Anderson v. Westinghouse Savannah River Company Amicus Brief

    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



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Dated: April 23, 2003
y /"A /  /

NORMAN CHACHKIN 
Attorney for Amicus/Curiae



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This

Kenneth E. Young, Esq.
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of April, 2003.

NORMAN CHACHKINt