Bazemore v. Friday Reply Brief for Petitioners Bazemore, et al.

    I2L£

Nos. 85-93, 85-428

I n  THE

j âprputT GJmirt at %  latteii States
Octobee Teem, 1985

P. E. Bazemore, et al.,

v.

W illiam C. F riday, et al.

United States o p  America, et al.,

Petitioners,

Petitioners,
v.

W illiam C. F riday, et al.

ON PETITIONS FOR WRIT OP CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS POR THE FOURTH CIRCUIT

REPLY BRIEF FOR PETITIONERS BAZEMORE, et al.

E dward D. Reibman
108 North Eighth Street 
Allentown, Pa. 18101

Cressie H. Thigpen, J r.
Thigpen, Blue & Stephen's 
Suite 214
Hallmark Building 
Raleigh, North Carolina 27601

J ulius LeVonne Chambers 
R onald L. E llis 
E ric Schnapper*

NAACP Legal Defense & 
Educational Fund, Inc.

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

Counsel for Petitioners Bazemore, et al. 
^Counsel of Record



-  1  -

TABLE OF AUTHORITIES

Cases Page
City of Los Angeles Department

of Water & Power v. Manhart,
435 U.S. 702 ( 1978 ) ..........  3

Connecticut v. Teal, 457 U.S.
440 (1982) .......... .........  3

Furnco Construction Corp. v.
Waters, 438 U.S. 567 (1978) .. 6

General Building Contractors 
Ass'n v. Pennsylvania,
458 U.S. 375 (1982) ........... 5,6,7

Guardians Association v. Civil 
Service Commission,
U.S. ____ ( 1983) ............. 8

Mayor of Philadelphia v. Educa­
tional Equity League, 415 
U.S. 605 ( 1974) ..... ........  2

Segar v. Smith, No. 84-1200 ....... 2,4

Other Authorities
7 C.F.R. § 15.3(b)(6)(i) ..........  7
A Uniform System of Citation

(13th ed. 1981 ) ..............  7



Nos. 85-93, 85-428 
IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1985

P. E. BAZEMORE, et al.,
Petitioners,

V .

WILLIAM C. FRIDAY, et al.

UNITED STATES OF AMERICA, et al.,
Petitioners,

V.

WILLIAM C. FRIDAY, et al.

On Petitions for Writ of Certiorari 
to the United States Court of Appeals 

for the Fourth Circuit

REPLY BRIEF FOR 
PETITIONERS BAZEMORE, ET AL.

Petitioners P. E. Bazeraore, et al., 

submit this reply brief in response to the 
petition for writ of certiorari filed by 
the United States:



2

(1) Ten months ago the Solicitor 
General advised this Court that the 

conflicting views of the circuit courts 

regarding the use of statistical evidence 
was an important problem warranting review 

by this Court. Petition for Writ of 

Certiorari, Smith v. Segar, No. 84-1200. 
The Solicitor argued in Smith that the 

District of Columbia's method of evaluat­

ing statistical evidence involved "a 

significantly different approach in 
evaluating multiple regression analysis" 
than the Fourth Circuit decision in the 
instant case. (Id_. , 23). The Solicitor 

asserted the conflicting Fourth Circuit 
and District of Columbia Circuit practices 
were both unsound, characterizing the 
latter as a violation of standards
established by several decisions of this 

1
Court.
_

The Solicitor argued that the decision in 
Smith was in conflict with Mayor of 
Philadelphia v. Educational Equity League,



3

In his January 1985 petition in Smith 
the Solicitor read the Fourth Circuit 
opinion in this case, as do we, to require 

a plaintiff to include in any statistical 
analysis any variable that could possibly 

explain away racial disparities. In 
Bazemore, the Solicitor argued, there were

nine independent variables that 
the court [of appeals] believed 
should have been but w[ere] not 
included in the multiple 
regression analysis included in 
that case.... We believe that 
the Bazemore court went too 
far...; our position is not 
that plaintiffs' multiple 
regression analysis must 
include any qualification that 
the employer at some point in 
the litigation asserts as 
necessary for the position at 
issue. (Petition, pp. 24-25).

415 U.S. 605 (1974), Connecticut v. Teal, 
457 U.S. 440 (1982), and City of Los 
Angeles Department of Water & Power v. 
ManhartT] 435 U.S. 702 (1978 ). Petition, 
pp. 22-23.



The Solicitor argued in Smith that a wage 
comparison of blacks and whites in the 

same job need not consider any other 

factors unless the employer utilized some 

clearly established standard to set 

different salaries for employees doing the 
same work.

In the instant case the Solicitor
appears to embrace the fourth circuit
doctrine he earlier repudiated, now 
asserting that a wage comparison of blacks 
and whites in the same job is of no 

evidentiary significance unless that 

analysis includes all "factors that 
normally would be expected to account for 
salary differentials." (Petition, p. S). 
Like the court below, the Solicitor sees 

no need for a defendant to offer any 
evidence that these factors were actually 
utilized in setting salaries, or to demon­
strate that including those variables 
would actually affect proven disparities



5

in the salaries of blacks and whites. On 

this view, a court should reject statisti­

cal evidence whenever that court, or an 

employer, can hypothesize any "reasonable" 
factor that might have affected the 
salaries in dispute. (Id, 19-20). The 
Solicitor in January of this year regarded 
that doctrine as both incorrect and in 
conflict with other appellate decisions, 
and we concur with his original view of 
the matter.

(2) The Solicitor urges that the 
fourth circuit was correct in holding that 

Title VII permits an employer to avoid 

legal responsibility for employment 
decisions by delegating those decisions to 
a third party. (Petition 20-21). The 

Solicitor does not dispute the obvious 
importance of this issue, but insists that 

this Court resolved that very question in 
General Building Contractors Ass'n. v. 
Pennsylvania, 458 U.S. 375 (1982).



6

General Building Contractors, of course, 

was a section 1981 case, and the decision 

there turned on the fact that section 

1981, unlike Title VII, requires proof of 
discriminatory intent.

The Solicitor asserts General 

Building Contractors is also a definitive 

interpretation of Title VIt because that 
decision cited a Title VII case, Furnco 
Construction Corp. v. Waters, 438 U.S. 
567, 577-78 (1978). The passage from
Furnco referred to in General Building 

Contractors, however, has nothing to do

with whether an employer can delegate away
2

its Title VII obligations. The signal 
preceding the citation to Furnco is "Cf.", 

which indicates that the cited material

"Title VII ... does not impose a duty to 
adopt a hiring procedure that maximizes 
hiring of minority employees." 438 U.S. 
at 577-78.



- 7 -

does not contain the same holding as the
General Building Contractors opinion in

3
which it was cited.

(3) The applicable regulations of 
the United States Department of Agricul­

ture require a state such as North 
Carolina which established its 4-H club 

system on a de jure segregated basis to 

"take affirmative action to overcome the 
effects of prior discrimination." 7
C.F.R. § 15.3(b )(6)(i ). There is no
dispute that respondents have never taken, 

and do not intend to take, such action, 
and thus remain in violation of that 

regulation. The Solicitor General, as 
attorney for the Secretary of Agriculture, 

evidently has no interest in enforcing the 
Department's regulations. We do, and the

3 Cf. indicates that the "[cjited authority 
supports a proposition different from the 
main proposition but sufficiently analo­
gous to lend support. Literally, ' cf. ' 
means 'compare'." A Uniform System of 
Citation, 9 (13th ed. 1981).



8

parties to enforce such Title VI regula­

tions was clearly established by Guardians 

Association v. Civil Service Commission,

____ U.S. _____ , 77 L. Ed. 2d 866, 103 S.Ct.
3221 (1983).

(4) The Solicitor suggests that it 
does not matter whether the denial of 

class certification was erroneous, since 
the government intervened in 1972 seeking 

the same relief requested in the private 
class action. (Petition, p. 22). 

Elsewhere in his petition, however, the 
Solicitor abandons the salary claims of 
all black employees hired after 1965 (id., 
pp. 19-20), the promotion claims of all 

black employees denied positions as county 

chairmen (id., pp. 20-21), and the claims 

of black employees who object to serving 
racially segregated 4-H and Extension 
Homemaker Clubs. (Id., pp. 21-22). The 
certification issue may have seemed of 
little practical importance while the



9

Department of Justice was still champion­
ing each of these claims, but the Solici­

tor’s decision to abandon those claims 
makes the availability of certification of 
vital importance. If the Court grants 
certiorari on questions 2, 3, or 4, it 

should grant certiorari on question 5 as 

well, in order to assure that the 

interests of putative class members will 
continue to be fully represented and 
enforced.

CONCLUSION

For the above reasons a writ of
certiorari should issue to review the
judgment and opinion of the f o u r th
circuit.

Respectfully submitted,

EDWARD D. REIBMAN
108 North Eighth Street 
Allentown, Pa. 18101



10

CRESSIE H. THIGPEN, JR.
Thigpen, Blue & Stephens
Suite 214
Hallmark Building
Raleigh, North Carolina- 27601

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
ERIC SCHNAPPER *

NAACP Legal Defense & 
Educational Fund, Inc.
16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

COUNSEL FOR PETITIONERS BAZEMORE, ET AL. 
* Counsel of Record



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