondeat superior’ is a form of strict liability. It neither requires the plaintiff to prove fault on the part of the employer nor allows the employer to exonerate himself by proving his freedom from fault.”). The Supreme Court has applied this no-fault liability in Title VII cases. Meritor, 477 U.S. at 70-71 (noting that “courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, should have known, or approved of the supervisor’s actions.”). See also, Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723, 725 (6th Cir. 1972) (imposing liability on employer for racially-motivated discharge by low-level supervisor despite upper management’s “exemplary” record in race relations). Neither Title VII’s statutory language nor its underlying policy provide a reason why respondeat superior principles should not apply to disparate impact cases. The application of respondeat superior principles to Title VII arises from the statutory 20 definition of “employer” which applies equally to both § 703(a)(1) and §703(a)(2). The district court’s second error of statutory construction here is that, in concluding that § 703(a)(2) does not reach the “intervening conscious decisions of multiple decision-makers,” the district court has relieved the employer of respondeat superior liability. The statutory language does not support this construction. It is contrary to established Supreme Court authority, then, to have carved out an exception to Title VII’s coverage for an employment practice that was implemented by multiple managers. Neither Congress nor the Supreme Court have ever suggested that a practice that acted as a “built-in headwind” to the advancement of racial minorities was lawful so long as it was implemented by multiple decision makers. III. District Court Erred in Denying Class Certification of Disparate Impact Claims A. Employer’s Reliance upon Multiple Decision-Makers Does Not Defeat Class Certification Relying upon its conclusion that the multiplicity of decision-makers brought plaintiffs’ claims outside the scope of disparate impact analysis, the district court declined to certify any of the disparate impact claims for class treatment: Even a casual examination of Plaintiffs’ Third Amended Complaint . . . reveals that Plaintiffs’ claims are, in fact, primarily disparate treatment claims. . . . This is not the 21 first court to note disparate treatment claims parading under the guise of a disparate impact label. . . . Thus, the nature of the alleged unlawful employment practices does not support a finding of commonality. (A-7910-11). However, as amicus has shown, the district court’s refusal to characterize plaintiffs CBPS claims as disparate impact claims is erroneous; it follows that the district court’s refusal to certify those claims is similarly in error. Because only injunctive relief is available in disparate impact claims,13 the district court’s decision is contrary to the long-standing rule that class certification of employment cases seeking injunctive relief, including back pay, is appropriate.16 This 15 42 U.S.C. § 1981a (a)(1) limits recovery in disparate impact claims to injunctive relief, including back pay. See also, Pollard v. E. I. du Pont de Nemours & Co., 532 U.S. 843 (2001) (holding that front pay was part of Title VII equitable relief, not an element of compensatory damages). 16 Robinson v Metro-North, 267 F.3d 147, 169 (2d Cir. 2001) (“[Pjrior to the enactment of the Civil Rights Act of 1991, Title VII discrimination claims seeking both injunctive and equitable monetary relief, like the disparate impact claim here, were routinely certified as (b)(2) classes.”); Robinson v. Lorillard Corp., 444 F. 2d 791, 801-02 (4th Cir. 1971) (“Under these circumstances, the award of back pay, as one element of the equitable remedy, conflicts in no way with the limitations of Rule 23(b)(2).”); Eubanks v. Billington, 110 F.3d 87, 92 (D.C. Cir. 1997) (“[I]t is not uncommon in employment discrimination cases for the class also to seek monetary relief in the form of back pay or front pay.”); Probe v. State Teachers' Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986) (“Class actions certified under Rule 23(b)(2). . . may include cases that also seek monetary damages.”); Holmes v. Continental Can Co., 706 F.2d 1144, 1152 (11th Cir. 1983) (concluding that class was properly certified under Rule 23(b)(2) as “equitable injunctive or declaratory relief’ was sought); see also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998) (observing that "back pay could be sought in a (b)(2) class action because, as an equitable 22 Court, and other Courts of Appeals, have certified class actions where the practice challenged rested upon multiple decision-makers. Lilly v. Harris-Teeter Supermarket, 720 F.2d at 335 (upholding certification of promotion claims involving decision making by multiple supervisors); Car id ad v. Metro North Commuter R.R., 191 F. 3d 283, 292 (2d Cir. 1999)(commonality and typicality were shown in case where employer maintained practice of filling vacancies through the decision-making of department managers); Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir. 1993) (holding that class certification was appropriate in case involving supervisors at two facilities making subjective promotion decisions). B. Courts Have Routinely Certified Title VII Class Actions Requiring Individualized Determinations of Liability and Back Pay Relief Nor is the district court’s assertion that “case-by-case decision-by-decision inquiries” were required to resolve each plaintiffs case grounds to deny class certification (A-7913-14).17 It has been long-established, in the Supreme Court and remedy similar to other forms of affirmative injunctive relief permitted in (b)(2) class actions, it was an integral component of Title VII's 'make whole' remedial scheme"). 17 The district court’s reliance on Stott v. Haworth, 9 16 F.2d 134 (4th Cir. 1990) regarding this point (A-7913-14) is completely misplaced. Stott itself distinguishes its facts from those of a Title VII class action. Stott, 916 F.2d at 143 (“[T]he inquiry' mandated by patronage cases must go beyond the pattern or practice inquiry common to Title VII cases. . . .”). 23 in this Court, that individual inquiries to determine both individual liability questions and back pay relief, are necessary and appropriate aspects of Title VII class actions, and such individual inquiries are not grounds to deny class certification. In Franks v. Bowman Transp. Co., 424 U.S. 747, 772 n.32 (1976), the Supreme Court endorsed the use of individual hearings to determine the defendant’s liability to class members for both seniority and monetary relief: Thus Bowman may attempt to prove that a given individual member of class 3 was not in fact discriminatorily refused employment as an OTR driver in order to defeat the individual's claim to seniority relief as well as any other remedy ordered for the class generally. Evidence of a lack of vacancies in OTR positions at the time the individual application was filed, or evidence indicating the individual's lack of qualification for the OTR positions - under non-discriminatory standards actually applied by Bowman to individuals who were in fact hired - would of course be relevant.” Thus, under Franks, case-by-case, decision-by-decision determinations of both liability and relief are not a bar to class certification under Rule 23(b)(2) of the disparate impact claims raised here. The Supreme Court buttressed its Franks ruling in Moody, 422 U.S. 405 at 421. The Supreme Court held that under Title VII of the Civil Rights Act of 1964, it was error to deny class-wide back pay to class members on grounds that if applied generally, would “frustrate the central statutory purposes of eradicating 24 discrimination throughout the economy and making persons whole for injuries suffered through past discrimination (footnote omitted).” The district court’s decision in this case does frustrate the central statutory purposes of Title VII. To deny class certification on the grounds that individual hearings are necessary for make whole relief, when applied generally, defeats Title VII’s central statutory purposes. In order to make persons whole for injuries suffered through past discrimination, it is necessary in virtually every Title VII case to make individualized determinations and those determinations may necessitate a hearing. Just as the Court in Franks acknowledged that an individual class member might not be a victim of discrimination because of the absence of a vacancy at the time of his application, or an absence of legitimate, non-discrimmatory qualifications for the job, Franks, 424 U.S. at 772 n.32, so in virtually every Title VII class action, individualized issues arise that may necessitate a hearing. Such is not, under existing authority, grounds to deny certification of claims for injunctive relief, including back pay, under Rule 23(b)(2). In Teamsters, 431 U.S. 324, the Supreme Court also endorsed individualized determinations as to liability and relief in Title VII cases. While the Court did so in the context of a government, rather than private, Title VII case, its underlying rule regarding individualized relief applies interchangeably to both governmental and 25 private civil rights class actions.1S As to the award of “make whole” relief in a civil rights case where classwide liability has been found, the Supreme Court held that [initially, the court will have to make a substantial number of individual determinations in deciding which of the minority employees were actual victims of the company’s discriminatory practices. . . . Because the class of victims may include some who did not apply for line-driver jobs as well as those who did, and because more than one minority employee may have been denied each line-driver vacancy, the court will be required to balance the equities of each minority employee's situation in allocating the limited number of vacancies that were discriminatorily refused to class members. Teamsters, 431 U.S. at 371-72. The district court’s rejection of class certification because of the need for “case-by-case decision-by-decision inquiry” is also contrary to a long line of Court of Appeals decisions.19 Hill v. Western Electric Co., Inc., 672 F.2d 381, 387 (4th Cir. 18 The Supreme Court noted in Teamsters that the principles of Franks were applicable to the government’s pattem-or-practice case. Teamsters, 431 U.S. at 360 (“Although not all class actions will necessarily follow the Franks model, the nature of a pattem-or-practice suit brings it squarely within our holding in Franks.”). 19 Both before and after Teamsters, bifurcation of civil rights cases into Stage I (for liability determination) and Stage II (for determination of individual relief) has been commonplace. M a n u a l f o r C o m pl e x L it ig a t io n (T h ir d ) § 33.54 (1995) (“Employment discrimination class actions have commonly been tried in separate stages under Fed.R.Civ.P. 42(b).”) ; 2 B. LlNDEMANN & P. GROSSMAN, EMPLOYMENT D isc r im in a t io n L a w 1629 (3rd ed. 1996) (“This procedure has been followed in most cases seeking class monetary relief.”). 26 1982) (“Bifurcation of Title VII class action proceedings for hearings on liability and damages is now commonplace.”); Domingo v. New England Fish Co.,121 F.2d 1429, 1444 (9th Cir.), modified on other grounds, 742 F.2d 520 (9!h Cir. 1984)(“The facts of this case justify a departure from an individualized remedy for each claimant although we recognize that as a general rule that approach should be used.”); Segar v. Smith, 738 F.2d at 1289 (noting that Teamsters “raises a presumption in favor of individualized hearings”); Holmes, 706 F.2d at 1158 (11th Cir. 1983) (“If a class makes a prima facie showing of discrimination under Stage I, then it is entitled to move on to Stage II with the presentation of individual back pay claims.”); Kirby v. Colony Furniture, 613 F.2d 696, 700 (8th Cir. 1980) (“The [district] court’s sole rationale [for denying class certification] that ‘the varieties of factual considerations’ prohibited classwide back pay, is clearly insufficient and classwide back pay is available as a remedy in this case.”); Stewart v. General Motors Corp., 542 F.2d 445, 452 (7th Cir. 1976) (“Where possible, an individualized remedy should be utilized because it will best compensate the victims of discrimination without unfairly penalizing the employer.”); United States v. United States Steel, 520 F .2d 1043,1055 (5th Cir. 1975) (“These rules generally contemplate a scheme of proof, computation, and distribution initiated by a series of claimant-by-claimant trials.”); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211,259 (5th Cir. 1974) (Presumption in favor 27 of back pay is “tempered by an initial burden on the individual employee to bring himself within the class and to describe the harmful effect of the discrimination on his individual employment position.”). Conclusion On the basis of the foregoing, the decision of the district court granting summary judgment on the Virginia Anderson’s disparate impact claims and denying class certification of the disparate impact claims should be reversed. R e sp e c t f u l l y s u b m it t e d , E l a in e R. Jo n es Director-Counsel N o r m a n J. C h a c h k in R o b e r t H. St r o u p NAACP L eg a l D e fe n se a n d E d u c a t io n a l Fu n d , In c . 99 Hudson Street, 16th FI. New York, NY 10013 (212)965-2200 28 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6797 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This word count is based upon the word count of the word-processing system used to prepare the brief. 2, This brief complies with the typeface requirement of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because the brief has been prepared in a proportionally spaced typeface using WordPerfect 8.0 with 14- pomt Times Roman font. Dated: April 23, 2003 y /"A / / NORMAN CHACHKIN Attorney for Amicus/Curiae CERTIFICATE OF SERVICE I hereby certify that I have served counsel for all parties by placing two copies of the Brief of Amicus Curiae NAACP Legal Defense and Educational Fund, Inc., in envelopes addressed to the following, with first-class postage affixed thereto: Ray P. McClain, Esq. P. O. Box 608 Charleston, S.C. 29402 C. Anthony Mulrain, Esq. Brown & Mulrain, LLP 450 Seventh Ave., Suite 3002 New York, N.Y. 10123 Ivan D. Smith, Esq. Vladeck, Waldman, Elias & Engelhard, P.C. 1501 Broadway, Suite 800 New York, N.Y. 10036 Deborah A. Sudbury, Esq. Jones, Day, Reavis & Pogue 3500 Sun Trust Plaza 303 Peachtree Street Atlanta, Ga. 30308-3242 Glen D. Nager, Esq. Jones, Day, Reavis & Pogue 51 Louisiana Avenue, N.W. Washington, D.C. 20001 This Kenneth E. Young, Esq. Nelson, Mullins, Riley & Scarborough, L.L.P. P. O. Box 10084 Greenville, S.C. 29603 of April, 2003. NORMAN CHACHKINt