Robinson v Union Carbide Corporation Petition Writ of Certiorari

    CEourt of tire I n M
O ctober T eem , 1976 

No..................

I n the

F reddie D . R obinson, et al.,
Petitioners,

vs.

U n ion  Carbide C orporation.

PETITION FOR W RIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

J ack  Greenberg 
J am es M . N abbit , III 
M elvyn  R. L eventhal  

10 Columbus Circle 
New York, New York 10019

J .U . B lacksher

1407 Davis Avenue 
Mobile, Alabama 36603



TABLE OF CONTENTS

PAGE

Opinions Below ........    1

Jurisdiction .................................................   2

Question Presented ........    2

Statutory Provisions Involved .............      2

Statement of the Case ...... ..................... ...... ...................  3

Reasons for Granting the Writ .......................... ...........  6

Conclusion  .............................      10

A ppendix  A—

District Court Opinion ................. ....... ....... .............  la

A ppendix  B—

Appeals Court Decision ....     27a

A ppendix  C—

Appeals Court Decision on Rehearing .................. 50a

T able of Cases

Albemarle Paper Co. v. Moody, 422 IT.S. 405 (1975) .... 8

Griggs v. Duke Power Co., 401 IT.S. 424 (1971) ........... 8

Jersey Central Power & Light Co. v. Local Union 327,
508 F.2d 687 (3d Cir. 1975) cert, denied, 425 U.S.
998 (1976) .........................................     7



IX

PAGE

Lea v. Coxie Mills Corp., 301 F.Supp. 97 (M.D.
N.C. 1969) ........................................................................ 8

Morrow v. Chrisler, 479 F.2d 960 (5th Cir. 1973) on 
rehearing en banc, 491 F.2d 1053, 1055-56, cert, de­
nied, 419 U.S. 895 (1974) ................ .............................  7

McDonnell Douglas Corp. v. Green, 411 U.S. 801, 802 
(1973) ................................................................................ 8

Waters v. Wisconsin Steel Works of Int’l Harvester 
Co., 502 F.2d 1309 (7th Cir. 1974), cert, denied, 425 
F.2d 997 (1976) ................................. ................... - .......  7

Watkins v. United Steelworkers of America, Local No. 
2369, 516 F.2d 41 (5th Cir. 1975) ..............................  7

O th er  A uthorities

EEOC1 Guidelines on Employment Selection Criteria,
29 C.F.R. 1607.13 .............................................. .............  8

Federal Executive Agency Guidelines on Employee 
Selection Procedures, 28 C.F.R. §50 14.4 (1976) .... 8-9



I n  th e

Bnpvmxt (ta rt  of %
O gtobeb T erm , 1976 

No..................

F reddie I). R obinson, et at.,

vs.
Petitioners,

U nion  Carbide Corporation.

PETITION FOR W RIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Petitioners Freddie D. Robinson and the class of un­
successful black applicants for employment at Union Car­
bide’s Chickasaw, Alabama plant pray that a writ of cer­
tiorari issue to review the decision and judgment of the 
United States Court of Appeals for the Fifth Circuit.

Opinions Below

The opinion of the United States District Court for the 
Southern District of Alabama is reported at 380 F.Supp. 
731 and appears at Appendix A  hereto, pp. la-26a. The 
first opinion of the United States Court of Appeals for 
the Fifth Circuit is reported at 538 F.2d 652, and appears 
at Appendix B hereto, pp. 27a-41a. The second opinion of 
the United States Court of Appeals for the Fifth Circuit 
is reported at 544 F.2d 1258 and appears at Appendix 0  
hereto, pp. 50a-64a.



2

Jurisdiction

September 10, 1976, the Court of Appeals affirmed in 
relevant part a judgment of the district court. Petitioners 
filed a timely Petition for Rebearing and for Rebearing* 
En Banc. January 10, 1977 tbe Court of Appeals entered 
a second judgment again affirming in relevant part tbe 
district court’s judgment. On April 8, 1977 this Court 
extended tbe time for filing a petition for writ of certiorari 
to May 10, 1977. This Court has jurisdiction under 28 
U.S.C. §1254(1).

Question Presented

Whether tbe Court of Appeals erred in bolding that 
under Title VII of tbe Civil Rights Act of 1964 (42 U.S.C. 
§2000e), a class of black applicants for employment can 
establish a prima facie case of unlawful discrimination 
only upon proof that tbe number of blacks hired is dis­
proportionately lower than tbe number of blacks in tbe 
area population, despite tbe clearest proof that the pro­
portion of qualified blacks in tbe employer’s pool of actual 
applicants was twice tbe proportion of blacks in the em­
ployer’s group of new hires.

Statutory Provisions Involved

Section 703 of Title V II of tbe Civil Rights Act of 1964 
[42 U.S.C. §2000e-2(a)] provides:

(a) It shall be an unlawful employment practice for 
an employer—

(1) to fail to refuse to hire or to discharge 
any individual, or otherwise to discriminate 
against any individual with respect to his



3

compensation, terms, conditions, or priv­
ileges of employment, because of such in­
dividual’s race, color, religion, sex, or na­
tional origin; or

(2) to limit, segregate, or classify his employees 
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, color, religion, sex, or national origin.

Statement o f  the Case

Seven black employees and two black unsuccessful ap­
plicants for employment at Union Carbide’s Materials 
System Division filed their complaint in the United States 
District Court for the Southern District of Alabama on 
March 15, 1973 charging the Company with racially dis­
criminatory hiring, promotion and other employment prac­
tices in violation of 42 U.S.C. §2000e et seq. and 42 U.S.O. 
§1981. The district court’s jurisdiction derived from 42 
U.S.C. 200Qe(f) and 1343(4) and the case was certified 
as a class action on behalf of black employees, future black 
applicants and some 3000 blacks whose applications for 
employment were still on file with the Company. The 
district court entered judgment for the defendant holding 
that since blacks constitute 28% of the Mobile area gen­
eral population there is “no substantial disparity between 
the percentage of black employees of the defendant and 
blacks in the labor force in the Mobile area. Approximately 
31% of the employees hired by the defendant during 1970, 
1971, 1972 and 1973 have been black.” 380 F.Snpp. 738-39.



4

Appendix A, p. 14a.1 The appeals court affirmed the dis­
trict court’s finding that census tract data was “ more 
reliable and indicative of racial discrimination” because 
applicant pool analyses are “ subject to suspect data such 
as duplication of employment applications.” Since “ [o]n 
many occasions federal courts have compared the com­
position of the company’s work force to the composition 
of the labor force in the surrounding area,” to determine 
whether a prima facie case had been established, the court 
concluded “ that the record presents sufficient underpinning 
to support the ultimate finding that Union Carbide did 
not engage in discriminatory hiring practices.” 538 F.2d 
at 658, Appendix B, pp. 37a-38a.

Petitioners conducted a meticulous study of black and 
white applicant success rates. They copied all application 
forms in the Company’s employee and applicant files, elim­
inated all duplications and identified applicants by race.1 2

1 The district court also found no discrimination in the Com­
pany’s promotional practices. The appeals court reversed on this 
issue holding that there was “a substantial statistical discrepancy,” 
between the number of blacks in the Mobile general population and 
the number of blacks granted promotions or in supervisory posi­
tions, 538 F.2d at 661. Appendix B, p. 42a. The appeals court 
reached the correct result but for the wrong reasons: assuming no 
discouragement or other obstacles to blacks making application 
for promotions, the correct inquiry would compare the number of 
blacks applying for promotions to the number of blacks obtaining 
promotions; however, Company employees were not required to 
apply for promotions, 538 F.2d at 661, Appendix B, pp. 43a-44a, 
and accordingly, a prima facie case of unlawful promotional 
practices was established because blacks were being promoted in 
numbers disproportionately lower than their number in the Com­
pany’s work force.

Issues relating to promotion practices and class action procedures 
were resolved by the Court of Appeals in petitioners’ favor and are 
not further discussed herein.

2 The race of the applicants was determined through company 
records or, in a few instances through an analysis of the schools 
an applicant attended under the dual racial system.



5

It was established that from January-August, 1973, 889 
blacks and 804 whites applied for employment.3 From that 
pool, the Company employed one black and eleven whites 
into salaried ranks and seven blacks and thirty whites 
into wage ranks. In other words, blacks constituted more 
than 52% of the total 1973 applicant pool, but from that 
pool only 8.3% of those employed into salaried positions 
and only 18.9% of those employed into hourly wage posi­
tions were black. An identical study made of 1972 appli­
cants showed that of the 1095 blacks who applied only 14 
obtained hourly wage jobs and only 2 obtained salaried 
positions; of the 961 whites who applied during the same 
year, 34 obtained wage jobs and 6 obtained salaried jobs. 
The Company introduced alternative summaries of appli­
cant success rates which revealed substantially the same 
pattern: whites were outnumbered by black applicants for 
the period 1971-73 but were more than twice as likely to 
be hired (that is, the 4.6% white “ success rate,” was 2.4 
times as great as the 1.9% black “ success rate” ). 538 F.2d 
at 658, Appendix B, p. 36a.3a Petitioners’ expert, a statis­
tician, compared the applicants to determine whether non- 
racial factors could explain the disparity. He found, for 
example, that among applicants for wage positions blacks 
had more formal schooling while among applicants for 
salaried positions there were no significant differences. 
Nor could the disparities be explained by comparing the 
applicants’ work histories. Petitioners’ expert therefore 
concluded and testified that there were significant correla­
tions, at the 99% confidence level, between race and the 
likelihood of being hired.

3 The study of 1973 data occurred in August or September, 1973 
and data for the balance of the year was of course not then 
available.

3a The Court of Appeals erroneously referred to the statistics 
appearing at Appendix A, p. 36a, as advanced by petitioners; they 
are defendants figures.



6

Carefully analyzed statistical data and related applica­
tion information was but one facet of the proof. Petition­
ers also introduced uncontradicted evidence demonstrating 
that selection criteria controlling new hires (and promo­
tions) were entirely subjective. 538 F.2d at 655-56, n. 5, 
Appendix B, pp. 31a-32a, n. 5.4 * They also offered com­
pelling proof that several named plaintiffs and class mem­
bers failed to obtain employment (or promotions) despite 
superior qualifications.6

REASONS FOR GRANTING THE WRIT
The Court of Appeals has decided a critical question 

arising under federal statutory law prohibiting employ­
ment discrimination which should be settled by and is 
now pending in this Court [Hazelwood School District 
v. United States, No. 76-255]: what is the relevant data 
base for assessing whether an employer’s policies and 
practices have a discriminatory impact? The Court of 
Appeals has held that area census tract data is the “more 
reliable” base. The court refused to consider stipulated

4 The personnel manager testified that “there are so many factors
I don’t know if I could spell out or say that you do not use this 
factor or do use this factor.” Applicants are interviewed by three 
managers who make recommendations based on their (the mana­
gers) “background and experience.” Appendix B, p. 32a, n.5.

6 For example, plaintiff Cynthia Caldwell who applied for a 
“ laboratory technician” position has a B.S. in Biology with a minor 
in Chemistry. This educational background was identical to that 
required by defendant’s written job specifications. Defendants 
argued that Ms. Caldwell did not obtain the position because she 
was “overqualified.” They could not reconcile this assertion with 
their job specifications nor could they explain why whites with 
identical educational backgrounds were hired as “laboratory tech­
nicians” immediately before and after plaintiff Caldwell. The ap­
peals court declined to consider this proof, holding that since de­
fendants’ work-force mirrored black representation in the Mobile 
area population a prima facie case of unlawful discrimination was 
not established and thus that further inquiry was foreclosed. 
Appendix B, p. 38a.



7

or uncontroverted evidence that a substantially higher 
percentage of blacks in the Mobile, Alabama census area 
were unemployed and that blacks who actually applied 
at Union Carbide were less than half as likely to be hired 
as their white counterparts.

This holding is facially invalid: it shields a Company’s 
hiring policies and practices from a Title VII inquiry 
even if  100% of an area’s unemployed and 100% of the 
Company’s applicants are black provided only that blacks 
are employed in. proportion to their representation in the 
area’s general population. Thus the appeals court hold­
ing, if allowed to stand, will insulate an employer from 
charges of unlawful employment discrimination if  it es­
tablishes ‘‘negative quotas,” i.e., if it determines to hire 
blacks only in proportion to their percentage in the area 
work-force. And judicial approval of such “negative quo­
tas” will have a brutal effect upon blacks because they 
are represented among the unemployed in disproportionate 
numbers, particularly during times of recession, and be­
cause their recent employment gains are often erased by 
judicially approved “last-hired-first-fired” seniority sys­
tems.6

The relevant Title VII inquiry is always: is the racial 
composition of the pool from which the Company draws 
its employees substantially different from the racial com­
position of the Company’s pool of new employees? Ab­
sent proof that blacks have been discouraged or precluded 
from making application,7 accurate data reflecting the

6 Watkins v. United Steelworkers of America, Local No. 2369, 
516 F.2d 41 (5th Cir. 1975) ; Jersey Central Power & Light Co. 
V. Local Union 327, 508 F.2d 687 (3d Cir. 1975), cert, denied, 425 
U.S. 998 (1976) ; Waters v. Wisconsin Steel Works of Int’l Har­
vester Co., 502 F.2d 1309 (7th Cir. 1974), cert, denied, 425 U.S. 
997 (1976).

7 Morrow v. Chrisler, 479 F.2d 960 (5th Cir. 1973), on rehearing 
en banc, 491 F.2d 1053, 1055-56, cert, denied, 419 IJ.S. 895 (1974)



8

number of applicants by race is, by definition, the exact 
pool from which the Company draws its new employees 
and it is therefore the most refined yardstick for gauging 
the impact of Company selection procedures and criteria.* 8 
Hazelwood School District v. United States, Brief for the 
United States, pp. 21, 27-29. McDonnell Douglas Corp. v. 
Green, 411 U.S. 801, 802 (1973). For this reason, EEOC 
Guidelines on Employment Selection Procedures hold 
that “differential rates of applicant rejection,” are critical 
to prima facie proof of unlawful employment discrimina­
tion. 29 C.F.R. 1607.13.9 Regulations promulgated jointly 
by federal agencies charged with enforcing the antidis­
crimination injunctions of Presidential Executive Order 
11246 also prescribe actual applicant analysis as the pre­
ferred method of determining whether selection procedures 
have adverse racial impact.10

(Applicant data not useful because it was common knowledge that 
the Mississippi Highway Patrol had never employed any blacks 
and that blacks were not welcome.) Lea v. Cone Mills Corp., 301 
F. Supp. 97, 102 (M.D. N.C. 1969) (Word of mouth recruitment 
by all white workforce and practice of preferring relatives and 
friends of employees for new vacancies, taints applicant data.) 
The government’s brief in Hazelwood summarizes factors which 
can taint applicant data. And when applicant data is so tainted 
or is incomplete courts must estimate the racial composition of 
the applicant pool by reference to other census data. Id.

8 Of course, the statistical data are used to establish a prima 
facie case and measure the impact of Company policies. A  Com­
pany may rebut the inferences drawn from the statistics by 
proof that its selection criteria are a “business necessity,” or that 
as to any particular applicant for employment, discriminatory 
selection criteria were not at the foundation of the Company’s 
refusal to hire.

9 EEOC Guidelines are “ entitled to great deference.” Griggs V. 
Duke Power Co., 401 U.S. 424, 433-34 (1971); Albemarle Paper 
Co. v. Moody, 422 U.S. 405 (1975).

10 See Question 3, Questions and Answers on Employee Selection 
Procedures jointly adopted by the U.S. Civil Service Commission, 
the Office of Federal Contract Compliance Programs, and the U.S.



9

In Hazelwood School District v. United States, No. 76-255, 
petitioners state the issues presented as :

Whether a court may disregard evidence that an em­
ployer has treated actual job applicants in a non-dis- 
criminatory manner and rely on undifferentiated work­
force statistics to find an unrebutted prima facie case 
of employment discrimination in violation of the Civil 
Rights Act of 1964.

Brief for Petitioners, p. 4.

The government in Hazelwood acknowledges that statis­
tical data comparing the racial composition of the pool 
of applicants to the racial composition of the pool of new 
hires may indeed be a relevant inquiry, but they argue 
that because many application forms were destroyed by 
Hazelwood officials and because the method of identifying 
the race of applicants was suspect, the data base was not 
available. Brief for the United States, pp. 12, 25-26, n. 22 
and n. 23, p. 5, n. 6. Thus both parties to the Hazelwood 
litigation acknowledge that the appeals court holding in 
the instant case—rejecting all but census tract data as a 
matter of law—was too restrictive.

Department of Justice, 42 F.R. 3826 (January 17, 1977), inter­
preting and clarifying Section 4 of the Federal Executive Agency 
Guidelines on Employee Selection Procedures, 28 C.F.R. §50 14.4 
(1976).



10

CONCLUSION

For the foregoing reasons petitioners pray that a writ 
of certiorari issue to review the opinion and judgment 
of the Court of Appeals.

Respectfully submitted,

J ack  Greekberg 
J ames M. N abrit , III 
M elvyn  R. L eveetthal 

10 Columbus Circle 
New York, New York 10019

J .U . B lacksher

1407 Davis Avenue 
Mobile, Alabama 36603

May, 1977



A P P E N D I X



APPENDIX A

( Robinson v. Union Carbide, Civil Action No. 7583-73-H, 
United States District Court for  the Southern 

District o f Alabama, August 29, 1974.)

Opinion o f  District Court
F indings of F act and C onclusions of L aw  

H and , District Judge.

This cause originated in this Court on March 15, 1973 
when plaintiffs, Freddie D. Robinson, Thomas S. Austin, 
Jr., Willie L. Jones, Olney W. Lueious, III, Willie J. 
Mickles, Peter Reese, Jr., Paul Richardson, Cynthia Cald­
well, Jerome Gr. Fitts and Ronald L. Coleman filed this ac­
tion on their own behalf and on behalf of all other per­
sons similarly situated, pursuant to Federal Rules of Civil 
Procedure, Rule 23, to secure protection and to redress 
deprivation of rights secured by Title 42, U.S.C., Section 
2000e et seq. and Title 42, U.S.C., Section 1981.

By Order of the Court on the 7th day of January, 1974, 
the Court held this cause was proper for a class action 
and the class was defined as:

“ Those black job applicants who had an outstanding 
job application at the time of the commencement of 
this cause and those black job applicants who have 
filed job applications since the commencement of this 
cause and all future black job applicants, along with 
all current black employees of defendant, Union Car­
bide Corporation, Materials Systems Division.”

After extensive discovery, a Pretrial Conference was 
held wherein the questions to be determined by the hear­
ing were delineated. Though these triable issues were re­



2a

duced to five in number covering a fairly wide range of 
alleged discriminatory practices, the main point advanced 
throughout the entire course of this litigation, both in 
arguments on motions, in conference, and upon the trial 
itself, was the expressed desire of the plaintiffs’ counsel, 
through the aegis of this class action, to establish a new re­
quirement of law, to become applicable nationwide, relative 
to the hiring practices of industry as they deal with mi­
nority employment problems; viz., whether or not the rule 
established, or fastly becoming so, that industry must dem­
onstrate a ratio (quota) of minority to majority employees 
commensurate with that in the labor market available, fail­
ing in which there is prima facie discrimination, is the ap­
propriate rule, or whether or not the better rule would be 
that the employment ratios (quotas) must equal the ap­
plication ratios. Translated to the case at hand, it was 
argued that where it is shown that as to the hourly rate 
employees, 26 percent were black and 74 percent were 
white, closely paralleling the work force ratio in the Mobile 
area, there was invidious discrimination being practiced 
by the employer because the application ratio was more 
nearly 50-50, and unless the employment practices were or 
are such as to accomplish this ratio in employment, it is 
prima facie that the employer is practicing racial dis­
crimination.

Where counsel may now urge strongly the other points 
raised, this Court was pressed over and over again that 
the application ratio to hiring was what counsel desired to 
establish by this action; therefore, this was the desired 
relief sought by the class.

This record also shows, with unabashed frankness, the 
limits employed by the plaintiffs representative in utilizing

Appendix A



3a

the courts to establish pet theories. In the not too distant 
past it was considered by law schools, the Courts, and the 
legal profession as a whole that solicitation of litigation 
was unethical. One of the reasons advanced for this “grow­
ing more antiquated” theory was that the law favored com­
promise, not the stirring up of controversy.1 In this in­
stance, the Legal Defense Fund sent runners, now called 
“ investigators” , into this area to determine the conditions 
of employment in various industries and to seek out and 
encourage those who were reluctant to participate by rep­
resenting to them that it would cost them no dollars to do 
so, either by way of attorneys fees or in expenses, and 
might result in dollars in their pockets if successful. Those 
who could be so persuaded were referred to associate coun­
sel who would then undertake to represent them in this 
endeavor.

Though there are viable theories and approaches to the 
redress of grievances in this type situation sanctioned by 
historic experience, the modern art of the law is set to 
encourage solicitation of business by clothing the “ solic­
itors” with the grand name of “private attorneys general” 
whose duty it is to encourage controversy and to seek out 
and redress wrong.1 2 What perfidy.

1 One would assume from the Judeo-Christian theory of “Blessed 
are the peacemakers” .

2 Code of Ethics, Alabama State Bar Association, December 14, 
1887:

“D isreputable to Stir U p  L itigation.
“20. It is indecent to hunt up defects in titles and the like 

and inform thereof, in order to be employed to bring suit; or 
to seek out a person supposed to have a cause of action, and 
endeavor to get a fee to litigate about it. Except where ties of 
blood, relationship or trust, make it an attorney’s duty, it is 
unprofessional to volunteer advice to bring a law suit. Stirring

Appendix A



4a

Again translated to the case at hand, we have an indus­
try whose number of minority hourly employees is in pro­
portion to the available labor force, yet they are sued to 
establish a new concept of what the law should require, 
as conceived by some pronouncement from a shrouded 
Olympus, and to be wrought from the courts by the solici­
tation of a clientele as a needed vehicle. Again we lament, 
there is obliged to be a better solution to establish a new

Appendix A

up strife and litigation is forbidden by law, and disreputable 
in morals.”

Canons of Professional Ethics of the American Bar Association: 
“28. Stirring Up Litigation, D irectly or Through 

A gents.
“It is unprofessional for a lawyer to volunteer advice to 

bring a lawsuit, except in rare eases where ties of blood, rela­
tionship or trust make it his duty to do so. Stirring up strife 
and litigation is not only unprofessional, but it is indictable 
at common law. It is disreputable to hunt up defects in titles 
or other causes of action and inform thereof in order to be 
employed to bring suit or collect judgment, or to breed litiga­
tion by seeking out those with claims for personal injuries or 
those having any other grounds of action in order to secure 
them as clients, or to employ agents or runners for like pur­
poses, or to pay or reward, directly or indirectly, those who 
bring or influence the bringing of such cases to his office, or 
to remunerate policemen, court or prison officials, physicians, 
hospital attaches or others who may succeed, under the guise 
of giving disinterested friendly advice, in influencing the crim­
inal, the sick and the injured, the ignorant or others, to seek 
his professional services. A duty to the public and to the 
profession devolves upon every member of the Bar having 
knowledge of such practices upon the part of any practitioner 
immediately to inform thereof, to the end that the offender 
may be disbarred.”

“42. Expenses op Litigation.
“A  lawyer may not properly agree with a client that the 

lawyer shall pay or bear the expenses of litigation ; he may 
in good faith advance expenses as a matter of convenience, but 
subject to reimbursement.”

See annotation 139 A.L.R. 620.



5a

law than by legislative and/or court sanction of the de­
struction of the high quality of the legal profession. What 
tragedy that lawyers and the courts allow themselves to 
be used in transforming the legal profession from that 
of a true profession to that of a business. It is indeed 
with sad heart that we bid a fond farewell to what was 
once the legal definition of the words “champerty” and 
“barratry” .

Having departed this island of legal ethic, let us travel 
on to the next port of call. The Bible makes mention of the 
visitation of the sins of the fathers to the children, even 
to the seventh generation. Once there was a time when 
it was entirely permissible to ride a horse down the main 
thoroughfare. Today it might arguably be said that to do 
so would obstruct traffic, therefore it is illegal. Having 
determined that it is illegal, we must now go back and 
punish all of those who ever rode horses down the street. 
Idiotic analogy? Of course, but it is not too far from the 
mark of apparent present day philosophy when consider­
ing laws affecting race relations.

Reference here is to the retroactive effect given the 
“penalty” phase of the present state of the law which 
imposes on this generation the past deeds of our fore­
fathers. “Penalty” is xjr°hably too harsh a term—it is 
studiously avoided— “reparations” may be a more apt or 
“ in” term.3 When James Foreman preached from the 
pulpits that the black man was entitled to five hundred 
million dollars in reparations from the white man the idea 
was considered shocking. Measured by the ultimate cost 
to present day industry and thus the public generally, the 
end result of the present direction of court decrees can 
only be translated into a burden on this generation that 
will far surpass the wildest imaginings of Mr. Foreman.

Appendix A

3 A  rose by any other name smells as sweet.



6a

Legislation or court decree directed in an effort to correct 
past policies of discrimination is highly desirable, for all 
men must stand equal before the law, but if too high a 
cost is placed upon this effort, history teaches that it will 
have less chance of ultimate success for, right or wrong, 
life seems to be a matter of economics even where morals 
are concerned.

The law has recognized this axiom in another way. An 
example is to be found in tort law where evidence of 
subsequent correction cannot be introduced to prove past 
defalcations. The theory is that if such were not the law 
man would not correct his past errors.

In the realm of “ reparations” the courts themselves have 
recognized the extreme difficulty in adopting a, rule by 
which past defaults are to be compensated. Indeed as one 
court has said: “ * * * the * * * effects of discriminatory 
practices * * * continued over an extended period of time 
calls forth the quagmire of hypothetical judgment dis­
cussed earlier * * * . It should be emphasized that this is 
not a choice between one approach more precise than an­
other. Any method is simply a process of conjectures. 
* # ”  So, to award “penalties” , or “ reparations” if you
please, we now resort to speculation, conjecture and sur­
mise.

It is disturbing, also, that the doctrine of “ good faith” 
is to be abandoned when the question of “ reparations” are 
in issue. The reasoning advanced to cover this abandon­
ment of principal is that back pay awards are to “ com­
pensate for economic loss” and “not as punishment for 
past discrimination or as a prod to further compliance” . 
Such thin-veiled distinction in an effort to avoid the use 
of the term “penalty” cries out for the forthright ap­
proach if we are to express true intellectual honesty.

Appendix A



7a

Where manipulatable statistics invariably cast the 
burden upon the defendant to exonerate himself of guilt, 
where guidelines affecting employment practices are estab­
lished by government agency that are so stringent that no 
industry has successfully met the burden of their require­
ments to the satisfaction of the courts (testing), where good 
faith efforts to comply with the change in the law are not to 
be considered, and where the substantial burden or “maxi­
mum burden” is placed on the defendant on proof of loss of 
back wages, calling the result an award for “ economic loss” 
does not change its true character from that of “penalty” . 
This is particularly true where past acts had the sanction 
of law or custom at the time.

Thus departing these murky shores we cast a weather 
eye to the next island in the archipelago. This misty isle 
has a towering peak that comes and goes through the fog 
of legal definition. We address ourselves to what may 
otherwise be defined as “quotas” and which is apparently 
so hideous to view that the courts have tried to hide it 
with a fog of legal jargon that only lightly veils the out­
lines of the summit.

42 U.S.C., Section 2000e-2(j) provides in pertinent part:

Nothing contained in this subchapter shall be inter­
preted to require any employer . . . subject to this sub­
chapter (Title VII) to grant preferential treatment to 
any individual or to any group . . .  or (to require em­
ployers to employ) in comparison with the total num­
ber or percentage of persons of such race . . .  in any 
community, State, section or other area . . .

Executive Orders number 4 and 11246, originally signed 
by President Johnson but later revised by the Department 
of Labor, require institutions to give preferential treat­

Appendix A



8a

ment to minorities in hiring and promotion practices and 
require that goals and timetables he filed annually by each 
affected employer. These Orders cover about 95 percent of 
the employment market. The power of government in its 
direct employment policy and in its ability, through indirect 
means, to coerce those doing business with it in their em­
ployment policies have, through these Executive Orders, 
all but subverted the wording of the aforementioned section. 
Though it is insisted that “you never have to hire any 
unqualified person” or “ obtain any set number of employees 
of a given race” , government has required that affirmative 
action policies be established which must reflect active 
programs to accomplish the employment of minority groups 
to specified levels, failing in which economic pressures and 
sanctions are imposed as punishment sometimes consisting 
of loss of contracts, etc.

In a recent interview carried in the New York Times 
Magazine section, Archibald Cox expressed himself very 
forcefully on the proposition that the “end” does not 
always justify the “means” . The logic expressed in that 
article was quite sound and applies with full vigor to 
solutions of problems involving race relations. Most often, 
success in meeting affirmative action programs established 
pursuant to government prodding or, as in the case of the 
industry under present consideration by this litigation, 
voluntarily, is almost universally measured by a showing 
of the proper proportion of minority to majority hires. 
Called what you want, this translates into “quotas” . (It 
must be considered a breath of fresh air sweeping up the 
face of the mountain and dissipating the fog when the 
appellate court of this Circuit acknowledges in unvarnished 
terms the requirement of quotas until past practices of 
invidious discrimination are finally dissipated.)

Appendix A



9a

Though, here again there are viable alternatives to the 
imposition of “quotas” in an effort to secure compliance 
with the non-discrimination policies of government, we are 
fast becoming grounded on the premise that this society, 
once priding itself as being the melting pot of all classes 
and kinds, is very distinctly a class conscious society that 
must be proportionately represented in all areas of en­
deavor. It would do no good to explore alternatives for we 
are well beyond the point of these considerations, but do 
let us stop and examine the danger attendant with the 
philosophy advanced by plaintiffs’ counsel through this 
class action, for it seizes upon the art and kicks it a long 
way up the slope.

What now fixes the “quota” ? The implication of present 
decision law is that if industry employs blacks below the 
ratio of minority to majority in the area work force it is 
prima facie evidence of discrimination. As affecting the 
industry involved in this case, the evidence is that the 
hourly employees meet the quota as established by this 
ratio. However, the ratio of applicants more nearly ap­
proximates 50-50, which is considerably higher than the 
ratio of minority to majority in the work force, ergo, this 
industry discriminates. This is so because these statistics, 
as in other cases, show a prima facie case of discrimination 
and therefore the burden shifts to the industry to prove that 
it has some justifiable business purpose why the employ­
ment ratio ought not to be 50-50. Advancing the same argu­
ment to its ultimate conclusion, you can envision a situation 
where the number of applications were maneuvered to or 
legitimately filed so as to reflect 100 percent with the result 
the industry employees would become all black or nearly 
so. This is a strange anomaly. An industry could never 
become all white without being discriminatory, but it could

Appendix A



10a

become all black without being discriminatory— (at all cost 
we must avoid situations that would require considerations 
of questions of reverse discrimination). Another glaring 
anomaly is that if such theory-is accepted and followed, 
what occurs when the ratio of applicants vary from day to 
day, week to week and year to year ? Industry would never 
know when it was or was not in compliance, and can’t you 
imagine the argument if the application ratio fell below 
the area work force ratio!

Union Carbide, the defendant, was established in Mobile 
County in 1965. It has in its employment over 26 percent 
of its hourly employees who are members of the minority 
group; in addition, it is actively recruiting minorities in 
its salary and professional employee classifications. This 
defendant has an affirmative action program which com­
pels them to actively recruit members of minority groups 
and they are currently employing minorities in an excess 
of 30 per cent per annum.

The Court appreciates the past economic plight of the 
black people in the South and specifically in the Mobile 
labor market, but it also can appreciate that prior to the 
mid-1950’s whites, as a class, were economically near the 
poverty level. In the 1950’s industries began to expand 
and moved to the South which assisted the financial growth 
of all the people. Subsequent to the passage of Title VII, 
the major industries in this locality, Alcoa, Scott Paper 
Company, Courtaulds North America, Inc., International 
Longshoremen Association have in their employment in 
excess of 26 per cent of their employees who are members 
of minority groups, with the ILA having a membership in 
excess of 95 percent black. These same companies are now 
employing minorities at a 30-40 percent rate.3

Appendix A

3 Prior case statistics filed in this Court.



11a

This Court is not blind to the fact that in substantial 
measure this present day hiring practice was brought about 
by a change in the law and emphasis thereon. Indeed this 
is the hoped for result where any law charts a new plotted 
course. As the Court of Appeals has indicated, we are not 
here concerned with motives but facts. If we are to meas­
ure the liability of this defendant by its maintaining its 
“ quota” it passes muster unless we adopt the plaintiffs’ 
theory, and even if we should, the defendant has shown 
sufficient business purpose to justify its discrimination in 
the selection of its employees. (I realize the use o f the 
term “ discrimination” in the foregoing sentence may be 
badly chosen and possibly “ selectivity” or something of 
that nature would be better used, but I believe the word 
still carries a connotation that ought to be acceptable and 
it is in that connotation that it is used.)

Having set out the parameter of the law which must 
guide this Court’s determination of the issues involved 
let us consider with more specificity the facts as they apply 
to the remaining issues.

F indings o r  F acts

1. This Court has jurisdiction of this case pursuant to 
28 U.S.C., Section 1343(4); 42 U.S.C., Section 2000e(f) 
and 28 U.S.C., Sections 2201 and 2202. Defendant is 
charged with violating (a) Title VII of the Civil Eights 
Act of 1964, 42 U.S.C., Section 2000e et seq., (b) 42 U.S.C., 
Section 1981, providing for the equal rights of all persons 
in every State and Territory within the jurisdiction of 
the United States.

2. Union Carbide is an employer in an industry affect­
ing interstate commerce within the meaning of Section

Appendix A



12a

706(b) of the Civil Rights Act of 1964, 42 U.S.C., Section 
2000e-5(b).

3. Plaintiffs have complied with the procedural require­
ments of Section 706(a), (d) and (e) of the Civil Rights 
Act of 1964, 42 U.S.C. Section 2000e-5(a), (d) and (e).

4. This case is filed as a class action making broad 
general allegations of violations of the Civil Rights Acts. 
The plaintiffs are black employees o f the defendant or un­
successful black applicants for employment with the de­
fendant.

5. The defendant operates a high technology plant and 
manufactures a product known as “molecular sieves”  at 
Chickasaw, Alabama. As of October 1, 1973, the defendant 
employed 314 persons at this plant; 180 of said 314 em­
ployees were hourly production, maintenance and ware­
house employees and 46 or 26 percent of them were black; 
the remaining 134 employees were exempt and non-exempt 
salaried employees; 71 of said 134 exempt and non-exempt 
employees were engineers or technicians. The Mobile area 
work force in which this plant of the defendant is located 
consists of approximately 26 percent black or other mi­
norities.

In production, there are three hourly job classifications: 
chemical operator trainee, chemical operator, and senior 
chemical operator. All of the production workers of the 
same job classification do not work in the same areas of 
the plant nor do they have the same duties, but they are 
all paid at the same rate, and have the same opportunities 
for advancement. In maintenance, there are the following- 
hourly job classifications: group leader, mechanic, elec­
trician A, maintenance man, electrician B, maintenance 
utility man, electrician C, oiler, helper, instrument tech­

Appendix A



13a

nician, and maintenance trainee. In the warehouse there 
are two hourly job classifications: group leader and ware­
houseman. There are no lines of progression, and em­
ployees may hid from one department to another on a 
seniority basis. A great majority of the hourly employees 
are classified as chemical operators in production. These 
chemical operators operate, regulate and control chemical 
processing equipment. A  chemical operator earns $4.12 per 
hour after 9 months and averages earning about $10,000.00 
per year counting shift differentials and overtime.

In the salaried ranks, there is a large number of job 
classifications, both exempt and non-exempt, but basically 
they can be categorized as : maintenance and production 
supervisors, engineers, managers, laboratory and other 
technicians, clerks, and clerical employees.

6. In addition to the blacks employed by the defendant 
in production in the chemical operation classifications blacks 
are employed in maintenance in the following classifica­
tions: maintenance mechanic, oiler, trades helper, stores 
attendant and in warehousing in the following classifica­
tion: warehouseman. All hourly jobs are filled on a se­
niority bid basis with the skilled maintenance jobs requir­
ing demonstration of the skill involved. Production jobs 
are worked on a rotating shift basis.

7. The defendant has black and other minorities em­
ployed in the following salaried positions: production fore­
man, employee relations assistant, plant accountant, quality 
control shift leader, quality control technician, quality con­
trol analyst, junior instrument technician, engineer, buyer, 
production clerk, stenographer, and clerk-typist.

8. The defendant’s Chickasaw plant began operations in 
April 1965 and during the period 1965 through 1969 the

Appendix A



14a

defendant employed 37 black employees and 166 white em­
ployees. In 1970 defendant hired 5 black employees and 
9 white employees; in 1971 defendant employed 10 black 
employees and 7 white employees; in 1972 defendant em­
ployed 25 black employees and 48 white employees and in 
1973 defendant employed 19 black employees and 68 white 
employees.

9. The defendant accepts applications for employment 
at all times, whether or not vacancies currently exist, and 
has an actively implemented affirmative action program for 
seeking, hiring, training and promoting minority citizens. 
The defendant’s hiring procedures do not depend upon the 
subjective recommendation of any one person but require 
a diversified input of recommendations based on a written 
application by an applicant for employment and interviews 
with personnel department representatives and plant su­
pervisory personnel as well as reference checks in order 
to determine an applicant’s qualifications for and interest 
in the job applied for.

10. There is no substantial disparity between the per­
centages of black employees of the defendant and blacks 
in the labor force in the Mobile area. Approximately 31 
percent of the employees hired by the defendant during 
1970, 1971,1972 and 1973 have been black.

11. The defendant has promoted and hired black and 
other minorities into salaried jobs and is implementing its 
adopted affirmative action program and actively seeking 
blacks and other minorities for engineering and technical 
jobs.

12. There is no discrimination in the defendant’s pro­
motion practice. Promotion procedures do not depend

Appendix A



15a

upon the subjective recommendation of an employee’s im­
mediate supervisor but require a diversified input of names 
and applications for the vacancy and actively involve the 
line supervision, personnel department representation, and 
management in its selection process. There is no basis for 
hint or implication that here the white man will not comply 
with his obligation under the law and fairly consider all 
regardless of race. Indeed, the present process has estab­
lished blacks in positions where they too are involved in 
decision making.

13. Plaintiffs make the argument that although the de­
fendant’s employment record at its Chickasaw, Alabama 
plant is good and bears a favorable balance in regard to 
the Mobile area work force, a survey of the total number 
of applications filed with the defendant during 1972 and 
1973 indicates that approximately 50 percent of the appli­
cations are by black persons and the defendant hired only 
34 percent black in 1972 and 22 percent black in 1973. The 
plaintiffs contend that in view of their statistics the de­
fendant’s hire rate of 34 percent and 22 percent black in 
1972 and 1973 instead of 50 petrcent is prima facie dis­
criminatory.

This argument and the evidence offered in support there­
of failed to take into consideration that the applicant ratio 
is a constantly changing and fluctuating situation subject 
to all of the indefiniteness of application motivations and 
qualifications including the possibility of manipulation. 
The Mobile area work force is a fixed, determinable and 
recognized grouping and a plant work force with a black- 
white ratio nearly approximately the area work force with 
no evidence being presented of any deliberate design to­
ward that end is strongly suggestive to this Court that the 
employer is not discriminating in its hiring procedures.

Appendix A



16a

Defendant has provided truly equal access to the jobs 
at its Chickasaw plant by blacks and whites and the Court 
finds that this has in fact produced an employee popula­
tion with substantially the same proportion of blacks repre­
sented as are in the Mobile area work force generally.

14. Defendant’s efforts to involve minorities in its skilled 
maintenance jobs are to be commended. There is no evi­
dence of any discrimination by the defendant in its skilled 
maintenance job training programs or in the tests used in 
these programs. The tests are job related and bear directly 
on the skills needed to perform the job. These tests did 
not disqualify blacks at a substantially higher rate than 
whites and blacks who have successfully completed these 
programs are performing successfully in skilled jobs with 
the defendant.

15. None of the named plaintiffs were denied an equal 
opportunity for promotion on account of his race.

16. None of the named plaintiffs were harassed on ac­
count of his race.

17. None of the named plaintiffs were denied employ­
ment by the defendants on account of unlawful racially 
discriminatory hiring policies or practices.

18. Freddie Robinson— This plaintiff alleged that he 
was denied an equal opportunity for promotion, was har­
assed, was refused his claim for disability pay, and was 
denied the opportunity to return to work when his doctor 
released him, all on account of racial discrimination by 
the defendant.

Plaintiff was employed by the defendant in December 
of 1968 and voluntarily quit his employment in May of 
1973. During most of the time that he was employed he

Appendix A



17a

also was attending college at a local university and had 
advised his fellow workers and the defendant that as soon 
as he had obtained his degree from the university he in­
tended to terminate his employment with the defendant 
and seek another job. This he did. He graduated in May 
of 1973 and quit his employment the same month. During 
the last weeks of his employment an apparent conflict de­
veloped between the requirements of the job and the school. 
Plaintiff Robinson chose the school.

In March of 1973 plaintiff Robinson requested special 
treatment in arranging his work schedule to accommodate 
his school schedule. The accommodation could not be made 
due to the involvement of other employees and their as­
serted seniority rights. Failing in the rearrangement of 
his work schedule plaintiff Robinson announced that “I ’ve 
got a way to work out the schedule” . This occurred on 
Friday, March 23, 1973. His next scheduled work day was 
Monday, March 26. On that morning he called in sick. A 
routine investigation and medical examination did not 
verify this alleged sickness. In fact, Robinson was attend­
ing classes at the university during the period he was sup­
posed to be unable to work. Failing to report for work as 
requested by the defendant he was suspended. Thereafter 
in May he voluntarily quit his employment. A  required 
written application for disability benefits was never sub­
mitted by him.

The Court finds that plaintiff Robinson was not unjustly 
refused his claim for disability pay and was not wrong­
fully denied the opportunity to return to work. The Court 
further finds that the defendant’s action in not paying 
plaintiff Robinson disability pay and in suspending him 
from his job for failing to report as designated was based 
on valid employer prerogatives and was not the result of

Appendix A



18a

discrimination against this plaintiff on account of his race. 
Also in accordance with the Court’s other findings of fact 
no basis is found for this plaintiff’s allegation of harass­
ment or denial of promotion as a result of racial discrim­
ination. This plaintiff’s announced intention to quit his 
employment upon graduation from college removed him 
from consideration for promotion, assuming he was quali­
fied for the job opening. Also, the Court does not find any 
racially motivated harassment of this plaintiff. All re­
quirements made of this plaintiff were completely job re­
lated, non-discriminatory, and based on valid employer 
prerogatives.

19. Peter Reese—This plaintiff alleges that he was de­
nied promotions on account of his race, in particular to the 
jobs of safety technician and semi-works technician. Plain­
tiff Reese was employed by the defendant in March 1968. 
Prior to his employment with the defendant he had worked 
as a medic in the army and as a medical technician in the 
reserve. While plaintiff Reese was in the initial weeks of 
his employment and in the training program for a chemi­
cal operator job, an opening occurred in the safety techni­
cian job in the defendant’s plant. This job required the 
maintenance of a comprehensive plant safety program. 
The job involved the keeping of regular surveillance of 
the overall plant area to make and note on the spot in­
spections of unsafe actions and hazardous conditions; the 
coordination of the activities of the Employee Safety Com­
mittee; the conducting of formal plant safety inspections 
on a regular schedule; the investigation and analysis of 
accidents and injuries as well as certain first aid services. 
Complete familiarity with all phases of the plant operation 
was obviously a necessity. As a new employee plaintiff 
Reese did not have this familiarity. The job was awarded

Appendix A



Appendix A

to an employee with several years of overall plant experi­
ence. Further, plaintiff Eeese made no application for 
this job and did not advise anybody that he was interested 
in this job. The Court finds no racial discrimination in the 
failure of the defendant to award this job to the plaintiff.

The semi-works is a small pilot testing operation sep­
arate and apart from the main production plant. The semi­
works technician is required to work under the direct su­
pervision of an engineer or semi-works technologist and to 
record and perform processing experiments and procure 
plant materials and data. This employee must be familiar 
with all phases of a molecular sieve plant and be able to 
operate all mechanical equipment in the semi-works labora­
tory, collect samples and plan and perform certain labora­
tory experiments. This job became available in May of 
1971 and was awarded to a senior chemical operator with 
several years experience in all phases of plant operations. 
Again, Plaintiff Eeese made no application for this job 
and did not advise anybody that he wished to be considered 
for the job. The Court finds no racial discrimination in 
the failure of the defendant to award this job to this plain­
tiff. Further, the Court finds that the employer’s deter­
mination was based on valid employer prerogatives to 
employ the best qualified man for the job.

20. Jerome Fitts—Plaintiff Fitts alleges that he was 
harassed by his white supervisor by the use of abusive 
language and that such harassment wras racially discrim­
inatory. He testified that his foreman told him “to move 
those damn drums” and he felt this language was not 
professional and racially discriminatory. The Court finds 
from the evidence that these remarks were not racially 
motivated or discriminatory but only an attempt by a



20a

foreman to get a job done. The defendant did not ratify 
or countenance them.

21. Cynthia Caldwell—Plaintiff Caldwell alleged that 
she was denied employment by the defendant because of 
her race. In particular she contends that she was qualified 
for a laboratory technician job and was not hired because 
she was black. Plaintiff Caldwell applied for work in 
February of 1972. She was a graduate of Tuskegee In­
stitute with a major in biology and a minor in chemistry. 
She was advised by the defendant in July of 1972 that 
they were not hiring people with degrees in the laboratory 
at that time. She made a new application for employment 
in September of 1972. Thereafter she was advised by 
the defendant that she was over qualified for a lab job. 
In March of 1973 she made written inquiry about em­
ployment with the defendant and requested an applica­
tion. The defendant forwarded an application to her but 
did not hear from her again. The laboratory technician 
jobs with the defendant involved routine analysis and 
testing. An employee with high school chemistry can 
adequately perform the job. Numerous blacks have been 
and are persently employed in these jobs. Experience 
has shown this defendant that an over qualified person 
in this job quickly becomes bored with the routine activity 
and becomes dissatisfied. Two former black employees of 
the defendant who worked in the lab testified that the 
job was routine and boring and could be adequately per­
formed by someone with a high school chemistry back­
ground. One of these, Fred White, had left the defen­
dant’s employment to seek additional education as a chem­
ical engineer. He testified that he was graduating in the 
near future and was being actively recruited by the de­
fendant as a chemical engineer. Therefore, in view of

Appendix A



21a

the number of blacks in various jobs in the laboratory 
as well as the number of blacks in other jobs with this 
defendant and the active minority recruitment activity 
of this defendant and the fact that plaintiff Caldwell was 
over qualified for a lab job, the Court finds there has 
been no racial discrimination by this defendant in not 
hiring this plaintiff.

22. Ronald L. Coleman—This named plaintiff’s claim 
to fame in this litigation is that he, along with thousands 
of others, made application for employment; he is black, 
and was not employed; that in itself imposes a liability 
on the defendant. Contrary to plaintiff Coleman’s con­
tention, a company is not compelled to employ every job 
applicant just because he is a member of a minority 
group. The only requirement imposed on employers in 
which the defendant has in existence is a non-discrimina- 
tory employment procedure.

23. Willie L. Jones— The allegations of this plaintiff 
are three-fold: (1) He was harassed by his supervisor; 
(2) made to perform more work than white employees; 
and (c) denied off-duty educational assistance on account 
of his race. The “harassment” and “more work” theories 
are the result of plaintiff Jones being assigned duties 
within the function of his job, which he was paid to per­
form, and should have been performing. His direct re­
fusal resulted in a five day suspension, after which his 
contention because the whites were not doing the details 
of the job, why should he. The Court does not believe 
Mr. Jones was required to perform more work than others, 
nor has he been harassed. In essence, the whole tenure 
of the evidence before the Court has been the militant 
belligerent attitude of certain blacks perpetrated by the

Appendix A



22a

paternalistic attitude of the management at Union Car­
bide by permitting certain blacks to take advantage of all.

This Court would have readily sustained the discharge 
of Mr. Jones for this incident in question, if the com­
pany had so decided and consummated.

As for Mr. Jones’ off-duty educational assistance claim, 
this is another absurdity. Mr. Jones worked shifts and 
desired to be given preferred treatment by being assigned 
to days; not be required to work overtime and thus plac­
ing job responsibility for his fair share of overtime on 
others; and be able to be absent from work when the work 
conflicted with school; and be paid for everything. A  com­
pany is not required to “close its doors” in order to pro­
vide educational opportunities.

24. Paul Richardson, Willie J. Micldes, Olney W. Lu- 
cious, 111 and Thomas S. Austin, Jr. are contending they 
were denied promotions because of their race. It is their 
belief they were entitled to specific promotions because 
they were “more” qualified than the individuals who ob­
tained the promotions, notwithstanding the facts those 
who received the promotions were qualified and had more 
seniority. It is the procedure of Union Carbide on pro­
motions to obtain an input of names from all sources; 
analyze the qualifications of all, with qualifications being 
the primary factor. When more than one is qualified, 
seniority prevails. There was no showing this procedure 
is discriminating.

Appendix A

C o n c l u s io n s  of  L a w

1. Defendant’s refusal to make changes in work sched­
ules or overtime assignments to allow plaintiffs to par­
ticipate in non-work activities was not racially motivated



23a

nor did it constitute harassment. The “business neces­
sity” criteria as announced in Griggs v. Duke Power Co., 
401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, is only appli­
cable if racial practices are employed. Absent proof of 
racial motivation, defendant is not bound by the busi­
ness necessity criteria as mandated by Title VII of the 
Civil Eights Act of 1964.

2. Employment practices which perpetuate or tend to 
perpetuate past discrimination are forbidden by Title VII 
to the extent they are not supported by overriding legit­
imate, non-racial business necessity. Griggs v. Duke Power 
Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; 
Eowe v. General Motors Corp., (5th Cir. 1972), 457 F.2d 
348. It is not enough under Title V II that the procedures 
utilized by employers are fair in form, they must be, in 
fact, fair in operation. Bowe v. General Motors Corp., 
supra. In this case defendant’s procedures are both fair 
in form and fair in fact.

3. Statistical evidence in Title VII cases are given 
critical weight in this Circuit. Pettway v. American Cast 
Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Johnson v. 
Goodyear Tire and Euhber Co., 491 F.2d 1364 at 1371- 
1373. Employment statistics produced by plaintiffs did 
not demonstrate a major disparity between employment 
and the available work force according to race, thus plain­
tiffs’ evidence does not establish a prima facie case. United 
States v. Jacksonville Terminal Co., 451 F.2d 418 at 424- 
436.

4. The plaintiffs’ evidence failed to prove their allega­
tion that the company discriminated on racial grounds 
with respect to employment and promotion of supervisory

Appendix A



24a

personnel. The plaintiffs here have not shown any in­
stance of a qualified black who applied for and was re­
jected promotion to a supervisory position.

Input and participation of blacks in the selection of 
supervisory personnel (which occurred in this cause) was 
held to he essential to insure non-dis,criminatory action. 
Pettway v. American Cast Iron Pipe Co., supra.

5. The seniority system utilized by defendant is legal 
on its face and in practice and does not discriminate, Local 
189 v. United States, 416 F.2d 980 (5th Cir. 1969).

6. Title VII provides that the reinstatement of an em­
ployee may not be ordered when the discharge was for 
any reason besides prohibited discrimination.

Although it was certainly not necessary to have done so, 
Congress expressly provided in Title V II that:

“No order of the court shall require the admission 
or reinstatement of an individual as a member of a 
union, or the hiring, reinstatement, or promotion of 
an individual as an employee, or the payment to him 
of any back pay, if such individual was refused ad­
mission, suspended, or expelled, or was refused em­
ployment or advancement or was suspended or dis­
charged for any reason other than discrimination on 
account of race, color, religion, sex, or national origin 
or in violation of section 704(a).”

The point of the matter is that an employee’s race does 
not insulate him for discharge. Andres v. Southwestern 
Pipe, Inc., D.C., 321 F.Supp. 895, affirmed per curium, 
446 F.2d 899 (5th Cir. 1971). In weighing the evidence 
in this matter neither members of the class nor individual 
plaintiffs were disciplined, harassed or discharged based

Appendix A



25a

on racial grounds. There simply was no credible evidence 
in this case that any employee was harassed. In fact plain­
tiff Robinson’s actions were tantamount to quitting his 
employment.

7. Title 42, U.S.C., Section 2000e-2(j) reads:

“Nothing contained in this subchapter shall be in­
terpreted to require any employer, employment agency, 
labor organization, or joint labor-management com­
mittee subject to this subchapter to grant preferential 
treatment to any individual or to any group because 
of the race, color, religion, sex, or national origin of 
such individual or group on account of an imbalance 
which may exist with respect to the total number or 
percentage of persons of any race, color, religion, sex, 
or national origin employed by any employer, re­
ferred or classified for employment by any employ­
ment agency or labor organization, admitted to mem­
bership or classified by any labor organization, or 
admitted to, or employed in any apprenticeship or 
other training program, in comparison with the total 
number of percentage of persons of such race, color, 
religion, sex, or national origin in any community, 
State, section or other area, or in the available work 
force in any community, State, section, or other area.”

This principle was definitely expressed by Chief Justice 
Burger in writing for the Court in Griggs v. Duke Power 
Co., 401 IT.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158. In a passage 
which the Fifth Circuit has referred to as “what may be 
the last word on this issue” United States v. Jacksonville 
Terminal Co., 451 F.2d 418, the Chief Justice stated:

“ Congress did not intend by Title VII, however, to 
guarantee a job to every person regardless of qualifi­

Appendix A



26a

cations. In short, the Act does not command that any 
person he hired simply because he was formerly the 
subject of discrimination, or because he is a member 
of a minority group. Discriminatory preference for 
any group, minority or majority, is precisely and only 
what Congress has proscribed.” (401 U.S. at 430-431, 
91 S.Ct. at 853).

To employ any group at a rate that greatly exceeds that 
group’s composition of the work force in the community 
is to give discriminatory preference in violation of Title 
VII of the Civil Eights Act of 1964.

8. The Court must be skeptical when there exists a 
major disparity by race between the ratio of job appli­
cants to any individual employer to that of the racial com­
position of the available work force in the community. The 
Court must suspect concerted effort when this major dis­
parity exists.

9. An award of costs and attorneys’ fees is discre­
tionary with the Court. The Act provides that they may 
be awarded, 42 U.S.C., Section 2000e-5(g). The standards 
to be applied are set forth in Johnson v. Georgia Highway 
Express, Inc., 5 Cir., 488 F.2d 714. Plaintiffs are not en­
titled to an award o f costs or attorneys’ fees as they did 
not prevail in whole or in part, Miller v. Amusement 
Enterprises, 426 F.2d 534 (5th Cir. 1970).

J u d g m e n t

In accordance with the Findings of Facts and Conclu­
sions of Law entered by this Court in this cause on the 
29th day of August, 1974, it is ordered, adjudged and 
decreed that judgment be entered for the defendant, Union 
Carbide Corporation. Costs are taxed to the plaintiffs.

Appendix A



27a

APPENDIX B
(Robinson v. Union Carbide, Fifth Circuit 

No. 75-1008, September 10, 1976.)

Opinion o f Court o f  Appeals

Before W is d o m  a n d  I n g r a h a m , Circuit Judges, a n d  

G r o o m s , District Judge.

I n g r a h a m , Circuit Judge:

Nine blacks (appellants) filed a civil rights action against 
Union Carbide Corporation, charging it with various dis­
criminatory employment practices perpetrated at the Chick­
asaw, Alabama plant. On appellants’ motion the district 
court certified the case as a class action filed in behalf o f :

Those black job applicants who had an outstanding job 
application at the time of the commencement of this 
cause and those black job applicants who have filed 
job applications since the commencement of this cause 
and all future black job applicants, along with all cur­
rent black employees of defendant Union Carbide Cor­
poration, Materials System Division.

Additionally, the district court included a provision in its 
Notice of Pendency of Class Action which required poten­
tial class members to “ opt-in” to preserve their back pay 
claims.1

1 The district court’s Notice of Pendency of Class Action pro­
vided in part:

If you are black and an employee or have an outstanding job 
application with defendant, . . . and desire other appropriate 
relief in addition to injunctive relief, you must notify the 
under-signed [district court] in writing . . . said notice to be 
postmarked or filed not later than February 20, 1974.



28a

After considering all the evidence, the district court con­
cluded that Union Carbide’s hiring and promotional prac­
tices were not discriminatory and did not violate Title VII 
of the Civil Eights Act.2 On appeal appellants claim that

Appendix B

2 Appellants allege discriminatory employment practices in vio­
lation of civil rights laws, 42 U.S.C. § 1981 and 42 U.S.C. § 2000e. 
42 U.S.C. §1981 provides :

All persons within the jurisdiction of the United States shall 
have the same right in every State and Territory to make and 
enforce contracts, to sue, be parties, give evidence, and to the 
full and equal benefit of all laws and proceedings for the 
security of persons and property as is enjoyed by white citi­
zens, and shall be subject to like punishment, pains, penalties, 
taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C. § 2000e-2 provides:
(a) It shall be an unlawful employment practice for an em­
ployer—

(1) to fail or refuse to hire or to discharge any individual, 
or otherwise to discriminate against any individual with 
respect to his compensation, terms, conditions, or privileges 
of employment, because of such individual’s race, color, re­
ligion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or appli­
cants for employment in any way which would deprive or 
tend to deprive any individual of employment opportuni­
ties or otherwise adversely affect his status as an employee, 
because of such individual’s race, color, religion, sex, or 
national origin.

*  #  % #  #

(c) It shall be an unlawful employment practice for a labor 
organization—

(1) to exclude or expel from its membership, or otherwise 
to discriminate against, any individual because of his race, 
color, religion, sex, or national origin;
(2) to limit, segregate, or classify its membership or appli­
cants for membership, or to classify or refuse to refer for 
employment any individual, in any way which would de­
prive or tend to deprive any individual of employment op­
portunities, or would limit such employment opportunities 
or otherwise adversely affect his status as an employee or



29a

the district court’s ruling was clearly erroneous and that 
the order requiring class members to opt-in to obtain back 
pay is contrary to Rule 23 of the Federal Rules of Civil 
Procedure and Title VII of the Civil Rights Act.

T it l e  VII C l a im s  

1. Hiring Practices

In 1965 Union Carbide opened a plant in Mobile County, 
Alabama for the manufacture of “molecular sieves,” a 
product that strains and filters liquid or gaseous molecules. 
The work force at the plant is composed primarily of resi­
dents in the vicinity of Mobile, Alabama, an area which is 
approximately 26% black. When the plant began opera­
tions, the work force consisted of 35 whites and 1 black. 
Nevertheless, within nine years the plant hired 84 black 
and 259 white employees. Furthermore, blacks serve in 
both salaried and wage-earning positions at the Union 
Carbide plant.* 3

Appendix B

as an applicant for employment, because of such individual’s 
race, color, religion, sex, or national origin; or
(3) to cause or attempt to cause an employer to discrimi­
nate against an individual in violation of this section.

3 There are three categories of employees at the Union Carbide 
plant: (1) hourly wage personnel, (2) non-exempt salaried per­
sonnel, and (3) exempt salaried personnel. Within the ranks of 
the hourly wage personnel, employees work in the areas of pro­
duction, warehousing and maintenance. The ranks of the non­
exempt salaried personnel are composed of workers who are not 
exempt from the Fair Labor Standards Act and are entitled to 
overtime compensation. Essentially, non-exempt salaried employ­
ees are secretaries, technicians and service personnel. Exempt sal­
aried employees are not protected by the Fair Labor Standards 
Act and are not entitled to overtime compensation. They fill super­
visory positions such as foremen and superintendents.



30a

Union Carbide continually accepts employment applica­
tions irrespective of the- existence of current vacancies. 
The personnel files keep a record of applicants; whenever 
a position becomes available, the applications from the “ ac­
tive” file are reviewed for employment consideration.4 If

Appendix B

4 Two personnel files are maintained. One is for “active” appli­
cants; the other is for “inactive” applicants. The manager of per­
sonnel relations, James Garner, described the initial screening 
process whereby an applicant is placed in either the active or in­
active file:

Q. Will yon testify, please, what kind of factors you consider 
Mr. Krogen considers when he is making that decision 
[to classify an application “active” or “ inactive” ] ?

A. First I would like to say that race is not on the applica­
tion when we receive it.

Q. We understand that.
A. We don’t know if it is black or white, or what the case 

may be. It does have male or female on the application. 
It does have the age and the date of the application. But 
when I review an application I just as a matter of 
routine go down the application because that’s the way 
it was printed, and I don’t look for any specific informa­
tion. First I just go down to the date of it, whether the 
person is male or female, the weight, any physical limita­
tions, if they know anybody at the plant, what job they 
are applying for, educational level, because that’s next 
in line, and then the companies that they worked for, 
what kind of experience they had, how long they stayed 
on the job, were there any lapses of time. And then I 
turn it over to the rear to see the other experience that 
he or she had and the kind of work experience under 
clerical or production that they check off. And that’s 
about it.

Q. Okay. Once a decision is made to put the application in 
the inactive file how long will your office retain that 
application form?

A. Two years.
Q. Just two years?
A. Yes sir.
Q. Now, if the application is put in the active file— First of 

all if it goes in the active file if the person is not hired 
as long as his application is in the active file and he is 
unsuccessful tell us exactly—



31a

the files contain an insufficient number of applications, Un­
ion Carbide places advertisements in the local newspaper. 
Then the plant conducts short screening interviews to de­
termine the applicants’ basic vocational interests and to 
answer any questions relating to the job openings. Follow­
ing- the initial interview, selected applicants are requested 
to return for an in-depth interview with three or four other 
plant employees—usually two engineers and one foreman. 
The applicant also tours the plant to view the working 
conditions. According to Mr. James W. Garner, manager 
of employee relations, the plant prefers applicants who 
are “more likely to be long term Carbide employees [and] 
who want the kind of work and opportunities that [the 
plant has] to offer.” Three members of the personnel de­
partment discuss the qualifications of each applicant and 
decide which of the applicants are most qualified for the

Appendix B

A. We haven’t establish whether we are hiring or not hiring. 
Let’s say we don’t have an opening. You haven’t hired 
the person because—

Q. Well, assume you hired him. Do you put his application 
somewhere else?

A. It goes in our employee records file.
Q. So regardless of the status of your hiring process, whether 

you are interviewing or whether there is vacancies or not, 
as long as an application is in the active file he is not yet 
hired ?

A. That’s correct.
Q. Now, you said that you sent some sort of notice to people 

who had their applications put in the inactive file. I am 
going to show you a couple of samples of the letters that 
you received from your files and ask you to identify for 
us what these various letters mean? You don’t tell the 
person when you write him that your application has gone 
in the inactive file? You tell him something different?

A. They should get the idea that they are not being con­
sidered for employment.



32a

particular job opening. An offer is then extended to the 
candidates deemed to be most qualified.5

Appendix B

5 On direct examination counsel for the appellants attempts to 
establish the factors considered relevant to an employment deci­
sion :

Q. [W]hat are the factors that you consider most important 
in reaching your [employment] decision!

A. I am not sure I can answer that adequately. For instance, 
a person should not have had a criminal record. There 
are just so many factors I don’t know if I could spell out 
or say that you do not use this factor or do use this factor. 
In personnel there are so many factors to use based on 
each individual’s background and experience, and what 
they want, that I am not sure I can answer that in any 
meaningful way.

Q. It is always based on the background and the experience 
of the interviewer or evaluator'—

A. That would leave that person to reach conclusion. Yes sir.
Q. So that you really couldn’t identify them in concrete 

terms as if you were preparing an outline or guide of the 
hiring process?

A. I guess you could say that’s true.
Q. Based on a whole lot of factors that sort of have been 

accumulated in your experience as a personnel officer 
over the years?

A. Yes sir.
The following testimony describing the attributes of a chemical 

operator sought to further define the general and perhaps abstract 
term “most qualified” :

Q. What are the qualifications that the company requires 
of people who apply for or are considered for chemical 
operators or chemical operator trainees, since they have 
to go through it?

A. Well, physically they have to be able to perform the job, 
because the job is not one routine job. The jobs rotate, 
and on one side you might have 8 jobs or 10 jobs and on 
the other side 10 to 12 jobs and approximately every two 
weeks you rotate off that job to another job', and many 
of them are quite laborous tasks involved and takes a 
person with physical strength to move 300 pound drums 
or operate forklifts or lift 50 pound bags and things of 
this nature, so they have to have the physical qualifica­
tions to perform the jobs.



33a

Appellants claim that the Union Carbide hiring prac­
tices were discriminatory and violative of the Civil Bights

Appendix B

Q. You. don’t have any absolute physical requirements in 
terms of weight or size or sex?

A. No sir.
Q. Is this a judgment call on the part of the people who are 

making the decisions?
A. Based on experience we know that a very tall and skinny 

person is going to have a time with drums and we know 
that a really short stocky person might have a difficult 
time raising heavy boxes and it would cause back strain 
and things like this. So it is just from experience.

Q. And you don’t give them a medical examination and a 
physical test to see if they can lift something?

A. No.
Q. All right. What else beside physical qualifications do you 

require of a chemical operator?
A. They have to have a mental ability to be able to perform 

the tasks that are required, that are more complex, due to 
the technical nature of our plant, and because of the 
number of jobs they would be operating. And this you try 
to some extent to evaluate in an interview, and you can 
gather this from the past duties they performed on the 
job to some extent.

Q. Just the past duties they have had in other jobs, is that 
what you said, is the way you determine mental ability?

A. Wlell, from conversations and just an interviewing 
technique you try to determine if the person seems to 
have an aptitude that they could perform the functions.

Q. Does their formal education count for anything in that 
evaluation ?

A. That’s difficult to say because a person with a sixth grade 
education—we have evaluated scores of the chemical 
operator trainees, and a person with a sixth grade educa­
tion might make more than somebody with two years of 
college, so it is difficult to look at the educational back­
ground and try to determine if they are going to make 
good or bad on it. So that’s why we don’t require a high 
school education.

Q. But you are not using the aptitude test anymore?
A. That’s right.
Q. So it is just the interviewer’s opinion based on a conversa­

tion?
A. Yes sir.



34a

Act, Title VII. Nevertheless, the employment practices of 
Union Carbide appear to he fair in form—that is, reason­

Appendix B

ed Besides the physical and mental abilities do yon have 
any other kinds of qualifications that you can tell us 
about ?

A. We would like the person to have a background that 
would indicate the person would be a stable, dependable 
employee, and one that would be with us a long time, be­
cause it takes quite a period of time to train this indi­
vidual and we try to make this determination, if the 
person is going to be with us and be satisfied with a job 
over an extended period of time.

Q. How do you make decisions or conclusions about the 
stability of the person’s background ? Tell us how that is 
done.

A. We try to look at their employment history to determine 
how many jobs they had had in the past years; if they 
had any length of time that is unaccounted for, that you 
are not sure what the person did during that period of 
time. But their past experience is a good indication, I 
believe, of what they will do in the future.

Q. * * * [Y]ou did say you have no strict educational 
minimums such as a high school diploma?

A. That’s correct.
Q. Do you have any age minimum?
A. Minimum? Well, because of the number of applicants 

we have who we can get that are mature people we don’t 
hire very many people now around the age of 19. We 
prefer older people if we can find the people in our active 
files at that time that are older, more mature people that 
appear more safety conscious on the job.

Q. 19 years, as a general rule, is that cut off?
A. I guess you could make that general statement.

*  # #

Q. Are there any particular kind of prior experience that 
the company favors towards applicants for chemical 
operator ?

A. Well, of course, if I can find somebody with chemical 
operator experience—that’s great. If you can find some­
one with industrial experience, someone that’s been on the 
job several years, shown stability—that’s good. But if 
you find a person that has been working with a service 
station or with a carpenter or with someone for a good



35a

ably directed to secure the best qualified candidate for the 
position available. Although perhaps fair in form, the 
hiring and promotional practices must also be fair in oper­
ation. In Rowe v. General Motors Corp., 457 F.2d 348, 
355 (5th Cir. 1972), Chief Judge Brown stated:

“It is clearly not enough under Title VII that the pro­
cedures utilized by employers are fair in form. These 
procedures must in fact be fair in operation. Likewise, 
the intent of employers who utilize such discrimina­
tory procedures is not controlling since ‘Congress di­
rected the thrust of the Act to the consequences of 
employment practices, not simply the motivation.’ 
Griggs v. Duke Power Co., supra, 401 U.8. [424] at 
432, 91 S.Ct. [849] at 854, 28 L.Ed.2d [158] at 165.

Appendix B

number of years that showed stability you would con­
sider these people also.

Q. Mr. Garner, why is prior industrial experience considered 
a desirable qualification?

A. Well, I guess about the same reason prior legal experience 
would be good for an attorney. It would require less 
training for that person who probably knows already 
what the job entails, and a clerical type person might get 
on the job and after six months say, “ The job is not for 
me, it is too hard.” So a person with industrial experience 
knows what the job calls for.

Q. * * * [Wjhat about the factor of getting along with 
people well ? Is that an important qualification for 
people applying at Carbide?

A. Yes sir. Yery important.
Q. And how do you judge whether or not people get along 

well when they come through your hiring process?
A. Sometimes not very well. We will, of course, check 

references from previous employers. That’s the best way 
to tell. Or if they know of people in the plant we can ask 
that person in their opinion what kind of reeord this 
person had, if they know them. We try to cheek 
references.



36a

“It is therefore clear that employment practices 
which operate to discriminate against people because 
of their race, color, religion, sex or national origin, 
violate Title VII, even though the practices are fair 
on their face and even though the employer had no 
subjective intention to discriminate.”

An examination of the consequences of Union Carbide’s 
employment practices is thus critical to a disposition of 
this case.

The litigants proposed separate methods to analyze the 
hiring data. The appellants suggested that the total num­
ber of applications filed by black persons is the critical 
factor to be considered. Their statistical analysis showed 
that blacks filed approximately 50% of all applications but 
secured only 26% of new hourly positions:

Appendix B

Hirees Applicants
Year Black White Black White

1971 10 7 572 587
1972 25 48 1177 1071
1973 19 68 1114 1018

Total 54 123 2863 2676

At least one witness, however, cast suspicion on the re­
liability of appellants’ approach, comparing it to “ trying 
to measure jellyfish with a rubber band [because] you don’t 
know where all the applicants come from . . . [and] how 
many are duplicated. [S]ome applicants fill six applica­
tions a year out. We have even had three or four in one 
month from a particular applicant.”

Union Carbide, offering an alternative method of anal­
ysis, urged that the employment record should be pro­



37a

portionate to the composition of the local work force. Since 
1970 approximately 33% of all employees hired by Union 
Carbide have been black. Operating its plant in an area 
where the labor force is approximately 26% black, Union 
Carbide presents convincing statistics tending to negate 
the existence of a discriminatory effect of its hiring prae-

Appendix B

tices and procedure

Hirees
Year Blades Whites % Black

1965-1969 37 166 18%
1970 5 9 35%
1971 10 7 58%
1972 25 48 34%
1973 19 68 21%

Total 96 298 24%

Adopting Union Carbide’s method of analysis, the dis­
trict court concluded that the employer . . has truly 
equal access to jobs at its Chickasaw plant by blacks and 
whites and the Court finds that this has in fact produced 
an employee population with substantially the same pro­
portion of blacks represented as are in the Mobile area 
work force.” The district court’s recognition of the em­
ployer’s method of analysis as more reliable and indica­
tive of racial discrimination is supported by testimony that 
appellants’ alternative analysis is subject to suspect data, 
such as the duplication of employment applications. Addi­
tionally, the trial court’s finding that Union Carbide’s 
method is more reliable is supported by the practice of 
other federal courts. On many occasions federal courts 
have compared the composition of the company’s work 
force to the composition of the labor force in the surround­



38a

ing area. E.g., Jones v. Tri-County Elec. Cooperative, Inc., 
512 F.2d 1 (5th Cir. 1975); Morrow v. Crisler, 479 F.2d 
960 (5th Cir. 1973), rehearing, 491 F.2d 1053, cert, denied, 
419 IT.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); NAACP 
v. Beecher, 371 F.Supp. 507, 515 (D.Mass.Mod.) aff’d 504 
F.2d 1017 (1st Cir. 1974), cert, denied, 421 U.S. 910, 95 
S.Ct. 1561, 43 L.Ed.2d 775; Crockett v. Green, 388 F.Supp. 
912, 917 (E.D.Wis. 1975); Fowler v. Schwartzwalder, 351 
F.Supp. 721 (D.Minn. 1972).

Under the standard of review in this circuit there must 
be “ requisite subsidiary facts to undergird the ultimate 
facts.” Causey v. Ford Motor Co., 516 F.2d 416, 420-21 
(5th Cir. 1975). We conclude that the record presents suffi­
cient underpinnings to support the ultimate finding that 
Union Carbide did not engage in discriminatory hiring 
practices.

2. Promotional Practices

Even an employer who exhibits nondiscriminatory hiring 
practices can fall short in its system of promotion, Rowe 
v. General Motors Corp., 457 F.2d 348, 355-59 (5th Cir. 
1972) (Brown, C.J.), and that appears to be the situation 
in the instant case. Although the employer’s affirmative 
action hiring program has resulted in the employment of 
blacks in close proportion to the composition of the area 
labor force, the system of promotion has failed to provide 
equal access to the most preferred positions at the Chicka­
saw plant. For this reason we R e v e r se  and R e m a n d  
on the issue of Union Carbide’s promotional practices.

(a) System of promotion. The plant uses a seniority 
system to promote employees within the rank of “hourly 
personnel.” When there is an hourly position available, 
current employees can bid for the job. The senior employee

Appendix B



39a

satisfying the minimum qualifications for the position will 
secure the job. According to Mr. Garner, “ [the plant] 
can’t hire anybody outside the plant who makes a high test 
score or promote a person to that job who makes a higher 
test score. . . . [W ]e promote the most senior qualified 
employees.” Job candidates demonstrate that they are 
qualified by passing the examinations prepared and ad­
ministered by the Employee Eelations Manager and a 
plant foreman or supervisor.6 The plant provides training 
programs designed to prepare employees for the exams, 
the passing of which is essential to secure a better hourly 
wage position. Thus, assuming the requisite seniority, com­
pletion of a training program and passing the company’s 
exam are the keys to advancement within the hourly ranks.

In the case of “ non-exempt salaried personnel” 7 the 
system of promotion is somewhat different. The personnel 
department posts a notice of the particular job opening and 
accepts applications for the position. After the initial 
screening process, applicants are referred to the depart­
ment supervisor under whose direction the selected ap­
plicant would work. The ultimate employment decision is 
made by the responsible department supervisor, with per­
sonnel’s concurrence.

A  third category, “ exempt salaried employees,” 8 is not 
derived from job posting or seniority bidding, but is the 
product of Carbide recruitment. Chemical engineers and 
other technical and supervisory personnel, for example, are

6 The qualification test must be “ job related” or designed to 
reliably predict whether the applicant possesses the reasonably 
necessary job skills. United States v. Georgia Power Go., 474 F 2d 
906 (5th Cir. 1973).

7 See n. 3.
8 See n. 3.

Appendix B



40a

exempt salaried employees. To fill the engineering posi­
tions Carbide representatives approach the colleges and 
universities to conduct job interviews. AVhen the plant hires 
new foremen, the superintendents and supervisors evalu­
ate all employees in the particular division and select the 
the most qualified individuals for advancement from the 
hourly wage to salaried positions. The ultimate decision, 
however, is not based on uniform procedures or objec­
tive standards.. Instead, the selection of one candidate over 
another depends on highly subjective criteria which shift 
in importance from case to case.

(b) Statistical evidence of racial discrimination. As 
mentioned earlier, the original work force at the Chicka­
saw plant was composed of 35 whites and 1 black. Six of 
the 36 whites are presently employed by Union Carbide; 
one is plant manager, one is an area supervisor, two are 
first line supervisors, and two are group leaders. Only the 
plant manager began his employment in that capacity; the 
other five white Carbide employees began in low priority 
wage-earning positions but were promoted through suc­
cessive promotions. In contract, the first black employee 
began as an oiler and is currently a warehouseman; both 
jobs are low priority wage-earning positions.

Blacks continue to dominate the ranks of menial em­
ployment at Union Carbide’s plant in grossly dispropor­
tionate numbers. For example, 40% of the oiler and helper- 
trade employees are black; blacks constitute only 19.2% 
of the total work force. Only 7.1% of the plant’s main­
tenance department is black, exclusive of members of the 
oiler/helper trades.

The following charts demonstrate that blacks occupy a 
severely disproportionate number of the low-priority, non- 
salaried positions:

Appendix B



41a

Appendix B

Starting
Hourly
Waqe White Black Total %  Black of Total

MAINTENANCE

Group Leader Maintenance $4.97 3 0 3 0%

Group Leader Electrical $4.97 1 0 1 0%

Electrician MA"/Maint. 
Mach. $4.61 16 2 38 1 1 . 1 %

Utility Maint. Man- 
Electrician "C" $3.79 4 0 4 CPA

Oiler $3.63 0 3 3 100A

Helper-Trades $3.46 9 3 12 2 5 %

Maintenance Mech.Trainee $3.58 2 0 2 CPA

Sub Total 35 8 43 18.6%

PRODUCTION

Senior Chemical 
Operator $4.36 12 0 12 0%

Chemical Operator $4.02 75 34 109 31.2%

Chemical Operator 
Trainee $3.58 3 2 5 40%

Sub Total 90 36 126 28,5%

WAREHOUSE

Warehouseman $4.16 3 2 5 40%

Grand Total 128 46 174 2 6.4%

J u l y *65 •70 J u l y 72 A p r i l 1973

W h ite B la c k
% - B l a c k  

o f  T o t a l W h ite B la c k
% B la c x  
o f  T o t a l W h ite B la c k

%Bl~ack 
o f  T o t a l W h ite B la c k

% B la c k  
o f  T o t a

PRODUCTION 18 0 0% 71 20 2 1 .9 % 67 26 2 7 .9 % 9Q 3 6 2 8 .6 %

MAINTENANCE 6 1 14% 23 7 23% 24 11 3 1 .4 % 35 8 1 8 .6 7 .

WAREHOUSE 0 0 - 3 2 40% 3 1 25% 3 2 40%

SERVICE 11 0 on 92 9 8 .9 % 105 12 1 0 .2 7 . 115 12 9 .4 %

TOTAL* 35 1 2 .7 % 1B9 38 1 6 .7 % 197 52 2 0 .8 % 243 58 1 9 .2 %



42a

A  substantial disparity between the proportion of blacks 
in a specific job classification is sufficient to establish a 
prima facie case of employment discrimination. E.g., Sag­
ers v. Yellow Freight System, Inc., 529 F.2d 721, 729-30 
(5th Cir. 1976); Wade v. Mississippi Cooperative Exten­
sion Service, 528 F.2d 508, 516-18 (5th Cir. 1976); United 
States v. T. I. M. E.-B. C., Inc., 517 F.2d 299, 311-14 (5th
Cir. 1975); cert, granted,------ U .S .------ - ,  96 S.Ct. 2200, 48
L.Ed.2d 814 (1976); Rowe v. General Motors Corp., 457 
F.2d 348, 358 (5th Cir. 1972). The contrast between the 
black population of the Mobile area (approximately 28%) 
and the percentage of blacks in supervisory or salaried 
positions (below 10%) constitutes a substantial statistical 
discrepancy and, thus, establishes a prima facie case of 
unlawful racial discrimination. After the prima facie case 
is established, the burden of persuasion shifts to the corpo­
ration whereby it must show the statistical discrepancy 
results from causes other than racial discrimination. Sag­
ers v. Yellow Freight System, Inc., supra; Wade v. Missis­
sippi Cooperative Extension Service, supra.

(c) Response to a prima facie case of discrimination. 
Union Carbide contends that the employment statistics are 
the result of a nondiscriminatorv system of promotion. 
For promotion within the hourly wage category, the em­
ployer relies on ostensibly nondiscriminatory data—the 
candidates’ seniority and the successful completion of com­
prehensive tests designed and administered by the em­
ployer. In this employment category, we conclude that the 
district court’s non-discrimination finding has inadequate 
factual underpinning in the record and should be R e v e r s e d .

Union Carbide failed to establish that the qualification 
exams were “ job re la te d th a t  is, there must be a correla-

Appendix B



43a

tioxi between test scores and actual job performance, 
Crockett v. Green, 388 F.Supp. 912, 919-20 (E.D.Wis. 1975). 
Additionally, the employer failed to show that the admis­
sion standards for its training program were objective and 
nondiscriminatory. Because the training programs are a 
springboard to occupational advancement, the admission 
standards are clearly relevant to an analysis of the plant’s 
promotional practices.

Promotion within the ranks of salaried personnel is 
based upon the supervisors’ subjective evaluation of a job 
candidate, without definite qualification factors being con­
sidered in a fixed ratio. Mr. Gfarner described the basic 
process for promoting an hourly wage earner to a salaried 
supervisory position:

Q Mr. Garner, would you please describe the process 
of selecting first line maintenance and production 
supervisors?

A  When there is a vacancy, an increased need for a 
first line supervisor in production, the positions are 
first approved by top management, who in this case 
would be the Plant Manager . . . .  [Then the respon­
sible Production Superintendent requests] his Area 
Supervisor to evaluate our employees for this position.

And the Area Foreman sends out memos, or by any 
means, ask Foreman and Employee Relations Depart­
ments, Superintendents and general management to 
recommend anyone they feel would be qualified for the 
position. Evaluations are made . . . [by] anyone who 
had the opportunity to evaluate their performance in 
a Temporary Foreman’s job or in a work capacity 
that they were being considered for.

Appendix B



44a

These evaluations and reports are turned in to the 
Production Superintendent and in group meetings, we 
discuss applicants—applicants meaning from within 
the company at this time, we used to go outside—and 
a group decision is reached on who would be the best 
canidate for the position. At times, depending on the 
circumstances, we might choose to have a period of 
time of several months to try out Temporary Foremen 
who have not tried out before; or it might be the case 
that we have already have done this as the year went 
along and that might not be necessary.

But, after the compilation of all of the results of the 
questionnaires or comments and evaluations, then a 
group decision is made of who is going to be offered 
that job. That person is then interviewed, it could 
be by more than one person, by four managers—my­
self, the Plant Manager, the Engineering and Con­
struction Manager and Mr. Portzer, our Production 
Manager. And if all agree that that is the right person 
for the right job at that time, an offer is made to that 
individual.

Q Then the final decision is made by no one partic­
ular person?

A  That is correct.

The questionnaires and evaluation forms used by Union 
Carbide require the interviewer’s subjective opinion con­
cerning the candidates’ “ adaptability,” “bearing, demeanor, 
manner,” “verbal expression,” “ appearance,” “maturity,” 
“drive,” and “ social behavior.” Such high-level subjectivity 
subjects the ultimate promotion decision to the intolerable 
occurrence of conscious or unconscious prejudice. Rowe

Appendix B



45a

v. General Motors Corp., supra, at 358-59; Wade v. Mis­
sissippi Cooperative Extension Service, supra, at 517-18.

(d) Conclusion. In Wade, this court noted that the em­
ployer’s evaluation form was constitutionally defective un­
der Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 
28 L.Ed.2d 158 (1971) in three respects:

(1) “ the questions on the evaluation form were in part
subjective and vulnerable to either conscious or 
unconscious discrimination by the evaluating su­
pervisors;”

(2) “ the evaluation scores themselves were not consis­
tently used as a basis for . . . promotion;” and,

(3) “ the defendants wholly failed to make a showing
that the test was substantially related to the par­
ticular job of the individual being evaluated.”  528 
F.2d 508, 518.

Similarly, in Rowe this court suggested several other con­
ditions reflecting Title VII violations:

(1) “ [t]he foreman’s recommendation is the indispens­
able single most important factor in the promotion 
process, [but he is] given no written instructions 
pertaining to the qualifications necessary for pro­
motion

(2) “ standards which were determined to be controlling
are vague and subjective;”

(3) “ [hjourly employees are not notified of promotion
opportunities nor are they notified of the qualifica­
tions necessary to get the job ;” and,

Appendix B



46a

(4) “ there are no safeguards in the procedure designed 
to avert discriminatory practices.” 457 F.2d 348, 
358-59.

In regard to Union Carbide’s promotion practices in 
the ranks of salaried personnel, we also conclude that the 
trial court’s no discrimination finding lacked adequate 
factual support in the record. Therefore, under our stan­
dard of review, we R e v e r se  and R e m a n d  the district 
court’s findings and conclusions regarding Union Carbide’s 
system of promoting employees in the ranks of the hourly 
wage and salaried personnel. Causey v. Ford Motor Co., 
516 F.2d 416, 420-21 (5th Cir. 1975). The employer clearly 
failed to rebut the statistics or to explain the disparity 
in promotion.

C l a s s  A c t io n  C l a im

Appellants argue that the trial court’s “ opt-in” notice 
violates the “ opt-out” notice provisions of Rule 23(c)(2 ).9 
Indeed, Rule 23(c)(2) provides for mandatory notice to 
(b) (3)-type10 class members whereby each has a right

9 Rule 23(c) (2) provides:
In any class action maintained under subdivision (b) (3) , 

the court shall direet to the members of the class the best 
notice practicable under the circumstances, including indi­
vidual notice to all members who can be identified through 
reasonable effort. The notice shall advise each member that 
(A) the court will exclude him from the class if he so requests 
by a specified date; (B) the judgment, whether favorable or 
not, will include all members who do not require exclusion; 
and (C) any member who does not request exclusion may, if 
he desires, enter an appearance through his counsel. 

Fed.R.Civ.P. 23(e)(2).
10Rule 23(b)(3) provides:

An action may be maintained as a class action if . . . the court 
finds that the questions of law or fact common to the members

Appendix B



47a

to exclude himself, or opt out of the class. Concerning 
this opt out option under Buie 23(c)(2), one commentator 
pointed out that the provision was patterned after the 
highly successful procedure of the Book-of-the-Month Club. 
Frankel, “ Some Preliminary Observations Concerning Civil 
Buie 23,” 43 F.B.D. 39, 44 (1967). The rule was designed 
to prevent “ sideline sitting” and subsequent “one-way in­
tervention” by the eligible class member. Compare, Escott 
v. Barchris Const. Corp., 340 F.2d 731, 735-36 (2nd Cir. 
1965) (Friendly, J., concurring).

Appellants’ claim essentially contests the second portion 
of the district court’s “Notice of Pendency of Class Action” 
requiring class members to opt in to obtain back pay.11 11

Appendix B

of the class predominate over any questions affecting only 
individual members, and that a class action is superior to 
other available methods for the fair and efficient adjudication 
of the controversy. The matters pertinent to the findings 
include:

(A ) the interest of members of the class in individually 
controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the 
controversy already commenced by or against members of 
the class; (C) the desirability or undesirability of con­
centrating the litigation of the claims in the particular 
forum; (D) the difficulties likely to be encountered in the 
management of a class action.

Fed.R.Civ.P. 23(b)(3).
11 The first portion of the district court’s notice of January 7, 

1974 provides:
You are hereby notified that Freddie D. Robinson and 

others have pending a legal action in the United States District 
Court for the Southern District of Alabama on behalf of all 
black job applicants and black employees of Union Carbide 
Corporation, Materials Systems Division.

The Court has by Order found and determined that this 
action is to be maintained as a class action for the benefit of 
the class.



48a

The supplemental notice to class members that do not 
opt out under the first portion of the Notice is permissible 
as requiring “ some affirmative action as a condition of 
ultimate recovery.” 3B Moore’s Federal Practice 23.55 
at 23-1161 (1975); Iowa v. Union Asphalt d  Boadoils, Inc., 
281 F.Supp. 391, 404 (S.D.Iowa 1968); Philadelphia Elec. 
Go. v. Aanaconda Am. Brass Co., 43 F.R.D. 452, 459 (EJD.

Appendix B

The basis of liability claimed against the defendant is the 
alleged violations of federal fair employment laws.

The defendant has denied liability.
If you are black and are either an employee or have been 

an employee or have an outstanding job application with the 
defendant, Union Carbide Corporation, Materials Systems 
Division, you will be included in such class for injunctive 
relief purposes; it is not necessary for you to contact the 
Court pertaining to injunctive relief sought and any judg­
ment will be binding upon you; however, if you wish to 
participate in this part of the litigation you have a right so 
to do and if you so elect you must notify the Clerk of the 
Court of your election by February 20th, 1974.

The supplemental provision provides:
If you are black and an employee or have an outstanding 

job application with defendant, Union Carbide Corporation, 
Materials Systems Division, and desire other appropriate 
relief in addition to the injunctive relief, you must notify 
the undersigned in writing at Post Office Box 1964, Mobile, 
Alabama, 36601, or at the United States Court House, Clerk’s 
Office, Mobile, Alabama, and said notice to be postmarked 
or filed not later than Fabruary 20th, 1974. If you desire to 
be included in the class for any such other appropriate relief 
and notify the undersigned or the Court of the same, you will 
be notified when the case is set on the merits, at which time 
you must appear and prove your claim in accordance with 
the law and be prepared to prove what efforts you have taken 
to mitigate your damages, if any.

A hearing is scheduled for 9 :00 a. in. on February 15th, 1974 
in Room 229, United States Court House, Mobile, Alabama to 
which you are invited to attend and at which meeting you 
may ask questions and receive answers as to your rights and 
responsibilities. As you will note, this meeting is scheduled 
prior to the time you must make your election.



49a

Pa, 1968); Harris v. Jones, 41 F.R.D. 70, 74-75 (D.Utah 
1966).

Thus, assuming the sufficiency of the first section of the 
Notice, the district court did not err by requiring the 
affirmative action in the second section as a condition of 
ultimate recovery.

We Affirm this part of the district court’s judgment.

C o n c l u s io n

We A f f i r m  the district court on the class action and 
hiring practices issues; R e v e r s e  and R e m a n d  on the no 
discrimination findings as to Union Carbide’s system of 
promotion.

Appendix B



50a

APPENDIX C
(Robinson v. Union Carbide, Fifth Circuit No. 75-1008, 

On Petition for Rehearing and Petition for 
Rehearing En Banc. September 10, 1976.)

O n  P e t it io n  e o b  E e h e a b in g  a n d  

P e t it io n  e o b  E e h e a b in g  E n  B a n c

(Opinion September 10,1976, 5 Cir. 1976, 538 F.2d 652.)

Before W is d o m  and I n g b a h a m , Circuit Judges, and 
G e o o m s , District Judge.

I n g b a h a m , Circuit Judge:

The original opinion is modified by withdrawing the lan­
guage following the first sentence under the section entitled 
“ Class Action Claim” found on page 662 and continuing 
to the end of the opinion, substituting the following there­
for.

We preface this discussion by noting that the action prob­
ably should have proceeded under Eule 23(b)(2) rather 
than 23(b)(3).10 The former compels inclusion and there-

10 Rule 23(b)(2) and (b)(3) provide:
An action may be maintained as a class action if
(2) the party opposing the class has acted or refused to 

act on grounds generally applicable to the class, thereby 
making appropriate final injunctive relief or corresponding 
declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact com­
mon to the members of the class predominate over any ques­
tions affecting only individual members, and that a class 
action is superior to other available methods for the fair and 
efficient adjudication of the controversy. The matters pertinent 
to the findings include: (A) the interest of members of the 
class in individually controlling the prosecution or defense of 
separate actions; (B) the extent and nature of any litigation 
concerning the controversy already commenced by or against



51a

fore promotes judicial economy, consistency of result, and 
binding* adjudication more effectively than 23(b)(3). Mun- 
gin v. Florida East Coast Ry. Co., 318 F.Supp. 720, 730 
(M.D.Fla. 1970), aff’d per curiam, 441 F.2d 728 (5th Cir.), 
cert, denied, 404 U.S. 897, 92 S.Ct. 203, 30 L.Ed.2d 175 
(1971). See also Bing v. Roadway Express, Inc., 485 F.2d 
441, 447 (5th Cir. 1973). However, (b)(3) type actions do 
bind all persons who do not opt out of the action. Fed.R. 
Civ.P. 23(c) (2). Rule 23 does not require notice for (b) (2) 
type actions. Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 
239, 254-57 (3rd Cir. 1975). Rule 23(c)(2) provides for 
mandatory notice to class members in (b)(3) type actions, 
whereby each has a right to exclude himself, or opt out of, 
the class. This “Book-of-the-Month Club” 11 approach pre­
vents “ sideline sitting” by eligible class members. Com­
pare Escott v. Barchris Construction Corp., 340 F.2d 731, 
735-36 (2nd Cir. 1965) (Friendly, J., concurring).

Appellants’ attack is directed at the supplemental provi­
sion of the district court’s “Notice of Pendency of Class 
Action” requiring class members to opt in to obtain back 
pay.* 11 12 The district court undoubtedly realized that there

Appendix G

members of the class; (C) the desirability or undesirability of 
concentrating the litigation of the claims in the particular 
forum; (D) the difficulties likely to be encountered in the 
management of a class action.

11 See Prankel, “ Some Preliminary Observations Concerning 
Civil Rule 23,” 43 F.R.D. 39, 44 (1967).

12 The first portion of the district court’s notice provides:
You are hereby notified that Freddie D. Robinson and 

others have pending a legal action in the United States 
District Court for the Southern District of Alabama on behalf 
of all black job applicants and black employees of Union 
Carbide Corporation, Materials Systems Division.



52a

are some class actions where it is necessary for class mem­
bers who do not opt out “ to take some affirmative action 
as a condition of ultimate recovery.” 3B Moore’s Federal 
Practice if 23.55 at 23-1161 (1975). The key word here is 
“ultimate.” This has particular relevance to Title VII

Appendix C

Tlie Court has by Order found and determined that this 
action is to be maintained as a class action for the benefit of 
the class.

The basis of liability claimed against the defendant is the 
alleged violations of federal fair employment laws.

The defendant has denied liability.
I f  you are black and are either an employee or have been 

an employee or have an outstanding job application with the 
defendant, Union Carbide Corporation, Materials Systems 
Division, you will be included in such class for injunctive 
relief purposes; it is not necessary for you to contact the 
Court pertaining to injunctive relief sought and any judg­
ment will be binding upon you; however, if you wish to 
participate in this part of the litigation you have a right so 
to do and if you so elect you must notify the Clerk of the 
Court of your election by February 20th, 1974.

The supplemental provision provides:
If you are black and an employee or have an outstanding 

job application with defendant, Union Carbide Corporation, 
Materials Systems Division, and desire other appropriate relief 
in addition to the injunctive relief, you must notify the 
undersigned in writing at Post Office Box 1964, Mobile, 
Alabama, 36601, or at the United States Court House, Clerk’s 
Office, Mobile, Alabama, and said notice to be postmarked or 
filed not later than February 20th, 1974. If you desire to be 
included in the class for any such other appropriate relief 
and notify the undersigned or the Court of the same, you will 
be notified when the case is set on the merits at which time 
you must appear and prove your claim in accordance with the 
law and be prepared to prove what efforts you have taken to 
mitigate your damages, if any.

A  hearing is schedule for 9 :00 a. m. on February 15th, 1974 
in Boom 229, United States Court House, Mobile, Alabama to 
which you are invited to attend and at which meeting you 
may ask questions and record answers as to your rights and 
responsibilities. As you will note, this meeting is scheduled 
prior to the time you must make your election.



53a

actions, wherein a bifurcated procedure is utilized to deter­
mine, first, liability and then relief. Sivint v. Pullman- 
Standard, 539 F.2d 77, 94 (5th Cir. 1976); Sagers v. Yel­
low Freight System, Inc., 529 F.2d 721, 733-34 (5th Cir. 
1976); Baxter v. Savannah Sugar Bef. Corp., 495 F.2d 437, 
443-44 (5th Cir. 1974). Although there may be some Title 
Y II actions in which unnamed individual plaintiffs will 
have to come forward to establish their entitlement to por­
tions of the recovery, such requirement should not be im­
posed upon them until necessary for adjudication. In this 
case, coming forward to establish an entitlement was futile 
in light of the initial determination by the district court 
that that defendant was not liable. Opting in was not 
necessary before the determination of liability. The dis­
trict court apparently relied upon the language of 23(d) 
(2 )13 for its opt-in requirement. Although 23(d)(2) might 
be read to impinge upon the preceding subsections of Rule 
23, we cannot believe that it was intended to negate the 
clear trust of the rule which is to minimize the requirement 
of active intervention by numerous members of an affected 
class.

Upon remand, the court should consider the claims of 
those members who would have been excluded by their 
earlier failure to opt in for back pay purposes. It may be

13 Rule 23(d )(2 ) provides:
In the conduct of actions to which this rule applies, the 

court may make appropriate orders . . .
(2) requiring, for the protection of the members of the 

class or otherwise for the fair conduct of the action, that 
notice be given in such manner as the court may direct to 
some or all of the members of any step in the action, or of the 
proposed extent of the judgment, or of the opportunity of 
members to signify whether they consider the representation 
fair and adequate, to intervene and present claims or defenses, 
or otherwise to come into the action.

Appendix C



54a

necessary to obtain some affirmative action before the final 
determination of appropriate relief. While not necessar­
ily erroneous, the language of the supplemental provision 
is not especially informative as to what relief was avail­
able to the class members. The district court should in­
form class members that back pay is included among pos­
sible types of relief.

We R e v e r se  this part o f  the district court’s judgment.

C o n c l u s io n

We A f f ir m  the district court on the hiring practices 
issue: we R e v e r se  and R e m a n d  on the no-discrimination 
findings as to Union Carbide’s system of promotion and 
on the class action issue.

W is d o m , Circuit Judge (concurring specially):

After further consideration of Robinson v. Union Car­
bide Co., No. 75-1008, September 10, 1976, the Court has 
withdrawn the section of its opinion entitled “ Class Action 
Claim” and has substituted a new opinion. Because the 
majority opinion restricts too narrowly the discretion of 
district courts to gather information in class action suits, 
I  file this special concurrence.

The plaintiffs-appellants brought a class action job dis­
crimination case against the company’s Materials Systems 
Division. The district court held that neither the hiring 
policies nor the job promotion practices of the division 
violated the Civil Rights Acts. We affirm the holding about- 
hiring but reversed that portion of the holding relating to 
job promotions, because the company has not satisfactorily 
rebutted the plaintiffs’ statistical showing of racial dis­
crimination.

Appendix C



55a

The plaintiffs based their appeal, in part, on notice sent 
to the members of the class by the district court at the 
outset of the suit:

If you are black and an employee or have an outstand­
ing job application with defendant. . . and desire other 
appropriate relief in addition to injunctive relief, you 
must notify the undersigned in writing . . . .  I f you 
desire to be included in the class for any such other 
appropriate relief and notify the undersigned or the 
Court of the same, you will be notified when the case 
is set on the merits, at which time you must appear 
and prove your claim in accordance with the law and 
be prepared to prove what efforts you have taken to 
mitigate your damages, if any.

The workers argue that this notice violates the opt-out 
provisions of Rule 23(c)(2) of the Federal Rules of Civil 
Procedure1 because it requires class members to take affirm­
ative action to secure back pay or other damages. At first 
glance, the unfortunate wording of the supplemental notice 
provision appears to require members to take affirmative 
action to join the class. If the notice actually constituted 
an opt-in order, it would clearly violate Rule 23. See Ten-

Appendix C

1Rule 23(c) states in part:
(2) In any class action maintained under subdivision (b) 

(3), the court shall direct to the members of the class the 
best notice practicable under the circumstances, including 
individual notice to all members who can be identified through 
reasonable effort. The notice shall advise each member that 
(A) the court will exclude him from the class if he so requests 
by a specified date; (B) the judgment, whether favorable or 
not, will include all members who do not request exclusion; 
and (C) any member who does not request exclusion may, if 
he desires, enter an appearance through his counsel.



56a

tative Draft, Manual for Complex Litigation 72-74 (fourth 
revision, July 21,1976). Closer analysis of both the supple­
mental and primary notices reveals, however, that they do 
not require the plaintiffs to opt into the class action in 
violation of the Rule. As a result, I cannot accept the 
plaintiffs’ objection to the notices, although I would remand 
them for further action by the district court on other 
grounds.

Rule 23, as amended in 1966, requires the trial court in 
a class action to issue an “ opt-out” notice informing class 
members that they will be bound by the law suit unless 
they notify the court of their intention not to be bound. 
If they so notify the district judge, the judgment in the 
class action will neither affect them nor prevent them from 
filing a later suit on the same matter. The authors of the 
Rule preferred this approach over an “ opt-in” procedure 
whereby members of the class would notify the district 
court if they desired inclusion in the suit. Kaplan, Con­
tinuing Work of the Civil Committee: 1966 Amendments 
of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 
356, 397 (1967). The amendment therefore prevents poten­
tial class members from delaying their decision about 
whether to join the action until the case reaches judgment. 
Such “ sideline sitting” would enable them to receive the 
benefits of a judgment in their favor and to avoid the res 
judicata effect of a decision against their interests. 3B 
Moore’s Federal Practice if 23.55 at 23-1160 (1975). Now, 
they will be bound unless they “ opt-out” at an early stage 
of the litigation.

The supplemental notice in this case does not violate the 
amendment to Rule 23(c)(2) because it does not require 
members to opt-into the class action in order to be bound

Appendix C



57a

by it. As the trial court explained in its primary notice,2 * * * * * 
the class members were bound unless they notified the 
court of their desire to be excluded. The supplemental 
notice, directed only to those members who had not ex­
cluded themselves, merely conditioned the receipt on the 
submission and proof of the claim for such relief. I f the 
members had not submitted their claims, they could not 
have brought other suits because, under the court’s 
primary notice, the class action had res judicata effect 
upon all claims arising from the alleged job discrimination. 
Consequently, the two notices prevented sideline sitting 
and did not violate Rule 23(c)(2).

Correctly analyzed, the supplemental notice in Robinson 
arises from Rule 23(d)(2),8 not (c)(2 ). Because the au­

2 The first portion of the district court’s notice of January 7,
1974 states in part:

You are hereby notified that Freddie D. Robinson and 
others have pending a legal action in the United States 
District Court for the Southern District of Alabama on behalf 
of all black job applicants and black employees of Union 
Carbide Corporation, Materials Systems Division . . .

The Court has by Order found and determined that this 
action is to be maintained as a class action for the benefit of 
the class.

% #  #

If you are black and are either an employee or have been 
an employee or have an outstanding job application with the 
defendant, Union Carbide Corporation, Materials Systems 
Division, you will be included in such class for injunctive 
relief purposes, it is not necessary for you to contact the 
Court pertaining to injunctive relief sought _ and any judg­
ment will be binding upon you; however, if you wish to 
participate in this part of the litigation you have a right so 
to do and if you so elect you must notify the Clerk of the 
Court of your election by February 20th, 1974.

8 Rule 23(d) states in part:
In the conduct of actions to which this rule applies, the 
court may make appropriate orders: . . .  (2) requiring, for

Appendix C



58a

thority to issue such notices is discretionary rather than 
mandatory, the question is whether the district court abused 
its discretion by issuing a supplemental notice that con­
ditioned damage recovery on certain affirmative action by 
class members. I would hold that an abuse occurred be­
cause the notice burdens too severely the right of small 
claimants to benefit from the class action.

The class action device enables small claimants, who 
could not afford to bring individual law suits, to vindicate 
their common rights. Hawaii v. Standard Oil Co., 1972, 
405 TT.S. 251, 265-66, 92 S.Ct. 885, 31 L.Ed.2d 184; Korn 
v. Franchard Corp., S.D.N.Y. 1970, 50 F.R.D. 57, 58, rev’d 
on other grounds, 2 Cir. 1972, 456 F.2d 1206; cf. Rothman 
v. Gould, S.D.N.Y. 1971, 52 F.R.D. 494, 496. This over­
riding policy supports the “ opt-out” approach of the 
1966 amendments. As Professor Kaplan has argued:

[R]equiring individuals affirmatively to request inclu­
sion in the lawsuit would result in freezing out the 
claims of people—especially small claims held by 
small people—who for one reason or another, ig­
norance, timidity, unfamiliarity with business or legal 
matters, will simply not take the affirmative step. The 
moral justification for treating such people as null 
quantities is questionable. . . .  Its seems fair for the 
silent to be considered as part of the class.

Appendix C

the protection of the members of the class or otherwise for the 
fair conduct of the action, that notice be given in such manner 
as the court may direct to some or all of the members of any 
step in the action, or of the proposed extent of the judgment, 
or of the opportunity of members to signify whether they 
consider the representation fair and adequate, to intervene 
and present claims or defenses, or otherwise to come into the 
action; . . .



Appendix C

Kaplan, Continuing Work of the Civil Committee: 1966 
Amendments of the Federal Rules of Civil Procedure (I),
1967, 81 Harv.L.Rev. 356, 397-98.

Despite the strength of this policy, district courts have 
consistently tempered it with the recognition that damage 
remedies, even in class actions, should respond to harm 
actually suffered by class members. In a securities case 
the purchaser of ten shares may deserve twice the recovery 
of the purchaser of five shares. Similarly, in a job dis­
crimination action, a worker unjustifiably denied three 
promotions may deserve more back pay than another 
worker denied only one advancement. To effect such rem­
edies, then, courts must request class members to explain 
the facts of their various claims. See, e.g., Philadelphia 
Electric Co. v. Anaconda American Brass Co., E.D.Pa,
1968, 43 F.RD. 452, 459; Harris v. Jones, D.Utah 1966, 41 
F.R.D. 70, 74. Furthermore, early discovery of the ex­
tent and type of claims can expedite substantially the 
management of a class action. For instance, in Arey v. 
Providence Hospital, D.D.C.1972, 55 F.R.D. 62, the court 
requested early feedback from class members in an em­
ployment discrimination suit. Judge Flannery thought 
the information:

would be instructive and aid the court by providing 
information as to the scope of the class and the scope 
and diversity of discrimination claims, thereby allow­
ing the court to rule more intelligently in future de­
terminations regarding the boundaries of the class, 
the need for sub-classes, or even a re-evaluation of 
the class status designation itself. In the court’s mind, 
the fact that this action is brought under Title VII 
and involves individual rights championed in the pub-



60a

lie interest is supportive of the court’s desire for as 
much information as possible before making rulings 
affecting these rights.

Early identification of this information will also encour­
age accurate settlement discussions.

The task facing district judges as they promulgate 
23(d)(2) notices is to reconcile the conflicting policies. 
Although the decision-making must proceed case by case, 
a few general observations can help guide the exercise 
of district court discretion. First, proper management of 
class actions requires that district judges be granted the 
authority under Rule 23(d)(2) to request class members 
to file statements of their claims. Knight v. Board of 
Education, S.D.N.Y.1969, 48 F.R.D. 108, 112-14; Iowa v. 
Union Asphalt & Roadoils, Inc., S.D.Iowa 1968, 281 F. 
Supp. 391, 403-04; Harris v. Jones, D.Utah 1966, 41 F.R.D. 
70, 74. Second, because this information can assist dis­
trict courts as they structure sub-classes, reexamine class 
designations, or promote prompt settlements and other 
dispositions, district judges should be able to request that 
class members respond to supplemental notices at early 
stages of litigation.4 Arey v. Providence Hospital, D.D.C.

Appendix C

4 In an amicus brief the Equal Employment Opportunity Com­
mission argues that “no purpose whatsoever is served by requiring 
class members to present back pay claims prior to a determination 
as to liability” of the defendant. As Judge Flannery explained 
in Arey v. Providence Hospital, D.D.C. 1972, 55 F.R.D. 62, how­
ever, several benefits can accrue from early statement of claims. 
By forbidding early requests for such statements, we would deny 
district courts the discretion to collect claim information that 
could assist in management of the class, definition of sub-classes, 
promotion of settlements, or re-evaluation of the class designation 
itself. Consequently, we cannot hold as a matter of law that a



61a

1972, 55 F.R.D. 62, 71-72. Third, the courts, when neces­
sary, should be able to enforce their requests for informa­
tion by limiting recovery to those who respond. Korn

Appendix G

district judge necessarily abuses his discretion by requiring the 
statement of claims prior to the imposition of liability.

Several district courts in the exercise of their discretion, have 
declined to require early claim statements. See, e.g., Byrnes v. 
IDS Realty Trust, D.Minn. 1976, 70 F.R.D. 608, 614; B & B Invest­
ment Club v. Kleinert’s Inc., E.D. Pa. 1974, 62 F.R.D. 140, 145-51; 
Sirota v. Econo-Car International, Inc., S.D.N.Y. 1974, 61 F.R.D. 
604, 607-08. Our holding would not preclude such judgments. 
But these cases do not provide the grounds for holding a contrary 
decision necessarily to be an abuse of discretion. B &• B Invest­
ment Club, for instance, holds that as a matter of fact the potential 
benefits of requiring early claim statements do not outweigh the 
potential detriments. Because such factual determinations will 
vary from case to case, district courts should have the discretion 
to weigh the merits of each situation. Furthermore, the potential 
detriment underlying the B & B decision rests on the dubious 
assumption that small claimants will more likely take affirmative 
action to state their claims after, rather than before, the decision 
on liability. Before this assumption could provide the basis for a 
legal decision precluding all requests for early claim statements, 
substantial empirical evidence would have to support it. Presently, 
no empirical data exist on the topic.

The EEOC also submits that requiring early claim statements 
violates Title YII principles. First, it argues that Albemarle 
Paper Co. v. Moody, 1975, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 
280, prohibits district courts from conditioning recovery of back 
pay on early statements of claims. Moody held that a district court 
could not deny back pay to an entire class of plaintiffs without a 
compelling justification. The Supreme Court found that “good 
faith” conduct by an employer could not justify such a denial. But 
the Court also found that delay in the request for back pay by a 
plaintiff class could justify a denial. If delay can become a “com­
pelling justification,” then a total failure to provide the district 
court with a basis upon which to manage the class action and to 
compute damages should also provide the justification. Further­
more, the Supreme Court granted the district courts broad dis­
cretion to make such determinations. Appellate courts were in­
structed to reverse only clearly erroneous decisions. Consequently, 
Moody supports our refusal to limit the discretion of the district 
courts.



62a

v. Franchard Corp., 2 Cir. 1972, 456 F.2d 1206, 1210-11, 
illustrates the problems created by optional claim state­
ments. So few class members in this securities case re­
sponded to the request for information that the defendants 
moved to dissolve the class. Although the district court 
wisely denied the motion, the valid purposes for which 
it issued the supplemental notice could hardly have been 
attained when 75 percent of the class failed to return 
the questionnaire and another 15 percent did not answer 
it completely. Id.; Korn v. Franchard Corp., S.D.N.Y. 
1970, 50 F.B.D. 57, 58-59. Consequently, we cannot say 
as a general rule that enforcement of claim statement 
requests necessarily exceeds the discretion granted dis­
trict judges under Rule 23(d)(2). A  court may decide 
that enforcement is not needed in various cases or stages 
of litigation. Arey v. Providence Hospital, D.D.C.1972, 
55 F.R.D. 62, 72. But given the substantial need for ac­
curate information about claims, district courts should re­
tain discretionary enforcement authority.

Because of the basic purpose of the class action, how­
ever, district courts cannot exercise unlimited discretion to 
issue (d) (2) notices. The judiciary must always be sensi­
tive to the need of citizens to protect their common rights 
while avoiding the expense and procedural burdens of 
major litigation. To protect this interest, courts should 
not issue (d)(2) notices that require complicated legal re­
sponses. First, notices should not place the burden on 
class members to discover what remedies might be avail­
able to them. Open ended requests for them to come for­
ward and make their cases would require class members 
to seek legal advice, a substantial financial burden, to dis­
cover whether they had cases to advance. The court itself 
should set forth the alternatives, as well as any other points

Appendix C



63a

of law necessary to understand the notice. Second, the 
court should limit the required responses by class mem­
bers to factual matters that laymen can easily supply. See 
Knight v. Board of Education, S.D.N.Y. 1969, 48 F.R.D. 
108, 113 (a sample questionnaire). Third, the court should 
provide the easiest means practicable for the members to 
register their responses. Requiring personal appearances, 
at least at early stages of the litigation, would generally 
impose too great a burden, especially where written re­
sponses would suffice. In addition, any requests for writ­
ings should include, whenever possible, a form that the 
members can easily fill out and return. By instituting such 
precautions, the district judge can satisfy both the need 
for information and the requirement that recovery by class 
members not be too severely conditioned on participation 
in the litigation.

In Robinson the supplemental notice exacts too much 
from the class members in two respects. First, the notice 
does not ask for specific factual information that laymen 
can supply without reliance on legal counsel. By leaving 
class members to discover on their own whether any rem­
edies might be available to them, the court burdens them 
with a legal determination. This discovery process would 
be expensive and time consuming for laymen, who prob­
ably would have to consult lawyers. The notice, therefore, 
impermissibly encumbers the rights of class members to 
benefit from the action. Second, the court announced too 
early in the litigation that the members would have to 
appear in court to prove their claims. Because personal 
appearances impose significant burdens, the request for 
them should not occur until the district court has deter­
mined that the judgment in the action requires them. Only 
if written submissions and the trial record fail to provide

Appendix C



64a

an adequate basis to determine remedies should class mem­
bers be required to argue their cases in person.

For these reasons the district court abused its discre­
tion by conditioning ultimate recovery of noninjuiictive re­
lief on the workers’ responses to the supplemental notice. 
Because we have already remanded the case, I would 
merely add this conclusion to the remand order and in­
struct the court to issue a new supplemental notice, con­
sistent with this opinion, to those class members who may 
deserve recovery of back pay because of discrimination in 
job promotions. A sample notification appears in the mar­
gin.5 6

Appendix G

5 Supplemental Notice: You are hereby notified that the United 
States District Court for the Southern District of Alabama con­
tinues to consider a lawsuit against the Union Carbide Corporation, 
Materials Systems Division, filed on behalf of black employees. 
The court must now decide whether to award back pay to any 
employee or former employee who suffered job discrimination be­
cause of promotion policies of the Division.

Before the court can award back pay, it must evaluate the 
individual claims of job discrimination by employees and former 
employees. If you are black and an employee or former employee 
of the division, by filling out the enclosed form you will enable the 
court to determine whether you should receive an award of back 
pay. If you do not return the form, you will not receive an award. 
Please send the form to the court at Post Office Box 1964, Mobile, 
Alabama 36601, postmarked no later than (date).



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