Albemarle Paper Company v. Moody Brief of Respondents in Opposition

    I n the

(Enurt 0! tip States
October Term, 1974

No. 74-389
ALBEMARLE PAPER COMPANY, et al., 

v.
Petitioners,

JOSEPH P. MOODY, et al,,

Respondents.

No. 74-428
HALIFAX LOCAL NO. 25, UNITED PA PERM AKERS 

AND PAPERWORKERS, AFL-CIO,

v.
Petitioner,

JOSEPH P. MOODY, et al.,
Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION

Conrad O. P earson
203Yo East Chapel Hill Street 
P. 0. Box 1428
Durham, North Carolina 27702

Thomas T. Clayton
307 West Franklin Street 
P. 0. Box 236
Warrenton, North Carolina 27589

Robert Belton 
J. LeVonne Chambers

Chambers, Stein, Ferguson 
& Lanning

951 S. Independence Blvd. 
Charlotte, North Carolina 28202

J ack. Greenberg 
J ames M. Nabkit, III 
Morris J . Baller 
Barry L. Goldstein

10 Columbus Circle—Suite 2030 
New York, New York 10019

Attorneys for Respondents



I N D E X
PAGE

Questions Presented ........ ......................................... . 2

Statement of the Case ............................ ......................  3
1. Seniority and Promotional Practices .............. 3
2. Testing and the Validation Study  _______ 4

A r g u m e n t—

I. This Court Should Not Review the Back Pay
Award   ....... ..................................................... 5
A. There Is No Significant Conflict Among the

Circuits as to the Propriety of Class Back 
Pay in Title VII Cases ................................ 5

B. The Court of Appeals Opinion States an
Appropriate Standard for the Exercise of 
Discretion to Award Back P a y ..................  7

C. The Court of Appeals Properly Rejected the
Trial Court’s Findings of Special Circum­
stances ...................................     10

D. Class Back Pay Is Compatible With Rule 23
and the Congressional Purpose Expressed in 
Title VII ........................................  13

II. This Court Should Not Review the Testing
Decision.........................................     15
A. The Court of Appeals Correctly Considered

the EEOC Guidelines in Evaluating and Re­
jecting Albemarle’s Valuation Study ............  15

B. The Court of Appeals Properly Ordered
That Albemarle Be Enjoined From Using 
Unvalidated Discriminatory Tests ..............   16

C o n clu sio n 18



11

T able  op A u t h o r it ie s

Cases: page

Baxter v. Savannah. Sugar Refining Corp., 495 F.2d
437 (5th Cir. 1974) ......... ........................................ 6,11

Bowe v. Colgate-Palmolive Co., 489 F.2d 496 (7th Cir.
1973) ......................................................... .................  6

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.
1969) ....................................     9,14

Bridgeport Guardians, Inc. v. Bridgeport Civil Ser­
vice Commission, 482 F.2d 1333 (1973) ................. 16

Carey v. Greyhound Bus Co., Inc., 500' F.2d 1372 (5th
Cir. 1974) .......     11

Carter v. Gallagher, 452 F.2d 315, adopted in relevant 
part,  452 F.2d 327 (8th Cir. 1971) (en banc), cert, 

denied,  406 U.S. 950 (1972) .................................... 16

Franks v. Bowman Transportation Co., 495 F.2d 398 
(5th Cir. 1974) .......... ......... ............................... ........  6, 9

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ...... 4,15,
16,17

Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th
Cir. 1973) .........       6,9,11

Hecht Co. v. Bowles, 321 U.S. 321 (1944) .............. 8

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364
(5th Cir. 1974) ......... .... ..................................6, 7, 9,11,13

Kober v. Westinghouse Electric Corp., 480 F.2d 240 
(3rd Cir. 1973) ..........................................................  6, 7

Langnes v. Green, 282 U.S. 531 (1931) ....................... 8
Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971) .... 9



Ill

PAGE

LeBlanc v. Southern Tel. & Tel. Co., 333 F. Supp. 602 
(E.D. La. 1971), aff’dper  curiam 460 F.2d 1228 (5th 
Cir. 1972), cert, denied 409 U.S. 990 (1972) .............. 6, 7

Manning v. International Union, 466 F.2d 812 (6th Cir.
1972), cert, denied 410 U.S. 946 (1973) ...................  6,7

Miller v. International Paper Co,, 408 F.2d 283 (5th
Cir. 1969) ...... ............................................................. 14

Mitchell v. DeMario Jewelry, Inc., 361 U.S. 288 (1960) 9
Moody v. Albemarle Paper Co., 41 L.Ed. 2d 358 (1974) 8

Oatis v. Crown-Zellerbach Corp., 398 F.2d 496 (5th Cir. 
1968) .............. ........................................................  !3,14

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 
(5th Cir. 1974)..............................................6, 9,11,14,16

Roberts v. Hermitage Cotton Mills, Inc., 498 F.2d 1397 
(4th Cir. 1974), a fg  8 EPD Tf9589 (D.S.C. 1973) .... 9

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.
1971) , cert, dismissed 404 U.S. 1006 (1972) ....6,11,12,13 

Rosen v. Public Service Gas & Electric Co., 409 F.2d
775 (3rd Cir. 1973) .....................................................  12

Rosenield v. Southern Pacific Co., 444 F.2d 1212 (9th 
Cir. 1971) ..... .............. .................... ........................... 6

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th
Cir. 1971) ...... ................... ............................... .........  14

Schaeffer v. Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir.
1972) ...........................................................................  6, 7

Schultz v. Parke, 413 F.2d 1364 (5th Cir. 1964) ..........  9

United States v. Georgia Power Co., 474 F.2d 906 (5th 
Cir. 1974) ................................................... .............. ..9,16



IV

PAGE

United States v. Hayes International Corp., 456 F.2d
112 (5th Cir. 1972) .......... .......... ................................ 12

United States v. Jacksonville Terminal Co., 451 F.2d 
418 (5th Cir. 1971), cert, denied 406 U.S. 906 (1972) 16

United States v. N.L. Industries, Inc., 479 F.2d 354
(1973) ............................... ........... ............. ................. 11

United States v. St. Louis-San Francisco Railway, 464 
F.2d 301 (1972), cert, denied 409 U.S. 1116 (1973) .... 11

Vulcan Society v. Civil Service Commission, 490 F.2d 
387 (2nd Cir. 1974) .................................. ..................  16

Waters v. Wisconsin Steel Works of International
Harvester Co., -----  F.2d ----- , 8 EPD If 9658 (7th
Cir. 1974) ......... ............... ......... .... ...................... ......  l l

Wirtz v. B. B. Saxon Co., 365 F.2d 457 (5th Cir. 1966) 9

Statutes, Rules and Regulations:
EEOC Guidelines on Employee Selection Procedures,

29 C.F.R. §§ 1607.1 et seq. .................... .............. ...... 5
Federal Rules of Civil Procedure, Rule 23 ................. 2,13
Title VII, Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

el se9.......................................—- ............. ..............passim
Section 706(g), 42 U.S.C. § 2000e-6(g) ..................9,10

Other Authorities:

Advisory Committee’s Notes, 39 F.R.D. 69 (1966) ....... 13
Conference Committee of Senate and House, Section- 

by-Section Analysis of H.R. 1746, reprinted by Sub­
committee on Labor of the Senate Subcommittee on 
Labor and Public Welfare, Legislative History of 
the Equal Employment Opportunity Act of 1972 
(1972) .......................... .............................. ................ 10



I n  t h e

OInurt at %  InttTft
October Term, 1974

No. 74-389
A lbem a rle  P a per  C o m pa n y , et al.,

v.
Petitioners,

J o se ph  P .  M oody, et al.,
Respondents.

No. 74-428
H alifax  L ocal N o. 25, U n ited  P a perm a k ers  

and P aperw orkbrs , APL-CIO,

V.

Petitioner,

J o se ph  P .  M oody, et al.,
Respondents.

BRIEF OF RESPONDENTS IN OPPOSITION

Respondents Joseph P. Moody, et al., file this single brief 
in opposition to the Petitions for a Writ of Certiorari filed 
by Albemarle Paper Company, et al., in No. 74-389 and by 
Halifax Local No. 25, United Papermakers and Paper- 
workers, AFL-CIO in No. 74-428.



2

Questions Presented

The issues in Nos. 74-389 and 74-428 arising from the 
grant of class-wide back pay are:

1. Whether, in determining whether to award compen­
satory back pay, a private employer’s voluntary practices 
of racial discrimination should be treated like those man­
dated by state “protective” statutes which some courts 
have decided justify withholding back pay in sex discrim­
ination cases! (Nos. 74-389 and 74-428)

2. Whether the district courts, in the exercise of their 
discretion to award back pay, should be free of appellate 
guidelines effectuating the statutory purpose of according 
full relief to victims of employment discrimination! (Nos. 
74-389 and 74-428)

3. Whether the Court of Appeals erroneously decided 
that no “special circumstances” justify denial of back pay 
in this case! (No. 74-389)

4. Whether a class back pay award is incompatible with 
Rule 23, Federal Rules of Civil Procedure, or the Con­
gressional purpose of Title VII! (Nos. 74-389 and 74-428)

The issues in No. 74-389 arising from the injunction 
against the testing program are:

5. Whether the EEOC Guidelines embody standards 
which may be considered in evaluating an employer’s at­
tempt to validate its discriminatory employment aptitude 
tests!

6. Whether an employer may continue to utilize unlaw­
ful employment aptitude tests while making further at­
tempts to justify the tests!



3

Statement of the Case

Petitioner Albemarle’s statement of the proceedings be­
low (Co. Pet. 3-4, 6-7)1 is generally accurate. In stating 
the facts, however, both Petitioners neglect to mention 
that Respondents and their class of black employees suf­
fered severe loss of income as a result of Petitioners’ 
continuing practices of systemic employment discrimina­
tion. The Petitions raise issues related to two distinct 
aspects of those discriminatory policies: seniority and 
promotional practices, and written aptitude testing.

1. Seniority and Promotional Practices.

Petitioners kept all jobs and departments strictly segre­
gated until 1964 under an express policy of discrimination 
(Co. Pet. App. 7-12). Segregated “extra boards” assured 
that the, racial staffing of lines of progression would be 
breached neither by regular promotions nor by employee 
recalls (Co. Pet. App. 12-13). The district court found that 
Petitioners had “intentionally” perpetuated this overtly 
discriminatory system after 1965, by means of an unlawful 
job seniority system (Co. Pet. App. 22-24). Neither Peti­
tioner took an appeal from this obviously correct finding 
although Albemarle’s Petition now implies (the record 
notwithstanding) that judicial intervention was only the 
handmaiden to a benevolent employer’s voluntary reform 
(Co. Pet. 5).2

1 Citations in the form of “Co. Pet.” are to the Petition filed by 
Albemarle Paper Company in No. 74-389. Citations to “U. Pet.” 
are to the Petition of Halifax Local No. 25, the Union, in No. 
74-428. The respective Petitioners are sometimes referred to as 
“Albemarle” or the “Company” and the “Union” hereinafter.

2 Albemarle’s assertion that the 1968 contract adopted “plant 
seniority” is erroneous. In fact that contract only allowed carry­
over of job seniority into the lowest job of the transferee’s new



4

The district court found that this unlawful seniority 
system limited black workers to the lower-paying depart­
ments and, within “integrated” departments, to the lower- 
paying jobs (Co. Pet. App. 7-13). As of June 30, 1967 
there was an average pay differential between white and 
black workers of approximately $0.55 per hour or $1,144.00 
per average work year; in excess of 200 white workers 
earned a wage a quarter per hour or more above the high­
est black wage at the mill.

2. Testing and the Validation Study.

At all times since 1963, Albemarle has required satisfac­
tory scores on two “paper and pencil” tests as a prerequisite 
to hiring or transfer into most of the more desirable and 
lucrative, i.e. all-white, jobs (Co. Pet. App. 13-14). These 
tests, which included the Wonderlic (declared unlawful in 
Griggs v. Duke Power Co., 401 TT.S. 424 (1971)), dispro­
portionately screened out black employees (Co. Pet. App. 
38). Albemarle used its tests in precisely the same manner 
condemned by Griggs.3 This case differs from Griggs only 
in that here the Company made a belated effort to justify 
its testing under the Griggs rule.

Albemarle made no effort to study whether its test usage 
(begun in 1963) was job-related, until several months be­
fore trial (Co. Pet. 5). Then it hired an expert who per-

line of progression; it did not allow for subsequent use of plant 
seniority in competing for promotions'up the line (Co. Pet. App. 
6). Moreover, the contract gave no one a right to transfer, but 
rather left transfer requests within the Company’s sole discretion 
(id.). Petitioners did not completely eliminate the unlawful fea­
tures of their contract until over six years after Title VII became 
effective, when they were enjoined to do so by the district court.

3 That is, blacks were required to pass the tests to gain access 
to white jobs after 1965, even though many white incumbents had 
not had to take or pass the tests in order to get or keep the same 
jobs (Co. Pet. App. 15).



5

formed a hurried validation study riddled with manifest 
deficiencies which violated EEOC Guidelines on Employee 
Selection Procedures, 29 C.F.R. §§ 1607.1 et seq. (see Co. 
Pet. App. 36-43). Based on this study, the expert recom­
mended that the tests were valid for some jobs for which 
Albemarle had required them (Co. Pet. App. 38). Albe­
marle, however, continued to require tests in all instances, 
using them and relying on them for its legal defense, to 
screen applicants for many jobs for which there was no 
evidence of job-relatedness because no study had been per­
formed, or for which the study demonstrated no sig­
nificant degree of job-relatedness {id.)}

ARGUMENT

I.
This Court Should Not Review the Back Pay Award.

A. There Is No Significant Conflict A m ong  the Circuits as to 
the P ropriety o f Class Back Pay in  T itle  V II Cases.

Petitioners’ arguments about a conflict of Circuits on 
class back pay awards in Title VII cases overlooks the 
fact that the Courts of Appeals have developed two well- 
established, consistent lines of cases.

The first line arises from cases in which a private 
employer and/or union voluntarily commit unlawful em­
ployment discrimination not required by any state law. 
Such cases typically involve racially restrictive seniority, 
promotion, or transfer systems, non-job-related testing- 
practices, or unjustifiable educational requirements, which

4 The same expert also studied the job-relatedness of Albemarle’s 
high school education requirement and concluded that it was valid 
(Co. Pet. App. 19-20). The district court rejected his conclusion 
and held the requirement unlawful (id. 24) ; Albemarle did not 
appeal this finding.



6

inflict economic injury on members of the class. See, 
e.g., Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir,
1971) , cert, dismissed 404 U.S. 1006 (1972); Johnson v. 
Goodyear Tire & Rubber Go., 491 F.2d 1364 (5th Cir. 1974); 
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th 
Cir. 1974); Franks v. Bowman Transportation Co., 495 
F.2d 398 (5th Cir. 1974), cert, filed October 15, 1974, No. 
74-424; Baxter v. Savannah Sugar Refining Corp., 495 F.2d 
437 (5th Cir. 1974), cert, filed September 28, 1974, No. 
74-351; Head v. Timken Roller Bearing Co., 486 F.2d 870 
(6th Cir. 1973); Bowe v. Colgate-Palmolive Co., 489 F.2d 
496 (7th Cir. 1973), following 416 F.2d 711 (7th Cir. 1969). 
The case at bar closely resembles these cases on its facts 
and in the decision of the Court of Appeals.5

The cases that Petitioners rely on, denying back pay— 
Kober v. Westinghouse Electric Corp., 480 F.2d 240 (3rd 
Cir. 1973); Manning v. International Union, 466 F.2d 812 
(6th Cir. 1972), cert, denied 410 U.S. 946 (1973); and 
Schaeffer v. Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir.
1972) —are from a second, easily distinguishable mold. 
Each involved an employer practice limiting women’s em­
ployment opportunities in obedience to mandatory state 
female protective statutes. In each,6 the employer faced 
a dilemma created by conflicting state and federal regula­
tory statutes. In this line, the Courts of Appeals hold 
that back pay should not be awarded where the employ­
er’s practice was required by state legislation presump­
tively valid until declared illegal under Title VII.

6 Indeed, the Fifth Circuit in Johnson and Pettway and the 
Sixth Circuit in Head approve and adopt the decision of the 
Fourth Circuit in this case. That decision, in turn, approves and 
relies on Robinson and Bowe.

6 See also, LeBlanc v. Southern Tel. <£- Tel. Co., 333 F. Supp. 
602 (E.D. La. 1971), aff’d per curiam 460 F.2d 1228 (5th Cir. 
1972), cert, denied 409 U.S. 990 (1972); Rosenfeld v. Southern 
Pacific Co., 444 F.2d 1219 (9th Cir. 1971).



7

Kober v. Westinghouse Electric Gorp., supra, follows the 
same reasoning. There the Third Circuit rests its opinion 
squarely on the logic of Manning, Schaeffer, and LeBlanc, 
see 480 F.2d at 24T-248.7

Here, Petitioners’ discrimination was not required by 
law but, on the contrary, violated all applicable statutes.8 
There is no conflict among the Circuits on back pay on 
the facts of this case.

B. T he Court o f Appeals O pinion States an A ppropriate  
Standard fo r  the Exercise o f D iscretion to Award B ack  
Pay.

Both Petitioners direct their attack more to the standard 
announced by the Court of Appeals—

a plaintiff or a complainig class who is successful in 
obtaining an injunction under Title VII of the Act 
should ordinarily be awarded back pay unless special 
circumstances would render such an award unjust 
[Co. Pet. App. 46-47]

■—than to the result in this case. But the Union Petitioner’s 
Statement (and its statement of the Question Presented)

7 Kober, notwithstanding its reference to Judge Boreman’s dis­
sent as noted by Petitioners, 480 F.2d at 247, in no way conflicts 
with the holding in this case. The Kober holding can be read at 
most to require that a district judge not be deprived of discretion 
to deny back pay in the circumstances of the state protective law 
eases. The Fourth Circuit’s opinion in this action allows for and 
contemplates the Kober result, see Co. Pet. App. 47 n.5.

8 Faced with the same argument made by Petitioners here, the 
Fifth Circuit wrote in Johnson v. Goodyear Tire & Rubber Co., 
supra, 491 F.2d at 1377,

“Goodyear has failed to disclose to us any Texas laws which 
required the invidious employment discrimination revealed 
here. The reason for this efficacious omission is manifest; no 
similar “protective” legislation based on racial grounds has 
ever been enacted in Texas. Such an argument falls of its 
own weight.”



8

seriously mischaracterizes the holding below. Contrary to 
the Union’s assertions, the opinion does not “preclude the 
trial court, in this and future cases, from exercising any 
degree of discretion” in back pay cases (U. Pet. 8, em­
phasis added); it does not “predetermine all present and 
potential suits . . . within the aegis of the Fourth Circuit” 
{id. 9); nor does it state an “inflexible position” {id. 9) or 
a “hard and fast rule” of “mandatory back pay” {id. 10). 
Rather, the Fourth Circuit has done no more or less than 
decide a case and state its rationale, which will have ap­
propriate precedential effect.

One of the most important functions of an appellate 
court is to maintain consistency of decisions within its 
Circuit, cf. Moody v. Albemarle Paper Co., 41 L.Ed.2d 358, 
362 (1974). The Fourth Circuit’s articulation of a standard 
for district courts’ exercise of discretion for awarding back 
pay, an issue frequently litigated in the Circuit, promotes 
and is essential to consistency.9

A standard ensuring the exercise of discretion in con­
formity with statutory purposes is proper and necessary 
to assure that discretionary powers are correctly utilized. 
As this Court has held,

When [discretion is] invoked as a guide to judicial 
action, it means a sound discretion, that is to say, a 
discretion exercised not arbitrarily or willfully, but 
with regard to what is right and equitable under the 
circumstances and the law.

Langnes v. Green, 282 U.S. 531, 541 (1931). See also, Hecht 
Co. v. Bowles, 321 U.S. 321, 331 (1944) (exercise of dis-

9 This standard is not an “advisory opinion” {of. U. Pet. 11), 
since it was reached and applied in hotly contested litigation of 
immediate importance to the parties; rather it states a rationale 
for the court’s holding in the case.



9

cretion must further legislative objectives)10; United States 
v. Georgia Poiver Co., 474 F.2d 906, 921 (5th Cir. 1974); 
Franks v. Bowman Transportation Co., supra, 495 F.2d at 
421.

In order to effectuate the statutory purposes of Title VII, 
the Fourth Circuit’s standard carefully delineates limita­
tions on a district court’s discretion based on the “special 
circumstances” test (Co. Pet. App. 45-47). In some “spe­
cial circumstances” a denial of back pay will be appro­
priate. Footnote 5 of the opinion (Co. Pet. App. 47) in­
dicates at least one such circumstance, where conflicting- 
mandatory state legislation is present (cf. pp. 5-7, 
supra).11 The same standard has been adopted by the 
Fifth, Sixth, and Seventh Circuits.12 Cf. Mitchell v. De- 
Mario Jewelry, Inc., 361 U.S. 288, 291-292, 296 (1960).

Petitioners urge that this Court allow district courts to 
exercise an essentially standardless and unfettered dis­
cretion. Their position that “discretion” allows different 
district judges to read the basic remedial provision of 
Title VII (Section 706(g), 42 U.S.C. §2000e-5(g)) in 
fundamentally different ways invites arbitrary or willful 
decisions, cf. Langnes v. Green, supra. This result would

10 Accord: Schultz v. Parke, 413 F.2d 1364 (5th Cir. 1964); 
Wirtz v. B. B. Saxon Co., 365 F.2d 457 (5th Cir. 1966).

11 Subsequently, the Fourth Circuit has affirmed another district 
court’s denial of back pay based on different “special circum­
stances,” Roberts v. Hermitage Cotton Mills, Inc., 498 F.2d 1397 
(4th Cir. 1974), aff’g 8 BPD f  9589 (D.S.C. 1973). Moreover, back 
pay will be limited to compensation for actual losses, as in Lea 
v. Cone Mills Corp., 438 F.2d 86 (4t,h Cir. 1971) (Co. Pet. App. 
47).

12 See, e.g., Johnson v. Goodyear Tire & Rubber Co., supra, 491 
F.2d at 1375; Pettway v. American Cast Iron Pipe Co., supra, 494 
F.2d at 252-253; Head v. Timken Roller Bearing Co., supra, 486 
F.2d at 876; Bowe v. Colgate-Palmolive Co., supra, 416 F.2d at 
719-720.



10

be at odds with the thrust of Title VII as remedial legisla­
tion of national scope.

The legislative history of Section 706(g) demonstrates 
the purpose for which Congress confided discretion to the 
district courts:

The provisions of this subsection are intended to give 
the courts wide discretion exercising their equitable 
powers to fashion the most complete relief possible. 
In dealing with the present section 706(g) the courts 
have stressed that the scope of relief under that sec­
tion of the Act is intended to make the victims of un­
lawful discrimination whole, and that the attainment 
of this objective rests not only upon the elimination of 
the particular unlawful practice complained of, but 
also requires that persons aggrieved by the conse­
quences and effects of the unlawful employment prac­
tice be, so far as possible, restored to a position where 
they would have been were it not for the unlawful 
discrimination, [emphasis added]

Conference Committee of the House and Senate, Section- 
by-Section Analysis of IT.R. 1746, reprinted by Subcom­
mittee on Labor of the Senate Committee on Labor and 
Public Welfare in Legislative History of the Equal Em­
ployment Opportunity Act of 1972 (1972), pp. 1844, 1848.

The Court of Appeals correctly applied the “special cir­
cumstances” test.

C. The Court of Appeals P roperly Rejected the Trial Court’s 
Findings of Special Circumstances.

Without fully or accurately setting out what facts and 
principles the courts below relied on, Petitioner Albemarle 
attacks the Court of Appeals’ failure to excuse it from 
liability because of purported “special circumstances” (Co.



11

Pet. 9-11). Those facts and principles show that the Peti­
tion raises no significant issue of whether “special cir­
cumstances” were present here.

Albemarle incorrectly asserts that the Fourth Circuit 
held the question of Petitioners’ good faith “totally ir­
relevant to the question of hack pay” (Co. Pet. 9, emphasis 
supplied). The Court of Appeals made no such holding; 
the Court simply ruled that the district court erred in 
denying back pay because it had found no “bad-faith” 
Title VII violations by Petitioners (Co. Pet. App. 43-46). 
The Court of Appeals decision is consistent with this 
Court’s pronouncement on “intent” in Griggs v. Duke, 
Power Co., supra.13 Appellate courts have uniformly held 
that “good faith” imposes no bar to a back pay award.14

Similarly, Albemarle misstates the issue in contending 
that a “tardy” assertion of Respondents’ back pay claim 
“prejudiced” Petitioner (Co. Pet. 10). In fact Petitioner

13 [G]ood intent or absence of discriminatory intent does not 
redeem employment procedures or testing mechanisms that operate 
as “built-in headwinds” for minority groups and are unrelated to 
measuring job capability . . . Congress directed the thrust of the 
Act to the consequences of employment practices, not simply the 
motivation.” 401 U.S. at 432.

14 See, e.g., Robinson v. Lorillard Corp., supra, 444 F.2d at 804;
Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1376; 
Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d at 253; 
Baxter v. Savannah Sugar Refining Corp., supra, 495 at F.2d 443; 
Carey v. Greyhound Bus Co., Inc., 500 F.2d 1372, 1378-79 (5th 
Cir. 1974) ; Head v. Timken Roller Bearing Co., supra, 486 F.2d 
at 876; Waters v. Wisconsin Steel Works of I n f  l Harvester Co., 
------ F.2d ------, 8 EPD 1J9658 (7th Cir. 1974) at pp. 5787-88.

The two Eighth Circuit cases cited by Albemarle—United States 
v. St. Louis-San Francisco Ry., 464 F.2d 301 (1972), cert, denied 
409 U.S. 1116 (1973) ; and United States v. N. L. Industries, Inc., 
479 F.2d 354 (1973)—do not turn on the effect of good faith or 
its absence, but on the proof of causal relationship between dis­
crimination and economic injury and on the effect of notice of 
changes in the law.



12

had express notice that Respondents sought hack pay over 
one year before the start of trial. Moreover, as the Fourth 
Circuit noted, the defenses to back pay in this case are 
the same as the general defenses to the claim for injunc­
tive relief (Co. Pet. App. 44).15 Nevertheless, Albemarle 
relies on a memorandum filed early in the case in which 
Respondents stated that they sought no “money damages 
. . . for any member of the class not before the court” (Co. 
Pet. 10 n.10) (emphasis supplied). Before the trial, the 
district court entered an order on Albemarle’s motion re­
quiring non-plaintiff back pay claimants to file individual 
claim forms.16 Nearly one hundred persons (the majority 
of the class) filed such claims which were, therefore, in­
dividually “before the court” at trial. Petitioners were not 
prejudiced by the assertion of the class back pay claim 
below.17

Albemarle argues further that back pay should be denied 
because the Company might not have dragged out this 
litigation for so long, had it had specific notice that its 
unlawful discrimination would prove so costly (Co. Pet. 10). 
This plea is hardly cognizable in a court of equity sitting 
in a Title VII case. The enactment of Title VII was suf-

15 This ruling is in accord with rulings of the Third, Fourth, 
and Fifth Circuits in cases where the hack pay claim, although 
not even raised until after trial, was allowed. Rosen v. Public 
Service Gas & Electric Co., 409 F.2d 775, 780 n.20 (3rd Cir. 
1973) ; Robinson v. Lorillard Corp., supra, 444 F.2d at 803; and 
United States v. Hayes International Corp., 456 F.2d 112 121 
(5th Cir. 1972).

16 Orders entered June 15, 1971 and July 8, 1971.
17 Albemarle also argued below that the early disclaimer should 

now bar the back pay remedy, but the district court refused to 
rely on this ground, and the Court of Appeals rejected it. A 
similar disclaimer was no bar to back pay in Robinson v. Lorillard 
Corp., supra.



13

ficient legal notice to discriminatory employers, see John­
son v. Goodyear Tire & Rubier Co., supra, 491 F.2d at 
1377.

Moreover, the district court has not yet determined how 
much back pay particular class members are due; that is 
its assigned task on remand. Whether or not, or to what 
extent, potential liability would be affected by the equi­
table factors Albemarle asserts as “special circumstances” 
cannot be determined at this stage.

D. Class Back Pay Is Com patible W ith Pule 23 and the Con­
gressional Purpose Expressed in Title VII.

Both Petitioners argue that as a general proposition 
class back pay cannot be awarded consistent with the 
provisions of Rule 23, Federal Rules of Civil Procedure, 
and the Congressional intent underlying Title VII. (See 
Co. Pet. 11, U. Pet. 12-13.) These same arguments have 
been uniformly rejected by the Circuits, at least six of 
which now recognize the availability of class back pay, 
see nn. 14, 15, supra.

Albemarle opines that a Rule 23 proceeding is “in­
herently” inappropriate for a Title VII back pay case (Co. 
Pet. 11). But the Advisory Committee’s Notes, 39 F.R.D. 
69, 102 (1966), specifically state that the authors of 
amended Rule 23 contemplated its use for civil rights 
cases. See Robinson v. Lorillard Corp., supra, 444 F.2d 
at 801-802. Petitioners’ theory that each class member 
should be required to process his individual EEOC charge 
and thereby qualify as a named plaintiff blinks at the 
whole purpose of the Rule 23 amendments permitting 
like claims to be joined.18

18 In the leading ease of Oatis v. Crown-Zellerlach Corp., 398 
F.2d 496, 499 (5th Cir. 1968), the Court held:

Racial discrimination is by definition class discrimination, 
and to require a multiplicity of separate, identical charges



14

Finally, the Fourth Circuit’s standard does not conflict 
with the Congressional policy favoring an opportunity for 
conciliation (cf. Co. Pet. 11, U. Pet. 12-13). That policy is 
well served by the requirement that a Title VII class 
action may only be maintained after exhaustion of admin­
istrative remedies before the EEOC upon a charge “like 
or related to” the subject matter of the suit. See, e.g., 
Sanches v. Standard Brands, Inc., 431 F.2d 455, 466 (5th 
Cir. 1971) ; Miller v. International Paper Co., 408 F.2d 
283, 290-291 (5th Cir. 1969). Once such a charge has been 
filed, giving EEOC and respondents an opportunity to 
conciliate the allegations of discrimination, further EEOC 
charges from other class members would be superfluous, 
Pettway v. American Cast Iron Pipe Co., supra, 494 
F.2d at 256; and they may, without filing redundant 
administrative charges, join in the class representative’s 
lawsuit, Oatis v. Crown-Zellerbach Corp., 398 F.2d 496, 
499 (5th Cir. 1968); Bowe v. Colgate Palmolive Co., 
supra, 416 F.2d at 720. The contrary rule urged by 
Petitioners would frustrate the goal of providing mean­
ingful conciliation opportunities. It would allow a dis­
criminatory employer or union to evade charges of 
class-wide or systemic discrimination with impunity and 
to confront only the individual claims of the person who 
files the EEOC charge. Such a result would be squarely 
contrary to Congress’ basic purpose in enacting Title VII.

before the EEOC, filed against the same employer, as a pre­
requisite to relief through resort to the court would frustrate 
our system of justice and order.

Accord: Bowe v. Colgate-Palmolive Co., supra, 416 F.2d at 720.



15

II.

This Court Should Not Review the Testing Decision.

A. The Court of Appeals Correctly Considered the EEOC 
Guidelines in Evaluating and Rejecting Albem arle’s Val­
idation Study.

The decision below is consistent with the holding and 
spirit of Griggs v. Duke Power Co., 401 U.S. 424 (1971), 
which requires that Title VII courts prohibit use of dis­
criminatory tests not shown to measure an employee’s abil­
ity to succeed on the job. The facts are strikingly similar 
to those of Griggs; Albemarle attempts to distinguish itself 
from Duke Power solely on the basis of its belated valida­
tion study.

The Court of Appeals did not reject that study by re­
quiring “detailed and rigid compliance” with the EEOC 
Guidelines on Employee Selection Procedures, as Albe­
marle claims (Co. Pet. 13). Rather, it criticized the expert’s 
validation methods for severe inadequacies that render his 
conclusions unreliable and insufficient as proof of a “man­
ifest relationship” between test success and job performance 
(see Co. Pet. App. 37-43).19

The majority opinion carefully analyzed the validation 
study’s defects and evaluated the propriety of applying the 
EEOC Guidelines standards. The opinion’s common-sense 
analysis supports its legal conclusion that, as illustrated by 
the facts here, the Guidelines do generally set out appro-

19 Even if the study were held to have proved what it purports 
to show—limited and partial test validity—it would not justify the 
Company’s overbroad test usage, see p. 5, supra. Albemarle’s 
testing is thus “unvalidated” in the same sense as Duke Power’s.



16

priate standards for this case (Co. Pet. App. 38-42).20 This 
is far from the slavish adherence to dry technicalities with 
which Albermarle charges the court below.

B. The Court of Appeals P roperly Ordered Thai Albem arle 
Be Enjoined From Using Unvalidated Discrim inatory 
T ests.

The court below acted properly in directing the district 
court to enjoin the testing program. Since Albemarle’s 
defense failed to prove the tests job-related, Griggs for­
bids their current use. Nothing in the Court of Appeals 
opinion or the EEOC Guidelines would prevent the Com­
pany from utilizing a testing program after it had been 
properly shown to be “manifestly job related.” Yet Peti­
tioner seeks an individual exemption from the rule of 
Griggs: it seeks leave to use tests detrimental to black 
employees before proving them valid. Indeed, Albemarle’s 
argument is little more than a request for license to de­
lay compliance with Title VII for a few more years.21 
Not only does the Company urge that black employees be 
made to wait patiently for equal job opportunities while it

20 Moreover, those Guidelines are reasonable and reflect a general 
professional consensus, as numerous appellate courts have noted in 
following Griggs’ suggestion that the courts accord great deference 
to the Guidelines. See, e.g., United States v. Jacksonville Terminal 
Co., 451 F.2d 418, 456 (5th Cir. 1971), cert, denied 406 U.S. 906 
(1972); United States v. Georgia Power Co., 474 F.2d 906, 913 (5th 
Cir. 1973) - Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 
221 (5th Cir. 1974). Cf. Bridgeport Guardians, Inc. v. Bridgeport 
Civil Service Commission, 482 F.2d 1333, 1337 n.6 (1973); Vulcan 
Society v. Civil Service Commission, 490 F.2d 387, 394 n.8 (2nd 
Cir. 1974) ; Carter v. Gallagher, 452 F.2d 315, 320, 326, adopted 
in relevant part, 452 F.2d 327 (8th Cir. 1971) (en banc), cert, 
denied 406 TJ.S. 950 (1972).

21 Since the mandate below was stayed, the Company presumably 
continues to apply its tests, ten years after Title VII made them 
unlawful and nearly four years after the Griggs decision.



17

litigates interminably in defense of its discredited tests; 
Albemarle boldly asserts that by refusing its proposal the 
Fourth Circuit abused its remedial discretion (Co. Pet. 
14-15).

The order and burden of proof established for the testing 
issue in Griggs would be subverted by adoption of Albe­
marle’s argument. Respondents have made out their case 
for relief under Griggs by proving that the tests have an 
adverse impact on black employees. Albemarle cannot ask 
plaintiffs, who have met their initial burden, to stand pa­
tiently by as laborers while their employer seeks “ulti­
mately” to meet its burden (Co. Pet. 14).



18

CONCLUSION

The Petitions for a Writ of Certiorari should be denied.

Respectfully submitted,

R obert B elto n  
J .  L e V o n n e  C h a m bers

Chambers, Stein, Ferguson 
& Lanning

951 S. Independence Blvd. 
Charlotte, North Carolina 28202

J ack  Green berg  
J am es  M . N abrit , III 
M orris J .  B aller  
B arry L. G oldstein

10 Columbus Circle 
Suite 2030
New York, New York 10019

C onrad O . P earson

203% East Chapel Hill Street 
P.O. Box 1428 
Durham, North Carolina

T hom as  T . Clayton

307 West Franklin Street 
P.O. Box 236
Warrenton, North Carolina 

Attorneys for Respondents



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