American Nurses Association v. State of Illinois Brief Amicus Curiae of the NAACP Legal Defense and Educational Fund

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

No. 85-1766

AMERICAN NURSES ASSOCIATION, et al.,
Plaintiffs/Appellants, 

v .
STATE OF ILLINOIS, et al.,

Defendants/Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT, 
NORTHERN DISTRICT OF ILLINOIS

Brief Amicus Curiae of the 
NAACP Legal Defense & Educational Fund, Inc.

JULIUS LeVONNE CHAMBERS CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
GAIL J. WRIGHT 
PENDA D. HAIR

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae



Certificate of Interest
The undersigned, counsel of record for amicus the NAACP 

Legal Defense and Educational Fund, Inc. , furnishes the 
following list in compliance with Circuit Rule 5(b):

(1) NAACP Legal Defense and Educational Fund,
Inc. (LDF) , is the only party or amicus 
represented by the undersigned in this 
case ;

(2) LDF is a non-profit corporation, and
(i) LDF has no parent corporation;
(ii) LDF has no stockholders;

(3) All of the attorneys appearing for LDF in 
this case are LDF staff lawyers.

Penda D. Hair 
Counsel for Amicus



TABLE OF CONTENTS
Pag e

Certificate of Interest
Table of Contents .............................
Table of Authorities ............................
Interests of Amici Curiae .......................
Statement of the Case ...........................
Summary of Argument .............................
ARGUMENT
I. The District Court's Dismissal of

Plaintiffs' Complaint Contravenes the 
Applicable Legal Principles Governing 
Proof of Intentional Discrimination ...

A. The Federal Courts Have Frequently
Found Intentional Race Discrimina­
tion in Wages on the Basis of 
Evidence Similar to That Alleged By 
Plaintiffs ............................

B. The Race-based Wage Discrimination
Precedents Are Consistent with the 
Analysis Applied in Hiring and Promotion 
Cases .................................

C. Other Indicia of Discrimination
Exist in this Case .....................

II. The District Court's Dismissal of the 
Complaint Improperly Denied Plaintiffs 
the"Opportunity to Prove that Defendant 
Illegally Perpetuated the Effects of 
Prior Discrimination ..................

CONCLUSION

i 
i i 
iii 

1 
4 
4

5

7

10

17

1 8 

20

- i i -



TABLE OF AUTHORITIES
Cases

Alston v. School 3d. , 112 F.2d 992 (4th 
Cir.), cert, denied, 311 U.S. 693
(1940) .....................................  5

Arkansas Educ. Ass'n v. Bd. of Eauc . , 446
F. 2d 763 (8th Cir. 1971) ................... 5

Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 
(9 t’n Cir. 1982), cert, denied, 52 U.S.L.W.
3906 (June 1 8 , 1984) ....................... 7

Briags v. City of Madison, 536 F. Supp. 436
(D. Wise. 1982) ............................  12 , 1 4

Carpenter v. Stephen F. Austin State Univ. ,706 F.2d 608 (5th Cir. 1 983) ............  5 ,6 ,8 , 1 2,1 6
Corning Glass Works v. Brennan, 417 U.S.

1 88 ( 1974) .................................  1 3
County of Washington v. Gunther, 452 U.S.

161 ( 1981 ) .................................  6
Davis v. Califano, 613 F.2d 957,

(D.C. Cir . 1 979) ...........................  1 1
EEOC v. Inland Marine Indust., 729 F.2d 1229 

(9th Cir.), cert, denied, 53 U.S.L.W.
3239 (Oct. 2 , 1 984) ........................  5 ,9 ,1 8

EEOC v. Sandia Savings & Loan Ass'n, 24
Empl. Prac. Dec. (CCH) *([31 ,200 (D.N.M.
1980) ......................................  9

Griffin v. County School Bd. , 377 U.S..
213 (1 964) ..................................  1 9

Hazelwood School District v. United States,
433 U.S. 299 ( 1977) ........................ TO

i n



Cases
Heagney v. Univ. of Washington, 642 F.2d

1157 (9th Cir. 1981 ) ....................... 12
Hishon v. King & Spaulding, 52 U.S.L.W. 4627

(May 22, 1984) .............................   ̂8
International Union of Electrical Workers 

v. Westinghouse Electric Corp. , 631 
F.2d 1094 (1980), cert, denied, 452
U.S. 967 ( 198 1 ) ............................  1 8

James v. Stockham Valves & Fittings Co. ,
559 F.2d 310 (5th Cir. 1977), cert, 
denied, 434 U.S. 1034 (1978) ..............

Liberies v. County of Cook, 709 F.2d 1122
(7th Cir. 1983) ............................  18

Lynn v. Regents of University of California,
656 F.2d 1337 (9th Cir. 1931), cert.
denied, 459 U.S. 823 (1982)   8

McDonnell Douglas Corp. v. Green, 411 U.S.
792 ( 1 973) .................................  6 '15

Morris v. Williams, 149 F.2d 703 (8th Cir.
1945)   5

O'Brien v. Sky Chefs Inc., 670 F.2d 864
(1982) ....................................  17

Payne v. Travenol Laboratories, Inc., 673
F.2d 798 (5th Cir.), cert, denied, 459
U.S. 1 038 (1982)   17

Pittman v. Hattiesburg Municipal Separate 
School District, 644 F.2d 1071 (5th
Cir. 1981)   7 '13

Quarles v. Phillip Morris, Inc., 279 F. Supp.505 (E.D. Va. 1968)   5,8,12,16,18
Rowe v. General Motors Corp., 457 F.2d 348

(5th Cir. 1 972)   17

IV



Cases Pag e
Segar v. Civiletti , 508 F. Supp. 690 

(D.D.C. 1981), aff'd in relevant 
part, 738 F.2d 1249 (D.C. Cir. 
1984) .......................... 5,6,8,9 ,12 ,16

Teamsters v. United States, 431 U.S. 324
(1977) .................................

Thompson v. Gibbes , 60 F. Supp. 872 (E.D.C.S. 
1945) ................................

Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S.
252 (1977) ..............................

Vuyanich v. Republic Nat'1 Bank, 505 F. Supp. 
224 (N.D. Tex. 1980), vacated on other 
grounds, 723 F.2d 1195 (5th Cir.
1934) .............................. ,9,14,15,16

Wade v. Mississippi Coop. Extension Serv. , 528 
F. 2d 508 (5th Cir. 1 976) ................;

Wells v. Hutchinson, 499 F. Supp. 174 (E.D.
Tex. 1980) ...............................

LEGISLATIVE MATERIALS
S. Rep. No. 415, 92a Cong., 1st Sess. .. 
H. R. Rep. N o. 238 , 92d Cong . , 1st Sess .

OTHER AUTHORITIES
H. Hill, Black Labor and the American Legal

System (1977) ...........................
H. Northrup, R. Rowan, D. Barnum & J. Howard, 

Negro Employment in Southern Industry 
(1970) ..................................

Wachtel , The Negro and Discrimination in
Employment (1965) .......................

v



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

"No. 85-V766

AMERICAN NURSES ASSOCIATION, et al. ,
Plaintiffs/Appellants , 

v .
STATE OF ILLINOIS, et al . ,

Defendants/Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT, 
NORTHERN DISTRICT OF ILLINOIS

Brief Amicus Curiae of the 
NAACP Legal Defense & Educational Fund, Inc.

The NAACP Legal Defense and Educational Fund, Inc. 
submits this brief as amicus curiae in support of plain­
tiff s/appellants with the consent of all the parties.

INTERESTS OF AMICUS CURIAE 
1. The NAACP Legal Defense and Educational 

Fund, Inc. ("The Legal Defense Fund" or "LDF") is a non­
profit corporation, which was established for the purpose of 
assisting black citizens in securing their constitutional and 
civil rights. LDF, which is independent of the other 
organizations, is supported by contributions from the public. 
For many years its attorneys have represented parties and 
participated as amicus curiae in numerous cases before the



federal appellate and district courts throughout the nation, 
and the United States Supreme Court. The Legal Defense 
Fund has appeared as amicus curiae in actions challeng ing 
employment discrimination against blacks and women under i_he 
Constitution and federal statutes; and has also urged the 
full enforcement of Title VII of the Civil Rights Act of 1964 
to remedy the causes and effects of such prohibited and 
invidious discrimination.

2. LDF has a particular interest and concern with black 
women who have suffered a douDle burden of discrimination 
because of their race and sex. 3lack women have tradition­
ally participated in the nation's work force. As early as 
1890 forty percent of all black women over the age of 10 were 
employed in non-farm occupations. By 1950 black female 
participation in the labor marxet nad increased to 46% , and 
this figure rose steadily to 49.5% in 1967, and to 53% in 
1978. By 1980 more than seventy percent of black women 
between the ages of 25 and 44 were workers.

Despite the fact that millions of black women work, 
they continue to endure economic hardship, because of wage 
discrimination and job segregation. As early as 1919 black 
women , who were compelled to work in inferior positions and 
perform the least desirable tasks , were paid from ten to 
sixty percent less than white women, who themselves were 
poorly compensated. While all women experience an earning 
disadvantage when compared to men, black women working full 
time earn less than half of white men's earnings.

2



Much of this dilemma results from the fact that black 
women were and still are concentrated or segregated in 
"occupational shelters." Nearly sixty percent of all black 
women are employed in only two major occupations , clerical 
and secretarial work. Blacks are overrepresented in jobs 
Daying below minimum wages and which in several instances psy 
below the poverty level. These include jobs such as laundry 
and dry cleaning; sewers/stichers; dressmakers; produce 
handlers; welfare services aids; school monitors; child care 
workers; and food counter workers.

Even in those occupations which hire large numbers of 
women, black women tend to be relegated to the menial and 
lowest paying positions. This phenomenon is not new. In the 
1920's in the tobacco industry black women were assigned to 
strip the tobacco and receive the lowest wages. This trend 
continues to persist. For instance, the health industry, a 
primary employer of women, employs 15% of white women, who 
generally work in physician's offices and in specialized 
positions in hospitals , and 20% of clack women , who typically 
are concentrated in low paying positions outside tne hos­
pitals ,such as nursing homes and home-based care.

To the extent that black women have obtained an education 
or skill, they are still denied employment opportunities 
which are commensurate with their abilities and qualifica­
tions. Approximately twenty-five percent of black women are 
over-educated for their jobs.

3



In order to rectify these inequities and to 
equality in our society as required by the laws 
nation, amicus urges this Court to reverse the 
court's decision dismissing the complaint.

achieve full 
of this 
district

STATEMENT OF THE CASE
Amicus adopts the Statement of the Case set 

brief of plaintiffs/appellants American Nurses'
forth in the 
Association .

SUMMARY OF ARGUMENT
The district court erred in dismissing plaintiffs' 

complaint on the ground that this is a "comparable worth 
case. Plaintiffs alleged and should be permitted to prove 
that defendants engaged in intentional sex-based wage 
discrimination.

The decision below is inconsistent with precedents 
establishing methods of proof of race-based wage discrimi­
nation. The district court's peremptory dismissal of 
broad-based wage discrimination claims imperils all wage 
discrimination lawsuits, including these brought on behalf of 
blacks and other minorities.

The courts dealing with claims of race discrimination in 
w3ggs have concluded that statistical proof of significant 
disparities between salaries of black and white employees, 
similar to that alleged by plaintiffs, establishes a prima 
facie case. Moreover, these courts have rejected the market 
as a defense where it represents the weak bargaining power of 
black employees.

4



ARGUMENT
I. The District Court's Dismissal of Plaintiffs' Complaint 

Contravenes the Applicable Legal Principles Governing 
Proof of Intentional Discrimination

Although pay equity has recently become a highly
publicized sex discrimination issue, it is important to note
that invidious wage discrimination and job segregation have
long been practiced against blacks and other disadvantaged
racial and ethnic groups. This discrimination has been

1
documented in court decisions, Title VII's legislative 

2 3 history and the scholarly literature. Because race-based

See, e.g . , EEOC v. Inland Marine Indus., 7 29 F.2d 1 229 ( 9 th 
Cir. )~ cert"! denied""! !T3 U . S . L . W . 3 239 (Oct. 2, 1984); 
Carpenter v. Stephen F. Austin State Univ. , 706 F.2d 608 , 
625-26 (5th Cir." 1 983) ; James v. Stockham Valves & Fittings 
Co., 559 F.2d 310 , 327 ( 5th Cir. 1 977 ), cert, denied , 434 
UTS. 1 034 (1 978); Wade v. Mississippi Coop. Extension Serv. , 
528 F.2d 508, 514-16 (5th Cir. 1976); Arkansas Sduc. Ass'n v. 
Bd. of Educ., 446 F.2d 763 (8th Cir. 1971); Morris v.
Williams ,'“f49 F. 2d 703 , 708 (8th Cir. 1945); Alston v. School 
Bd., 112 F.2d 992 (4th Cir.), cert. denied , 311 U.S. 693 
( 1 940); Segar v. Civiletti , 508 F. Supp. 690 , 7 1 2 (D.D.C. 
1981), aff'd in relevant part sub nom. Seg ar v . Smith , 738 
F. 2d 1249 (D.C. Cir. 1 9 84); Vuyanich v. Republic Nat11 Bank, 
505 F. Supp. 224 (N.D. Tex. 1980), vacated on other grounds,
7 23 F. 2d "1195 (5 th Cir. 1984); Wells v. Hutchinson, 49 9 F. 
Supp. 174, 190-96 (E.D. Tex. (1980); Quarles v. Phillip 
Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968); Thompson v. 
Gibbes , 6 0 F. Supp. 872, 878 (E.D.S.C. 1945).
See e.g., S. Rep. No. 415, 9 2d Cong., 1st Sess. 6-7 ("Negroes 
are concentrated in the lower paying , less prestigous 
positions in industry"); id♦ at 9-14; H. R. Rep. No. 238, 92d 
Cong., 1st Sess. 4; id_. at 17-19 (noting perpetuation of 
segregated job ladders by state and local governments); id. 
at 23-24.
See e.g., H. Northrup, R. Rowan, D. Barnum & J. Howard, Negro 
Employment in Southern Industry, Part I at 33 (paper in­
dustry), Part II at 36, 40, 55 (lumber industry), Part III at 
25, 29-33, 39, 88 (tobacco inaustry)(Part IV at 54-058 
(coal mining industry) , Part V at 60-68 (textile industry) 
(1970); 1 H. Hill, Black Labor and the American Legal system,

5



and sex-based wage discrimination cases often involve similar 
facts and legal theories, resolution of this case will 
directly affect the effort to eradicate wage discrimination 
against blacks. However, the issue raised by this case is 
not whether Title VII requires equal pay for jobs of 
comparable worth; the issue is whether plaintiffs 
allegations, if proven at trial, would support the finding 
that defendants engaged in intentional discrimination. In
the discussion below, amicus will focus on three sources of 
guidance with respect to what types or evidence may support 
a claim of intentional discrimination: 1) cases considering 
claims of race-based wage discrimination; 2) cases involving

98-99 , 335-38 , 352 , 357-358 ( 1 977 ); Wachtel , The Negro and 
Discrimination in Employment (1965).
Wage discrimination against blacks has been found in many 
cases on the basis of evidence very similar to the facts 
alleged by plaintiffs. Seê  e^. , Carpenter, supra, 706 F.2d 
at 625-26 ( 5th Cir. 1 983 ); Wade , supra , 528 F.2d at 514-16 
(5 th Cir. 1976); Seg ar , supra , at 712, Vuyanich, supra.

5 The logical result of the District Court's reasoning is that 
intentional racial discrimination in wages would violate 
Title VII only when black and white employees are being paid 
differently for doing exactly the same job. This narrow view 
of intentional discrimiant ion ignores the many complex and 
subtle ways in which employers can effectuate their invidious 
intent. " [ I]t is abundantly clear that Title VII tolerates 
no racial discrimination, subtle or otherwise. MeDonne11
Douqlas Corp. v. Green, 411 U.S. 792, 801 (1973). See also
r.ynn y.~ Regents of Univ. of California, 656 F. 2d 1 337 , 1 343 
373 (9th CiTrT 1981), cert. denied, 459 U.S. 823 (1982); H.R. 
ReD. No. 238 , supra, at 23-24 ( [ [D]iscrimination of any kind 
based on factors"not related to job performance must be 
eradicated."). The Supreme Court has already rejected the 
argument that Title VII prohibits wage discrimination only 
when employees doing the same job are paid unequally. County 
of Washington v. Gunther.

6



claims of race discrimination in hiring and promotion; and 
3) cases analyzing proof of intentional discrimination under 
the Equal Protection Clause of the Fourteenth Amendment.

A. The Federal Courts Have Frequently Found
Intentional Race Discrimination in Wages on 
the Basis of Evidence Similar to 'that 
Alleged by Plaintiffs

The federal courts have for many years been adjudicating 
claims of intentional race-based wage discrimination. The 
courts in these cases have not found it necessary to invoked 
the "comparable worth" label or to devise a separate "com­
parable worth" theory. Instead, the courts have applied the 
same theories and methods of proving wage discrimination that 
are used in cases dealing with hiring , promotions , job 
assignments, discipline and a nost of other employment 
oractices. See, e.g . , Bonilla v. Oakland Scavenger Co. , 697 
F. 2d 1 297 , 1 301 (9th Cir. 1982), cert, denied, 52 U.S.L.W. 
3906 (June 18, 1984) (prima facie case of race-based wage 
discrimination can be established by statistical proof).

For example, in Pittman v. Hattiesburg Municipal Separate 
School District, 644 F.2d 1071 (5tn Cir. 1981) , a black 
printer was paid substantially less than the white he had 
replaced. The Court of Appeals held:

"To establish a prima facie case of racial discrimi­
nation with respect to compensation, the plaintiff 
must show that he was paid less than a member of a 
different race was paid for work requiring sub­
stantially the same responsibility."

7



644 F.2d at 1072. The court in Pittman also rejected the
employer's argument that it had merely paid the wage set by 
the market, stating "if the difference in labor value of a 
white printer and black printer stems from tne market place 
putting a different value on race, Title VII is violated."
Id.

The courts have also found intentional discrimination in 
situations where black employees performed different types of 
work from the white employees to which they were compared.
The courts have typically based the findings of discrimina­
tion in this factual situation on a showing that the jobs 
performed by the black employees involved equal skill levels, 
education, experience, responsibility and degree of super­
vision. For example, in Quarles v. Phillip Morris, Inc., 279 
F. Supp. 505, 509 (E.D. Va. 1968), the court compared the
training , experience, level ’of supervision and responsibility 
involved in the job of casing attendant, always filled by a 
black, and the job of basic machine operator, traditionally 
filled by a white, and concluded that the lower salary for 
the casing attendant position resulted from discrimination.

Although Quarles involved an individual determination of 
discrimination, based on a one—on—one comparison between a 
black and a white employee, statistical comparisons are
generally used to prove classwide disparate treatment in 

6compensation. For example , in Segar v. Civiletti , supra

6 The caselaw includes numerous examples of the use of sta­
tistical evidence to prove intentional classwide wage 
discrimination. In Carpenter , supr a , 706 r.2d at 626 , the 
court implicitly recognized that a statistical disparity

8



note 1 , the court concluded that plaintiffs established a 
prima facie case of discrimination through the introduction 
of regression analyses that showed "gross disparaties between 
the salaries of comparably qualified black and white agents 
at DEA." 508 F. Supp. at 712. Seg ar involved the compensa­
tion of black and white agents of the Drug Enforcement 
Agency. A wide variety of jobs are performed by agents, ran­
ging "from administrative and supervisory duties to . . .
conducting surveillance of suspected narcotics dealers and 
doing related undercover work." Id_. at 694. The evidence 
showed that blacks were concentrated in undercover work, 
which involved greater exposure to danger and hardship and 
less use of administrative and supervisory skills. Id. at 
705 , 7 1 3 .

In EEOC v. Inland Marine Industries, supra note 1 , the 
Court of Appeals for the Ninth Circuit concluded that 
plaintiffs had established a prima facie case of wage 
discrimination "based on statistical evidence that during the 
period in question no black ever earned more than any white."

between the wages of black and white employees constitutes 
proof of discriminatory intent where the statistical study 
controls for the level of skill , education and training. In 
Wade, supra, 528 F.2d at 514, 515-17, the court approved of 
the use of sophisticated multi-variate regression analysis of 
salaries that" showed "race to be a significant factor in 
setting salaries." See also Wells v. Hutchinson, supra , 499 
F. Supp. at 190-96; EEOC v. Sandia Savings & Loan Ass'n, 24 
Empl . Prac. Dec. (CCH) 1(3 1 ,200 (D.N.M. 1 980); Vuvanich ,
supra, 505 F. Supp. at 285-87, 305 (plaintiffs established a 
prima facie case of wage discrimination through introduction 
of statistical studies that controlled for productivity 
factors, such as education and experience, as well as Hay 
points).

9



729 F.2d at 1234.

B . The Race-Based Wage Discrimination Pre­
cedents Are Consistent with the Analysis 
Applied in Hiring and Promotion Cases

In Teamsters v. United States , 431 U.S. 324 (1977) , and 
Hazelwood School District v. United States, 433 U.S. 299 
(1977), the Supreme Court established a method of proof of 
classwide disparate treatment in hiring or promotion.
Although Teamsters and Hazelwood have been most frequently 
applied in the context of hiring and promotion decisions, the 
race-based wage discrimination cases easily fit into this 
method of proof. These cases recognize that direct evidence 
of discriminatory motive rarely will be available and that it 
is necessary and appropriate for courts to draw inferences of 
discrimination from circumstantial evidence. Teamsters, 431 
U.S . at 416-18.

Teamsters held that statistical evidence is highly 
relevant proof of employment discrimination, and in some 
cases may standing alone establish a prima facie case. 431 
U.S. at 339-40. Once a prima facie case is established 
through use of statistical evidence, "[t]he burden then 
shifts to the employer to . . . demonstrate that the
[plaintiffs'] proof is either inaccurate or insignificant." 
431 U.S. at 360. This is because "absent explanation" 
statistical disparities are "a telltale sign of purposeful 
discrimination." 431 U.S. at 339 n. 20; see id. at 360, n.
46.

10



Under Teamsters and Hazelwood , the plaintiff's initial
burden is to raise an inference of discrimination by ruling 
out the most common nondiscriminatory reason for the em­
ployer's actions. Thus, in a hiring or promotion case, 
plaintiffs' statistical evidence ordinarily must control for 
minimum objective qualifications. E.g . , Davis v. Califano, 
613 F.2d 957, 964 (D.C. Cir. 1979).

The first question in applying Teamsters to wage dis­
crimination claims is what type of evidence plaintiffs must 
produce in order to establish a prima facie case. 3ased on 
the case authority, scholarly comment and the record and 
briefs in this case , it appears that the two most commonly 
discussed explanations for classwide wage differentials are 
differences in level of training, education, skills, super­
vision and responsibility, ordinarily measured by a job 
evaluation, and differences in market value, purportedly 
measured by supply and demand. Amicus submits that in appro­
priate cases plaintiffs should be able to establish a prima 
facie case by showing that classwide wage differentials exist 
and by eliminating differences in levels of training , skills 
and responsibility, as a possible explanation of the pay dis-

11



7parities. As discussed below, amicus believes that market 
factors are appropriately considered as a defense to be 
raised by the employer.

Plaintiffs should be able to establish a prima facie 
case through a relatively simple one-on-one comparison, as 
in Quarles, or through more sophisticated statistical 
analyses , such as those presented in Seg ar. The Court of 
Appeals for the Ninth Circuit in Heagney v. University of 
W a s h i ng ton, 642 F. 2 d 1157 , 1164 — 65 n. 6 (1981), explicitly 
concluded that job evaluation studies establish "a standard­
ized basis for comparing job content with pay even though the 
job may be unique" and thus "provide some basis for making a 
meaningful comparison of male and female jobs."

The possibility of the labor market as an explanation for
wage disparities raises a more complex question. The labor
market can be analyzed as consisting of at xeast two com—
Donents —  the market for skills and the market for race or
sex. On the one hand, the market for skills reflects the
suoolv and demand for individuals qualified to pe^i-orm ■-he

8
particular jobs to be filled. On the other hand, courts 
have recognized that labor markets have and continue to put a

7 In some situations, plaintiffs may establish a prima facie 
case without controlling for all of these variables. See 
Seg ar, suora , 508 F.2d at 696 and n. 2; 712; C arpe n ter , 
supra , 706"-F. 2d at 625-26 (concluding that evidence _ supported 
finding of discrimination in wages even though statistical 
study did not control for level of skill, education and 
training ) .

8 See, e.g., Briggs v. City of Madison, 536 F. Supp. 435, 445
(W .D . Wisc. 1 982).



price on race and sex. As the Fifth Circuit has stated,
. paying the going 'open market' rate can still violate

Title VII if the market places different values on black and9
white labor." Pittman , supra, 644 F.2d at 1 075 n. 2.

In cases in which the black and white employees are doing 
the same job, there can be no plausible argument that any 
market rate differential is based on supply and demand of the 
particular skills and courts have had no difficulty in 
attributing the pay disparity to race. E.g. , Pittman , supra ,
644 F.2d at 1 075 ; cf. Corning Glass, supra ,417 U.S. at 203-05 
(sex discrimination). In cases where the claim involves a 
comparison of employees performing different types of jobs, a 
claim that the market for skills explains a pay disparity 
between jobs using the same level of skills, training , etc. , 
has more plausibility. Nonetheless amicus suggests that the 
burden should be on the employer to raise this explanation in 
its rebuttal. Placing this limited burden on the employer is 
appropriate for several reasons.

First, none of the race-based wage discrimination cases 
has required plaintiffs to prove that the pay disparity was 
not the result of the market for skills in order to establish 
a prima facie case. Second, the likelihood that race-based 
pay disparities are caused by bona fide shortages of skills 
in the particular jobs held by whites is not so great that

9 See also Corning Glass Works v. Brennan, 417 U.S. 183, 205 
*(T974l ("finding discriminatory a pay disparity that "arose 
simply because men would not work at the low rates paid women 
inspectors, and . . . reflected a job market in which Corning
could pay women less than men").



plaintiffs should be required to negate this possible
explanation in their prima facie case. Particularly where
plaintiffs have introduced statistical evidence of a systemic
race-based disparity across jobs with the same level of
skills, education, training and responsibility, it is
unlikely that legitimate market shortage will explain the
disparity. There is simply no reason to believe that the bona
fide shortages of skilled individuals will more often occur1 0
in jobs predominantly held by whites.

Third, the employer is in a better position to produce 
evidence on the particular skills for which shortages exist 
and the particular market it utilized in its search for 
workers with those skills. As stated by the court in Brigg s 
v. City of Madison, supra , 536 F. Supp. at 446: "[i]f there
is another, nondiscriminatory reason for the wage disparity, 
such as the employer's need to compete in the marketplace for 
employees with particular qualifications, the employer is in 
the best position to produce this information at trial."

Regardless of which party bears the burden of proof, 
certain types of evidence will be probative on the question 
whether the market for skills explains a pay disparity.

10 As stated by the court in Vuyanich , supra:
"[T]here is no reason to suppose that if an 
employer has 100 jobs, and the same points 
were assigned to 50 pairs of jobs (one job 
predominantly white and the other predomi­
nantly black), that it is always the 'black' 
job of each pair that is valued lower in the 
marketplace."

505 F. Supp. at 284, n. 77.

1 4



Obviously, frequent deviations from the market rate or 
inconsistent application of such rate should be viewed as 
strong evidence that the market for skills is not the real
explanation for the disparity.

Another highly relevant factor is whether actual labor 
shortages existed for highly paid positions. The existence of 
an adequate supply of workers to fill highly paid , pre 
dominantly white, jobs strongly suggests that the market for 
skills does not explain the pay disparities. This is 
particularly true if blacks were being turned down for such 
positions while incumbent whites were being paid inflated 
wages.

Sven if there were shortages of skilled individuals in 
some predominantly white jobs, the court should still 
evaluate how much of the overall disparity is explained in 
such shortages. See Vuyanich, 505 F. Supp. at 284 , 285 n. 78, 
306 n. 96. Moreover, the court should look at whether similar 
skills shortages existed for jobs filled predominantly by 
blacks. A strong inference of discrimination should be drawn 
where an employer pays high wages when shortages exis_ in 
predominantly white fields but not when shortages exiSi- n 
predominantly black fields. Cf. McDonnell Doug las , supra 
note 6, 441 U.S. at 804; Hishon v. King & Spaulding , 52 
U.S.L.W. 4627, 4629 (May 22, 1984).

Past or present workforce segregation or discrimination 
in assignment of employees is a feature of many of the 
race-based wage discrimination cases. The courts have found

15



these practices to be relevant even when the discriminatory
assignments had ceased and complaints based on these actions

1 1were time—barred. Amicus suggests that proof of past or
current intentional segregation or discriminatory assignment 
of employees tends to disprove the skills' market explana­
tion. In the absence of segregation or discrimination in 
assignment, one might assume that employees voluntarily chose 
their positions and that any disparities in the compensation 
of black and white employees is the result either of pure 
coincidence or of intangible features of certain jobs that 
make them more desirable. However, where the employer has 
previously or currently segregated its workforce or engaged 
in intentional discrimination in placement , the individual 
choice explanation is negated. Moreover , such intentional
segregation itself affects the labor market, particularly

1 2
when practiced by a large employer.

11 In Quarles the employer had previously racially segregated 
its workforce into all-white and all-black departments and 
paid lower wages to black employees. 279 F. Supp. at 508-09. 
In Segar, black agents were concentrated in undercover work. 
508 F\ Supp. at 705, 713. In Vuyanich the court found that 
the employer has engaged in racial discrimination in the 
placement of employees. 505 F. Supp. at 344. See also 
Carpenter, supra, 706 F.2d 608 , 623-25 (5th Cir. 1 983 ); Wade , 
iupra, 528 F.2d at 512-13 (5th Cir. 1975).

12 We note that plaintiffs alleged and were prepared to presen 
evidence that defendants in this case created and maintaine 
a sex segregated workforce.

16

Q
j 

rt



C. Other Indicia of Discrimination Exist in This Case

Although statistical evidence and the employer's ex­
planation of the disparities is usually the primary focus in 
disparate treatment cases under Title VII, other facts may 
also tend to prove the existence of discriminatory motive. In 
Village of Arlington Heights v. Metropolitan Housing Develop­
ment Coro. , 429 U.S. 252 ( 1 977), the Supreme Court outlined 
"subjects of proper inquiry in determining whether racially 
discriminatory intent existed," id. at 268. Among the factors 
identified by the Court are the extent of any dispropor­
tionate adverse impact upon black individuals and the 
historic background of the action. 429 U.S. at 266—68.

Other courts have also elaborated upon the factors that 
serve as indicia of discriminatory intent. Individual 
examoles of discriminatory decision making serve to oolster 
[the] statistical evidence." Teamsters , supra , 431 U.S. at 
338; Pavne v. Travenol Laboratories, Inc., 673 F.2d 798, 817 
(5th Cir. ) , cert, denied , 459 U.S. 1038 (1982); Wade , supra 
note 1, 528 F.2d at 516-17. Similarly a history of dis­
crimination is probative of current discriminatory intent. 
Arlington Heights, 429 U.S. at 267; Payne , 673 F.2d at 817.

Moreover, subjective decionmaking provides opportunities 
to discriminate and therefore must be scrutinized very 
closely. O'Brien v. Sky Chefs Inc., 670 F.2d 864, 867 
(1982); Rowe v. General Motors, 457 F.2d 38 (5th Cir. 1972). 
A strong inference of intent can also be drawn from an

17



employer's failure to take remedial action upon, becoming 
aware of the racial impact of its practices. EEOC v. Inland 
Marine, supra , 729 F.2d at 1 235 .

II. The District Court's Dismissal of the Complaint
Improperly Denied Plaintiffs The Opportunity 
to Prove that Defendants Illegally Perpet­
uated the Effects of Prior Discrimination

The law is clear that a violation of Title VII exists 
where defendant's employment practices perpetuate the effects 
of the defendant's prior discriminatory conduct. In Quarles , 
supra, the court found that the current low wages of certain 
jobs traditionally performed by blacks represented an illegal 
"vestige of the old policy under which Negroes were paid less 
for jobs requiring substantially equal responsibility." 279 
F. Supp. at 509.

The Court of Appeals for the Third Circuit applied the 
perpetuation theory in International Union of Electrical 
Workers v. Westinghouse Electric Corp., 631 F.2d 1094 (1980), 
cert, denied, 452 U.S. 967 (1981). In that case plaintiffs 
alleged that Westing house's present wage structure was 
derived from a wage structure established in the 1930's, when 
the workforce was segregated on the basis of sex and "female" 
jobs were paid less than "male" jobs. 631 F.2d at 1097. The 
court-concluded that these facts, if proved, would establish 
a violation of Title VII. Id. at 1098, 1107.

This Court recently applied the perpetuation theory in a 
race discrimination case, Liberies v. County of Cook, 709 
F. 2d 1122 (7th Cir. 1983). The defendant in Liberales had

1 8



previously used a college degree requirement and performance
on a test to assign employees to job categories, resulting in
a predominantly white, high-paid group of caseworkers. Even
though the defendant had discontinued use of the examination
and degree requirement prior to the effective date of Title 

13VII, it had failed to equalize the salaries of the job 
categories. Id. at 1131. The court found that the defen­
dants' current compensation policy violated Title I. Id.

1 4
at 1132-33.

13 Title VII did not apply to public employers until March,
1972.

14 The Court treated plaintiffs' claim under the disparate 
impact theory. 709 F.2d at 1130-32. Amicus recognizes that 
perpetuation of the effects of prior discrimination may be 
illegal under the disparate impact theory. See Teamsters , 
supra, 431 U.S. at 349. ("One kind of practice fair in form, 
but discriminatory in operation, is that which perpetuates 
the effects of prior discrimination."). However, we note 
that intentional perpetuation is also actionable under the 
disparate treatment theory. See Griffin v. County School Bd. , 
377"U.S. 21 8 , 232 ( 1 964 ) .

19



CONCLUSION
For the reasons stated, amicus respectfully urges that 

the decision below be reversed.

Respectfully submitted ,

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
GAIL J. WRIGHT 
PENDA D. HAIR

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Amicus Curiae
Dated: July 15, 1985.

20



CERTIFICATE OF SERVICE

I hereby certify that I have on July 15, 1985, served the 
attached Brief Amicus Curiae of the NAACP Legal Defense and Edu­
cational Fund, Inc., by depositing copies thereof in the United 
States mail, first-class postage prepaid, properly addressed to:

Edith Barnett
236 Massachusetts Avenue, N.E. 
Suite 602
Washington, D.C. 20002
Richard F. Watt 
Cotton, Watt, Jones & King 
330 North Wabash Avenue 
Chicago, IL 60611
James Rubin
Butler, Rubin, Newcomer, 

Saltarelli & Boyd 
Three First Union National Plaza 
Suite 1503 
Chicago, IL 60602

PENDA D. HAIR 
Attorney for Amicus



____