Albemarle Paper Company v. Moody Petition for Writ of Certiorari Filed October 7, 1974 and Certiorari Granted December 16, 1974
Public Court Documents
February 13, 1975
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Brief Collection, LDF Court Filings. Albemarle Paper Company v. Moody Petition for Writ of Certiorari Filed October 7, 1974 and Certiorari Granted December 16, 1974, 1975. dc9a6461-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8751c668-5842-40b5-9252-22e6e24f9b0f/albemarle-paper-company-v-moody-petition-for-writ-of-certiorari-filed-october-7-1974-and-certiorari-granted-december-16-1974. Accessed May 13, 2025.
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O ctober T erm . 1970
No. 74-389
A l b e r m a r u P a p e r C o m p a n y , k t a l „ Petitioners,
v.
JosEDi P. M oody, e t ai.., Respondents.
Oa u m C l- CERl i o r a r i t o THE UNITED S T iTFS C'OUTT
O f APPEALS FOR THE FOURTH CIRCUIT
rilTiTiON FOk n u n O! CERTIOR \ju n r ri) f i r m i r p -
CERTIORARI GRANTED DECEMMER 1974 * 19/4
I 'rancis V. Lowden, ]a.
T hom a s j . M anley
A bram W. Vandf.rM eer , Jr .
H u n t o .v . V teeia m s. G ay
& G ibson
700 East Main Street
Richmond, Virginia 23219
J ulian R. A llserook , J r .
.allser o o k . Re n to n . K.nott .
Allsbrook & C ranford
P. O. Box 100
200 Becker Drive
Roanoke Rapids. North Caioiina
G ordon G. B u s d ic k e r
F aegre & B e n s o n
1300 Northwestern Bank Hleio.
-Minneapolis, Minnesota 55402
C h a r l e s O ’C o n n e u
P. O. Box 3260
St. Paul. Minnesota 55365
C h a r les F . B la n c h a r d
B la n c h a r d , T u c k e r . T w ig g s
. oC D i.NsON
P. O Bom Drawer 30
Raleigh. N'ortn CanC.na 27602
l
*
INDEX
Page.
I. O p in io n s B e l o w ................. .......... .................. ................................ ........ ]
II. J u r is d ic t io n ............................. ........................................................ .......... \
III. St a t u t e s A n d R e g u l a t io n s I n v o l v e d .............. ............... ........... ]
IV . Q u e s t io n s P r e s e n t e d F or R e v i e w ________________ ____ .... 3
V . St a t e m e n t O f T h e C a s e .................. ....... .......................................... 4
VI. S u m m a r y O f A r g u m e n t _____________ _____ _______________ 23
VII. A r g u m e n t
A. The District Court Correctly Refused To Enjoin The
Use Of Albemarle’s Testing Procedures._____________27
1. Introduction__________________________________ 27
2. The Evidence In Tills Case Sliows Albemarle’s Tests
Were Not Discriminatory._____________________ 28
3. Albemarle Demonstrated Its Tests To Be A Reason
able Measure Of Job Performance.________________32
(a) Defendants’ Tests Were Found To Be Job Related
By The District Court.________________________32
(b) The Findings Of The District Court Have Not
Been Shown To Be Erroneous._______________34
(i) Job Analysis______ ___________________36
(51) Supervisors’ R atings_______________ ,__ 39
(in) Business Necessity'______________ ;______ 43
B. In Any Event The.Court Of Appeals Erred In Not
Remanding The Issue To The District Court.________47
i
Page
C. The District Court Had Traditional Equitable Discretion
To Determine Whether Back Pay Was An Appropriate
Remedy.................................. .................................... 59
1. Title VII Leaves I he Award Or Denial Of Back Pay
To The General Equitable Discretion Of The Dis
trict Courts..................................................................... 50
2. The Discretion Of A District Court Regarding The
Back Pay Remedy Should Be Guided By Traditional
Equitable Principles......................................................... 55
3. Even Under A “Special Circumstances” Standard, The
District Court Was Justified In Denying Back Pay..... 61
D. Back Pay Should Not Be Awarded To Class Members
W ho Did i\ot Pile Charges With The Equal Employment
Opportunity Commission.................. ............. .....................' g]
VIII. C o n c l u s io n ........;............................................................................. _ 57
1. Affirm The District Court.............................................._ 57
2. Reverse The Court Of Appeals And Remand To The
District Court For Further Proceedings........................ 67
TABLE OF c i t a t i o n s
Cases' : .. _.
Page
Austin v. Reynolds Metals Co.. 327 F.Supp. 1145 (E.D. Va. 1970) 64
Barlow v. Collins, 397 U.S. 159 (1970) 35
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 436 (5'th. Cir.
" 1974), cert,denied, ...... UjS. Z : , « tJiSX.Wl 3306- (U.S.,
Nov. 26, 1974) 57
Boston Chapter, NAACP v. Beecher, 504 F.2d 1017 (1st Cir. 1974) 37
Rowe v. Colgate Palmolive Co., 416 F.2d 711 (7th Cir. i969) ..54, 62
Bridgeport Guardians, Inc. v. Civil 'Sen-Ice Commission, 482 F.2d
1333 (2nd Cir. 1973) .................................................•'....... 23> 24> 28
Carter v. Gallagher, 452 F.'2d '315 (8th Cir.), cert, denied, 406
u .s . 950 (1972) -28
Castro v. Beecher, 459 F.‘2d 725 (lst'Cir. 1972) 34
Chance v. Board of Examiners, 330 F.Supp. 2C3 (S.D. N.Y. 1971) .. 31
Commissioner v. Duberstein, 363 U.S. 278 (1960) .......... -.............. 50
Cojc Vf United States Gypsum, 284 F.Supp. 74 (N.D. Irid. 1968),_
afl’d., 409 F~2d 289 (7 th^ ir.'i969)
Curtis v. Loether, 415 U.S. 189 (1974) ....................................... 26, 53
^Dent v. St. Louis & S .F . Ry. Co.,^406 F!2d 399 (Sth^'Cir. 1969) ":../ 65
Duhon v. Goodyear Tire & Rubber Co., 494 K2d 81/ (5th Cir. ̂
1974) ---- 51
England v. Louisiana Medical Examiners,' 375 "U.S. 411 (1964)
b z 2 5 / 4 8
Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) ....24, 36
Fishgold v. Sullivan Dry dock and 'Repair Corp., 328 U.S. 275^
(1973) ^ IZ ^ Z Z Z Z Z ^ Z Z Z X X X X :::: :: :: :: : ::^ :: :: :: : ;: :: : . .: 35
m
Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir.
1974), cert, denied, ..... U.S........ , 43 U.S.L.W. 3330 (U.S.
Dec. 10, 1974) ............... ................................................................ 62
Griffin v. Pacific Maritime Ass’n., 478 F.2d 1118 (9th Cir.), cert,
denied, 414 U.S. 859 (1973) .......................................................... 65
Griggs v. Duke Power Co., 410 U.S. 424 (1971) ....18, 23, 27, 31, 32,
33, 34, 35, 53, 57 •
Guardians Ass’n v. Civil Service Commission, 490 F.2d 400 (2nd
Cir. 1973) ....................................................................................... 34
Harper v. Mayor and City Council of Baltimore, 359 F.Supp.
1187 (D. Md.), modified sub noin. Harper v. Kloster, 486
F.2d 1134 (4th Cir. 1973) .......................................................... 31
Head v. Timken Roller Bearing Co., 486 F.2d S70 (6th Cir. 1973)
51, 53, 57, 62
Hecht Co. v. Bowles, 321 U.S. 321 (1944) ..................................... 53
Hester v. Southern Railway Co., 497 F.2d 1374 (5th Cir. 1974)
23, 28
Johnson v. Georgia Highway Express, 417 P’.2d 1122 (5th Cir.
1969) ..._................................................... 56
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th
Cir. 1974) ..!......................................................................... ..... 57, 62
Kirkland v. Department of Correctional Services, 374 F.Supp.
1361 (S.D. N.Y. 1974) .............. :.................................................... 40
Kober v. Westinghouse Electric Co., 480 F.2d 240 (3rd Cir. 1973)
26, 54, 56, 61
LeBIanc v. Southern Bell Telephone and Telegraph Co., 460 F.2d
1228 (5th Cir.), cert, denied, 409 U.S. 990 (1972) ........... 54, 56
Manning v. General Motors Corp., 466 F.2d 812 (6th Cir. 1972) 54
Mayor v. Educational Equality League, 415 U.S. 605 (1974) ....23, 31
Page
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
23, 24, 25, 26, 28, 43, 48, 65
Newman v. Piggy Park Enterprises, Inc., 390 U.S. 400 (1968)..54, 63
NLRB v. Boeing Co., 412 U.S. 67 (1973) ............................... ....... 35
Norman v. Missouri Pac. Ry. Co., 497 F.2d 596 (8th Cir. 1974),
cert, denied,.... U.S..... , 43 U.S.L.W. 3433 (U.S. Jan. 28, 1975) 56
Parmer v. National Cash. Register Co.. 503 F.2d 275 (6th Cir
1975) ..................................................., ...._...._................ 43
Pennsylvania v. Glickman, 370 F.Supp. 724 (W.D. Pa. 1974) .... 41
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir.
1974) ................................................ ................... ;..............51, 52, 57
Phelps Dodge v. NLRB, 313 U.S. 177 (1941) ................................. 52
Porter v. Warner Holding Co., 328 U.S. 395 (1946) ............ ......... 60
Quarles v. Phiiip Morris, 279 F.Supp. 505 (E.D. Va. 1968) __ 14, 15
Rental Development Corp. of America v. Laver)', 304 F.2d 839
9th Cir. 1962) ............ _......................... ....................................26, 59
Richardson v. Miller, 446 F.2d 1247 (3rd Cir. 1971) ............ ..... ,. 65
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), petition for
cert, dismissed 404 U.S. 1006 (1971) .... ................................ 59 ̂ 61
Robinson v. Lorillard Corp'., 319 F.Supp. 853 (M.D. N.C. 1970).. 18
Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972) ___ 40
Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir.
1972) ...— ......... ................. ............................... .......................54, 56
Shultz v. Mistletoe Express Service, Inc., 434 F.2d 1267 (10th Cir. .
Snyder v. Harris, 394 U.S. 332 (1969) ........ .......................27, 62, 66
Sperberg v. Firestone Tire & Rubber Co., 61 F.R.D. 70 (N.D.
Ohio 1973) ................................ .................... ...........................27, 66
v
Page
Ste,;b- V- Nati0n'vide Mutual Ins- Co-> 382 F-2d 267 (4th Cir 1967), cert, denied, 390 U.S. 910 (1968) ................ ‘ g5
SteA k 01972)Internati0nal ^ C°” 352 F‘SuPP- 238 (S.D.
‘ .................... ....... ................... - ................................. 38
Untied States v. Dillon Supply Co., 429 F.2d 800 (4th Cir. 1970) .. 56
United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973)
24, 25, 26, 28, 31, 34, 48, 55
United States v. Local 189, Papermakers Union, 301 F.Sttpp. 906
S u . s l l ^ . t o , 6 K‘2d 980 (5th CIr- ,969)-
' .................................... —....................... 15
United States v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973)
53, 57, 60
United States v. St. Louis & S.F. Ry. Co., 464 F.2d 301 (8th Cir
U72), cert, denied, 409 U.S. 1107............ ........ gg ^ •
United States v. United States Gypsum Co., 333 U.S. 364 (1948).. 43
VUChn 1973? V‘ CiVi' SerVke Comir‘ission> 433 U2d 387 (2d
' .......................... ................................................ 24, 35, 37
Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th Cir. 1974) 57
Wai ? nS,Vo i COtt PapSr C°->..... R 2 d ..... 6 FEP Cases 511 (S D
' ...... ...................................... - ............... - ...........33, 39
'^1973? °f K'nS °f 358 F-Supp- 684 (ED- Pa-
............... ....... ....................................... ~......- ........ 27, 66
Western Addmon^Community Organization v. Alioto, 340 F.Supp.
' ------------------------------------ -------------- 40
W°c S V1973)th AmCriCan Rockwe11 CorP-> 480 F.2d 64-1 (10th
........... ............. ................................................. 23, 28
' ' ’T f o th a r .T s S ? C°' V' P°°' Co,,s,""=do" C»-. 314 r.2d 405 .
................. ................................ 50
Zahn v. International Paper Co., 414 U.S. 291 (1973) ....26, 62, 66
VI
Statutes and Regulations
Page
29 U.S.C. § 160(c) ............ ....................................... .......................... 52
42 U.S.C. § 2000a................................................................................ 51
42 U.S.C. § 2000a-1 (a) ..._........... ........... .....................................5]) 55
42 U.S.C. § 2000a-2...................................................................... 51
42 U.S.C. § 2000a-3(b) .................. ........ ....................... ' ____ 55
42 U.S.C. § 2000e-3(a) .......... ................. .......................................... 51
42 U.S.C. § 2000e-5(a) ........................ ......................... .............. g3
42 U.S.C. § 2000e-5(g) ............ ................. ...............................25, 51, 55
42 U.S.C. § 2000e-5(k) .......... ................. .................... _ _ 5g
Fed. R. Civ. P. 23, 54(c), 8 2 ............ ...............:.... ................J7j 27, 58
Equal Employment Opportunity Commission, “Guidelines on Em
ployment lesting Procedures,” 29 C.F.R § 1607 1 et sea
197°) ........................ - ......... -----............................... :..... 34, 35; 40
Other Authorities
Ainsworth, Paper, The Fifth Wonder (2d Ed. 1959) _________ ___ 4
American Psychological Ass’n., Inc., Standards for Educational and
Psychological Tests and Manuals (1966) ........................ 34 37
Barrett, Gray Areas in Black and White Testing, 46 Harv Bus
Rev. 92 (1968) ......... .................... ........................ ;_____ ‘ ' 3Q
BNA, Daily Labor Report No. 8 (Jan. 13, 1975) .............. ............ 36
Boehm,'A'egro-White Differences in Validity of Employment and
rrammg Selection Procedures, Summary of Research Evidence,
55 Journal of Applied Psychology, 33 (1972) ____ ___ ____ ’ 45
Cooper and Sobol, Seniority and Testing Under Fair Employment
Laws: A General Approach to Objective Criteria of Hiring &
Promotion, 82 Harv. L. Rev. 1598 (1969) ........ .... .............. 40
111 Cong. Rec. 12819 (1964) .............. ......... ........... ^
vii
4
Page
E. F. Wonderlic and Assoc., Inc., Negro Norms, A Study of 38,452
Job Applicants for Affirmative Action Programs (1972) ......... 30
Equal Employment Opportunity Commission, “Guidelines on Em
ployment Testing Procedures,” BNA Daily Labor Report No.
174 (Sept. 7, 1966) ....... ,.........................................................16, 35
Gael & Grant, Employment Test Validation for Minority and Non-
minority - Telephone Company Service Representatives, 56
Journal of Applied Psychology 135 (1972) ........................ ...... 41
H.R. Rep. No. 914, 88th Cong. 1st Sess. (1963) ........................ .... 53
Schmidt, Berner & Hunter, Racial Differences in Validity of Em
ployment Tests: Reality or Illusion, 58 Journal of Applied
Psychology 5 (1973) ................................................................. 41
L’III
I.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Fourth Circuit is reported at 474 F.2d 134 (4th Cir 1973).
The decision and order of the United States District Court
for the Eastern District of North Carolina is reported in
..... F.Supp ... 4 FEP Cases 561 (E.D.N.C. 1971), and
earlier rulings by that Court on various motions are reported
at 271 F.Supp. 27, i FEP Cases 234 (1967); 2 FEP Cases
1002, 1081 (1970).
II.
JURISDICTION
The judgment of the Court of Appeals for the Fourth
Circuit was entered on February 20, 1973. A timely petition
for rehearing en banc was granted on June 25, 1973. After
briefing to oral argument before the en banc court, a ques
tion of appellate procedure was certified to This Court by
the Court of Appeals on December 6, 1973. The opinion of
This Court on the question certified was delivered on June
17, 1974. Pursuant thereto, the Court of Appeals, on July
22, 1974, vacated its earlier order granting the petition for
rehearing en banc and denied Petitioner’s petition for re
hearing. A petition for a writ of certiorari to the Court of
Appeals for the Fourth Circuit was filed on October 7, 1974
and was granted on December 16, 1974.
This Court’s jurisdiction is invoked under 28 U S C
§1254(1).
III.
STATUTES AND REGULATIONS INVOLVED
A. Section 703(h) of the Civil Rights Act of 1964, P. L
88-352, 78 Stat. 255, 42 U.S.C. §2000e-2(h):
2
Notwithstanding any other provision of this title, it
shall not be an unlawful employment practice for an
employer to apply different standards of compensation,
or different terms, conditions, or privileges of employ
ment pursuant to a bona fide seniority or merit system,
or a system which measures earnings by quantity or
quality of production or to employees who work in dif
ferent locations, provided that such differences are not
the result of an intention to discriminate because of
race, color, religion, sex or national origin, nor shall it
be an unlawful employment practice for an employer
to give and to act upon the results of any professionally
developed ability test provided that such test, its ad
ministration or action upon the results is not designed,
intended or used to discriminate because of race, color,
religion, sex or national origin. It shall not be an un
lawful employment practice under this title for any
employer to differentiate upon the basis of sex in deter
mining the amount of the wages or compensation paid
or to be paid to employees of such employer if such
differentiation is authorized by the provisions of section
6(d) of the Fair Labor Standards Act of 1938 as
amended (29 U.S.C. 206(d) ).”
B. Section 706(g) of the Civil Rights Act of 1964 P L
88-352, 78 Stat. 255, 42 U.S.C. §2000e-5(g):
If the couit finds that the respondent has intentionally
enSagecl >n or is intentionally engaging in an unlawful
employment practice charged in the complaint, the
court may enjoin the respondent from engaging in'such
unlawful employment practice, and order suchaffinna-
tive action as may be appropriate, which may include
reinstatement or hiring of employees, with or without
back pay (payable by the employer, employment
agency, or labor organization, as the case may be, re
sponsible foi the unlawful employment practice) In
terim earnings oi amounts eamable with reasonable
diligence by the person or persons discriminated against
3
shall operate to reduce the back pay otherwise allow
able.”
* * *
C. Rule 23, Federal Rules of Civil Procedure.
D. The “Guidelines on Employment Selection Proced
ures” 35 F.R. 12,333 (August 1, 1970); 29 CFR §§1607.1-
1607.14.
This has been reprinted in the Single Appendix hereto
at pages 305-320.
IV.
QUESTIONS PRESENTED FOR REVIEW
A. Whether the District Court’s refusal to enjoin Albe
marle’s use of employment tests was error as a matter
of law.
B. Whether the Court of Appeals usurped the powers and
function of the District Court by failing to remand the
issues on testing.
C. Whether the District Court had traditional equitable
discretion to determine whether back pay was an ap
propriate remedy.
D. Whether a class action for back pay under Rule 23 of
the Federal Rules of Civil Procedure is inherently in
consistent with the Congressional intent behind the re
medial provisions of Title VII, particularly as to class
members who have not filed a charge with the Equal
Employment Opportunity Commission.
-a'-* «-• am,I 1,1,
V .
STATEMENT OF THE CASE
This is an action brought on August 25, 1956 bv four
black employees' of Petitioner's Roanoke Rap ds No-.I
v i? o tb T c -T ? r a/ a private d “ ^t" e ^ v'd ivjghts Act of 1964. ( \ 6 )2
tiom 'm tQ O 7 " T mi" , a t ROan°k t ^ P M s began opera-
operations, papermaking
canv thE’ Albemarle Paper Manufacturing Com
L a ^ W,he , t h 3 iqUireu ‘he mUI- * * * * * l° " x x ta n iw and - echnologically sophisticated machinery And
equipment necessary to bring the mill to its present i 000
•on per day capacity and to make the mill efficiru, V H
t - i m a m -P T ’ ^ Lxhiblt **o. 36A, pp. 68-69)
Dlrx°f V T ke Rapids mil1 is a Ktodem, highly com-
P ci ity, employing approximately 650 people which
operates continuously, 24 hours a dav 7 A ? P ’ ,
days a year. }’ 7 days a week> 3G2
A pulp and paper mill may be simply described3 a
complex,aclity in which raw m a te ria l U "
,(A ........»reterence, to the record are to a d e ^ i f f i S f & £ & c t d
Ainsworth, pjper, The 9 J ° i v '7 derives from
Judge observed the p m c 2 as !t L S Z ? e S t r i c t
during Ins view of the facility Defendant’̂ RaPids Mill
Plaintiffs Exhibit No. 34A, ppy321?367 E* nblt N a 19- See also
5
chemicals and water arc combined in a cooking: or digesting
operation to separate wood fiber to be made into paper
from the lignin and other materials found in the raw wood,
the separated fiber in the form of pulp being delivered to
complex, intricate paper milling machines and the residue
lignin, chemicals, water and waste being recycled through
massive recovery furnaces, precipitation and filtration
equipment to recover the chemicals and to prevent air and
water pollution.
Like ncarlyr all paper mills, the Roanoke Rapids mill is
organized into functionally distinct departments. In order
to provide on-the-job training for functionally related jobs
and to overcome the lack of an adequate specialized labor
market in the locality', each of the departments is organized
into functionally related lines of progression through which
employees can move into more demanding jobs as vacancies
occur, on the basis of seniority', ability and experience. En
try' into a line of progression is generally' from the Extra
Board, a reservoir of employees available as needed to staff
entry level jobs in the various lines of progression. (A 88-
89, 104)
Each of the functionally distinct departments contri
butes to the central purposes of paper-making. The Wood-
yard Department gathers and prepares the wood for fur
ther processing/
4 The wood is delivered (by both railroad and truck) in the form
of Chips, sawdust and logs. The Chip Unloader registers chips and
sawdust receipts, records the condition of the particular shipment,
operates a screen to take foreign matters out of the chips or sawdust,
and then operates conveyor equipment to distribute the screened'
material.
Logs are unloaded by the Large Crane Operator and then are un
loaded by the Long Log Stacker Operator. Next the logs are debarked
and converted into chips by means of a conveyor system, debarking
drums, and Chippers (Nos. 1 and 2). The Chain Operator controls the
conveyor from the woodpile dirough the debarking drum. The Chipper
6
At the time of the trial in this case, the Woodyard De
partment was organized into a line of progression for
seniority and promotion, training and flexibility of the
workforce as follows (A. 109):
UuIlcJozcr
Operator
t___
WOOD YARD DEPARTMENT
Crane Operator (American)
t
Crane Operator
(Large)
t
Long Log Operator
T
Log Stacker Operator
T
Small Equipment Operator
A
Oiler
T
Chip Unloader
Clapper Operator No. 2
T
Chain Operator
T
Chipper Operator No. 1
o- TTractor Operator «
. t
Chip Bin Operator
' f
Laborer
(Start)
— '■ ‘ S
Auxiliary functions in the Woodvard are performed hr rvi
who services the equipment in the Woodvardmhe Buhdozer Operator'
7
The Pulp Mill Department is concerned with the con
version of wood chips into pulp,5 through a cooking opera
tion in a chemical solution under high temperature and
pressure to separate the wood fibers for subsequent con
version into paper, with the residues in the cooking solu
tions being sent to a recovery operation so that the very ex
pensive chemicals can be reclaimed for subsequent recy
cling.6
At the time of trial in this case, the Pulp Mill Depart
ment was organized into lines of progression for seniority
and promotion, training and flexibility of the workforce as
follows (A. 109):
5 Soft wood is basically 50% cellulose, 30% lignin and 20% car
bohydrates, etc. The cellulose is composed of innumerable fibers, finer
than a human hair and 2 to 4 millimeters in length. The fibers are
held together by the lignin. The pulp process separates the fibers by
dissolving the lignin binder in chemical solutions, which in proper
concentration does not seriously attack the fibers. The sodium chemicals
used in the process are reclaimed and reused. While the basic process is
simple, its accomplishment on a scale required by a modem paper
mill is technologically complex.
c The cooking process is the responsibility of the Digester Operator,
who directs the charging of the cookers with the proper mix of pine,
hardwood chips, sawdust and chemical solutions and controls the
temperature and pressures at which this operation must be carried
out.
Following the cooking process, the cellulose fibers are washed clean
and the clean fibers are then put in storage tanks for use on the paper
machines. The washing operation is the responsibility of the Stock
Room Operator with the assistance of the Stock Room 1st Helper
and 2nd Flelper.
The C. E. Recovery' Operator, with the assistance of the 1st Helper
No. 6, Evaporator Operator, 1st Helper No. 5, 2nd Helper, and Utility-
Helper, is responsible for the intricate process of operating the
recovery- boiler for purposes of reclaiming the chemicals used in the
cooking process. In that connection, the Caustic Operator, with the
help of the Lime Kiln Operator, is responsible for reclaiming lime
for use in the cookers.
- —
Digester Operator
[Cooker)
t
Stock Room Operator
T
Stock Room 1st Helper
Stock Room 2nd Helper
A
PULP MILL DEPARTMENT
C. E. Recover)' O perator Caustic O perator
! f
1st H elper No. 6 Lime Kiln O perator
‘‘'E vaporator O perator
t
1st H elper No. 5----------------------
T
2nd H elper
t
U tility H elper
By Products O perator
_ t
hen Used
, tLead loader-Blower
T
Loader
(S tart)
1 he B Paper Mil]7 is concerned with the conversion of
pulp into paper.s At the time of trial in this case, the B
7 At the time of trial, the mill also had an “A Paper Mill” which
served the same functions as the B Paper Mill on a much smaller
p ile with less intricate machinery. The A Paper Mill is no longer
in operation. °
® From the Storage tanks at the end of the pulp operation, the
pulp goes to the Stock Room (Seater Room in old mills), where it
goes through refiners which cut the fibers into the desired lengths
and reject that part of the pulp not usable.
After passing through the Stock Room, where the pulp is refined
and subjected to chemical analysis by the Stock Room Operator helped
b>,,the, St?ck Room ls* and 2nd Helpers, the pulp is introduced into
a l ordrmier paper machine. The pulp is there distributed in a thin
layer onto a moving wire screen and then moves continuously through
a series of presses and steam-heated driers which remove water, con-
tro] t.nckness and convert the pulp into a continuous sheet of paper,
ihis intricate process must be under the constant control of the
won; force, who must make the proper adjustments in speed of flow
pressure, temperature, and other factors in order to keep the paper
of acceptable weight, moisture content and configuration As the
paper sheet leaves the paper machine, it is wound onto a reel. The
9
Paper Mill was organized into lines of progression for sen
iority and promotion, training and flexibility of the work
force as follows (A. 109):
B PAPER MILL DEPARTMENT
PA PER M A C H IN E ST O C K R O O M
Line of Progression Line of Progression
M achine T ender Stock Room O perator
t T
Back T ender Stock Room 1st Helper
t t
T hird H and Stock Room 2nd Helper
T
Fourtli H and
t
l i f th H and
t
Sixth H and
o tSeventh H and
t
Sparc H and No. 4
(S tart)
In 1965, the Mill began operation of a technologically
complex modern Power Plant Department to generate and
distribute electric energy to the mill and steam to the Pulp
Mill and Paper Mills in an amount necessary to supply the
needs of a small city. (Plaintiffs’ Exhibit No. 4-9, p. 139).
This separate highly automated and controlled department
is organized into a line of progression as follows (A. 109):
POWER PLANT DEPARTMENT
Power Plant Operator
t
1st Helper
t
2nd Helper
(S tart)
paper machine operates continuously. As one reel of paper is filled
and removed, a new reel begins to wind without an interruption in
die process. The reel is then transferred to a winder, where the paper
is cut and sized.
10
The Technical Service Department is really the quality
control department of the mill, controlling the quality of
the raw materials used and of the products produced
throughout the entire 24-hour-a-day operation. The quality
control employees must have a working knowledge of phy
sics and chemistry, although a college degree is not re
quired. The department is organized into lines of progres
sion as follows (A. 109):
TECHNICAL SERVICE
M IL L L A B O R A TO R Y
B Mill Shift Testman General L ab Testm ant
Additive M an T
General Lab Assistant
t A
A Mill I estrnan
T
i '
Sam rlcm an
*T .
Trainee
There are also several additional support-function de
partments at the mill.9
With modernization of the mill in the early 1950’s10
9 T1^ Boiler Room Department operates small package boilers for
pp'Ts” 365)” *
The Service Department services the whole mill with general labor
services, fPlaintiffs Exhibit No. 34A, pp. 330-331). There is also
a Shipping Crew m the B Mill which weighs and bands the rolls of
paper at the loading docks and places them in either freight can or
341-344)r0ad S °r Shipment- (Plaintiffs’ Exhibit No 34A, pp.
ThP r ^ ‘ ' n time! Certain, mi11 factions have been discontinued
he hamvT Department, which prepared surplus pulp for sale to
othei mills, was discontinued in 1969. ''A 245) The Prnrh,ot n
T ? " IS l!,FiniSlr S Cre"' « * d -o m in u e d k ? ^ 7 1 2« r Si I r Cr ,Q ^ shut oown in August of 1971, restarted in part (one
machine) m 19/2, and shut down entirely again in 1974, 1
11
Albemarle found itself in need of a significantly greater
number of skilled employees. (A. 346) The Company did
not have such employees in its employ and there was no
supply of skilled and experienced paperworkers in the local
labor market. (A. 347-348) In an effort to develop and
tiain its own pool of employees who could, with training,
progress to higher skilled jobs in the lines of progression,
Albemarle began to require that applicants for its skilled
lines of progression have a high school education. (Plaintiffs’
Exhibit No. 31, p. 219) When Albemarle found that the
high school education requirement by itself was not an ade
quate predictor of job success, its Personnel Manager was
directed to develop a better procedure for the selection of
employees for successful progression in the skilled lines of
progression. (A. 329, 339) The Personnel Manager, who
was professionally trained in industrial psychology, selected
the Revised Beta Examination (Beta)" and the Bennett
Mechanical Aptitude Test (Bennett).12 In order to verify
that the tests werc.,_a useful prcdirinr of joh .,n.
dertook a “concurrent validation study” by comparing
of the test results of a sampling of employees in the skilled
lines of progression with supervisory ratings of the em
ployees. (A. 99) 330) He determined that the Beta correlated
positively with job performance (A. 3301 and its use at the
mill continued. (A. 99)13 In 1963, as part of the continuing
effort to improve the quality of its workforce, Petitioner
, ” .A Professionally developed non-verbal test designed to measure
the intelligence of illiterate and non-English speaking persons.
skilTsA pr0feSS‘0nall>' deveIoped test for mechanical ability and verbal
13 Petitioner found that the Bennett test did not validate for its
operations and use of this test was discontinued sometime in 1963
or be,ore. 1 here is no evidence that any employee or potential employee
was disqualified by reason of his score on Bennett.
12
added the Wonderlic Test Forms A and B34 (A 9C?n n
^ « P < U £ M
education os ifs ^ ^
off score of 100 nn the p • j r f d f achleve a cut-
either the Wonderlic A ?**?, Examination and 18 on
100) CSt °r the W°nderlic B test. (A. 99,
c * t ™ T Z l « L : T A">emar,C had the edu-
employees’ ^
j ° bs it. fo? ^
changes in tn ill opera tion" , ™ gT o f c e rta ,t
r - t r c s S iF ,-W A r a S r ?en try in to a to ta l o lfifteen i™ f ° r
to “ “^%^XssiK3.ta:
» A professionally developed test of mental ability and reading skills.
gression; Pulp Mill Grew line of pro-
Operator and Caustic Operator l £ S C' E’ Rccover>'
Department Paper Machine and Beater ^ Paper Ml11 *
B laper Mill Department— Paper M a c h in e !? ° Progression ;
progression; Product Department—FfnUh r ‘St°,ck Rooin lines of
tor, finishing Crew Siieeter Operator and^ e, few.'Rev^ ncJer Opera-
progression; Power Plant Department—Pm ShlPpinff ^ rew lines of
of progression; Technical Sendee Deoartm! ^ iTJu?* ° perator line
lines of progression; and Boiler Room^Denan ^ ,aild laboratory
line of progression. ' K°°m Department—Boiler Operator
13
certain changes in the lines of progression at the mill and, as
a result, Albemarle was able to reduce the test coverage
to applicants for entry into a total of twelve lines of progres
sion situated in six departments.16 Thereafter, further auto
mation and curtailment of certain mill operations occurred
(A. 90, 231-232) and by the time of trial in 1971, applicants
for entry into a total of only eight lines of progression, situ
ated in four departments, were required to fulfill the testing
requirements.17
Prior to the passage of the Civil Rights Act of 3 964, there
were predominantly white skilled lines of progression and
predominantly black unskilled lines of progression. (A. 89)
The skilled lines of progression led generally to the higher
paying jobs in the mill. (Plaintiffs’ Exhibit Nos. 12-15, Ap
pendices A) The unskilled jobs, however, are among the
highest paying jobs in the Roanoke Rapids area—jobs
which paid on the average more than those of policemen,
schoolteachers, and most other jobs in the area. (Defendant
Albemarle’s Exhibit Nos. 11-17).
At the time of passage of the Civil Rights Act of 1964,
there were two Extra Boards, one feeding the skilled lines of
progression and another feeding the unskilled lines of pro-
16 These were: Pulp Mill Department—Digester Operator, C. E.
Recover)' Operator and Caustic Operator lines of progression; B Paper
Mill—Paper Machine and Stock Room lines of progression; Product
Department (B Paper Mill)—Rewinder Operator, Sheeter Operator,
and Shipping Crew lines of progression; Technical Sendee Depart
ment—Mill and Laboratory lines of progression; A Paper Mill Depart
ment—Paper Machine line of progression; and Power Plant Depart
ment—Power Plant Operator line of progression.
17 These were: Pulp Mill Department—Digester Operator, C. E.
Recovery' Operator and Caustic Operator lines of progression; B
Paper Mill Department—Paper Machine and Stock Room lines' of
progression; Power Plant Department—Power Plant Operator line
of progression; and Technical Service Department—Mill and Labora
tory lines of progression.
1 di
gression. Employees were placed on the respective Extra
Boards either as new employees or by election to take Extra
Board work rather than lay-off in cases of reduction in
force. (A. 104) Prior to 1965, the Extra board for the
skilled lines of progression was predominantly white, that
for the unskilled lines was predominantly black. (A. 104)
With the passage of Title VII on July 2, 1964, to be
effective July 2, 1965, Petitioner undertook a series of steps
to insure that its employment practices would be in compli
ance with the law. Commencing in 1964, Petitioner began
an affirmative recruiting program to obtain black graduates
from high schools for its apprentice maintenance program
and for its other skilled lines of progression. (Plaintiffs’ Ex
hibit No. 32, pp. 531-533) While blacks had not been bar
red from taking the employment tests, after passage of Title
VII, Albemarle affirmatively sought to have all of its black
employees who had a high school education take the tests
so as to make them eligible for transfer into skilled lines of
progression. (A. 105) Thereafter, in 1965, Petitioner waived
the educational requirement as to all incumbent employees
and again sought to have all black employees take the tests.
(A. 105) In conjunction with the union, Petitioner in 1968,
organized and funded a school at which its employees could
acquire the verbal skills necessary to perform jobs in the
skilled line of progression. (R. 1181-1186).
As the law developed under Title VII it became appar
ent that seniority systems or other work conditions which
were racially neutral but which had the effect of perpetuat
ing past discrimination could be found violative of the
Act.18
In light of the judicial interpretations of the Act, Peti-
18 In Quarles v. Philip Morris, 279 F.Supp. 505, 516 (E.D. Va.
1968), tlie Court found “it is also apparent that Congress did not
intend to freeze an entire generation of Negro employees into dis-
15
tioner, at the first opportunity, took further affirmative
measures to ensure equal opportunities. In. 1968,..the two
Extra Boards were merged into a single board. (A. 245-246)
Employees who had formerly been in unskilled lines of pro
gression were given temporary assignments to skilled lines
even though such employees did not meet test and educa-
tional requirements, if it reasonably appeared from past
experience that the employees might be able to do some of
the lower Jobs in the skilled lines of progression. (A. 246)
The collective bargaining agreement at the Roanoke
Rapids mill which ran for the term September 18, 1965
through September 15, 1968, provided a system of “job
seniority” in a line of progression for advancement. (A. 286-
290) There was a provision for transfers from one line of
progression to another and from one department to another,
but there was no seniority . iglit to transfer and the transferee
did not carry either his rate of pav of his seniority with him.
It thus appeared to the Company' that under the developing
law the seniority provisions of the collective bargaining
agreement at Roanoke Rapids “tended to perpetuate past
discrimination as had the seniority’ provisions involved in
Quarles and Crown-Zellerbach.
Therefore, in 1968, in the first contract negotiations fol
lowing the Quarles and Crown-Zellerbach decisions, the
criminatory patterns that existed before the act,” and held a seniority
system which tends to perpetuate past discrimination is not bona fide
under Section 703(h) of Title VII.
On March 26, 1968, the United States District Court for the
Eastern District of Louisiana, in the case of United States v. Local 1S9,
Papermakcrs Union (Croivn-Zellcrbach), 301 F.Supp. 906 (E.D. La)
1969) aff’d., 416 F.2d 980 (5th Cir.), cert, denied, 397 U.S. 919
(1970) entered a temporary injunction ordering the Crown-Zellerbach
Corporation to abolish the “job seniority” system at its paper mill in
Bogalusa, Louisiana, and to replace it with a “mill seniority” system
with transfer provisions including carrying seniority to a new job with
red-circling of rates.
16
Company and the Unions negotiated a contract clause to
provide for transfers on the basis of “mill seniority,” 19 for
the carrying, of “mill seniority” with the transferee for pur
poses of advancement and for the “red-circling” of the trans
feree's rate of pay (i.e., if an employee transferred to a lower
paying job, he would be paid his old rate of pay until his
late m the new line of progression caught up to Iris old
rate). (A. 98) This collective bargaining agreement was for
a term beginning September 23, 1968. The relevant seniority-
provisions were sections 10.2.2 and 50.2.3. (A. 292-293)
In May, 1966, charges were filed with the Equal Employ
ment Opportunity Commission by Joe P. Moody, Theodore
Daniels, Henry Hill and Arthur Mitchell, alleging discrimi
nation because of their race. (A. 273-282)
These charges were served on defendants on August 11,
1966, and the EEOC investigator gave defendant, Albe
marle Paper Manufacturing Company, fifteen days, i.e., until
August 26, 1966, to answer. However, before the Company
could respond, on August 24, 1966 the first EEOC Guide
lines on Employment Testing Procedures20 were published
and on August 25, 1966 the complaint in this case was filed
m the United States District Court for the Eastern District
of North Carolina. (A. 6-10) The Complaint simply alleged
in very general terms discrimination on account of race
against Plaintiffs in violation of Title VII. The prayer was
for injunctive and other equitable relief on behalf of Plain
tiffs and the class they claimed to represent. (A. 10) By mo
tion for summary judgment, Albemarle immediately raised
the question whether Plaintiffs could bring a class action
19 While the contract did not, sirictly speaking, provide for mill
S(T°2r33y-234)e SyStCm nCS°tlated was tantamount to mill seniority.
” BNA> DaiIy Labor Report No. 174 (Sept. 7, 1966).
17
under Rule 2 3 . (See Motion for Summary Judgment filed
October 5, 1966.) In their brief in opposition to that motion,
Plaintiffs maintained the position :
“It is important to understand the exact nature of the
class relief being sought by Plaintiffs. No money dam
ages are sought, for any member of the class not before
the Court, nor is specific relief sought for any member
of the class not before the Court. The only relief sought
for the class as a whole is that defendants be enjoined
from treating the class as a separate group and dis
criminating against the class as a whole in the future.”
(A. 13-14) (Emphasisadded).
The District Judge, John D. Larkins, Jr., overruled the
motion for summary judgment, but in the same order
granted a motion to dismiss the International Union as a
defendant on die ground ir had not been named in the
charges filed with the Equal Employment Opportunity
Commission. (A. 16-20)
Following Judge Larkins’ ruling, the case proceeded to
the discovery stage. While the case was in this posture, on
October 31, 1968, the assets of the Mill were sold to
Hoemer Waldorf Corporation, a Delaware Corporation,
which in turn assigned them to a new Albemarle Paper
Company, a Delaware Corporation. The proceeds of the
sale were assigned to First Alpaco Corporation which later
merged into Ethyl Corporation, the parent of the old
Albemarle Paper Company." (Plaintiffs’ Exhibit 36B pp.
67-69)
On March 12, 1970, the United States District Court for
the Middle District of North Carolina, decided the case of
21 F ed . R. C iv . F . 23.
22 For convenience, the term “Albemarle” is used in referring to
the employer of Respondents.
1
18
Robinson v. Lorillard Corp., 319 F.Supp. 835 (M.D.N.C.
1970) aff’d. 444 F.2d 791 (4th Cir.), petition for cert, dis
missed, 404 U.S. 1006 (1971), in which District Judge
Eugene A. Gordon, in a Title VII case, on motion first made
after his findings on the merits of the case, in his discretion,
allowed damages in the form of back pay. Thereafter, in
1970, the issue of damages was injected into this case far
the first time. (A. 28-29) On June 25, 1970, Plaintiffs moved
to join Iioerner Waldorf Corporation, Ethyl Corporation,
First Alpaco Corporation and the new Albemarle Paper
Company (Delaware) as parties defendant. The old Albe
marle Paper Company (Virginia) filed a motion to dismiss
on August 20, 1970. The District Judge, John D. Larkins,
Jr., issued his opinion and order on these motions on Sep-
tembei 29, 19/0, (A. 30-39) denying' the motion to dismiss,
permitting the joinder of the parties defendant23 and stating:
“Rule 54(c) of the Federal Rules of Civil Procedure
provides in part: ‘except as to a party against whom a
judgment is entered by default every final judgment
shall grant the relief to which the party in whose favor
it is rendered is entitled, even if the party has not de
manded such relief in his pleadings.’ The'possibility of
an award of money damages upon a determination of
liability is still with us. It is not yet the proper time to
drop the plaintiffs’ claims, which are, at least, litUable ”
(A. 37-38) 5
Following This Court’s decision in Griggs v. Duke Power
Co., 401 U.S. 424 (1971), the management • at the Mill
promptly employed Dr. Joseph Tiffin, a professor at Purdue
University, and an eminent industrial psychologist. Using
the standard “concurrent” method of validation, Dr. Tiffin
Process was never served on I'irst Alpaco Corporation and it has
never participated in this case.
conducted further validation studies on the tests in use for
certain of the skilled lines of progression. (A. 165-166)
As a result of his study, Dr. Tiffin concluded that the tests
could reasonably be used for both hiring and promotion for
most of the jobs in the Mill. (A. 438)
In the meantime, this case was transferred from Judge
John D. Larkins, Jr. to Judge Franklin T. Dupree, Jr., who,
at a conference of attorneys on May 17, 1971, on motion
of Defendant, ordered the case set for trial beginning at
10 a.m., July 26, 1971, at Raleigh, North Carolina.
First on May 28, 1971 and again on June 15, 1971, the
District Court ordered plaintiffs to answer Defendants sup
plemental interrogatory, which read:
“List the specific names of each employee or former
employee whose personnel record or records in any way
establishes or tends to establish any discrimination by
Albemarle Paper Company in its employment prac
tices and explain how such a record or records show
discrimination giving the specific dates and instances.”
(A. 44,46).
By order dated July 8, 1971, the District Judge defined
the class, provided for notice to the class, ruled that dam
ages might be recovered in this action and stated his inten
tion to have all such claims for individual monetary relief
tried with other issues at the trial, reserving the right to
refer some of such issues to a master if the claims were too
numerous or complicated to be completed at trial. (A.
50-52)
On July 10, 1971, the parties agreed to a Stipulation of
Facts, which included most of the relevant facts in the case,
(A. 86) and on July 19, 1971, the parties agreed to and
executed an elaborate pretrial order.
20
I j etrial Order, Plaintiffs listed 134 witnesses of
whom 128 were:
“Black employees or former employees of Albemarle
Paper Company who may be called to testify about
their terms, conditions, privileges of employment such
as jobs held, wages l'cceived and testimony going to the
question of backpay.” (See Pretrial Order entered Tuly
19,1971 at pp. 78-90)
The case came on for trial before the Honorable Franklin
T. Dupree, Jr., promptly at 10:00 a.m., Monday, July 26,
1971. There were four major issues: (1) Whether there
should be injunctive relief with respect to the seniority sys
tem at the mill; (2) whether the testing and high school
educational requirements were unlawful; (3) whether there
should be back pay and (4) whether there should be attorney
fees.
In an efrort to reduce the scope of the trial, Albemarle
consented to the entry of an order providing mill seniority
and red-circle rates for members of the class by representing
in its opening statement as follows:
If tne Court please, I think there are four issues here
and I will address myself to them very briefly. First
the injunctive relief. The defendants believe that no
injunction is warranted in this case. We believe that
whatever relief they may have been entitled to some
years ago we took care of in 1968, and that under the
circumstances we would fight very hard not to be en-
joined. However, without admitting any violation of
Title VII, we have concluded to say to your Honor this
morning that insofar as an injunction to provide plant
seniority for these people along the lines of the system
that vve set forth in the proposed consent agreement, a
copy of which I have left on your desk, we would not
buiden the Court today with all the evidence that we
21
think bears on that issue. I think it’s all in the deposi
tions. And without admitting any guilt on our part, we
can eliminate that part of the case because we would
not object to an order along those lines.” (A. 114-115)
The trial of the case consumed eight full trial days and one
day for the Court to view the Mill. There were literally
scores of members of Plaintiffs’ class in attendance at the
trial. The District Judge did not limit the evidence in any
way. Plaintiffs called eleven employee, or former employee,
witnesses and introduced the depositions of five others.
The District Judge made extensive findings of fact, found
the Company’s testing program “job-related” and declined
to enjoin its use. In his discretion the Judge denied back
pay to plaintiffs. However, the Court ordered a mill sen
iority system and, finding the tests sufficient for the purpose,
proscribed the use of a high school education requirement
for employment. (See A. 497, 499-502)
Plaintiffs appealed to the United States Court of Ap
peals for the Fourth Circuit and the case was heard by a
panel, consisting of Circuit Judge J. Braxton Craven and
Senior Circuit Judges, Herbert S. Boreman and Albert V.
Bryan, whose decision is best explained by them:
“The district court refused to order the abolition of or
changes in the pre-employment testing procedures used
by Albemarle. Plaintiffs appeal from the district court’s
determination. Judge Boreman concurs with Judge
Craven in reversing and remanding to the district court
on this issue. Judge Bryan dissents.
“The district court also refused to award the plaintiffs
back pay. Judge Bryan concurs with Judge Craven in
reversing the district court on ’this issue. Judge Bore
man dissents.
22
“The effect of this division in the court is to reverse
and remand the district court's determinatipn as to the
testing procedures and the refusal to award back pav ”
(A. 531) J
Defendants asked for a rehearing and made a suggestion
of rehearing en banc which was granted on June 25, 1973.
Supplemental briefs were filed and argument was heard on
October 2, 1973.
On December 6, 1973, Chief Circuit Judge Clement F.
Haynsworth certified to This Court the following-
“Under 28 U.S.C. §46 and Rule 35 of the Federal Rules
of Appellate Procedure, may a senior circuit judge, a
member of the initial hearing panel, vote in the deter
mination of the question of whether or not lire case
should be reheard en banc?” (A. 540)
The certification also stated:
“If the en banc court reaches the merits, the tentative
vote is that it will modify the panel decision with re
spect to an award of back pay.” (A. 540)
17, 1974 Phis Court answered the certified ques
tion in the negative and on July 22, 1974 the United States
Court of Appeals for the Fourth Circuit denied Defendants’
petition for rehearing.
On October 7, 1974 Defendants filed a petition for a
writ of certiorari to the United States Court of Appeals for
the Fourth Circuit with This Court. The writ was granted
on December 16, 1974.
23
VI.
SUMMARY OF ARGUMENT
A. The District Court Correctly Refused To Enjoin The Use Of
Albemarle’s Testing Procedures.
1. I n t r o d u c t io n
This case involves the interpretation of principles laid
down-in Griggs v. Duke Power Co., 401 U.S. 424 (1970),
with respect to the use of employment tests.
2- T h e . E v id e n c e I n T h i s C a s e S h o w s A l b e m a r l e ’s T e s t s
W e r e N o t D is c r im in a t o r y .
There was no demonstration in the trial court that Albe
marle’s tests, the Beta and the Wonderlic A & B, had a
racially disparate effect upon a proper statistical universe
i.e. otherwise qualified blacks emploved in, or candidates
for employment at the Roanoke Rapids mill. Mayor v. Edu
cational Equality League, 415 U.S. 605, 620 (1974). The
tests not having been shown to discriminate in the first place,
there was no basis to proscribe their use. McDonnell Douglas
Carp. v . Green, 411 U.S. 792 ( 1973); Bridgeport Guardians,
Inc. v. Civil Service Commission, 482 F.2d 1333 (2d Cir.
1973); Hester v. Southern Railway Co., 497 F.2d 1374 (5th
Cir. 1974); Woods v. North American Rockwell Corp. 480
F.2d 644 (10th Cir. 1973).
3. A l b e m a r l e D e m o n st r a t e d T h e T e s t s T o B e A R e a s o n
a b l e M e a s u r e O f J ob P e r f o r m a n c e .
(a ) The District Court Found That Albemarle’s Tests Were
Job Related.
The District Court found, based in part on a view of the
mill, that certain native intelligence and reading skills
were required for the safe and efficient operation of the
mill. That Court also found that Albemarle’s tests had
24
undergone validation studies and had been proven to be
job related.
(b) The Findings Of The District Court Have Not Been Shown
To Be Erroneous.
Ih e attack on the tests in the Court of Appeals was not.
that the tests were not job related, but that Albemarle had
not proven them to be job-related in strict accordance with
the EEOC Guidelines. The proper test is not compliance
with the guidelines, Espinoza v. Far ah Manufacturing Co.
414 U.S. 86, 94 (1973), but whether the tests are proven
job related to the satisfaction of the Court. Vulcan Society
v. Civil Service Commission, 490 F.2d 387, 394 (2d Cir
1973); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972);
Bridgeport Guardians, Inc. v. Civil Service Commission, 482
F. 2d 1333 (2d Cir. 1973) ; United States v. Georgia Power
Co., 474 F.2d 906 (5th Cir. 1973). Relying primarily on the
guidelines and on contentions of fact raised for the first time
on appeal, the Court of Appeals erroneously found fault with
Albemarle’s proof of job relatedness.
(i) Job Analysis
Albemarle’s expert conducted an empirical validation
study which correlated test scores with supervisory- ratings of
actual job performance. In such a situation a written job
analysis is unnecessary and its absence is irrelevant to the
integrity of the correlations.
(ii) Supervisor R atings
Test validations do not fail as a matter of law upon an un
supported presumption that supervisors’ ratings are racially'
biased. McDonnell Douglas Corp. v. Green, 411 U S 792
(1973). There is no basis for a presumption of supervisors’
bias in the first place and such bias clearly could not have
affected the correlations obtained in this case.
25
(iii) Business Necessity
The objections raised concerning the use of a test for
incs of progression m which' the test had not been speci
fically shown to validate are based primarily on the Court
of Appeals nnsassumption of facts and, in any event vo
o the utilization of the tests, not their job-relatedness. The
lawful USC thC lCStS by th e m a tic is reasonable and
B' D m D r VC7 Th; C°Urt ° f Appeals Errcd ^ Not Remanding J lle Testing Issue To 1 he District Court.
\Vhen new standards of proof are set forth, simple fair-
ness requires the party against whom the new rule is in-
VM?D ' C // n dCd; 311 °PPOrtUnity to present its evidence.
MQmT p f T Corp- v- U.s. 792, 807(ty/Oy , England v. Louisiana Medical Fram^rcrs *7^ TT c
411 (1964); W J * S!ales v. £ £
6 (5th Gir. 1973). Especially is this true where, as here
the factT °f APPCalS engaged in its own determination of
c - The District Court Had Traditional Equitable Discretion To
Determine Whether Back Bay Was An Appropriate Remedy.
1 T it c e V I I L ea ves T h e A w a r d O r D e n ia l O f Ba c k P ay
C ou rts '" “ E 2 u ita b le D i s c r e t e O f T h e D is t r ic t
D; Phe Pi f m Ia^ u ag e of the Statute expressly vests the
<< ™ , C°Urt Wlth thc discretion to fashion remedies as
nay be appropriate, which “may include reinstatement
nng ° CmpI°yces, Wlth or without back pay.” Section
reverfil 0f thU'SDC't .§20? ° '‘5 (g ) ' The Fourth Circuit’s e\ ersal of the District Judge’s denial was based on its
adoptive special circumstances” standard. This standard
whch mandates an award of b a d p a , in e v ^
O
26
sa\ c exceptional cases, contravenes the legislative intent
behind the express language of the Act. Curtis v. Loctker,
415 U.S. 189 (1974) ,■ hober v. IVeslinghousc Electric Co.,
480 F.2d 240 (3d Cir. 1973); 111 Cong. Rec. 12819 (1964).
2. 4 h e D is c r e t io n O f A T ria l C o u r t R egarding T h e B ack
P ay R e m e d y S h o u l d B e G uid ed B y T r a d itio n a l E q u it a b l e
P r in c ip l e s .
Xiial courts in fashioning decrees to remedy violations
of Title VII should be free to apply equitable considerations
in light of all the facts and circumstances of the case. Two
of those factors were cited by the District Judge below: the
good faith of Albemarle, and the plaintiffs’ tardiness,
amounting to laches, in presenting the back pay claims.
United States v. Georgia Power Co., 474 F.2d 906 (5th Cir.
1973); Rental Development Corp. of America v. Lavery
304 F.2d 839, 842 (9th Cir. 1962).
f
3. E v e n U n d e r A “S pe c ia l C ir c u m s t a n c e s ” S ta nd ard , T he
D is t r ic t C o u r t W as J u s t if ie d I n D e n y in g B a c k P ay /
Even if a “special circumstances” rule is correct, the
factors cited by the District Court make this an excep
tional case.
D. Back Pay Should Not Be Awarded To Class Members Who Did
Not File Charges With The Equal Employment Opportunity
Commission.
Back pay is individual redress for damages actually suf
fered as distinct from class wide prospective remedial meas
ures. The previous filing of a charge with the EEOC is a
jurisdictional requirement for individuals seeking relief under
Title VII. McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). The device of a class action under Rule 23 of
27
the Pederal Rules of Civil Procedure may not be manipu
lated to confer jurisdiction over such individual claims where
it does not otherwise exist. F ed . R. C iv . P. 82; Zahn v. Inter
national Paper Co., 414 U.S. 291 (1973); Snyder v. Harris,
394 U.S. 332 (1969); JVeincr v. Bank of King of Prussia,
358 F. Supp. 684 (E.D. Pa. 1973); Sperberg v. Firestone
Tire&Rubber Co., 61 F.R.D. 70 (N.D. Ohio, 1973).
VII.
ARGUMENT
A. The District Court Correctly Refused To Enjoin The Use Of
Albemarle’s Testing Procedures.
1. I n t r o d u c t io n
This case presents to the Court several questions either not
reached or not definitively settled in Griggs v. Duke Power
Co., 401 U.S. 424 (1971). In Griggs the Court considered
the use of a standardized general intelligence test as a condi
tion of employment in or transfer to jobs when (a) the stan
dard is not shown to be significantly related to successful job
performance, (b) the requirement operates to disqualify
ISegioes at a substantially higher rate than white applicants,
and (c) the jobs in question formerly had been filled only by
. white employees.
In this case the District Court found that the jobs in
Albemarle’s skilled lines of progression formerly had been
filled only by white employees, made no finding with in
spect to whether Albemarle’s tests had a disparate racial
effect, and finally found that, in any event, Albemarle’s
tests were significantly related to successful job perform
ance.
I
1
i
1
I
28
2. T h e E v id en c e I n T h i s C a se S h o w s A l b e m a r l e ’s T e s t s
W e r e N o t D is c r im in a t o r y .
In any Title VII case, plaintiff bears the burden of show
ing prima facie, discrimination. McDonald Douglas Corp. v.
Green, 411 U.S. 792, 802 (3973); Woods v. North Ameri
can Rockwell Corp., 480 F.2d 644, 647 (10th Cir. 1973).
In the testing context plaintiffs most often make this showing
with statistics from tests previously administered by the de
fendant employer. Castro v. Beecher, 459 F.2d 725 (1st Cir.
1972) ; Bridgeport Guardians, Inc. v. Civil Service Commis
sion,482 F.2d 1333 (2d Cir. 1973) ; United States v. Georgia
Power Co., 474 F.2d 906 (5th Cir. 1973); Carter v. Gal
lagher, 452 F.2d 315 (8th Cir.), cert, denied, 406 U.S. 950
(1972). But whatever the method, failure to show that a test
has a disparate effect on . the minority group has been and
should be fatal to a Title VII plaintiff’s case, Bridgeport,
supra at 1339; Hester v. Southern Railway Co., 497 F.2d
1374, 1381 (5th Cir. 1974) ; Woods, supra, at 647.
This threshold question of whether Albemarle’s tests had
a disparate effect on the members of the class in this case
was never specifically addressed in the District Court and
the District Court made no findings of fact as to any dis
criminatory effect of the tests. Indeed, plaintiffs’ proposed
findings did not even include a provision bearing on this
issue.
The Amicus Curiae, Equal Employment Opportunity
Commission (hereinafter EEOC), tried to correct this
glaring deficiency in plaintiffs’ case, in its brief24 to the Court
of Appeals. Purportedly utilizing plaintiffs’ Exhibit No. 10,25
24 All briefs filed in the Court of Appeals were included in the record
sent to this Court.
25 Exhibit No. 10 is supposedly a composite of all of Albemarle’s per
sonnel records, which plaintiffs had taken two weeks to microfilm. No
29
Amicus Curiae contended that it showed that on Wonderlic
A blacks averaged 17 and whites averaged 24.9, with 96% of
the whites and 64% of the blacks obtaining a passing score,
and that on Wonderlic B blacks averaged 14.8 and whites
averaged 21.9. Amicus Curiae did not point out that the
same exhibit also showed that on the Beta, blacks averaged
104.20, whites 107.56 against a cut-off score of 100.00. But
in their Supplemental Brief on Rehearing at page 36, the
Amici Curiae (the EEOC now joined by the United States)
conceded:
. . the evidence on the Beta alone showed only a
slight, and perhaps not statistically significant impact.”
(Brief for the United States and the Equal Employment
Opportunity Commission as Amici Curiae on Prehear
ing En Banc, p. 36).
Nevertheless, the majority panel of the Court of Appeals
began its discussion of testing by noting:
“The plaintiffs made a sufficient showing below that
Albemarle's testing procedures have a racial impact.”
(A. 515)
In support of that conclusion the Court of Appeals Panel
cited in a footnote some statistics concerning the Wonderlic
tests, but never mentioned the Beta.
Thus, the finding by the Court of Appeals Panel is first of
all grievously and astonishingly deficient in enjoining Albe
marle’s use of the Beta, as to which there was absolutely no
evidence, either presented to the District Court or otherwise,
to show a disparate racial effect. As Dr. Richard Barrett
specific contentions based on Exhibit No. 10 were ever made in the
District Court despite Albemarle's strenuous efforts to elicit them.
(See R. 52-54.)
30
pointed out in his article, Barrett, Gray Areas in Black mid
White Testing, 46 Harv. Bus. Rev. 92, 93 (1968):
“A test that places no special obstacle in the path of
Negro applicants cannot be said to be discriminatory.” 26
As a consequence of this failure of proof by plaintiffs,
Albemarle is clearly entitled to a reversal of that portion
of the Court of Appeals’ judgment proscribing further use
of the Beta.
But even as to Wonderlic, plaintiffs’ proof is deficient
on the threshold question of whether the test was dis
criminatory. The Court of Appeals Panel concluded that
this requirement was satisfied by reference to Exhibit No. 10
and to general statistics. But, while these factors may be
the basis for speculation that the Wonderlic tests exclude
more blacks than whites, they are not proof of discrimina
tory effect at the mill at Roanoke Rapids.
The calculation and factual extrapolation from Exhibit
No. 10 was never presented to the District Court; in fact, it
was before the Court of Appeals that the possibility was first
raised that Exhibit No. 10 could be utilized as proof of dis
parate effect, and then the suggestion was made not by plain
tiffs, but by the Amicus Curiae, EEOC. The District Court
thus was never afforded an opportunity to consider the force
of this supposed evidence.27 Further, Albemarle was never
afforded the opportunity to demonstrate at trial that the
conclusion drawn by the EEOC and the Court of Appeals
26 This conclusion was confirmed by plaintiffs’ other expert, Dr.
Katzcll, as well. (A. 403).
27 Nor was the District Court ever given the study, E. F. Wonderlic
and Assoc. Inc., Negro Norms, A Study of 38,452 job Applicants for
Affirmative Action Programs (1972) because it was fiied for the first
time with the Court of Appeals and served oil counsel for Albemarle
along with Appellants’ Reply Brief in August, 1972.
I
31
from Exhibit No. 10 was erroneous for the reason that the
statistical universe included test scores of employees who
could hardly read or write and whose verbal facility was no
more than 1 on the Wonderlic (R. 1135-6), and who were
therefore not potential candidates for the skilled lines of pro
gression.28
Having failed to prove disparate effect of the tests at
trial, plaintiffs may not rely on the suggestion in Griggs, 401
U.S. at 430, n. 6, that the Wonderlic has been shown to have
a disparate effect in other cases. If meaningful conclusions
are to be drawn a test “must be evaluated in the setting in
which it is used.” Georgia Power, supra at 912.29 A rule to
the contrary, aside from being illogical, would be inequitable
in imposing the heavy financial burden of validation on an
employer even though his tests do not discriminate against
minorities. In other words, if the test does not discriminate
in the first place, it should not have to be validated.
28 Since the District Court found that ability to read and write is a
job and safety requirement for the skilled lines of progression, the in
clusion of illiterate persons in the statistics relied on by the Court of
Appeals renders its conclusions about differential impact meaningless.
I This Court has recognized with respect to racial statistics that unless
j “the relevant universe for comparison purposes” is limited to poten
tially qualified persons, “simplistic percentage comparisons undertaken
by the Court of Appeals lack real meaning.” Mayor v. Educational
Equality League, 415 U.S. 605, 620 (1974). And see Harper v. Mayor
and City Council of Baltimore, 359 F. Supp. 1187, 1193 (D. Md.),
modified, sub nom. Harper v. Klostcr, 486 F.2d 1134 (4th Cir. 1973) ;
Chance v. Board of Examiners, 330 F. Supp. 203, 214 (SD N Y
1971); aff’d., 458 F.2d 1167 (2nd Cir. 1972).
29 Even Dr. Katzell, one of plaintiffs’ experts, acknowledged that,
in order to determine whether a particular test has a racially disparate
impact, it would be necessary to study its impact upon the particular
group involved. (A. 394-5).
t
32
3. A l b e m a r l e D e m o n s t r a t e d I t s T e s t s T o B e A R e a so n a b l e
M e a s u r e O f J ob P e r f o r m a n c e .
1 his Court held in Griggs at page 436:
“Nothing in the Act precludes the use of testing or
measuring procedures; obviously they are useful. What
Congress lias forbidden is giving these devices and
- mechanisms controlling force unless they are demon
strably a reasonable measure of job performance.
Thus, the question presented here is whether, even if
the unproven assumption that Albemarle’s tests had a
racially disparate effect were accepted, the Court of Ap
peals could hold as a matter of law that Albemarle failed
to make an adequate demonstration that its tests arc a
reasonable measure of j'ob performance. Albemarle sub
mits that the Couit of Appeals was in error in making that
determination.
(a) Defendants’ Tests Were Found To Be Job Related By The
District Court.
The tests used by Albemarle were professionally developed
to measure the very attributes found by the District Court to
be required for the skilled lines of progression. The Beta
measures the intelligence of the taker, even though he is
illiterate, (Katzell deposition, A. 360-2) ; the District Court
found that a high degree of native intelligence was a neces
sary attribute for workers in the skilled lines of progression.
(A. 494) The Wonderlic tests also measure general mental
ability and indicate the taker’s ability to read" and to under
stand what he has read. (Katzell deposition, A. 362-3); the
District Court found that reading ability was also a necessary
requirement for workers in the skilled lines of progression.
(A. 497) Without more, therefore, it would appear that the
33
tests were reasonable measures of a prospective employee’s
ability to perform the skilled jobs in the mill.
But Albemarle’s case docs not rest, merely upon this basis
since, through validation studies, Albemarle’s tests were
found to correlate significantly with actual job performance
at the mill. Before use of the Beta was instituted, in 1958,
a concurrent validation study established positive correla
tions.30 Further, after this Court’s decision in Griggs, Albe
marle retained an unquestioned expert in industrial psychol
og)7 to conduct a further validation study.31 As found by the
District Court this study confirmed the validity and utility of
the tests:
“This court has also found as a fact that a certain level
of native intelligence is required for the safe and effi
cient operation of Albemarle’s often complicated and
sophisticated machinery. The personnel tests adminis
tered at the plant have undergone validation studies and
have been proven to be job related. The defendants
have carried the burden of proof in proving that these
tests are “necessary for the safe and efficient operation
of the business” and are, therefore, permitted by the
Act. However, the high school education requirement
used in conjunction with the testing requirements is un
lawful in that the personnel tests alone are adequate to
measure the mental ability and reading skills required
for the job classifications.” (A. 497)
30 Sec, supra, p. 11.
31 The study was conducted by use of the “concurrent validation”
method. Ten skill-related job groupings were selected on the basis of
skill level and content of the jobs, as being typical of jobs in the skilled
lines of progression. Each employee in each group was rated in com
parison with each other employee in the group to obtain a ranking of
job performance and statistical correlation was performed to deter
mine correlation between job performance and test results. (A. 490).
The same method was also expressly approved in Watkins v. Scott
f .___ Efiper C o.,...F. Supp......, 6 FEP Cases 511, 537 (S.D. Ala. 1973).
34
It is clear, therefore, that the District Judge, who was
the trier of fact in this case, had no doubt that Albemarle
had demonstrated that its tests were related to perform
ance on the job.
(b) The Findings Of The District Court Have Not Been Shown
To Be Erroneous.
Plaintiffs’ contention in the Court of Appeals was not that
Albemarle’s tests were not job related (indeed the EEOC’s
Brief to the Court of Appeals as Amicus Curiae at p. 32 con
ceded that “they may very' well be job related” ). Rather,
plaintiffs contended that Albemarle had not proven job
relatedness in the manner required by the EEOC guidelines
in that (1) Dr. Tiffin's study had not been shown to have
fulfilled all of the technical requirements of the guidelines,
and (2) Dr. Tiffin had not been shown to have vone through
all the procedures detailed in American Psychological Asso
ciation, Inc., Standards for Educational and Psychological
Tests and Manuals (1966) (Plaintiffs Ex. 71), and that Al
bemarle had not presented evidence on extraneous issues not
raised in the District Court.
Other Courts of Appeals reaching the question have held
that an employer may satisfy the job relatedness standard of
Griggs independently of the specific requirements of the
EEOC guidelines. Castro v. Beecher,*459 F.2d 725, 737-38
(1st Cir. 1972): Guardians Ass’n v. Civil Service Commis
sion, 490 F.2d 400, 403 n. 1 (2nd Cir. 1973); United States
v. Georgia Power Co., 474 F.2d 906, 913 (5th Cir. 1973).
The error of the Court of Appeals panel below was in equat
ing EEOC suggested technical methodology' with acceptable
standards of judicial proof of job relatedness. “Experience
teaches that the preferred method of today may be the re-
35
jected one of tomorrow.32 What is required is simply that an
examination must he ‘shown to bear a demonstrable rela
tionship to successful performance of the jobs for which it
was used,’ Griggs v. Duke Power Co., 401 U.S. 424, 431.55
Vulcan Society v. Civil Service Commission, 490 F.2d 387,
394 (2d Cir. 1973) (Friendly, J.) (Footnote added).
Previous opinions of this Court make clear that deference
to agency interpretation should be limited, when, as here,
the interpretation derives from a nonadversary proceed
ing, Fishgold v. Sullivan Drydock and Repair Corp., 328
U.S. 275 (1946), and when the interpretation intrudes in
to an area where a court’s expertise exceeds the agency’s.33
In the case of testing, the EEOC guidelines have not been
subject to adversarial scrutiny. The 1970 guidelines them
selves state:
32 The First “Guidelines cn Employment Testing Procedures” (Plain
tiffs Ex. 27A) adopted by the EEOC on August 24, 1966, one day
before this case was brought stated inter alia:
“The Commission accordingly interprets ‘professionally developed
ability to test’ to mean a test which fairly measures the knowledge
or skills required by the particular job or class of jobs which the
applicant seeks, or which fairiy affords the employer a chance to
measure the applicants ability to peiform a particular job or
class or jobs.” -x -* *
and advocated * * that tests be judged against job performance
rather than by what they claim to measure.”
The Guidelines on Employee Selection Procedures adopted on Au
gust 1, 1970 by the EEOC superseded the 1966 guidelines, and added
stringent and technical standards with respect to job relatedness.
Further amended guidelines are presently under consideration by
the Equal Employment Opportunity Coordinating Council (EEOCC).
33 Barlow v. Collins, 397 U.S. 159, 166 (1970); NLRB v. Boeing
Co., 412 U.S. 67, 76-77 (1973) (dictum). Like statutory construction
and principles of equity, the allocation of proof and the proper weight
to be accorded evidence are matters properly within the province of
the courts.
36
"Because the material herein is interpretive in nature,
the provisions of the Administrative Procedure Act (5
U.S.C. §533) requiring notice of proposed rule making,
opportunity for public participation, and delay in effec
tive date are inapplicable.”34
Indeed, This Court, in Espinoza v. Farah Manufacturing
Co:> 414 U.S. 86, 94 (1973) has held with respect to the
EEOw. Guidelines on Discrimination Because of National
Origin” :
“ Ihe Commission’s more recent interpretation of the
statute in the guideline relied on by the District Court is
no doubt entitled to great deference but that deference
mus) ]iave h'ttdts where, as here, application of the
guiclejine would be inconsistent with an obvious con-
gressional iment not io reach the employment practice
in question.” (Citations omitted)
i. Job Analysis
The principal defect found by the Court of Appeals
was that Dr. Tiffin had not conducted a detailed job analy
sis in connection with his validation study in the manner
required by the EEOC Guidelines. Before discussing the
particular reasons for which the Court of Appeals found a
job analysis necessary, it will be useful to discuss when, in
geneial, a job analysis should or should not be required.
1970 F t n e e i f technical burden imposed on employers by the
1970 EEOC Guidelines on testing marked a radical departure from
previous practice, without the benefit of any input by employers.
\ lien the proposed amended guidelines containing similarly re-
s rictne standards were opened for public comment by the EEOCC
the impact oi those guidelines on industry was made clear. The people
‘W h o ' l l SCn’,1d „them as Unworkable,” “incomprehensible,”
- technica,ly unsound, “too stringent,” “beyond the state of the art
in psychology, • ambiguous, yet restrictive,” “unnecessary',” “punitive ”
and as one person said, “just irrational, unreasonable, and impossible.”
E_\A, E)aily Labor Report, No. 8 (Jan. 13, 1975).
37
A validation study may be conducted in a variety of fac
tual circumstances for various purposes, and may employ
various strategies such as content, construct, or criterion
related, i.c., predictive or concurrent studies.
Thus, when a test publisher or psychologist sets out to
devise and market a test, he must conduct a “job analy
sis” in order to demonstrate to potential clients the job con
tent or duties for which the test has been correlated.
Similarly, if an expert psychologist were employed to
set up a testing program for a particular plant, he would
first of all study the jobs to learn what abilities were re
quired, in order to obtain an indication of what tests might
be valid job predictors; he would then select a test and,
by empirical stud)', would determine if it correlated with
job performance.
By contrast, the validation study here was intended to
examine the validity of the tests already in use. The
problem, therefore, was not to select among various tests
to measure some unknown job cpntent, but to determine if
an existing test correlated with known job performance.
In this context the preliminary “job analysis” for selecting
the test was superfluous.35
The fundamental point overlooked by the Court of Ap
peals is that a test has almost no chance of correlating with
job performance ratings unless it in fact measures critical job
attributes. Boston Chapter, NAACP v. Beecher, 504 F.2d
1017, 1024 (1st Cir. 1974); Vulcan Society, supra, 490 F.2d
“ American Psychological Ass’n, Inc., Standards for Educational
and Psychological Tests and Manuals (1966) (A. 1520-58), relied
upon by Plaintiffs, expressly states at the outset (Standard A1) :
“Not all the standards in this report will apply to any one par
ticular test. A standard may be ignored if it is iirelevant in the
light of the purpose of the test and claims made for it. . ”
(A .1592)
38
at 396. In light of the high statistical significance of the cor-
re ations here, the Court of Appeals Panel’s speculation that
only a written job analysis could assure that the supervisors
and the tests were measuring the same thing .exalts form
over substance.
. ,Whllc for S°od reasons Albemarle does not have written
job descriptions, (A. 223-24) the job categories for wa«e
purposes are the result of union-employer negotiations.
I be job content is directly related to the machinery and
equipment on which the job holder works, and the lines
cn progression are designed to group functionally related
jobs ^or training purposes, as well as seniority, especially in
the skilled lines oi progression. (A. 211-212) Thus the
characteristics of the jobs are clearly understood.
Further, Dr. liffin was very familiar with paper mills 38
having made validation studies for International Paper
Company The Mead Paper Corp., Marathon Paper Com
pany and Gulf State Paper Company and having been
consultant to the American Paper Institute from 1965 for
the purpose of analyzing the use of the personnel tests '
being made by the member companies of that association.37
hus, to say the tests were not proven to be job related
because Dr liffin did not write down in his report what
ic knew about the jobs is unjustified as the dissenting
oenioi Circuit Judge aptly noted:
Secondly, in view of the findings by the rDistrictl
Court that 'N a t io n studies had been applied to the
* " . « * * * “ d P " ® ™ is quite
37 See Defendants Exhibit No. 22 (A 439-571 • a m i n t--.ce .
39
personnel tests and that the tests had been proved to be
job related, I cannot join in the determination that dis
crimination resulted from the absence of ‘job analysis.’
It seems to me that these findings necessarily recognize
that the equivalent of ‘job analysis’ was utilized. In rat
ing the employees, the jobs’ features were undeniably
considered, for the supervisors were unquestionably fa
miliar with these elements.”
ii. Supervisors’ Ratings
In his validation study, Dr. Tiffin used the “paired com
parison” method of obtaining job success criterion ratings ■
from supervisors.38 Judge Dupree described the process in his
findings of facts:° F
“Each employee in a job grouping was individually j
rated in comparison to every other individual em
ployee in that grouping to obtain a ranking of job per
formance. The ratings took into consideration the ele
ments of work behavior and job success. This rating
method was performed twice by two different super
visors making independent evaluations. Neither of the
raters had access to or knowledge of the sample em
ployees’ performance on the aptitude tests. The results
of the dual ratings were then averaged to obtain the
final job rating of the employees within each specific
unit.”' (A. 490)
Thus, the supervisors were asked only the most ele
mental question: “which of two of the employees who
work for you can do the job, better?” The Court of Ap
peals finds this simple question to be a “vague standard.”
38 This method was specifically approved in Watkins v. Scott Paper
Co.,..... F. Supp........., 6 F.E.P. Cases 511, 537 (S.D. Ala. 1973).
1
40
K ' D^ ---- .{
6£--»«-iyrt <ywv<t̂ H' ■■.
Citing one case, not in point/* and a stray quotation from
a iaw review article” and the EEO C guidelines”, the
Couit of Appeals concluded:
Z ^ eV hff SOme form of J°b ana]ysis resulting in
crucial to a °°JecUvc cntena for supervisor}* ratings is ciuc ai to a proper concurrent validation study See
I f j f r c Add\tl°n Community Organization v YAlloto
34? F*Supp. 1351, 1354-55 (N.D. Cal. 1972)' To re
W H v m tlS t0 leJ T - ? erJ0b reIatedness requirement
l Thr If g°°f faith ° the cmPIo),er and his super-
the A c ? Plainmg daSS is entitIed 10 more under
The Court of Appeals Panel’s overemphasis of “job anal
yst, as crucial was apparently based on a confusion be-
ween content validity” studies such as that attempted in
If estern Addition Community Organization v Alioto 340
F* Supp; ? f 1 fN-D- Cab 1972), cited by the Court, and the
more reliable empirical validation” successfully performed
m this case. Unquestionably "[t]he cornerstone in the con-
s luction °f a content valid examination is the job analysis.”
F I Department of Correctional Services, 31A
F.Supp. 1361, 13/3 (S.D.N.Y. 1974), since the tasks identi-
volved here. y Afferent evaluation from that in-
has no citation any
§ 1607.5(b) (4) (1970) exarrj,ned evidence of bias.” 29 C.F.R.
41
i I
i
I
ficd in the analysis provide the only criteria against which
to evaluate the test. In empirical validation studies, how
ever, where the test can be measured against actual job per
formance rather than a mere description of job performance,
the job analysis is far less important.
“In the jargon of psychometrics, predictive [empirical]
validation involves comparing relative performance on
a given test with subsequent job performance.
* *•
Content validation of a test, on the other hand, re
quires that an analysis of the job involved be under
taken to determine what characteristics are essential
for the adequate performance of that job.” Pennsyl
vania v. Giickman, 370 F.Supp. 724, 732 (W.D. Pa.
1974).
The thrust of the law review quotation and that of the
guidelines is based upon the premise that blacks, gen
erally, perform less well on tests than whites, but perform
as well on the job and therefore, if because of bias, super
visors rate blacks lower, this would tend to make the test
seem valid when, in fact, it would merely reflect parallel
bias. Recent scientific studies find the underlying premise
that blacks who do poorly on a valid test do just as well on
the job unfounded.42
42 This premise is, in the jargon, called “differential validity.” In
one recent study of thirteen validity studies, the author concluded that
there is very little evidence of differential validity. Boelnn, Negro-White
Differences in Validity of Employment and Training Selection Proce
dures; Summary of Research Evidence, 56 Journal of Applied Psy
chology 33 (1972). Sec also Gael & Grant, Employment Test Valida
tion for Minority and Nonminority Telephone Company Service
Representatives, 56 Journal of Applied Psychology 135 (1972);
Schmidt, Berner & Hunter, Racial Differences in Validity of Employ
ment Tests: Reality of Elusion 58 Journal of Applied Psychology 5
(1973).
r
If
i
42
Aside from the fact that there is no scientific support for
tia t idea, it clearly was not applicable in this case, and
was not raised in the District Court.
Qnl}Jotwbjack_employees participated in the validation
study conducted by Dr. Tiffin, and those four were all in
^roupNo_8. t herefore, in fact, in nine out of the ten groupT
studied, racial bias could not have been a factor. Group
Ao 8 consisted of eight employees (six black and two white)
in the jobs of Chipper Unloader, Chipper Operator No. 2
and Cham Operator in the Woodyard. Two of the black em-
-7- A ^ v/ i- l P T 65 refused to takc the tests, so that four blacks and two
whites constituted the group. Both the Beta and the Won- '
7 = ^ 1 ( ^er,]jC £ C0ITdaicd ^ r Group No. 8. Although Dr. Tiffin
ad all of his work papers available in Court, he was not
asked .or the test scores or supervisory ratings of the em
ployees in Group No. 8. Thus, even for Group No. 8, the
Court of Appeals Panel relies on a surmise, raised for the first
tune in the Court of Appeals, that the four blacks did
poorly on the tests, and did as well or better on the job
than the whites, but that both supervisors rating them
in ependently downgraded their job performance in the
precise degree necessary to achieve correlation. The possi
bility that this could have occurred is obviously remote
and does not provide a basis for invalidating Albemarle’s
whole testing program.
Further, a supervisor is in the best position to know the
rdatwe job performance of his employees. As long as the
District Judge, in his role as trier of fact, is satisfied that
the supervisor is reporting honestly, the rating cannot be
said to be unduly “vague.”
,. 'this instance, the Court of Appeals disagreed more with
he District Court’s factual conclusions than with its leral
standard. When the Court of Appeals criticized the lack of
job analysis, it essentially found a failure by Albemarle to
meet a burden of proof. The District Court’s findings clearly
recognized that the burden had been earned. The Court of
Appeals’ conclusion that this was not enough constitutes a re
versal on factual grounds, which was unwarranted since
those findings of fact are not “clearly erroneous.” F ed . R.
Civ. P. 52; Parmer v. National Cash Register Co., 503 F.2d
275 (6th Cir. 1S75) ; United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948) modified, 339 U.S. 960
(1950).
Thus, it is apparent that the Court of Appeals was in
error in reversing the District Court on the basis that all
supervisory ratings are presumptively biased." This Court
has already held that subjective or individual judgments con-.
cerning minority employees cannot automatically be equated
with racial prejudice. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 803 (1973).
iii. Business Necessity
The Court of Appeals concluded that it was error “to
approve the testing procedures for lines of progression not
validated” and “to approve requiring applicants to pass
two tests for positions where only one test was validated.”
(A. 519) The Court of Appeals found that Albemarle had
not shown that “hiring all employees into a pool is necessary
to the safe and efficient operation of its business,” nor had it
shown that “hiring employees for specific lines of pro
gression is not an acceptable alternative.” (A. 519-520)
13 Most validation studies in the United States, including the United
States Training and Employment Service General Aptitude Test Bat
tery (GATB) which is in wide use throughout the United States, are
based on supervisor)' ratings. Thus if the Court of Appeals was correct,
tests which Congress has expressly authorized would be presumptively
invalid.
44
7 - o ./c
?-p- 4 -
4 '
| •
j
J^—is -inanifcst that these objections of the Court of
Ajjpcals go to the manner in which the tests slW lcFBe
utilized_and arc irrelevant to the Question whether thetests
arejob related. These objections may be grounds for modi
fying the District Court’s order, but they are not grounds
for enjoining the use of tests completely, as the Court of
Appeals has done.
furthermore, the objections basically derive from the
Court of Appeals Panel's apparent belief that Albemarle
was requiring tests “for 14 lines of progression” in “8 de
partments.” Apparently this belief was based on a stipu
lation of fact which was correct as far as it went, but did.
not take into account the subsequent evidence at trial
which clearly demonstrated that many of such lines of
progression and departments no longer existed. (A. 244-
245) Although the District Court did not specifically note
these changes in the lines of progression (A. 487), the un
controverted record discloses that at the time of Dr. Tiffin’s
study, Albemarle was using its tests only for .the skilled lines
of progression in the Technical Service, Power Plant, B Mill
Paper and Pulp Mill Departments, which were the lines Dr
Tiffin was asked to study (A i8C).
Dr. Tiffin’s study found that the Wonderlic A" cor
related positively with job performance in all the lines of
progression in those departments except the B Paper Mill
Stackiapm and the Pul£ _Mili_C. E. Recovery C
lines of progression. So the question r e ^ y7s wbcth77he
entire testing program should be cast aside because the
30 r / rr C U n° ParatC CftcC! °n Wacks and v' hites- See PP- 29-
}
[
I
.
45
District Court permitted the use of the Wonderlic in two
lines of progression—one involving a total of twelve jobs,
the other six jobs—or whether on the basis of Dr. Tiffin’s
findings and the circumstances of the Mill it was reasonable
to allow the testing procedure to stand. It is Albemarle’s
contention that use of tests in both the C.E. Recovery Op
erator and Stockroom lines was reasonable and appropriate.
In the Pulp Mill Department, the lines of progression
do not start with the bottom job but branch out at higher
levels so that an employee can be several jobs up the ladder
before he will divert into the Digester Operator, the C.E.
Recovery Operator or the Caustic Operator line of progres
sion. In the Pulp Mill Department, the Wonderlic A cor
related significantly in Groups 9 and 1, but only the Revised
Beta had significant correlation in Group 2 in the C.E. Re
covery line of progression:
46
In this department, therefore, clearly Albemarle cannot pre
dict m which line of progression an employee will be needed.
To preserve the safe and efficient operation of its pulp mill,
it is reasonable to require all employees entering this line to
pass the \\ onderhc A as well as the Beta.
. Consequently, it is only as to the B Paper Mill Stockroom
line of progression that a specific compelling reason for using
the Wonderlic may not have been shown. However, it is
unreasonable to disrupt the entire hiring system at the mill
for so small a group. Nor does so small an inconsistency
destroy the overall conclusion of the expert that it is reason
able to use the Wonderlic for the skilled lines of progression
generally.
Finally, the majority opinion• holds that Albemarle “has
not shown that hiring all employees into a pool is necessary
to the safe and efficient operation of its business, nor has it
shown that hiring employees for specific lines of progression
is not an acceptable alternative.” This holding misses the
point because the use of a pool is no more discriminatory
per SC' than hiring directly into a line of progression. How
the hiring is done is what may cause the discrimination.
Tnless it is assumed that Albemarle is requiring satisfactory’
test scores as a condition of employment for all applicants
for the pool and thereby making the tests indirectly appli
cable to lines of progression for which the tests are not vali
dated, there is no discrimination by reason of the tests. There
is no evidence to support that assumption and no reason to
doubt that Albemarle is limiting its tests to potential candi
dates for the “skilled lines” of progression. The District
Court, whose job it was to fashion the remedy in this case,
made specific provisions for the operation of the Extra Board
or pool in its order so as to insure against the possibility of
unfairness in its operation.
47
It is abundantly dear, if not precisely stated, that due
to the modernization of the mill and the elimination of
various Departments, the Extra Board or “pool” is a device
foi sharing the available work among the many employees
who would otherwise have been completely displaced. For
Albemaile it has the advantage of flexibility in work
force.
There was no suggestion made that some other method
of handling this situation might be less subject to discrimi
natory effect. To require Albemarle to conjure up some
other system and disprove that it would have less discrimi
natory effect is unreasonable, if not unreal.45
Albemarle respectfully submits that the Court of Ap
peals had no basis upon which to reverse the District
Courts refusal to enjoin its testing program and, there
fore, the Court of Appeals should m turn be reversed by
this Court.
B. In Any Evert The Court Of Appeals Erred In Not Remanding
The Issue To The District Court.
The Court of Appeals.panel concluded its discussion of
testing by stating:
“Thus we hold that the district court erred in uphold
ing the validity of the pre-employment personnel tests
and in refusing to enjoin their use.”
The final word of the opinion is simply, “Reversed.” Such
bare reversal on the testing issues is improper on several
.r - , T n , ' 1 '’ °: “ ^ " “uve requirement is not clear,
title VII imposes a heavy burden on defendants after a prim a facie
effect on minorities is shown. Imposing impossibly strict standards on
private employers collides directly with the business efficiency that is
tne backbone of ths country’s economic power.
48
grounds and the Court of Appeals Panel should instead
navre remanded to the ^District Court with permission, to
reopen the record.
Even if we were to assume that the Court of Appeals was
correct on the merits, its decision has the effect of setting
forth the new rule that an employer has the burden of prov
ing job relatedness in strict accordance with the EEOC
guidelines and the standards of proof detailed therein.
Simple fairness requires that Albemarle, against which the
new rule has been invoked, should be afforded an oppor
tunity to present evidence with the new rule in mind. Mc
Donnell Douglas Corp. v. Green, supra; England v. Louisi
ana Medical Examiners, 375 U.S. 411 (1964). Under prac
tically the same circumstances, the Court of Appeals for the
Fifth Circuit has noted :
[Sjtandards for testing validity comprise a new and
complicated aica of the law. While the Hite Study did
not demonstrate compliance with, the Act, we hesitate
to penalize this litigant, the first to confront such a de
manding burden of proof, for failing to introduce a
more rigorous study. Had our standards been articu
lated at the time of trial, it may be that the company
could have proven its compliance. Therefore, rather
than now proscribing the testing program which Geor
gia Power has used, we remand this phase of the case
to the trial court with directions to permit the company
a reasonably prompt opportunity to validate the testing
program applied to the plaintiffs, in accordance with
the principles enunciated in this opinion.” Cleoreia
Power supra, at 917-18.
A bare reversal allowing no further consideration by
the District Court is especially inappropriate in light of
the further fact that the Court of Appeals Panel under-
49
took to make factual determinations on issues as to which
the District Court did not, and was not requested to make
findings.
Thus the Court of Appeals Panel erred in its finding
that tests were required at the time of trial in fourteen lines
of progression in eight departments; they were in fact being
utilized only in eight lines of progression in four depart
ments/'0
Similarly, in applying the literal language of Section
1607.4(c) (1) of the guidelines, the Court of Appeals said
it did not reach the question of whether a testing proce
dure which takes into account higher-level job require
ments is permissible:
“. . . because of insufficient evidence below as to the
time it takes an employee to progress to the higher level
job.3’
No such time computation was made by the District Court
because the issue was not injected into the case until the
Amicus Curiae filed its brief in the Court eff Appeals. But in
fact the raw data with which to make the computations was
in evidence and available to the District Court/7
Even worse, the Court of Appeals Panel made a finding
as to the disparate racial effect of the Wondcrlic test
scores based on a document introduced in evidence in
the Court of Appeals after all briefs had "been filed. Ob
viously, Albemarle had no chance to probe the evidentiary
value of that document, nor did the District Court have
*° See supra, p. 13.
47 Plaintiffs’ Exhibit No. 10 shows how long it took each employee to
promote to each and every job. Hence, to determine how long it, in
fact, took to progress from job to job would be a simple matter of
computation.
50
opportunity to pass upon its relevance to or impact on the
issues raised in this case.4S
. ^ ycr> êast’ the District Court should have been
given the chance to determine the facts upon which issues not
presented to the District Court were to be decided. Commis
sioner v. Dubcrstein, 363 U.S. 278, 292-293 (1960).
tmmen-nt °f appdJate court *> read the
n t D ’Stri\A/i ^ ? Urt traditional Equitable Discretion To
Determine W hether Back Pay Was An Appropriate Remedy.
T ^ T V Ip LF'AVES T H E AvVAIU5 Q ii D e n ia l O f Ba c k Pay
C o u r t s^ *QUITABLE D i s “ e ™ n O f T h e D is t r ic t
In the instant case, the District Court declined to award
bach pay to the plaintiffs based on the cumulative effect of
several equitable factors.40
In what was apparently the first Title VII case to do so
the Court of Appeals below reversed the trial judge’s dis
a-eticmary- refusal to award back pay by.adopting, a
43 See supra, PP. 30-31.
faith non-com pliancef w hh T ide V lP s 're a u h presenlf d of bad
Albemarle Paper Company Sm.n l l D-K-ments on the part of
at all levels of employment Finally dip ™ le.hignest wages
tardy claims for mone ary relief m he L n“ 7 that Plaintiffs’
their express disclaimer of aty iment to T e l s .S ^ C° Up!e,d Wllh
non-named class members at the outlet of the * )T10ne)tai''r' re 'e ̂ ^°r
stantially prejudiced the Defendants. (A. 498) e instant legation sub-
51
circumstances” test under which once a violation is found,
a back pay award is mandatory absent special circumstances
which would render such an award unjust. (A. 523-524)50
Ii is submitted that the “special circumstances” test severely
distorts Congressional intent, as evidenced by the plain lan
guage of Section 706(g) of Title VII, 42 U.S.C. §2000(e)-
5(g), and operates to reduce traditional concepts of equi
table discretion in the trial courts to a nullity.
Section 706(g), 42 U.S.C. §2000e-5(g), provides that if
the district court in a private Title VII action finds that the
respondent has intentionally engaged, or is intentionally en
gaging, in the unlawful employment practice alleged,
“the Court may enjoin the respondent from engaging
in such unlawful employment practice, and order such
affirmative action as may be appropriate, which may in
clude, but is not limited to, reinstatement or hiring of
employees, with or without back pay . . . or any other
equitable relief as the court deems a p p ro p r ia te (Em
phasis added).
Use of the word may in defining the enforcement or
remedial powers of a court or agency normally signifies the
grant of general equitable discretion to invoke, or refrain
from invoking, the authority conferred.
The Civil Rights Act of 1964 is replete with careful dis
tinctions between use of the word shall and the word may.51
Other courts of appeals have since adopted varying versions of
the special circumstances test for reviewing the District "Courts’ Title
VII decrees involving back pay. See e.g., Duhon v. Goodyear Tire &
Rubber Co., 494 F.2d 817, 818 (5th Cir. 1974) ; Pettway v. American
Cast Iron Pipe Co., 494 F.2d 211, 252-53, (5th Cir. 1974) ; Head v.
Timken Roller Bearing Co., 486 F.2d 870, 876 (6th Cir. 1973).
* Compare, 42 U.S.C. §§2000a, 2000a-l(a), and 2000a-2 with
42 U.S.C. §2000e-3(a). ’
52
Moreover, the legislative history of Section 706(g) con
clusively establishes that the word may was intended to con-
e- discretionary remedial powers on the District Courts. In
tT e V n 'B COn,f°rmi Ti v VH rCmedies t0 lhose S^nted to
l A 1C Natl°na) Labor delations Act, 29
th a t. ’ b 6° (c) ’ carI>' vei'Sions of the Title VII provided
If the court finds that the respondent has engaged in
the court Sing “? "n Un!aVVf,U! e,»Plo>™<™ practice . . .. fr .l ‘ ‘ • shal[ mdcr tlie respondent to take such
affiimative action, including reinstatement or hiring of
S^P*oyees> v’ ith or without back pay . . (H.R. 7^59
§ 707(e)) (emphasis added).
However the word may was substituted fo r shell in the
lansfie d-Dirksen amendment adopted on the Senate floor "
I his legislative ! ' ' 1history demonstrates that the— i ——u.um uu mm trie oxart cf
remedial authority in Section 706(g) is inherently equitable
m nature and the question of back pay, like that of other
onus o, equitable relief, is left to the discretion of the trial
court.
2^CU ^ c â ‘l6^fc)C latter
“ “ “ ™'e- S“ 313 u l *7T T m
53 Senator Dirksen commented that:
reinstatcm^dl n 7 b X a r '
been revised to read 'mav * * * order surh aft?™,*- • h
53
Indeed, there has never been any question that the above-
quoted language vests the District Courts with discretion in
fashioning relief.54 The question in this case is whether that
discretion is properly limited by a “special circumstances”
rule or whether it is governed by traditional equitable prin
ciples.
Albemarle recognizes that judicial review is not eliminated
by the discretionary nature of the District Court’s remedial
powers under Title V II; the discretion must be exercised
consistently with legislative objectives.50
In Griggs v. Duke Power Co., 401 U.S. at 429-30 (1971)
This Court defined the purpose of Title VII as follows:
“The objective of Congress in the enactment of Title
VII is plain from the language of the statute. It was to
achieve equality of employment opportunities and re
move barriers that have operated in the past to favor
an identifiable group of white employees over other
employees.”
This Court’s interpretation is supported not only by the
plain language of Title VII, but also by its legislative history.
Thus, in the sectional analysis of H.R. 7152 written by the
House Judiciary Committee it is stated:
“The purpose of this title is to eliminate, through the
utilization of formal and informal remedial procedures
discrimination in employment based on race, color, re
ligion or national origin.” (H.R. Rep. No. 914, 88th
Cong., 1st Sess. (Title VII (1963)).
M Sec, e.g., Curlis v. Loether, 415 U.S. 189, 197 (1974); Head v.
Timken Roller Bearing Co., 486 F. 2d 870, 876 (6th Cir. 1973)
(“Congress evidently intended that the award of back pay should rest
within the sound discretion of the trial judge” ) ; United States v.
N. L. Industries, Ir.c., 479 F.2d 354 (8th Cir. 1973) (discretionary
denial of back pay upheld due to unsettled state of law in Circuit).
55 Hecht Co. v. Bowles, 321 U.S. 321 (1944).
54
«T hV 1 heref°re’ an en'°neous extension to assert that
The clear purpose of Title VII is . . . to make whole in a
pecuniary fashion, those who have suffered by [all proscribed
t0 e, f / r a c ’, i dfsr '• ' 969)' C,eari>• in g r e s s wishedend racial discumination m employment. Bui the Con
Sc ~ ' » » ® <lle prospective d i m i n a t J o f X
cu 7 l Z r C!,C“̂ m°" reparali0- T1“U ht battle over remedies for a Title VII violation in
c uchng the substitution of the District Courts for the EEOC
“ " " SUbStiU' li0" 0f foe_Section 706(g), indicate that Congress had no precon
cen-ed notions .hat compensatory damages in a d d L n T o
apprepriate ,,abs'mV , Ra,her> Congress .visited to leave resolution of
implex tcniedial problems to the traditional .11 -
ootvers of the federd courts of equity'" ’
A, ^ , I t C,al f cumstances” ru,c ad°P«d by the Court of
Thfs Courfs dPePr :Catl°n V be baCt Pay rCmcd>' tfcrives front
i n , , m u s 7 m V m ) W7 "' • Park * * ” >**> ________ (lyD8). Newman was an action under
• m , ^ f c C r t ' T i p p t r f o V t v ^ j r F -2i‘ 240 (3dVital role of the DistrictCourts’ d ise te t^ ^ ^ !rculf recogn:zed the
expressly rejected' the “sDfdal'nfre m formulating relief and
court below for that reason^ ’ cunlstances rule adopted by the
Scf-end,'Chtcuif ^ ,from the Fourth Circuit and
trial judge may deny b a c k n l ^ ' “ C™1!5tancf . UTlder which a
inclined to follow the more o e r s t i - ^ '^ °n 1 ?1S record vve are
Circuit in Manning v. Genera! Motorc p eaSOniIlg of the Sixth
812] at 815,-816; the Ninth^Circuit^ ° S <? r&’ SUpra> [466 F-2d
Inc., supra. [46? F 2d 10CP1 nt im e 5 | lacf e' v- Yellow Cabs,
U B h t tA s k t h , £ £ , ■ ' »
mg opinion of Judge Borcnian of tl,„ r r T and the Assent- .
V‘ AIbcrnarIc'’ suPr a ” (Footnote omittedMSOV f d z l ^ Moody
55
Title II of the Civil Rights Act of 1954, 42 U.S.C. §2000a-l
ei. seq. in which This Court held that successful plaintiffs
in such cases should ordinarily be awarded attorney fees ab
sent special circumstances which would render such an
award unjust. This Court reasoned that private litigants in
Tide II cases5, act not for themselves alone, but as pri
vate attorneys general, vindicating a policy concerning public
accommodations that Congress considered of highest priority.
Newman, supra, at 402. '
Ih e recovery of back pay, being compensatory for past
individual injury (see p. 66, infra), is vastly different from
attorney fees for ‘"private attorneys general” for advancing
the commonweal No compelling public purpose mandates
an award of such private relief to Title VII plaintiffs.
2. T h e D is c r e t io n O f A D is t r ic t C o u r t R egarding T h e
Ba c k P ay R em e d y S h o u l d B e G uid ed By T ra d itio n a l
E q u it a b l e P r in c ip l e s .
The real difficulty with a “special circumstances” rule
is that it deprives the trier of fact (who is most familiar with
the ambiance of the case and the merits of each position) of
an opportunity to formulate an award in the light of tradi
tional equitable principles.
Complex equitable factors affect whether back pay is an
appropriate remedy in a Title VII action. In Georgia Power
supra at 922, for example, the Court held in relation to back
l_he provisions for attorneys’ fees under Title II and Title VII
U S C,omf>are, 42 U-S-c - §2000e-5(k) with 42
L.S.C. §_0j0a-3.b). Each was deemed by Congress as sufficiently
significant to ne expressed m an identical subsection of each Title.
Ihe authority for the grant or denial of back nay in Title VII is
lound among the general equitable remedies. 42 U.S.C. S9000e-5fed
° bff °n-1V irVen,ded Separate treatment of attorneys’ fees and
back pay, affording the latter no greater presumption of appropriate
ness than its companion remedies. ‘
56
pay, that equity demands that a true balance of interests be
struck. The Court set forth a list of factors to be considered
which, it cautioned, was illustrative and not exhaustive: (1)
whether back wages are properly owing; (2) limitations and
laches; (3) factors of economic reality; and (4) physical
and fiscal limitations of the court to grant and supervise the
relief. For other cases demonstrating complex equitable
factors, see Normal] v. Missouri Pac. Ry. Cc., (497 F.2d
596 (8th Cir. 1974), cert, denied, .... U.S......, 43 U.S.L.W.
3413 (U.S. Jan. 28, 1975) ; United States v. St. Louis & S.F.
Ry., 464 F.2d 301, 311 (8th Cir. 1972), cert, denied; 409
U.S. 1107 (1973); Shaeffer v. Sen Diego Yellow Cabs, Inc.,
462 F.2d 1002, 1006 (9th Cir. 1972); Lc Blanc v. Southern
Bell Telephone and Telegraph Co., 460 F.2d 1228, 1229 (5th
Cir.) cert, denied, 409 U.S. 990 (1972); United States v.
Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970);
Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122,
1125 (5th Cir. 1969).
Two equitable factors present in this case were expressly
cited by the District Court to support its denial of back pay.
One was absence of bad faith non-compliance by Albemarle.
Albemarle submits that, while it may be argued that good
faith in and of itself may not be sufficient cause for a denial
of back pay, good faith is, at a minimum, a relevant factor
which must be considered in balancing the equities to formu
late an appropriate remedy.'* A number of courts have
so held in Title VII cases. See Norman v. Missouri Pac.
Ry. Co., supra; Kober v. Westinghouse Elec. Corp., 480
E The District Court’s finding of Albemarle’s good faith is amply
supported on the record. Albemarle engaged in affirmative recruit
ment of blacks at an early point; AJbemarle merged its Extra Boards
and some lines of progression to enhance the opportunities of blacks;
and, as judicial gloss was put upon Title VII, Albemarle took early
steps to ensure its compliance. (See pp. 14-16 supra).
57
F.2d 240 (3rd Cir. 1973); United States v. N.L. In
dustries, Inc., 479 F.2d 354 (8th Cir. 1973) ; United States
v. St. Louis & S.F. Ry., supra. These cases which have held
that good faith is .irrelevant or that it is an inadequate
defense to a back pay claim” have apparently relied cn
This Court’s observation in Griggs, supra:
“We do not suggest that either the District Court or the
Court of Appeals erred in examining the employer’s
intent; but good intent or absence of discriminatory
intent does not redeem employment procedures or
testing mechanisms that opeiate as ‘built-in head
winds’ for minority groups and are unrelated to meas
uring job capability.” 401 U.S. at 432.
It must be remembered that This Court in Griggs was
speaking of good faith as a defense to a finding of a viola
tion. Clearly a fundamental distinction exists between good
faith as it relates to the continued maintenance of a discrimi
nator)' employment practice which must be eliminated to
effectuate the purpose of the Act, and good faith as it relates
to an award of money damages. Where the fundamental
purpose of the Act—the prospective elimination of obstacles
to equal employment opportunity—is in issue, This Court has
properly found good faith irrelevant. Where the prospective
elimination of discriminatory barriers to employment has
been achieved and the issue is reduced to whether an em
ployer should be forced, by an award of back pay, to pay
again for work already performed and paid for, good faith
is clearly a relevant consideration.
59 See e.g., Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th Cir.
1974); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 436 (5th
Cir. 3974) cert, denied, ... U.S...... , 43 U.S.L.W. 3306 (U.S. Nov.
26, 3974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211
(5th Cir. 1S74) ; Johnson v. Goodyear Tire & Rubber Co., 491 F.2d
1364 ( 5th Cir. 1974): Head v. Timken Roller Bearing Co. 485 F 2d
870 (6th Cir. 1973). ' ,
58
A second factor, of even greater importance in this case, is
the conduct of the plaintiffs. Plaintiffs’ complaint, filed
August 25, 1966, sought only injunctive and other equitable
relief. In response to Albemarle’s Motion [to dismiss as a
class action and] for Summary Judgment filed October 5,
1966, plaintiffs formally represented to the Court, “no money
damages are sought for any member of the class not before
the Court.’’ (A. 13-14). Plaintiffs’ purpose for disclaiming
back pay was clearly to qualify their suit as a class action
under Rule 23(b) (2), Federal Rules of Civil Procedure. It
was not until four )cars had passed that Plaintiffs injected
back pay claims into the case/'’ The long delay in adding the
back pay claims satisfies all the elements of laches—a tradi
tional equitable concern that the Court of Appeals found to
be an insufficient “special circumstance.”
Plaintiffs’ disclaimer at tire time of Albemarle’s Motion
for Summary judgment created the justifiable conclusion
that Plaintiffs were not pursuing their back pay claims,
furthermore, Plaintiffs clearly knew their rights under the
Act, and their delay is not justifiable.
All defendants have been prejudiced by Plaintiffs’ tardy
assertion of a claim which Plaintiffs initially disavowed. Dis
covery relating to individual claims was clearly rendered
much more difficult, if not impossible, by the passage of time.
Moreover, the parties have changed positions. Hoerner
Waldorf Corporation, at the time an innocent third party,
purchased Albemarle’s assets in 1968 in the belief that in
this suit plaintiffs were not seeking damages. Thus, the
claim of laches is meritorious.
Plaintiffs should not be permitted to excuse their laches
by resort to Rule 54(c) of the Federal Rules of Civil Proce-
60 The first official indication that back pay would be in issue was in
the District Court’s Memorandum Opinion and Order entered Sep
tember 29, 1970. (A. 37-38).
59
dure, relied on in Robinson v. Lorillard, 444 F.2d 791 (4tli
Cir. 1971), to uphold a discretionary grant of back pay de
spite tire claim’s tardy assertion. This is not merely a case
of a tardy assertion of the claim. Plaintiffs at the outset ex
pressly disavowed any intent to seek back pay. The substan
tial prejudice to Albemarle is amply demonstrated above.01
The Fourth Circuit in Robinson cited with approval the fol
lowing language from Rental Development Corp. of America
v. Lavcry, 304 F.2d 839, 842 (9th Cir.4 962) :
“If, however, it is made to appear that the failure to
ask for particular relief substantially prejudiced the op
posing party, Rule 54(c) does not sanction the granting
of relief not prayed for in the pleadings.”
Therefore, the substantial prejudice to Albemarle caused
by plaintiffs’ express disavowal of back pay claims mandated
the Distitc,. Court s denial of an award or back pay in this
case.
The Court of Appeals’ “special circumstances” rule, is at
best a vague standard. District Courts are hardly better
guided by “special circumstances” than by traditional equi
table principles.
Moreover, the District Court was never granted the op
portunity to apply the “special circumstances” rule to the
facts of this case. Had it been granted such an opportunity,
the District Court may well have articulated further factors
present in this case in justification of its denial of back pay.
Thus, the Court may have explicitly cited the speculative
nature of back pay relief in Title VII cases02, the unsettled
m The District Court’s finding of substantial prejudice (A. 498) to
Albemarle cannot be said to be clearly erroneous.
42 Since Title VII litigation is “rightful place” litigation, back pay
awards must take into consideration, on an individual basis for each
alleged discriminatee, (1) selection of the presumably appropriate
60
state of Title VII law during the pendency of this action*5
the absence of unjust enrichment to Albemarle*4, and the
real failure of plaintiffs to make their case for back pay*5 as
equitable factors which it considered in reaching its result.
. , ot only is a “special circumstances” rule hi conflict
mth the plain language of the Act, it is inimical to the
prompt elimination of “built-in headwinds” to equal em
ployment opportunity. As a practical matter, a special
circumstances rule will serve to inhibit voluntary concilia
tion of Title VII claims. Thus, if the granting of any form
ol injunctive relief will result in the virtually automatic trw-
gam g of back pay liability, ever)' employer, however well
mtentioned, will, out of fear of back pay judgments, be com
p e lle d ^ oppose each item of requested injunctive relief,
even if it be with respect to matters such as seniority which
can benefit only employees— both black and white- -and not
the employer. Such employers will surely not, as Albemarle
did, voluntarily consent to entry of injunctive relief of the
type sought by plaintiffs.60
Finally, the Court of Appeals reversed the District Court’s
denial of back pay only after deciding that the factors cited
“rightful place”, (2) whether the employee would have achieved that
S S ^ “ »n„a5 W ,h' Vi0'a,i“ ’ anCi (3) W W M * .
( S th c i r A m ) . SU" “ V' N ' U « 7 F.2d 354, 380
n q 4 C w u g'’ Porier V- Warner Holding Co., 323 U.S 395 399-400
.rial 2 o t‘mS b“ k ^ W“ 'd bc «GO See supra pp. 20-21.
61
by the District Court were individually insufficient to amount
to special circumstances. Clearly the Court of Appeals erred
in considering the District Court’s reasons for denying back
pay as isolated factors and not in their totality.07
Since the decision of the Court of Appeals, by adapting
Newman’s special circumstances rule to back pay claims
effectively precludes the trial court from considering tradi
tional equitable principles in deciding whether or not to
award back pay, it should be reversed.
3. E v e n U n d e r A “ S pec ia l C ir c u m s t a n c e s ” Sta n d a rd ,. T h e
D ist r ic t C o u r t W as J u s t if ie d I n D e n y in g Ba c k P ay .
The factors cited by the District Court in denying back
pay—Albemarle’s good faith and Plaintiffs’ tardiness in
filing the claim—arc of sufficient importance when taken
together with the other factors mentioned above, to amount
to special circumstances justifying the denial of back pay.
D. Back Pay Should Not Be Awarded To Class Members Who Did
Not File Charges With The Equal Employment Opportunity
Commission.
Upon the theory that back pay is merely a part of equit
able relief, the Court of Appeals for the Fourth Circuit in
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971),
followed below, permitted the recovery of back pay by all
. 67 See Kober v. Westingkouse Electric Corp., 480 F.2d 240 248
(3d . Cir. 1973) :
“The statute says that the court may order such affirmative action
as may be appropriate, with or without back pay. I t is our deter
mination that this language clearly leaves the award or denial of
back pay to the discretion of the district court to be exercised in
the light of all the circumstances of each case.” (Emphasis
added).
62
members of a Rule 23(b) (2) class in a Title VII action.68
V ithout specifically considering the issue, the Lorillard de
cision confers on the courts by the device of nomenclature
(i.c. class action ) jurisdiction to award individual nione-
taiy ldief to persons who otherwise have no jurisdictional
standing before the Court. The decisions of This Court are
to the contrary'. Zahn v. International Paper Co., 414 U.S.
291 f 1973); Snyder v. Harris, 394 U.S. 332 (1969).
It is one thing to bring a class action seeking prospective
relief from policies or practices generally applicable to a
class, such as a discriminatory seniority system, since the re
lief will apply to the class members, whether or not repre
sented in the proceeding. It is quite another matter to bring
an action for monetary relief on behalf of hundreds of indi
viduals who may or may not have been actually damaged
by application of broad practices to them.63 Cleat ly back pay
is lediess tor an individual wrong. Even the decision below
in this case warned that oack pay is limited to damages
which are actually suffered. (A. 524)70
e6To the same effect: Bowc v. Colgate Palmolive Co., 416 F.2d
711 (7th Cir. 1969) ; Franks v. Bowman Transportation Co., 4S5 F.2d
398 (5th Cir. 1974) cert, denied .... U.S......, 43 U.S.L.W. 3330 (U.S.
Uec.. 10, 1974); Head v. Timken Roller Bearing Co., 486 F.2d 870
(6th Cir. 1973); and others.
63 A critical factor ignored by the Court of Appeals is the very heavy
burden of suit management that class-wide back pay cases would im-
pose on District Courts. I he speculative nature of the relief together
with the individual proofs required would make even the administra
tive task of designating subclasses very difficult. The gathering col
lating, and weighing of individual claims would be an even greater
burden. °
'° See also Johnson v. Goodyear Tire and Rubber Co. 491 F 2d
1364, 1375 (5th Cir. 1974) : 5
‘‘There should be a separate determination on an individual
basis as to who is entitled to recovery and the amount of such
recovery.”
T
63
I he administrative complaint and conciliation procedures
built into XitJc \ II were an integral part of the legislative
compromise which led to the enactment of the Civil Rights
Act of 1964. i hereby the employer is given early notice of
charges of discrimination filed against him, administrative
investigation of such charges, and an opportunity to con
ciliate such charges as may have merit. Section 706(a), 42
U.S.C. §2O0Oe-5 (a ). A court-made rule permitting class'Jf
wide back pay permits parties who have not filed a chargaf
to cn cum vent litis administrative process to the prejudice,
of employers. Not only are employers thus denied the pro
tections provided by the statute, but are also denied timely
notice of the nature and scope of the individual claims
against them and the opportunity to prepare defenses to
such individual claims.
Back pay claims are unique and personal to the individual,
m a claim for injunctive rebel, an employer who is unwilling
to eliminate an allegedly discriminatory practice (such as
job testing) in conciliation with one charging party, may
leasonably be expected to adhere to the same position
with respect to other individuals. By the same token, con
ciliation of injunctive matters with a single charging party is
effectively conciliation with everyone similarly situated. In
contrast, the fact that an employer is unable to reach agree
ment with one individual charging party regarding back
pay does not piecludc the possibility that such an agreement
could be reached on other individual back pay claims. The
eligibility of an individual for back pay turns upon the speci
fic circumstances applicable to that individual, lhus, the suc
cess or failure of conciliation of one back pay claim turns on
factois unique to the individual, and the filing and concilia
tion of charges by other individuals claiming back pay does
not involve duplication of effort.
64-
Judge Robert R. Merbige in Austin v. Reynolds Metals
Co., 327 F. Supp. 1145 (E.D. Va. 1970), summed it up
succinctly:
“The right to individual compensation, while an ele
ment of federal policy incorporated in the act, 42 CJ.S.C.
§20C>0e-5(g), is not so important as injunctive relief
from a policy injurious to the public as a whole. Indi
viduals can consistently be required to prosecute ad
ministrative charges at their own initiative in order to
be eligible for damages. Possibly the court in Antonopu-
los [v. Aerojet-General Corp., 295 F.Supp. 1390 (E.D.
Cal. 1968) ] believed that the charging party intended
■ her submission to be a joint claim and honored it as
such, or that at any rate the administrative agency had
behaved accordingly. But to allow any individual to
recover damages for a practice of which he has not
complained administratively would frustrate the Com
mission’s role in a manner which has been consistently
disapproved. Johnson v. Seaboard Air Line Railroad
Co., 405 F.2d 645, 1 FEP Cases 456, 69 LRRM 2916
(4th Cir. 1967). The Commission’s conciliation efforts
amount essentially to negotiations over a settlement
satisfactory to all concerned and consistent with the Act.
Success is not always complete, as this case shows. But
there will be no genuine opportunity to conciliate if all
of the aggrieved individuals are not before the Commis
sion and the magnitude of their claims is not apparent.
Therefore this Court holds that although non-charging
parties may intervene on the issue of injunctive relief,
they may not now sue for damages.”
Thus, while there may exist a common question of law in
Title VII cases, that is the only relation between the mem
bers of the class, and their back pay claims are no more than
claims for individual redress, irivolving separate issues and
sometimes conflicts of interests. Among the individual issues
involved in computing whether damages warranting back
-\̂ •
'65
pay are actually suffered are: whether the individual was
otherwise qualified by, for example, his experience, employ
ment history and background, for the job or jobs in question;
whether he actually applied for the job in question or would
have applied absent a violation of the Act; whether, at the
time of application a vacancy in the job existed; the pay
rates of the individual and those of various jobs in question;
and individual matters relating to mitigation (including in
terim earnings, see §706(g), 42 U.S.C. §2000e-5 (g) ).
There is no question that in order to have standing to
bring an action under Title VII, an individual must have
filed timely charges of discrimination with the EEOC. This
is a jurisdictional requirement. McDonnell Douglas Corp.,
supra at 798; Dent v. St. Louis & S.F. Ry.' Co., 406 F.2d
399 (5th Cir. 1969) ; Stebbins v. Nationwide Mutual his.
Co., 382 F.2d 267 (4th Cir.), cert, denied, 390 U.S. 910
(1968); Richardson v. Miller, 446 F.2d 1247 (3d Cir.
1971); Griffin v. Pacific Maritime Ass’n., 478 F.2d 1118
(9th Cir.), cert, denied, 414 U.S. 859 (1973); Cox v. United
States Gypsum Co., 284 F. Supp. 74, 76 (N.D. lnd. 1968),
afi’d, 409 F.2d 289 (7th Cir. 1969).
In Stebbins v. Nationwide Mutual Insurance Co., 382
F.2d at 268, (4th Cir. 1967) the Court held :
“Having reviewed the legislative history of the Act, as
well as its language, we agree with the District Judge
that the Plaintiff could not bypass the federal agency
and apply directly to the courts for relief. Congress
established comprehensive and detailed procedures to
afford the EEOC the opportunity to attempt by ad
ministrative action to conciliate and mediate unlawful
employment practices with a view to obtaining volun
tary compliance. The plaintiff must therefore seek his
administrative remedies before instituting Court action
against the alleged discriminator.”
.
66
Therefore, the filing of a charge is jurisdictional and serves ]
a very important purpose. In Zahn v. International Paper I
C°7> 414 U.S. 291 (1973), This Court upheld the refusal of a /
Distjict Court to permit a case to proceed as a class action/
because the unnamed plaintiffs, having separate and dis
tmct claims, did not individually satisfy the jurisdictiona
amount requirement. While Zahn involved jurisdictional
amount, the principle is applicable here.
The decisions are unanimous that the jurisdiction of the
Federal Courts is not available for the individual discrimina
tion claims of persons who have not filed charges with the
EEOC; and Rule 23 cannot be manipulated to confer juris
diction where it does not otherwise exist. Zahn, supra.
The Federal Rules themselves prohibit the use of the class
action device to circumvent statutory jurisdictional require
ments. Snyder v. Harris, 394 U.S. 332, 33? (1969). Rule
82 provides explicitly that:
‘These rules shall not be construed to extend or limit
the jurisdiction of the United States district courts or
the venue of actions therein.”
Quite apart from jurisdictional amounts therefore, Rule 82
prevents the manipulation of Rule 23 to bypass any jurisdic
tional requirements. Weiner v. Bank of Kino of Prussia 358
F. Supp. 684, 694-96 (E.D. Fa. 1973); Spcrberg v. Fire-
5m l ) lre and Rubber Co'’ 65 F R D - 70>73-74 (n .d . Ohio,
Therefoie, bach pay, if any is held appropriate in this
case, should be limited to the named plaintiffs.
67
VIII.
CONCLUSION
1. A f f ir m T h e D is t r ic t C o u r t
After hearing eight days of evidence and having travelled
to Roanoke Rapids and viewed the mill, the District Judge
concluded that Albemarle’s tests were job related and de
clined to enjoin their use. He did, however, enjoin the use
of a high school education requirement and prescribed a
seniority system based on “mill seniority” and a system for
the non-discriminatory use of the Extra Board (or pool). In
his discretion, the District Judge denied back pay. It is ap
parent from the record and from his findings of facts and
conclusions of law, that the District Judge had diligently
familiarized himself with all the ramifications of the case.
Albemarle submits that the District Judge was correct not
only on the facts but also on the law. His order should be
affirmed and after nearly nine years this litigation should be
brought to an end. For those reasons, Albemarle requests
This Court to reverse the Court of Appeals and affirm the
judgment of the District Court.
2. R e v e r se T h e C o u r t O f A p p e a l s A n d R e m a n d T o T h e
D is t r ic t C o u r t F or F u r t h e r P r o c e e d in g s
Even if tne panel of the Court of Appeals were correct on
the law, its decision still should be reversed by This Court
and the case remanded to the District Court for further pro
ceedings. The remand could conceivably be on a variety of
issues depending upon This Court’s views on the broad test
ing and back pay issues. Thus, Albemarle’s secondary re
quest for relief is that to the extent the District Court’s de-
: rV
■ i-O i* ■ —. / » * W . U b ■*«!<*
68
cision is not upheld that the case be remanded to the District
Court for further proceedings.
Respectfully submitted,
F r a n c i s V. L o w d e n , J r .
700 East Main Street
Richmond, Virginia 23219
G o r d o n G . B u s d i c k e r
1300 Northwestern Bank Bldg.
Minneapolis, Minnesota 55402
Counsel for Petitioners
February 13, 1975
!
I