Calhoun v. Latimer Petition for Rehearing
Public Court Documents
July 1, 1963
Cite this item
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Brief Collection, LDF Court Filings. Albemarle Paper Company v. Moody Brief for Respondents, 1974. a4b26167-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/aa283ba4-06fb-4784-8461-1098e21b8843/albemarle-paper-company-v-moody-brief-for-respondents. Accessed April 06, 2025.
Copied!
K & L <iT£,Aj
In the
Supreme dour! of tlj? Itufrft BtnUs
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. 425, UNITED PAPEEMAKERS
AND PAPERWORKERS, AFL-CIO,
Petitioner,
v.
JOSEPH P. MOODY, et al,
Respondents.
BRIEF FOR RESPONDENTS
Conrad 0 . P earson
203% East Chapel Hill Street
P. 0. Box 1428
Durham, North Carolina 27702
T. T. Clayton
307 West Franklin Street
P. 0. Box 236
Warrenton, North Carolina 27589
J ack Greenberg
J ames M. Nabrxt, III
Charles Stephen Ralston
E ric Schnapper
Morris J. B aller
B arry L. Goldstein
10 Columbus Circle—Suite 2030
New York, New York 10019
Robert Belton
J. LeVonne Chambers
Chambers, Stein & Ferguson
951 S. Independence Blvd.
Charlotte, North Carolina 28202
Attorneys for Respondents
Of Counsel:
Albert J. R osenthal Louis H. P ollak
435 West 116th Street 3400 Chestnut Street
New York, New York 10025 Philadelphia, Pennsylvania 19174
I N D E X
PAGE
Table of Authorities ................................... ............ . ii
Questions Presented ....... .._........................................... 1
Statement of the Case .................................................. 2
The Parties .......... .......... ......................... -............. 2
Factual Background .............................................. 3
Proceedings Below ........................... 12
Summary of Argument ..................................... .......... 16
A rgum ent-—
I. Albemarle’s Testing Program Is Unlawful Under
Griggs v. Duke Power Company .... ...................... 18
A. The Tests Adversely Affect Black Employees 19
B. Albemarle Failed to Prove the Job-Related-
ness of Its Testing Program .................... ...... 23
1. Results Showing Lack of Job-Relatedness 24
2. Inadequacy of the Yalidation Study ........ 27
C. Testing Should Be Enjoined............................ 34
II. Back Pay Should Be Awarded Where Discrimina
tory Practices Cause Loss of Earnings and There
Are No Special Circumstances Which Render the
Award Unjust ........ ......................................... ...... 35
A. Back Pay Is An Appropriate Remedy in Title
YII Class Actions .......................................-.... 35
11
PAGE
B. A Standard Directing District Courts to Ex
ercise Their Discretion to Award Back Pay
Unless There Are Special Circumstances
Which Make the Award Unjust Is Appropri
ate in Light of the • Clear Statutory Purpose
of Title YII .................................... ................. 43
C. Back Pay Is a Proper Remedy in This Case .... 60
Conclusion- ................................................................ . 69
Appendix—
Glossary of Technical Terms Relevant to the
Testing Issue ..................................... ................... A1
Table oe Authorities
Cases:
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)
41, 42, 65
Barlow v. Collins, 397 U.S. 159 (1970) ......................... 30
Baxter v. Savannah Sugar Refining Corp., 495 F.2d
436 (5th Cir. 1974), cert, denied 42 L.Ed. 2d 308
(1974) .............. 36,43,61,68
Bon Hennings Logging Co. v. NLRB, 308 F.2d 548
(9th Cir. 1962) ................. 50
Boston Chapter N.A.A.C.P., Inc. v. Beecher, 504 F.2d
1017 (1st Cir. 1974) ........ ...................... .................. 22, 23
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.
1969) ................................... ............. ........13, 37, 42, 44, 46
Bowe v. Colgate-Palmolive Co., 489 F.2d 896 (7th Cir.
1973)... ........................................................................... 37
Bradley v. Richmond School Board, 416 U.S. 696
(1974) ...................................................................... 44
PAGE
Brandi v. Reynolds Metals, C.A. No. 170-72-R (E.D.
Va. 1974) (Consent Decree) .......... ... .............. .........
Bridgeport Guardians, Inc. v. Civil Service Commis
sion, 482 F.2d 1333 (2nd Cir. 1973) ......... ............. 22,
Brito v. Zia Co., 478 F.2d 1200 (10th Cir. 1973) ..... .21,
Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1944)
Buckner v. Goodyear Tire & Rubber Company, 339
F. Supp. 1108 (N.D. Ala. 1973), aff’d per curiam
476 F.2d 1287 (5th Cir. 1973) ....... ............................
Buncher v. NLRB, 405 F.2d 787 (3rd Cir. en bam
1969), cert, denied 396 U.S. 828 (1969) ....... ...........
Burks v. Babcock & Wilcox Company, C.A. No. 71-C-
59L (E.D. Ya. 1974) (Consent Decree) .................
Bush v. Lone Star Steel Corp., 373 F. Supp. 526 (E.D.
Tex. 1973) ....... ............. ...........................................37,
Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972),
upheld 452 F.2d 327 (8th Cir. en banc), cert, denied
406 U.S. 950 (1972) ......................................... .........22,
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ...... .
Chance v. Board of Examiners, 458 F.2d 1167 (2nd
Cir. 1972) ..................... ............... ............ ............ -22,
Commonwealth of Pennsylvania v. O’Neill, 348 F.
Supp. 1084 (E.D. Pa. 1972), aff’d in pert, part 473
F.2d 1029 (3rd Cir. en banc 1973) ___ ___ ______ 22,
Cooper v. Philip Morris, Inc., 9 EPD 1(9929 (W.D.Ky.
1974) ........................ ............ -.............................
Costello v. United States, 365 U.S. 265 (1961) ...........
Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th
Cir. 1970) .......... ....................... ................................
Curtis v. Loether, 415 U.S. 189 (1974) ..................18,56,
Davies Warehouse Co. v. Bowles, 321 U.S. 144 (1944)
Davis v. Washington,-----F.2d ------- (D.C. Cir. No.
72-2105, Feb. 27, 1975) ..............................................
58
28
28
65
56
50
58
54
28
22
28
28
37
65
58
57
55
22
IV
PAGE
Dent v. St. Louis-San Francisco Railway Co., 406
F.2d 399 (5th Cir. 1969), cert, denied 403 U.S. 912
(1971) ........................................................................ 41
Douglas v. Hampton, ----- F.2d ----- (D.C. Cir. No.
72-1376, Feb. 27, 1975) ..................................... 22,23,28
Duhon v. G-oodyear Tire & Rubber Co., 494 F.2d 817
(5th Cir. 1974) ....................... .............. ..................... 21
EEOC v. Rank of America, Inc., C.A. No. C-71409CB-R
(N.D.Cal. 1974) (Consent Decree) ....... ...... .............. 58
EEOC v. Container Corporation of America, C.A. No.
72-336-Civ.-J-T (M.D.Fla. 1974) (Consent Decree)__ 58
EEOC v. Continental Trailways, C.A. No. SA72-
CA197 (W.D.Tex. 1973) (Consent Decree) ....... 58
EEOC v. Detroit Edison Co.,----- F.2d------ (6th Cir.
No. 74-1007, March 11, 1975), aff’g in pert, part
Stamps v. Detroit Edison Co., 365 F. Supp. 87 (E.D.
Mich. 1973) ........ ........................ ............................. . 37
EEOC v. Preston Trucking Co., C.A. No. 72-632-M
(D. Md. 1973) (Consent Decree) .......... ................. 58
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)__ 65
Espinoza v. Farah Manufacturing Co., 414 U.S. 86
(1973) ..... 30
Fishgold v. Sullivan Dry Dock & Repair Corp., 328
U.S. 275 (1946) .............. 30
Franks v. Bowman Transportation Co., 495 F.2d 398
(5th Cir. 1974), cert, denied 42 L.Ed.2d 644 (1974)
21, 36, 43
Gardner v. Panama Railroad Co., 342 U.S. 29 (1951) .... 65
Green v. School Board of New Kent County, 391 U.S.
430 (1968) ................... .......... ......... ............................ 54
Griggs v. Duke Power Co., 401 U.S. 424 (1971)
1, 6,13,16,18,19, 21, 22, 23, 27, 30, 34, 60
V
PAGE
Hall v. Werthan Bag Co., 251 F. Supp. 184 (M.D. Tenn.
1966) ................................................ ........................... 12
Head v. Timken Boiler Bearing Co., 486 F.2d 870 ( 6th
Cir. 1973) ................ .............. ................... 36, 43, 45, 61, 62
Head v. Timken Boiler Bearing Co., 6 EPD *]J8679 (S.D.
Ohio 1972), rev’d 486 F.2d 870 (6th Cir. 1973) .......... 54
In ti Ass’n of Heat, Frost & Asbestos Workers, Local
53 v. Vogler, 407 F.2d 1047 (5th Cir. 1969) ............ 55
J. I. Case Co. v. Borak, 377 U.S. 426 (1964) ........ ......... 52
Johnson v. Georgia Highway Express, Inc., 417 F.2d
1122 (5th Cir. 1969) ........ ............................. ........... 13,46
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364
(5th Cir. 1974) _______ ____19,21,36,43,48,56,61,62
Johnson v. Goodyear Tire & Rubber Co., 349 F. Supp. 3
(S.D. Tex. 1972), rev’d 491 F.2d 1364 (5th Cir. 1974) 54
Johnson v. Seaboard Air Line Railroad Co., 405 F.2d
645 (4th Cir. 1968), cert, denied 394 U.S. 918 (1969) 41
Jurinko v. Wiegand Co., 477 F.2d 1036 (3rd Cir. 1973),
vacated on other grounds 414 U.S. 970 (1973), rein
stated 497 F.2d 403 (3rd Cir. 1974) ........................... 44
Kirkland v. New York State Department of Correc
tional Services, 374 F. Supp. 1361 (S.D. N.Y. 1974) 28
Kober v. Westinghouse. Electric Corp., 480 F.2d 240
(3rd Cir. 1973) ................................................... 55, 61, 62
Laffey v. Northwest Airlines, Inc., 7 EPD ^9277
(D.D.C. 1974), entering order following 366 F. Supp.
763 (D.D.C. 1973) ............... ..................................... 37
Lea v. Cone Mills Corp,, 301 F. Supp. 97 (M.D.N.C.
1969), aff’d in pert, part 438 F.2d 86 (4th Cir. 1971) 55
vi
PAGE
LeBlanc v. Southern Bell Telephone & Telegraph Co.,
460 F.2d 1228 (5th Cir. 1972), cert, denied 409 U.S.
990 (1973) ........ ......... .............. ........................ -.....-55, 62
Local 186, International Brotherhood of Pulp, Sulphite
& Paper Mill Workers v. Minnesota Mining and
Manufacturing Co., 304 F. Supp. 1284 (N.D. Ind.
1969) ........... ............. .................................— -........ 38, 41
Local 189, United Papermakers & Paperworkers v.
United States, 416 F.2d 980 (5th Cir. 1969), cert.
denied 397 U.S. 919 (1970) .................... ......... ........ .. 3
Long v. Georgia Kraft Co., 450 F.2d 557 (5th Cir. 1971) 3
Louisiana v. United States, 380 U.S. 145 (1965)----- 45, 54
Mack v. General Electric Co., C.A. No. 69-2653 (E.D.
Pa. 1973) (Consent Decree) ..... ............. .............— 58
Manning v. International Union, 466 F.2d 812 (6th Cir.
1972) , cert, denied 409 U.S. 1086 (1973) ......... .....55, 62
Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956).... 50
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) 41
Meadows v. Ford Motor Co., ----- F.2d ----- , 9 EPD
H9907 (6th Cir. 1975) .............................. ........ —36,43,56
Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288
(1960) .......... ............. ............................. .............45, 52, 57
Mitchell v. Robert De Mario Jewelry, Inc., 260 F.2d 929
(5th Cir. 1958) ______ _____________ __________ 52
Mize v. State Division of Human Rights, 33 N.Y.2d 53,
349 N.Y.S.2d 364 (N.Y. Ct. of Appeals, 1973) ........ 45
Moody v. Albemarle Paper Co., 474 F.2d 134 (4th Cir.
1973) ......... .......................................... ..... ..............passim
Myers v. Gilman Paper Co., 9 EPD f[9920 (S.D. Ga.
1975)... .................... ...................................... ................ 37
Nathanson v. NLRB, 343 U.S. 25 (1952) ................... ..50, 59
NLRB v. A.P.W. Products Co., 316 F.2d 899 (2nd Cir.
1963), enfing 137 NLRB 25 (1962) 50
vn
PAGE
N.L.R.B. v. Boeing Co., 412 U.S. 67 (1973) ................... 28
NLRB v. International Union of Operating Engineers,
Local 925, 460' F.2d 589 (5th Cir. 1972) ............. ..... . 50
NLRB v. Mastro Plastics Corp., 354 F.2d 170 (2nd Cir.
1965), cert, denied 384 U.S. 972 (1966) ..................... 50
NLRB v. Rice Lake Creamery Co., 365 F.2d 888 (D.C.
Cir. 1966) .......................................................... -........ 50
NLRB v. Rutter-Rex Manufacturing Co., 396 U.S. 258
1969) .............................. ....................................-50, 59, 66
NLRB v. Seven Up Bottling Co., 349 U.S. 344 (1953) 50
National Organization of Women v. Bank of Cali
fornia, 6 EPD U8867 (N.D. Cal. 1973) .......... .......... 56
Newman v. Piggie Park Enterprises, 390 U.S. 400
(1968) ...... ............ ............ .......................................18, 59
Norman v. Missouri Pacific Railroad, 479 F.2d 594
(1974), cert, denied 43 LW 3416 (1975) ............. .....44,62
Oatis v. Crown-Zellerbach Corp., 398 F.2d 496 (5th
Cir. 1968) ................... 13,38,42
Patterson v. American Tobacco Co., 8 EPD ft9722
(E.D. Ya. 1974) ..... .................... .............................. 37
Patterson v. N.M.D.U., C.A. No. 73-Civ.-3058 (S.D.
N.Y. 1974) (Consent Decree) ............ 58
Pennsylvania Greyhound Lines, Inc., 1 NLRB 1 (1935),
enfd sub nom. NLRB v. Pennsylvania Greyhound
Lines, Inc., 303 U.S. 261 (1938) ................................ 50
Pettit v. United States, 488 F.2d 1026 (U.S. Ct. Cls.
1973) ........................................................................... 45
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211
(5th Cir. 1974) ........................ 28, 36, 43, 45, 48, 56, 61, 68
Phelps Dodge Corp. v. NLRB, 313 U.S. 176 (1941) ....49, 50
Porter v. Warner Holding Co., 328 U.S. 395 (1946) ....52, 57
V lll
PAGE
Power Reactor Development Co. v. Electrical Union,
367 U.S. 396 (1961) ............................ ..................... 28
Rental Development Corp. of America v. Lavery, 304
F.2d 839 (9th Cir. 1962) ........ ......................... ......... 67
Roberts v. Hermitage Cotton Mills, Inc., 8 EPD f{9589
(D.S.C. 1973), aff’d 498 F.2d 1397 (4th Cir. 1974) .... 55
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.
1971), cert, dismissed 404 U.S. 1006 (1971) ....14,36,46,
61, 65, 67, 68
Robinson v. Lorillard Corp., 319 F. Supp. 835 (M.D.
N.C. 1970) ................................................... 53
Rodriguez v. East Texas Motor Freight Co., 505 F.2d
40 (5th Cir. 1974) ...................................................... 36
Rogers v. International Paper Co., ----- F.2d ----- ,
9 EPD 1(9865 (8th Cir. 1975) .....3,19, 21, 22, 23, 28, 32, 33
Rosen v. Public Service Gas & Electric Co., 409 F.2d
775 (3rd Cir. 1969) ................... .................... ..........36, 66
Rosen v. Public Service Electric & Gas Co., 477 F.2d
90 (1973) ...................... 36,44,45
Rosenfeld v. Southern Pacific Company, 444 F.2d 1219
(9th Cir. 1971) ...................................... .................... 55
Russell v. American Tobacco Co., 374 F. Supp. 286
(M.D.N.C. 1973) ................................................ 37
Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d
1002 (9th Cir. 1972) ............................ ...................... 55
Schulte v. Gangi, 328 U.S. 108 (1946) ..... ... 65
Snyder v. Harris, 394 U.S. 332 (1969) ......... 42
Sosna v. Iowa, 42 L.Ed.2d 532 (1975) ......... 43
Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th
Cir. 1972), cert, denied 404 U.S. 991 (1971)...... 37,44,46,
58, 66
IX
PAGE
Stamps v. Detroit Edison Co., 365 F. Supp. 87 (E.D.
Midi. 1973), aff’d in pert, part sub nom EEOC v.
Detroit Edison Co.,----- F.2d------ (6th Cir. No. 74-
1007, March 11, 1975) .........................................- .... 21
Stevenson v. International Paper Co., 352 F. Supp.
230 (S.D. Ala. 1972), on appeal 5th Cir. No. 73-1758 22
Suggs v. Container Corporation of America, C.A. No.
7Q58-72-P (S.D. Ala, 1974) (Consent Decree) ------ 58
Swann v. Charlotte-Meeklenburg Board of Education,
402 U.S. 1 (1971) ...................................................... 54
Trafficante v. Metropolitan Life Ins. Co., 409 TJ.S. 205
(1972) ......................................................................... 28
ITdall v. Tallman, 380 U.S. 1 (1965) .................. -......... 28
United States v. Bricklayers, Local No. 1, 5 EPD
U8480 (W.D. Tenn. 1973), aff’d sub nom United
States v. Masonry Contractors Assn, of Memphis,
Inc., 497 F.2d 871 (6th Cir. 1974) ............... -............ 54
United States v. City of Chicago, 400 U.S. 8 (1970)..- 28
United States v. East Texas Motor Freight System,
C.A. No. 3-6025-B (N.D.Tex. 1974) (Consent Decree) 58
United States v. Eastex, Inc., C.A. No. B-73-CA-81
(E.D.Tex. 1974) (Consent Decree) ........ -............... 57
United States v. Georgia Power Co., 474 F.2d 906 (5th
Cir. 1973) .............. ............. -............................ ..21,25,28,
36, 45, 48
United States v. Hayes International Corp., 456 F.2d
112 (5th Cir. 1972) ........ ..................... -......-........... 43,66
United States v. Ironworkers Local 86, 443 F.2d 544
(9th Cir. 1971), cert, denied 404 U.S. 984 (1971).— 55
United States v. Jacksonville Terminal Co., 451 F.2d
418 (5th Cir. 1971), cert, denied 406 U.S. 906 (1972)
21,28
X
pa g e
United States v. N. L. Industries, Inc., 479 F.2d 354
(8th Cir. 1973) ................................................. 37,44,45,
58, 61, 62
United States v. Philadelphia Electric Company, C.A.
No. 72-1483 (E.D.Pa. 1973) (Consent Decree).,....... 57
United States v. St. Louis-San Francisco Ry. Co., 464
F.2d 301 (8th Cir. en banc 1972), cert, denied 409
U.S. 1107 (1973) ......................................................44,62
United States v. United States Steel Corp., 371 F.
Supp. 1045 (N.D.Ala. 1973) ..... .............................. 56
Yogler v. McCarty, Inc., 451 F.2d 1236 (5th Cir. 1971) 55
Vulcan Society v. Civil Service Commission, 490 F.2d
387 (2nd Cir. 1973) ........ ........................... ............. 23,28
Waters v. Wisconsin Steel Works of International
Harvester Co., 502 F.2d 1309 (7th Cir. 1974)____ 61
Watkins v. Scott Paper Co., 6 EPD H8912 (S.D. Ala.
1973) , on appeal 5th Cir. No. 74-1001 ........... ....... 22
Western Addition Community Organization v. Alioto,
340 F. Supp. 1351 (N.D. Cal. 1972) ........................ 28
Young v. Edgcombe Steel Co., 499 F.2d 97 (4th Cir.
1974) ................. ...................................................19, 21, 28
Zahn v. International Paper Co., 414 U.S. 291 (1973) 42
Legislative Materials:
Statutes—
15 U.S.C. §§77b et seq. (Securities Exchange Act
of 1934) .................................. .............................. 52
28 U.S.C. §1332(a) ..................... ............. ......... 42
28 U.S.C. §1343 ...... ........................................... . 42
XI
PAGE
29 U.S.C. §§151 et seq. (National Labor Relations
Act) ............................. -........-....-17,48, 49, 50, 51, 59
29 UjS.C. §160(c) - ...............- ........... -........... 48
29 U.S.C. §209 et seq. (Fair Labor Standards Act)
52, 53
29 U.S.C. §215(a) (3) .............................................. 52
29 IT.S.C. §217 ----- -----.....- ......... -............ -......... - 53
42 U.S.C. §2000a-3(b) ................ -..............-......— 59
42 UjS.C. §§2000(e) et seq. (Title VII, Civil Rights
Act of 1964) .................................................... passim
42 U.S.C. §2000e-2(h) ......... -....... -.......... - ............ 18
42 U.S.C. §2000e-5(b) ............................- .............. 41
42 U.S.C. §2000e-5(£) (1) ............-----......... -........ -41,43
42 U.S.C. §2000e-5(f) (4) ............... -............. -......... 42
42 U.S.C. §2000e-5 (f)(5) ------ ------ -----........-........ 42
42 U.S.C. §2000e-5(g) .....-15, 37, 40, 46, 48, 49, 51, 53, 60
42 U.S.C. §3612 — -...... -.... -.......... -----.....- ............... 56
P.L. 92-261, 86 Stat. 103 (Equal Employment Op
portunity Act of 1972) ....... ...............- — 37
Legislative History—
110 Cong. Rec. 6549 (1964) .
110 Cong. Rec. 7214 (1964) .
110 Cong. Rec. 12723 (1964)
110 Cong. Rec. 12807 (1964) 51
X l l
pa g e
110 Cong. Rec. 12814 (1964) ................. ................ 51
110 Cong. Rec. 12819 (1964) ...... ............... ........... 51
117 Cong. Rec. 212 (1971) .............................. ....... 38
117 Cong. Rec. 20622 (1971) .............. 38
117 Cong. Rec. 31973 (1971) ............... 40
117 Cong. Rec. 32097 (1971) .......... 40
117 Cong. Rec. 34104 (1971) . 38
117 Cong. Rec. 38030 (1971) .. 38
118 Cong. Rec. 3808 (1972) _ 39
118 Cong. Rec. 4917 (1972) ........ 46
118 Cong. Rec. 4942 (1972) _ ...39,46,47
118 Cong. Rec. 4944 (1972) . 39
118 Cong. Rec. 7168 (1972) _____ ...40,46,47
118 Cong. Rec. 7170 (1972) . 40
118 Cong. Rec. 7565 (1972) . 40
118 Cong. Rec. 7573 (1972) .. . 40
H.R. 1746 (1971) .................... ........................38,39,46
H.R. 7152 (1963) ........................ .................... ....... 51
H.R. 9247 (1971) ..................................... .............. 37
H.R. Rep. No. 914, 88th Cong. 1st Sess. (1963) .... 48
S. 2515 (1971) ........ .................................... ...38,39,46
S. 2617 (1971) ............................... .......................... 38
S. Rep. 415, 92 Cong. 1st Sess. (1971) 38
XU1
page
Regulations and Rules:
Federal Rules of Civil Procedure—
Rule 23 ........... .............. -....-..................................- 36
Rule 23(b)(2) .................................................... 12
Rule 23(e) ..... ................ .......- ............................. 65
Rule 54(c) ......................... ........................13,64,65,67
3 C.F.R. 339 (1965) (Executive Order 11246) ..... ... 29
29 C.F.R. § 1607 (1970) (EEOC Guidelines on Em
ployee Selection Procedures) ........................ 27, 28, 29, 30
29 C.F.R. § 1607.1(c) .......................... ........................... 28
29 C.F.R. § 1607.4 ...... ............ ....................................... 19
29 C.F.R. § 1607.4(a) .......................... .........................- 19
29 C.F.R. § 1607.4(c) (2) ................... ............................ 34
29 C.F.R. § 1607.5(a) ................................. ................... 28
29 C.F.R. § 1607.5(b)(3) ................... .............. .............. 31
29 C.F.R. §1607.5(c)(3) ............................................... . 32
29 C.F.R. § 1607.5(c) (4) ..................................... .......... 32
29 C.F.R. § 1607.7 ................. ......................................... 31
29 C.F.R. § 1607.9........................................................... 35
29 C.F.R, §1607.9(a) ..................................................... 35
29 C.F.R. § 1607.9(b) ..................................................... 35
41 C.F.R. §§ 60-3.1 et seq. (“Testing and Selecting Em
ployees by Government Contractors”) (1971), as
amended Jan. 17, 1974) ........ ............................ .......29, 31
XIV
PAGE
Other Authorities:
Advisory Committee’s Note to Proposed Buies of Civil
Procedure, Rule 23, 39 F.R.D, 69, 102 (1966) ____ 36
American Psychological Association, Standards for
Educational and Psychological Tests and Manuals
(1966) ................................... - .................. .......... 29, 30, 31
American Psychological Association, Standards for
Educational and Psychological Tests and Manuals,
(1974) ........... - ............... .......................... ............. --29, 31
Anastasi, Psychological Testing, London: MacMillan
(3rd ed. 1968) ..... ...............................31, Al, A2, A3, A4
Byham & Spitzer, The Law and Personnel Testing
(American Management Assn., publisher) (1971).... 31
Cronbach, Essentials of Psychological Testing, New
York: Harper & Row (1970)..................... 31, 33, A2, A4
Davidson, “Bach Pay” Awards Under Title VII of
the Civil Plights Act of 1964, 26 Rutgers L. Rev. 741
(1973) ................ .............................................. -......... 48
Development in the Law—Employment Discrimination
and Title VII of the Civil Rights Act of 1964, 84
H a r v . L. R ev. 1109 (1971) ................. ................--48,59
E. F. Wonderlic Associates, Inc., Negro Norms, A
Study of 38,452 Joh Applicants for Affirmative Ac
tion Programs (1972) .................................... .......... 21
E. F. Wonderlic Associates, Wonderlic Personnel Test
Manual (1961) ........................................................... 26
Frankfurter, Some Reflections on the Reading of
Statutes, 47 Con. L. R ev. 527 (1947) 50
XV
pa g e
Ghiselli, The Validity of Occupational Aptitude Tests,
New York: John Wiley (1966) ......... .................... . A2
Guion, Personnel Testing, New York: McGraw-Hill
(1965) ............................................ ........... -........ 31, 32, A2
Kirkpatrick et al, Testing and Fair Employment, New
York: New York University Press (1968) .............. . Al
6 Moore’s Federal Practice (2d ed. 1974) (154.62 .......... 65
NLRB Annual Report, Yol. 1 (1936) ..... ...................... 50
NLRB Annual Report, Vol. 2 (1937) ........ ..... .......... . 50
Note, Title VII, Seniority Discrimination and the In
cumbent Negro, 80 H arv. L. R ev. 1260 (1967) ...... 56
Sape & Hart, Title VII Reconsidered: The Equal Em
ployment Opportunity Act of 1972, 40 Geo. W a sh .
L. R ev. 824 (1972) .................................... ................. 46
10 Wright & Miller, Federal Practice and Procedure
§§2262,2664 (1973) 65
I n t h e
imprint? OInurt of % United States
October T erm , 1974
No. 74-389
A lbemarle P aper Company , et al.,
Petitioners,
v.
J oseph P . M oody, et al.,
Respondent's.
No. 74-428
H alifax L ocal N o. 425, U nited P a p e r m a k f.bs
and P aperworkers, AFL-CIO,
Petitioners,
v.
J oseph P . M oody, et al.,
Respondents.
BRIEF FOR RESPONDENTS
Questions Presented
I. Whether Albemarle’s Testing Program Is Impermis
sible Under Griggs v. Duke Power Company—
A. Did Albemarle’s tests disproportionately exclude
black employees from jobs previously closed to
them by overt segregation ?
2
B. Did Albemarle fail to prove its testing program
job-related ?
C. Should Albemarle’s unlawful testing program be
enjoined?
II. Whether the Plaintiff Class Is Entitled to an Award
of Back Pay—
A. Is the class back pay award within the District
Court’s power to provide a remedy for employment
discrimination under Title ¥11?
B. Did the Court of Appeals state an appropriate
standard for the exercise of remedial power to
award back pay in keeping with the statutory
purpose?
C. Are there specific factors which would warrant
denial of the back pay remedy in this case?
Statem ent o f the Case
T he Parties
This case is a certified class action brought by a group
of black paper mill workers who seek relief from practices
of employment discrimination by their employer and union
in violation of Title VII of the Civil Eights Act of 1964,
42 IJ.S.C. §§ 2000e et seq. (A. 46-7, 474).
The paper mill, located in Eoanoke Bapids, North
Carolina, is fully described in the brief of Petitioner
Albemarle (Co. Br. 4-10). The Petitioners, defendants
below, are various corporations which have or had an
interest in ownership of the mill and the local labor union
3
which represents the mill’s hourly paid employees (A.
476).1 Plaintiffs Moody and others are black employees or
former employees of Albemarle and members or former
members of Local 425. Plaintiffs represent a class of per
sons determined by the district court to include all Negro
employees at the mill as of June 30, 1967, and all Negro
employees at the mill thereafter who might be subjected
to discrimination in initial job assignment or otherwise
(A. 54, 474).
Factual Background
Albemarle’s mill is functionally similar to other primary
pulp-and-paper facilities (A. 477). As in other Southern
paper mills, prior to the effective date of the Civil Bights
Act of 1964, race was the absolute determinant of em
ployment opportunities (A. 352).2 The district court found
that
Prior to January 1, 1964, Albemarle’s lines of pro
gression were strictly segregated on the basis of race.
Those lines of progression to which black employees
were traditionally assigned were lower paying than
the “white” lines of progression (A. 480).
1 The Petitioners in No. 74-389 are referred to herein as “Albe
marle” or the “Company”. Petitioner in No. 74-428 is referred to
as “Local 425” or the “Union.” Both are sometimes referred to as
“defendants”. Respondents Moody et al. are sometimes referred
to as “plaintiffs”.
2 The Southern pulp-and-paper industry’s nearly uniform dis
crimination practices have engendered dozens of Title VII suits.
See, for example, Local 189, United Papermakers & Paperworkers
v. United States, 416 F.2d 980 (5th Cir. 1969), cert, denied 397
U.S. 919 (1970); Long v. Georgia Kraft Co., 450 F.2d 557 (5th
Cir. 1971); and Rogers v. International Paper Co.,----- F .2d------ ,
9 EPD 1J9865 (8th Cir. 1975).
4
The lines of progression (hereinafter “LOPs”) reserved
for whites included all 13 “skilled” lines.3 Blacks were
restricted to the remaining 6 LOPs.4 Whites had access to
approximately 86 jobs in the white LOPs while blacks were
limited to approximately 14 jobs in their inferior LOPs
(A. 477).
Employees promoted to the racially segregated LOPs
from racially segregated “extra boards,” which are essen
tially labor pools (A. 217). From the whites-only General
Extra Board, employees moved into the all-white “skilled”
lines of progression (A. 485, 219); the black Utility Extra
Board fed the black “unskilled” LOPs (id.). Employees
forced out of LOPs due to reduction-in-force went to the
respective extra boards, and there retained priority recall
rights to their former LOPs, in accordance with the segre
gated pattern (A. 485, 104).
In addition to the segregated production classifications
arranged in LOPs, Albemarle employed over 100 mechanics
in a Maintenance Department (A. 488-9, 484). Until 1964
no black person ever worked in Maintenance (A. 489).
Prior to the mill modernization of the 1950’s, Albemarle
had no educational or testing requirements for employees
(A. 487-8). In 1952-3 it introduced a high-school education
requirement for new hires into “skilled” progressions
3 Yard Crew LOP and Knife Grinder Job in the Woodyard
Department; Paper Machine and Beaterman LOPs in the A Paper
Mill Department; Finishing Crew, Shipping Crew, Paper Machine,
and Stockroom LOPs in the B Paper Mill Department; Digester
and C.B. Recovery LOPs in the Pulp Mill Department; Boiler
Operator LOP in the Boiler Room Department;, and the Mill and
Laboratory LOPs in the Technical Services Department (A. 89).
4 Chipper Operator and Service Crew LOPs in the Woodyard;
Brokeman and Lead Loader LOPs in the A Paper Mill; Payloader
LOP in the Pulp Mill; First Fireman LOP in the Boiler Room;
and the “dead-end” janitor job (A. 89).
5
(A. 487, 237-8). Then in 1955-6, it introduced testing re
quirements for such new employees (A. 486, 329, 338). Un
der these policies, applicants had to satisfy the educational
requirement and to achieve specified passing scores on the
Revised Beta Examination and the Bennett Test of Mechan
ical Aptitude (A. 486). Albemarle fixed the passing scores
on the basis of a concurrent validation study purportedly
done on the two tests by the Company’s then Personnel
Manager after their introduction (A. 329-331, 340, 486-7).5
Albemarle presented undocumented testimony that this
study showed a significant correlation between Beta test
scores and job performance in one department, the B Paper
Mill (A. 99, 486-7, 330, 340-1). The study of the Bennett
test, however, evidenced a negative correlation with job
performance, i.e., the higher the test score, the less likely
the testee was to succeed on the job (A. 330-1).
After about five years, Albemarle discontinued use of
the Bennett because of the negative results, and decided to
substitute a verbal intelligence test (A. 331). Based on the
Personnel Manager’s general familiarity with the Wonder-
lie Personnel test, and without attempting to validate it,
Albemarle adopted the Wonderlic late in 1963 and used it
subject to the nationally recommended cut-off score (A. 100,
487, 331-2). Since 1963, the Company has required both
high school education and scores of 100 on the Beta test
and 18 on the Wonderlic test (either Form A or Form B)
for hiring or transfer into the “skilled” LOPs and the
B The individual who performed that study, Mr. Warren, did
not testify. One witness who described the study, Mr. Bryan, was
not at Albemarle until 1963 (Bryan deposition, plaintiffs’ exhibit
32, p. 487 [not printed in Appendix]); the other witness, Mr.
Boinest, admitted that he was “not a testing expert [;] I know noth
ing about the details of tests,” and had only vague recollections of
the study (A. 340-3). The validation study results were never re
duced to writing; the only report of results was oral (A. 334-5).
6
Maintenance Department (A. 487, 99,100, 332). Employees
who worked in such positions before the introduction of
these standards, however, were not required to qualify in
order to retain their jobs or promote further in their LOPs
(A. 488). Albemarle’s application of educational and test
ing requirements to incumbent employees is closely similar
to practices held unlawful in Griggs v. Duke Power Co., see
401 TJ.S. 424, 427-8 (1971).
The Wonderlic test—the same test involved in Griggs—
is a short intelligence test designed to measure verbal
facility.6 The Beta test is a written non-verbal examination
6 The test appears at A. 297-300 (Form A) ; A. 301-304 (Form
B). The Wonderlic was developed by 1942 (A. 297, 301). Ques
tions on the Wonderlic test include the following:
[Form A] # 4 •—Answer by printing Y es or No—Does
RSVP mean “reply not necessary” ?
#23—Two of the following proverbs have the same
meaning. Which ones are they?
1. Many a good cow hath a bad calf.
2. Like father, like son.
3. A miss is as good as a mile.
4. A man is known by the company the
keeps.
5. They are seeds out of the same bowl.
#28—I ngenious I ngenuous—Do these words have
1 similar meanings, 2 contradictory, 3 mean
neither the same nor opposite?
#47—Assume that the first two statements are
true. Is the final one: 1 true, 2 false, 3 not
certain: Great men are ridiculed. I am
ridiculed. I am a great man.
#50—In printing an article of 30,000 words, a
printer decides to use two sizes of type.
Using the larger type, a page contains 1200
words. Using the smaller type, a page con
tains 1500 words. The article is allotted
22 pages in a magazine. How many pages
must be in the smaller type ?
7
designed to measure the intelligence of non-English speak
ing persons or illiterates.7 Albemarle’s employment records
show that black employees achieved lower scores than
whites on both the Beta and Wonderlic tests and that blacks
more frequently failed the tests (PL Ex. 10, PI. Ex. 73,
Co. Br. 29).
In 1964-5, the Company twice offered black employees
the opportunity to transfer to white LOPs; Albemarle still
required the employees to pass the tests but waived the
high school requirement for those found test qualified
(A. 225-6). The court found that some blacks passed and
transferred, but that “a majority of those who took the
tests failed them” (A. 488). Those who failed remained
trapped in their traditional LOPs after 1965.
[Form B] #11—Are the meanings of the following sentences:
1 similar, 2 contradictory, 3 neither similar
nor contradictory?
A faithful friend is a strong defense. They
never taste who always drink.
#26—Assume that the first 2 statements are true.
Is the final statement: 1 true, 2 false, 3 not
certain? Most business men are progres
sive. Most business men are Republicans.
Some progressive people are Republicans.
#42—Censor Censure—Do these words have
1 similar meanings, 2 contradictory, 3 mean
neither same nor opposite?
#50—Three men form a partnership and agree
to divide the profits equally. X invests
$5500, Y invests $3500, and Z invests $1000.
If the profits are $3000, how much less does
X receive than if the profits were divided in
proportion to the amount invested!
7 Because the Beta test is pictorial rather than verbal, illustrative
questions cannot conveniently be reproduced here. The test ap
pears at A. 458-71. I t was developed by the U.S. Army during
World War I and last revised in 1946 (A. 487, 458).
8
Job segregation was reinforced before and after 1965 by
a “job seniority” system governing employees’ rights of
promotion, transfer, demotion, layoff, and recall (A, 477-8).
This system, which remained in effect until 1968, recognized
three types of seniority: job seniority, defined as length of
continuous service in a particular job classification in an
LOP (or in any higher job in the same LOP) (A. 95, 288,
215-6); department seniority, defined as length of con
tinuous service in a particular department (A. 95, 288,
215); and plant or mill seniority, defined as length of
continuous service at the Roanoke Rapids facility (id.).
Job seniority governed employee movement; promotions
went to the employee with most job seniority in the next
LOP job below the vacancy (A. 288).8 Demotion due to
workforce reduction was imposed on the employee with
least job seniority (id.). Plant seniority governed layoffs
out of the labor pool (extra boards) as well as noncompeti
tive employee benefits, but had no bearing on job competi
tion (A. 216). Since black employees were not in white
jobs or LOPs, they could not, under this system, accumulate
any seniority in the “skilled” or white jobs.9
Although Albemarle and Local 425 contended that they
ceased overt discrimination by the effective date of Title
VII, July 2, 1965, the record shows and the district court
found little actual integration of jobs after 1964. As of
June 30, 1967, almost every job and LOP remained totally
segregated. Only 6 of some 105 job classifications had both
8 The seniority provisions governing production employees in
LOPs were inapplicable to Maintenance positions (A. 105, 222),
and a production worker had no seniority right to transfer to any
Maintenance job or to retain any accumulated seniority if he did
so transfer (A. 222, 295).
9 The racially discriminatory nature of this seniority system, in
the circumstances of the Southern pulp-and-paper industry, has
been widely recognized by the federal courts. See cases cited in
n.2, supra.
9
white and black employees; 21 had only blacks and 76 only
whites (2 were not occupied) (A. 481-484). Eleven LOPs10
remained all white; four LOPs11 were all black; only five
LOPs12 had both white and black employees, and they were
“integrated” to only a token degree. The Maintenance
Department consisted of 137 whites and one black, a 6th
(level) Maintenance Employee Apprentice (A. 484). The
extra boards remained racially distinct with 50 blacks and
no whites on the Utility Extra Board and 62 whites, 2
blacks on the General Extra Board (A. 484-5). Based on
these figures, the district court found that, “[t]he racial
identifiability of jobs and departments in lines of progres
sion were maintained subsequent to the effective date of
Title YII (July 2, 1965)” (A. 480).
Albemarle and Local 425 negotiated certain changes in
the seniority and transfer provisions of their collective
bargaining agreement in 1968 (A. 479-80, 227). These
changes did not eliminate the discriminatory features of
defendants’ seniority system (A. 495-7, 499).13 An unlawful
10 Service Crew (Woodyard), Digester Capper, Caustic Operator,
and C. E. Recovery Operator (Pulp Mill), Beaterman (A Mill),
Stock Room (B Mill), Shipping Crew (B Mill Product), Power
Plant, Boiler Room, Technical Service-Mill, Storeroom. Compare,
A. 110, A. 481-4.
11 Chipper Operator (Woodyard), Payloader (Pulp Mill), Broke-
man and Finishing Room (A Mill). Id.
12 Yard Crew (Woodyard) (one black in lowest job only), Paper
Machine (A Mill) (one black in next to lowest job), Paper Machine
(B Mill) (one black in lowest job), Finishing Crew (B Mill
Product) (two blacks), Technical Service—Lab (one black in lowest
job). Id.
13 The 1968 seniority changes gave employees the right to apply
in writing for transfer to another LOP (Section 10.2.1, A. 479,
214, 239-40). The. decision whether to allow such transfer and the
choice among applicants remained within the Company’s sole and
uncontrolled discretion (id.). When such transfer was allowed,
the transferring employee immediately lost his seniority in his pre
vious department, and could recover it only in the event his health
10
seniority system remained in effect until entry of the
district court’s decree (A. 499-507).
The Company and Union also agreed in the 1968 contract
to a number of structural changes in the LOPs (A. 485).
The district court found this restructuring of LOPs “had
the effect of eliminating, to -some extent, their strictly
segregated composition. However, it is to be noted that
black employees were still ‘locked’ in the lower paying job
classifications” (A. 485).14 The continuing “lock-in” of
blacks w-as predictable, since the “mergers” were imple
mented in a manner that minimized opportunities for black
employees.15 Thus, while the 1968 LOP changes may have
helped to rationalize the Company’s progressions from a
or physical condition required a transfer back; apart from this
eventuality the initial transfer was irrevocable (id.). Albemarle
recognized the right to transfer only to the bottom-level position
in a new LOP (A. 292). The contract gave transferring employees
department and job seniority in their new classification equal to
their previously accumulated seniority (Section 10.2.2, A. 479) ;
however it did not provide for the use of such “carry-over” job
seniority in subsequent promotions to positions above the classifica
tion transferred into (A. 479, 239). The contract did provide for
carry-over rate retention or “red-circling” privileges (Section 10.2.3,
A. 479-80, 233). Since the contract had no provision for posting
job vacancies or for any other formal method of informing em
ployees of particular job opportunities, it left black employees
totally dependent on a word-of-mouth network emanating, of course,
from Albemarle’s white supervision and management, for informa
tion about job openings for which they might apply (A. 241-242).
14 The court noted that blacks occupied the bottom 25 job posi
tions in the “integrated” Woodyard. The same chart shows that
whites occupied the top 26 positions (A. 485-6).
15 Thus, the black Brokeman LOP in the A Paper Mill was tacked
on to the bottom of the short and relatively low-paying white
Beater Room LOP but remained cut off from the high-paying A
Mill Paper Machine LOP (compare A. 109, 110). In the Woodyard,
the separate black Chipper Crew “dovetailed” into the white Crane
Operator LOP with the result that only one black job (Chipper
Operator #2 ) was placed ahead of a single white job (Chain
Operator) ; all other blacks remained behind all other whites,
11
functional standpoint,16 they did little to overcome the isola
tion of black employees in inferior positions.
The 1968 merger of segregated extra boards preserved
the pre-existing patterns of segregation. Although em
ployees could thereafter move from the merged extra board
into any LOP (subject to test, educational, and qualifica
tions requirements), recall priority for a particular LOP
was reserved to employees who had previously worked in
that LOP during the time of strict segregation (A. 486).
As the district court found, “ [t]he effect of this practice is
that black employees are recalled to black jobs and white
employees are recalled to white jobs” (id.).
The income disparity between white and black workers
under the regime described above was substantial. The all
black LOPs were among the lowest paying in the mill; the
all-white LOPs were among the highest paying; and in
locked in job seniority order (id.). A separate Service Department
was established by removing the black Service Crew LOP from
the Woodyard and placing it beneath the black Payloader job
from the Pulp Mill; no blacks gained access to any white jobs
by this move (id). The Pulp Mill Department underwent sub
stantial changes, without benefit to that department’s black em
ployees. The white Ivamyr Operator job was removed from the
white Digester LOP and placed at the top of the black progression
leading to Lift Truck Operator (compare A. 109, 110, A. 481-2) ;
however, within a few months the Kamyr was shut down, depriving
blacks of access to that job (A. 245). A number of other positions
(Bark Burner, Boiler Operator) were removed to another depart
ment, the Boiler Room, and there consolidated with the existing
Fireman LOP (compare A. 109, 110) ; but there is no evidence
that these black jobs were then staffed (see A. 481-4), and even
if so, they were placed beneath the white jobs brought into their
department (A. 109).
16 The record clearly shows, Albemarle’s protestations notwith
standing (Br. 5), that departments such as the Pulp Mill and the
A Paper Mill were not organized into functionally related LOPs
before the 1968 mergers. See A. 231-2. Race may well have been
the reason behind the non-functional LOPs.
12
racially mixed departments the white employees’ wages
greatly exceeded the blacks’ wages.17
P ro c ee d in g s B elow
The proceedings in this case took place against the back
ground of the historical discrimination practices described
above. Plaintiffs filed their charges before the Equal Em
ployment Opportunity Commission (“EEOC”) on May 9,
1966 (A. 273-285) and their complaint on August 25, 1966
(A. 6-10). Defendants immediately filed motions to dis
miss and for summary judgment challenging, inter alia, the
maintenance of the class action (A. 1). In response to one
of those motions and in reliance on newly amended Rule
23(b)(2), F.R.Civ.P., and the only then-existing precedent
17 The following table, based on the job composition data at
A. 481-5 and the hourly wage rates for June 30, 1967 shown at PL
Ex. 14, App. A, pp. 34 et seq., graphically shows the disparities:
Segregated LOPs & Departments
No. o f
Name # Mace Employees Avg. Wage
1. Woodyard Service Crew--Black 11 $2.45/hr.
2. A Mill Finishing—Black 5 2.47/hr.
3. Technical Service—White 23 (1 B) 2.5 8/hr.
4. .Storeroom—White 3 2.79/hr.
5. Power Plant—White 16 2.94/hr.
6. Maintenance—White 138 (1 B) 3.42/hr.
7. Boiler Room—White 4 3.63/hr.
Racially Mixed LOPs and Departments
Macial Average Average
Name Breakdown Black Wage W hite Wage
1. Pulp Mill 7B 57W $2.38/hr. $3.08/hr.
2. B Paper Mill 6B 69W 2.40/hr. 3.24/hr.
3. B Mill Product 5B 70W 2.40/hr. 2.56/hr.
4. A Paper Mill 6B 48W 2.42/hr. 2.71/hr.
5. Woodyard Yard Crew 26B 34W 2.43/hr. 3.21/hr.
13
on Title VII class actions, Hall v. Werthan Bag Co., 251
F. Supp. 184 (M.D. Tenn. 1966), plaintiffs filed a memo
randum stating that no back pay was sought “for any mem
ber of the class not before the court” (A. 11-14). This posi
tion was based on the belief that, “It may well be that any
employee seeking separate and specific relief such as an
individual promotion should first address his claim to the
[Equal Employment Opportunity] Commission” (A 14).18
In October, 1968, several of the corporate defendants ex
ecuted a “corporate reshuffle” (A. 35) in which the mill’s
assets and liabilities changed hands (A. 31-34, 41-42).
Thereafter, on September 29, 1970, the district court
granted plaintiffs’ motion to join the successor and parent
corporations of the initial defendant company (A. 38-39).
In its ruling, the Court noted that Rule 54(c), F.R.Civ.P,,
required it to grant plaintiffs all relief to which they were
entitled, whether specifically pleaded or not, and that the
back pay issue was “litigable” (A. 38). Plaintiffs’ claim
for back pay had in fact been explicitly stated to counsel
for Albemarle in a telephone conversation on April 8,
1970.19 Albemarle’s counsel indicated his awareness of the
claim in a letter to the Court dated June 12, 1970 (A. 29).
On March 8, 1971, this Court handed down Griggs v.
Duke Power Co., supra. Albemarle thereupon retained a
18 That possibility was subsequently rejected by the courts, see
Oatis v. Crown-Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) ;
Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th
Cir. 1969); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th
Cir. 1969).
19 See “Memorandum of Counsel for the Defendant ‘Old’ Albe
marle Paper Company,” filed August 17, 1970, p. 9 [not reproduced
in Appendix],
This was just over 3% years after suit was brought, rather than
5 years as the district court stated in denying back pay (A. 498).
This notice came well over 15 months before trial began.
14
testing expert, Dr. Joseph Tiffin, to perform a validation
study of its test battery in the few months remaining be
fore trial (A. 489). Dr. Tiffin began to work on the study
in April or May of 1971 (A. 185-6) and produced his re
port (A. 431-8) just in time for trial in July, 1971. The
Tiffin report concluded that both the Beta and the Wonder-
lie A tests could properly be used as Albemarle was using
them (A. 438, 491, 171). The conclusion was based on a
correlation analysis which purported to demonstrate that
at least one of Albemarle’s three tests was significantly
related to performance on nine of ten job groups studied
(A. 431, 491). Dr. Tiffin conducted his study by the “con
current criterion-related validation” method (A. 490). He
selected and grouped jobs from the middle to upper range
of 10 LOPs in five different departments (A. 432-7). All
employees in those job groups, except a few who refused,
took the tests for correlation purposes (A. 490, 186). These
employees’ supervisors were asked to rate their job per
formance (A. 490, 187). No separate study was made of
correlations between test scores and job performance of
black employees.
In the months before trial the district court entered a
series of orders related to case management and the class
action. On June 15, 1971, the court defined plaintiffs’ class
and “reserved ruling” on whether it could recover back pay
(A. 46-7). On June 18, 1971, the court entered an order
barring all parties and their counsel from communicating
directly or indirectly with class members during the period
when they received notice and when final trial preparation
took place (A. 48-9). On July 8, 1971, the court held that
back pay could be. awarded under Robinson v. Lorillard
Corp., 444 F.2d 791 (4th Cir. 1971), cert, dismissed 404
U.S. 1006 (1971), and directed that notice be given to class
members requiring them to file a written “proof of claim”
15
as a precondition to individual recovery (A. 50-51, 55-56).20
A total of 80 employees signed “proof of claim” forms
bringing their back pay claims “before the court” (A. TO
SS).
After trial, on November 9, 1971, the district court
entered findings of fact, conclusions of law, and judgment.
The court held that defendants’ seniority system both be
fore and after the 1968 revisions had perpetuated the
effects of past discrimination and was not required by
“business necessity” (A. 495-497). Accordingly, the court
decreed substitution of a plant seniority system with job
posting, red-circling, and minimum residency periods (A.
499-502). The court also held unlawful Albemarle’s high
school education requirement and permanently enjoined
its use (A. 497, 502).21 However, the district court examined
the test battery for job-relatedness and concluded that it
had been adequately validated and was, therefore, per
missible under Title YII (A. 497, 495). Finally, the court
allowed no back pay (A. 502). It recited three reasons for
denying plaintiffs’ claim: that Section 706(g) of Title YII,
42 U.S.C. §2000e-5(g), vests the district court with dis
cretion to withhold back pay; that Albemarle had exhibited
good faith in attempting (unsuccessfully) to comply with
the Act; and that plaintiffs’ allegedly late assertion of their
back pay claim might have prejudiced defendants (A.
497-8).
20 The notice provided that failure to file “proof of claim” by
July 22, 1971, four days before trial, would cause claims to be
“forever barred” (A. 56).
Plaintiffs thereupon moved for leave to communicate with class
members for purposes of trial preparation (A. 57), for clarification
of the “opt-in” notice provisions (A. 64), and for severance of
back pay proceedings from the initial determination of liability
(A. 68). The court did not rule on these motions.
21 There was no appeal from these two aspects of the court’s
ruling.
16
The Court of Appeals reversed in plaintiffs’ favor on
both the testing and back pay issues (A. 511-524). The
Court’s opinion held both that the testing program had
an adverse impact on black employees and that Albemarle
had failed to prove it demonstrably job-related as required
by Griggs (A. 513-520). The Court further held that the
purposes of Title VII require that back pay be awarded to
compensate for wages lost due to discrimination, in the
absence of “special circumstances that would render such
an award unjust” (A. 520-524), and that no such circum
stances appeared in this record (A. 524).
Summary of Argument
1=
This Court’s decision in Griggs v. Duke Power Co., 401
U.S. 424 (1971), controls the question of whether the use of
various tests to determine promotions violated the Title
VII rights of black employees. The Court of Appeals
properly held that all of the tests used disproportionately
excluded blacks from formerly white jobs. The Company,
on the other hand, failed to meet the burden imposed by
Griggs to demonstrate “a manifest relationship to the em
ployment in question.” In particular, Albemarle did not
present sufficient proof that the tests were in fact accurate
predictors of job performance, or that they had been
validated pursuant to the guidelines established by the
Equal Employment Opportunit[y] Commission and en
dorsed by this Court in Griggs. In contending that the
guidelines should not be followed, Albemarle is asking this
Court to overrule its well-reasoned opinion in Griggs, and
to reject the consistent reliance of lower courts on that
decision. The Court should reaffirm that the guidelines,
17
which incorporate accepted professional standards, provide
the proper standards that should be met by employers in
using tests that may deny equal opportunity to blacks and
affirm the Fourth Circuit’s application of Griggs in this
case. Accordingly, the use of these unlawful tests was prop
erly enjoined in order to prevent the continued denial of
promotional opportunities to black employees.
II.
All Courts of Appeals ruling on the issue have held that
Title YII authorizes an award of back pay to the members
of the class of black (or other minority) employees ad
versely affected by discriminatory employment practices.
The legislative history of the 1972 amendments to Title VII
make it clear that Congress intended that such relief be
available. Thus, a House provision that would have re
stricted the availability of back pay was rejected by the
Senate and the Senate’s position was adopted by the Con
ference Committee. The rejection of class back pay by this
Court is thus unwarranted and would result in the substan
tial weakening of Title VII as an effective remedy against
employment discrimination.
This Court should hold that back pay should be awarded
to a class that has established a violation of Title VII un
less special circumstances would render such an award
unjust. This standard has been adopted by the Fourth,
Fifth, and Sixth Circuits. It will ensure the effectuation of
the Act’s purpose, viz., to ensure that persons economically
harmed by discrimination will receive restitution. Only if
the victims of racial discrimination obtain the most com
plete relief possible, as do victims of unfair labor practices
under the N.L.R.A., will the Congressional purpose be ful
filled. The standard does not, however, mean that district
courts will have no discretion. Rather, there are instances
18
in which a denial of back pay may be justified; there is
broad discretion in determining appropriate methods for
calculating the amount of back pay and in the allocation of
liability between defendants. Thus, the standard enunciated
by the Court of Appeals is fully consistent with this Court’s
discussion of back pay in Curtis v. Loether, 415 U.S. 189
(1974), and with the holding regarding the award of at
torneys’ fees in Newman v. Piggie Park Enterprises, 390
U.S. 400 (1968). Finally, the facts of the present case do
not present the kind of special circumstances that would
justify a failure to award back pay.
A R G U M E N T
I.
Albemarle’s Testing Program Is Unlawful Under
Griggs v. Duke Power Company.
In this case the Court must apply principles first enun
ciated in Griggs v. Duke Power Co., 401 U.S. 424 (1971).
The facts concerning the tests involved here and their
usage by Albemarle are closely similar to those in Griggs,
see supra pp. 4-6. While Griggs provides the point of
departure, it does not specifically answer the questions
presented here. In Griggs, the employer had not attempted
an empirical demonstration of the tests’ job-relatedness
but relied on their having been “professionally developed,”
cf. 42 U.S.C. §2000e-2(h). Here, the employer has gone
one step farther by conducting a correlation analysis
purporting to show that its tests accurately predict job
performance.
This case is controlled by Griggs principles despite the
superficial difference in its factual context. Close scrutiny
of the results of Albemarle’s validation study demon-
39
strafes that they fail to prove the test battery “manifestly
job-related” in a majority of cases; therefore, here as in
Griggs, the employer’s test is unvalidated (part B.l, infra).
Moreover, the Company’s validation procedures were so
inadequate that even those results cannot be credited; there
fore, the employer has failed to carry its burden of show
ing its tests “manifestly job-related” (part B.2, infra).22
The significance of this case for the future of employ
ment testing litigation in the post -Griggs era is plain. If
Albemarle met its Griggs burden, then that case requires
little more than a pro forma exercise submitted to the
district court over the signature of a certified industrial
psychologist.23
A. T he Tests Adversely Affect B lack Em ployees.
Albemarle’s tests disproportionately screen out black
employees from higher paying jobs. The Company does not
deny that the statistical evidence shows a higher average
23 Both Albemarle and amicus curiae American Society for Per
sonnel Administration have sought to inject an issue concerning
the requirement of “differential validation,” see 29 C.F.R. § 1607.4
(a) (A. 309), in this case. Co. Br. at 41, ASPA Br. at 28-30.
They seek an advisory opinion. The district court found that such
study in this case was “technically infeasible,” cf. 29 C.F.R. § 1607.4
(A. 309). This was not an issue on appeal and is not before the
Court.
23 Albemarle’s widely used Wonderlic test has never survived full
judicial scrutiny in an employment discrimination ease. Every
appellate decision to pass on Wonderlic has held it unlawful in
that it adversely affects black job candidates and has not been
shown to be job-related. See, e.g., Griggs v. Duke Power Co., 401
U.S. 424 (1971) ; Rogers v. International Paper Co., supra; John
son v. Goodyear Tire & P uller Co., 491 F.2d 1364, 1372-3 (5th
Cir. 1974) ; Young v. Edgcombe Steel Co., 499 F.2d 97, 98 (4th
Cir. 1974). The Company would justify using this test on the basis
of little more than its expert’s say-so, see part B, infra.
20
score for whites than for blacks on both tests.24 Moreover,
these average scores understate the black-white disparity
because they do not take into account the large number of
black employees who failed the tests but whose numerical
scores were not recorded.26 The district court found that
when Albemarle administered the tests to incumbent black
employees in 1964-5, “a majority of those who took the
tests failed them” (A. 488).26a Furthermore, the district
court found that the “skilled” LOPs and General Extra
Board, for which the tests were required, remained
“essentially segregated because of the inability of black
employees to meet the educational and testing require
ments” (A. 496).
Plaintiffs’ expert witness, Dr. Raymond Katzell, testified
that blacks generally score lower than whites on paper and
pencil examinations; the reasons for this phenomenon are
24 Plaintiffs’ Exhibit 10 shows that whites averaged over 7 points
higher than blacks on the Wonderlic test, as Albemarle concedes,
Br. at 29. Albemarle also does not dispute the existence of a dis
parity of over 3 points in test scores on the Beta examination, id.
Plaintiffs’ Exhibits 10 and 73 [not printed in Appendix] list the
available test scores of Albemarle’s employees.
25 Plaintiffs’ Exhibit 10 lists 12 black employees who failed the
tests, without giving their scores. This number amounts to nearly
half the number of blacks (15), whose scores were averaged; of
those 15, only 3 failed. Thus, the average scores omit 80% of the
blacks who did not pass. The averages also exclude the scores of
at least 12 whites, listed only as “OK” on the tests, whose scores
were apparently passing. This listing does not indicate whether
unsuccessful employees failed the Wonderlic, the Beta, or both.
However, it is pertinent that every black employee whose scores
appear on Plaintiffs’ Exhibit 10 either failed both tests, or passed
both.
26a This is confirmed by the data on Plaintiffs’ Exhibit 10, see
n.25, supra, showing that of 27 blacks with recorded results 15
(56%) failed the test battery. By contrast, the exhibit shows that
of whites with scores or test success indicated, 90% passed the
Beta and over 95% passed the Wonderlic.
21
unclear but are thought to include inferior schooling26 and
the reaction of black test takers to examination situations
(A. 1382-3, 493). Dr. Katzell recalled data showing that
blacks usually score less wTell than whites on intelligence
tests similar to the Beta (A. 406). Significantly, neither
Albemarle’s expert witness nor the Company itself, which
had full access to all test scoring data, made any attempt
to introduce evidence or opinion that blacks were not dis
proportionately screened out by Albemarle’s tests or by
written examinations generally. On this showing, the Court
of Appeals held that “ [t]he plaintiffs made a sufficient
showing below that Albemarle’s testing procedures have a
racial impact,” 474 F.2d at 138 (A. 515).27
The federal courts in employment discrimination cases
have repeatedly found that tests like those used by Albe
marle have an adverse impact on black job applicants. In
particular, this Court and lower courts have consistently
found that the Wonderlic test screens out blacks.28 Re-
26 Cf. Griggs v. Duke Power Co., supra, 401 U.S. at 431.
27 The Court of Appeals also referred to a study, Negro Norm-s,
A Study of 38,452 Job Applicants for Affirmative Action Programs
(1972), published by E. F. Wonderlic Associates, Inc. The study
became available only after trial and was lodged with the Court
of Appeals during briefing. I t shows a median black score of 15
on the Wonderlic and a white median of 23 (pp. 11, 13).
28 See, e.g., Griggs v. Duke Power Co., supra, 401 U.S. at 430
(Wonderlic) ; Rogers v. International Paper Co., supra, 9 EPD at
p. 6592 (Wonderlic) ; Pranks v. Bowman Transportation Co., 495
F.2d 398, 412 (5th Cir. 1974), cert, denied 42 L.Ed.2d 644 (1974)
(“the race-oriented Wonderlic”) ; Duhon v. Goodyear Tire & Rub
ber Co., 494 F.2d 817, 818-819 (5th Cir. 1974) (Wonderlic) ;
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1372 (5th
Cir. 1974) (Wonderlic) ; United States v. Georgia Poiver Co., 474
F.2d 906, 912 n.5 (5th Cir. 1973) ; United States v, Jacksonville
Terminal Co., 451 F.2d 418, 455-6 (5th Cir. 1971), cert, denied
406 U.S. 906 (1972); Young v. E’dgcombe Steel Co., 499 F.2d 97,
98, 100 (4th Cir. 1974) (Wonderlic); Brito v. Zia Co., 478 F.2d
1200, 1203 (10th Cir. 1973) ; Stamps v. Detroit Edison Co., 365
22
spondents are not aware of any reported final decisions in
which tests like Albemarle’s were fonnd to be without ad
verse racial effect.29 The other cases, therefore, confirm
what this record shows: at Albemarle as elsewhere, written
examinations typically operate as powerful “built-in-head-
winds” to black employees, cf. Griggs, supra, 401 U.S. at
432.
This Court’s ruling in Griggs was based on far less evi
dence of adverse racial impact than is presented here. The
record in Griggs contained no evidence of actual test scores;
rather, the Court properly assumed that the general ob
servation of racial disparities would hold true, as plaintiffs’
expert had testified, 401 U.S. at 430 n.6.s0
F. Supp. 87 (E.D. Mich. 1973), aff’d in pert, part sub. nom. EEOC
v. Detroit Edison Co.,----- F .2d------ (6th Cir. No. 74-1007, March
11, 1975).
The same finding of adverse impact has consistently held true
in the case of written civil-service examinations of public em
ployers. See, e.g., Douglas v. Hampton,----- F.2d.------ (D.C. Cir.
No. 72-1376, Feb. 27, 1975) ; Davis v. Washington, —— F .2d-----
(D.C. Cir. No. 72-2105, Feb. 27, 1975) ; Castro v. Beecher, 459
F.2d 725, 729 (1st Cir. 1972) ; Boston Chapter N.A.A.C.P., Inc.
v. Beecher, 504 F.2d 1017, 1019-20 (1st Cir. 1974) ; Chance v.
Board of Examiners, 458 F.2d 1167, 1171 (2nd Cir. 1972) ; Bridge
port Guardians, Inc. v. Civil Service Commission, 482 F.2d 1333,
1335 (2nd Cir. 1972) ; Commonwealth of Pennsylvania v. O’Neill,
348 F. Supp. 1084, 1089-90 (E.D. Pa. 1973), aff’d. in pert, part 473
F.2d 1029 (3rd Cir. en banc 1973) ; Carter v. Gallagher, 452 F.2d
315, 323 (8th Cir. 1972), upheld 452 F.2d 327 (8th Cir. en banc),
cert, denied 406 U.S. 950 (1972).
29 Stevenson v. International Paper Co., 352 F. Supp. 230 (S.D.
Ala. 1972), on appeal 5th Cir. No. 73-1758 (same testing program
as in Rogers v. International Paper Co., supra), and Watkins V.
Scott Paper Co., 6 EPD 8912 (S.D. Ala. 1973), on appeal 5th
Cir. No. 74-1001, are both being appealed on this issue.
30 As Judge Friendly recently observed, “complete mathematical
certainty” of proof should not be required on this issue, particu
larly since a showing of adverse impact “simply places on the
dependants a burden of justification which they should not be
23
Albemarle’s assertions that there was “absolutely no
evidence” of the Beta’s disparate effect (Br. at 29), and
“deficient” proof as to that of the Wonderlie (Br. at 30),
ignores the many uncontradicted indications summarized
above. Likewise the Company’s charge that the adverse
impact issue never arose in the district court is mistaken.
The district court knew that under Griggs it need not have
reached the issue of job-relatedness unless it found adverse
impact. The court concluded that testing practices blocked
black employes from the white lines of progression (A. 488,
496). Therefore, the court proceeded to examine the vali
dation evidence as Griggs requires (A. 489-91).
There is no basis for this Court to reverse the well-sup-
ported finding below that Albemarle’s testing program
tended to exclude black workers.
B. A lbem arle Failed to Prove the Job-Relatedness of
Its T esting Program .
Because Albemarle’s tests disqualify blacks at a higher
rate than whites, the Company must show that the tests
have “a manifest relationship to the employment in ques
tion,” Griggs v. Duke Power Co., supra, 401 U.S. at 432.
The Company attempts to meet that burden primarily by
reliance on an empirical correlation analysis performed
after the Griggs decision in the Spring of 1971.31 That
unwilling to assume,” Vulcan Society v. Civil Service Commission,
490 F.2d 387, 393 (2nd Cir. 1973). See also, Rogers v. Interna
tional Paper Co., supra, 9 EPD at p. 6592; Boston Chapter NA A CP,
Inc. v. Beecher, supra, 504 F.2d at 1021; Douglas v. Hampton,
supra, slip op. at 8-13.
31 Albemarle also suggests two further bases for a finding of
job-relatedness, but these arguments are insubstantial.
First, it argues that the tests are job-related because they were
designed to measure intelligence and reading ability, which were
found to be necessary for successful performance in skilled LOPs
(Br. 32-33). But this tautological reasoning begs the question which
24
validation study will not support a finding of job-related-
ness.32
1. R esu lts Show ing Lack o f Job-R elatedness.
Albemarle’s own validation study demonstrates that the
tests are not job-related for most of the jobs for which
they are required. Albemarle’s expert, Dr. Tiffin, attempted
to validate each of three tests for each of ten job group
ings. The groups came from 8 LOPs in 5 departments
(A. 514). He reported, and the district court found,
statistically significant correlations between job perform
ance and test scores on one or another of the three tests in
nine of the ten job groups (A. 431, 491). Such correlations
were found for all three tests in only one of the ten groups
( # 4); and, for the Beta and either Wonderlic A or Won-
derlic B,33 in only one other group (#8) (A. 432). In eight
of the ten groups, Dr. Tiffin did not find a significant cor
relation for both the Beta and a Wonderlic test; in three
groups ( # s 1, 2, 5) he found only one of the three tests
Griggs frames: apart from the employer’s purpose in utilizing the
tests, is there convincing proof that the tests actually do measure
ability to perform the job?
Second, it adverts to a purported validation study of the Beta
test in 1958 (Br. at 33). The unwritten results of this study,
which were described in conclusory terms (see p. 5, supra), are
surely inadequate to meet the employer’s burden of proof. And
Albemarle made no effort to validate the Wonderlic test when
introduced or thereafter, until 1971.
The district court relied on neither argument. Its holding of
job-relatedness was based on the 1971 study.
82 Technical terms encountered in the discussion of Albemarle’s
purported demonstration of job-relatedness are defined or described
in an Appendix to this brief, “Glossary of Technical Terms Relevant
to the Testing Issue.”
33 Test success on the Beta and either Wonderlic A or Wonderlic
B is Albemarle’s selection criterion, see p. 5, supra.
25
job-related; and in one group (#6) be found none of tbe
tests had significant predictive value {id.)}*
Thus, for 80% of the job groups studied, Albemarle’s
two-test battery, as used, was not found job related. This
fact alone is dispositive. As the Court of Appeals held, “it
was also error to approve requiring applicants to pass two
tests for positions where only one test was validated” (474
F.2d at 140; A. 519). Of. United States v. Georgia Power
Go., supra, 474 F.2d at 916-7.
A close reading of the correlation data for particular
tests casts further doubt on the conclusion Dr. Tiffin drew
from the results. In ten correlations of the Beta test, he
found only three statistically significant relationships, six
correlations not deemed scientifically significant, two per
fectly random correlations,36 and one negative correlation.36
Moreover, the study finds notable discrepancies between the
34 Dr. Tiffin’s results are summarized in the following table in
terms of whether statistically significant correlations were found:
Job Group Statistically Significant Correlations ?
[by number] Beta W-A W-B All 3 B plus W (A orB)
1 No Yes No No No
2 Yes No No No No
3 No Yes Yes No No
4 Yes Yes Yes Yes Yes
5 No Yes No No No
6 No No No No No
7 No Yes Yes No No
8 Yes No Yes No Yes
9 No Yes Yes No No
10 No Yes Yes No No
Source: A. 432, compare A. 431.
36 Job groups 3 and 5 show 0.00 correlation coefficients (A. 432).
This means that the relationship between test scores and job per
formance was haphazard.
36 Job group 6 shows a •—.50 coefficient (A. 432), indicating
that the higher test scorers performed less well on the job.
26
correlations found for the supposedly interchangeable Won-
derlic Forms A and B.37
No correlation results were reported for many LOPs to
which testing applied during the period relevant to this
case. The district court found that test requirements had
applied in 14 LOPs in 8 departments since 1963 (A. 487).
Although operations had been curtailed in some of these
LOPs or testing requirements otherwise eliminated after
1968, the relationship of the two tests to all the LOPs is
relevant both as to back pay liability and for its bearing
on the tests’ job-relatedness in the similar LOPs to which
testing currently applies. In any event, the results are not
convincing even with respect to the four departments in
which testing continued.38
The Court of Appeals correctly concluded that Albemarle
showed too little evidence of job-relatedness for too small a
part of its testing program to meet the burden of Griggs.
Even taken at face value, the study’s results do not sub
stantiate a claim of job-relatedness for Albemarle’s tests as
they have been used.
37 The two forms are identical in form and content (compare
A. 297-300, A. 301-304) and are supposed to be utilized as alterna
tive forms of a single test. E. F. Wonderlie Associates, Wonderlic
Personnel Test Manual 2 (1961).
Nevertheless, in one job group (# 1 ), Wonderlic A achieved a
rare^ perfect (1.00) correlation, while Wonderlie B showed no
significant correlation (A. 432). In another (# 8 ), Wonderlie B
correlated perfectly but Wonderlie A was negatively related to
job performance (id.).
38 The Beta test correlated significantly only with the Technical
Services job group (#4 ) and one (# 2 ) of three Pulp Mill groups.
I t failed to correlate significantly with two other Pulp Mill groups
(# s 1, 9), the Power Plant group (#10), and all 3 B Mill groups
(# s 5, 6, 7). Wonderlic A did not show significant correlations
for one of three groups in both the B Mill (#6 ) and the Pulp
Mill (#2 ). Wonderlic B failed to show significant job-relatedness
for two of three groups in both the B Mill (# s 5, 6), and the
Pulp Mill (# s 1, 2). (A. 432)
27
2. Inadequacy o f th e V alidation S tudy.
The Court of Appeals held Albemarle’s validation pro
cedures inadequate to support any conclusion of job-
relatedness (474 F.2d at 139, A. 516).39 It measured the
study’s deficiencies in part by standards embodied in the
EEOC Guidelines on Employee Selection Procedures, 29
C.F.R. §1607 (1970), A. 516-520. Albemarle attacks the
Court’s reliance on these Guidelines as improper (Br. 34-
36).40 The issues raised by the validation procedures there
fore turn both on the weight to be given the EEOC Guide
lines and on the specific failures of the study to comply
with sound validation practice.
This Court in Griggs endorsed the Guidelines:
The Equal Employment Opportunity Commission,
having enforcement responsibility, has issued guide
lines interpreting § 703(h) to permit only the use of
job-related tests. The administrative interpretation of
the Act by the enforcing agency is entitled to great
deference. . . . Since the Act and its legislative history
support the Commission’s construction, this affords
good reason to treat the guidelines a.s expressing the
will of Congress. 401 U.S. at 434. (footnote and cita
tions omitted)
Its holding is consistent with a line of decisions stating
that courts should defer to the subject-matter expertise of
administrative agencies designated by Congress to imple-
89 An explanation of the proper method of validating a test by
plaintiffs’ expert witness appears at A. 205-6. Dr. Tiffin did not
dispute that explanation (A. 209).
40 Albemarle appears to concede that the validation procedures
fall short of the Guidelines standards.
28
ment regulatory statutes.41 Virtually every lower court
confronted with, a test-validation issue in a private em
ployer discrimination case has agreed that the Guidelines
are appropriate standards.42 The Guidelines have appeared
so persuasive and reasonable to the courts that many
circuits have also looked to them in public-employer testing
cases not brought under Title VII.48
Petitioner Albemarle and amicus ASP A. criticize the
Guidelines as unreasonably restrictive and their judicial
implementation as unnecessarily rigid. But the courts have
not required slavish adherence to each detail of the. Guide
lines.44 The Court of Appeals did not do so in this case.
Rather, the courts have taken the Guidelines as sensible,
reasonable general principles that should ordinarily be
41 TJdall v. Tollman, 380 U.S. 1, 16-17 (1965); United States v.
City of Chicago, 400 U.S. 8, 10 (1970) ; Power Reactor Develop
ment Co. v. Electrical Union, 367 U.S. 396, 408 (1961) ; Traffi-
cante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210 (1972);
N.L.R.B. v. Boeing Co., 412 U.S. 67, 75 (1973).
43 See, e.g., United States v. Jacksonville Terminal Co., supra,
451 F.2d at 456; United States v. Georgia Power Co., supra, 474
F.2d at 913; Pettway v. American Cast Iron Pipe Co., 494 F.2d
211, 221 (5th Cir. 1974) ; Rogers v. International Paper Co.,
supra, 9 EPD at p. 6593; Brito v. Zia Co., supra; Young v. Edg-
combe Steel Co., supra, 499 F.2d at 99.
43 The EEOC Guidelines do not on their face necessarily apply
to non-Title VII eases. See Chance v. Board of Examiners, supra,
458 F.2d at 1176-7. However, most courts follow them in such
cases. See, e.g., Douglas v. Hampton, supra, slip op. at 18; Bridge
port Guardians, Inc. v. Civil Service Commission, supra, 482 F.2d
at 1337 n.6; Vulcan Society v. Civil Service Commission, supra,
490 F.2d at 394 n.8; Commonwealth of Pennsylvania v. O’Neill,
supra, 348 F. Supp. at 1103; Carter v. Gallagher, 452 F.2d at
320, 326; Western Addition Community Organization v. Alioto,
340 F. Supp. 1351, 1353-4 (N.D. Cal. 'l972); Kirkland v. New
York State Department of Correctional Services, 374 F Sunn
1361, 1370-1 (S.D.N.Y. 1974).
44 See, e.g., United States v. Georgia Power Co., supra, 474 F.2d
at 913, 915; Rogers v. International Paper Co., supra, 9 EPD at
p. 6592.
29
followed but may be applied consistently with other appro
priate procedures. The Guidelines themselves provide for
flexible application. They are “designed to serve as a work
able set of standards,” 29 C.F.R. § 1607.1(c), A. 307-8, and
require only that
empirical evidence in support of a test’s validity must
be based on studies employing generally accepted
procedures for determining criterion-related validity
such as those described in “Standards for Educational
and Psychological Tests and Manuals” published by
American Psychological Association [APA], 1200 17th
Street, N.W., Washington, D.C. 20036. . . . (29 C.F.R,
§1607.5(a), A. 311)
The Guidelines merely summarize the most important
features of those “generally accepted procedures.”
The Secretary of Labor has also published test valida
tion guidelines applicable to federal contractors45 very
similar to the EEOC Guidelines (A. 321-8).46 Like the
EEOC Guidelines, the Secretary’s guidelines adopt the
APA Standards (see A. 325).47 Those Standards (re
printed in pertinent part at A. 415-430) incorporate the
judgment of the psychological profession (A. 172, 200) and
46 The Secretary’s guidelines are issued pursuant to his enforce
ment responsibility under Executive Order 11246, 3 C.F.R. 339
(1965), prohibiting employment discrimination by federal con
tractors.
46 “Testing and Selecting Employees by Government Contrac
tors,” 41 C.F.R. §§60-3.1 et seq. (1971), as amended January 17.
1974.
_ 47 American Psychological Association, “Standards for Educa
tional and Psychological Tests and Manuals” (1966). Since entry
of the decision below, the APA has revised its Standards with a
1974 edition. This revision is directed more specifically to em
ployment tests and validation studies rather than educational
examinations and manuals. Its principles are still consistent with
the EEOC Guidelines. A copy has been filed with the clerk for
reference by the Court.
30
are consistent with the two .sets of Guidelines. In looking
to the EEOC Guidelines, therefore, the Court of Appeals
followed a broad consensus of informed opinion.48
Espinosa v. Farah Manufacturing Co., 414 U.S. 86 (1973),
does not imply a different result. The EEOC Guideline
unsuccessfully advanced there attempted to define the scope
of Title VII’s basic proscription, id. at 92-4. In refusing to
apply the Guideline, the Court had guidance from com
pelling indications of contrary Congressional purpose.
Espinosa turned not on a matter within agency expertise
but on “judicial application of canons of statutory con
struction,” Barlow v. Collins, 397 U.S. 159, 166 (1970). In
this case, the courts should welcome EEOC’s expert
technical assistance in defining validation procedures that
carry out the statutory purpose articulated by Griggs.
The Court of Appeals’ holding that Albemarle’s valida
tion study was inadequate to satisfy EEOC and profes
sional standards (A. 516-520) is consistent with testimony
by Dr. Richard Barrett that the study fell short of pro
fessional criteria set out in the APA Standards in a num
ber of significant respects (A. 202-208).49 The Court of
Appeals centered its discussion of the validation study on
two related faults: lack of job analysis and vague stan
dards for rating job performance. Analysis of these short
comings shows both how reasonable and sensible the EEOC
Guidelines standards are, and how deficient the study was.
48 By contrast, in Fishgold v. Sullivan Dry Bock & Repair Corp.,
328 U.S. 275 (1946), on which Albemarle relies, the Court had
to choose between two conflicting agency interpretations, 328 U.S.
at 290. Moreover, the statute there construed had clear legislative
history incompatible with the construction rejected by the Court,
id.
49 Dr. Richard Barrett is an industrial psychologist whose opin
ions this Court endorsed in Griggs (A. 197).
31
Dr. Tiffin made no analysis of job content for any of the
jobs he studied (A. 174). No job descriptions had ever
been developed at the mill (A. 148-9)60 Both of plaintiffs’
expert witnesses testified, without contradiction, that care
ful job analyses are crucial to any validation study
(A. 371-2, 369, 200, 205). The EEOC Guidelines so provide,
and specify that the analysis should identify “major or
critical work behaviors,” 29 C.P.E. § 1607.5(b) (3). Without
an analysis, neither the test validator nor his raters know
what aspect of job performance, or criterion, the test is
supposed to measure, or does measure.51 Plaintiffs’ ex
perts criticized the study for failing to meet this minimum
standard (A. 386, 391, 206-7). The Fourth Circuit agreed
(A. 517-18). In the importance attributed to the absence of
job analysis, the court below has been joined by the Eighth
60 Albemarle implies that Dr. Tiffin knew the jobs at the Roanoke
Rapids Mill because of his visits to other paper mills (Br. at 38).
Without job descriptions, however, there was simply no proper
way for Dr. Tiffin to rely on that assumption. Cf. 29 C.F.R.
§1607.7 (A. 316).
61 The 1966 APA Standards characterize definition of criterion
measures “ E s s e n t i a l ,” and specify that such measures must relate
to “significant aspects of performance,” Standards, part C. 4 (A.
419-420). The 1974 Standards are even more explicit, see para
graphs E3, E3.1, E4, pp. 33-34. The Secretary of Labor’s guide
lines are to the same effect (A, 326). The professional literature
also supports the necessity for criterion definition. See e.g., Byham
& Spitzer, The Law and Personnel Testing (American Management
Association, publisher) (1971), pp. 120-1; Cronbach, Essentials
of Psychological Testing, New York: Harper & Row (1970), pp.
413-4; Guion, Personnel Testing, New York: McGraw-Hill (1965),
pp. 116-21; Anastasi, Psychological Testing, London: MacMillan
(3rd ed. 1968), pp. 417-9.
The arguments of Albemarle (Br. at 39-40) and amicus curiae
ASPA (Br. at 22-24) that no job analysis or objective rating stan
dard is necessary where ratings are on a “best overall employee”
standard are superficial. See n. 53, infra. Their arguments might
make more sense if “objective” performance criteria—such as pro
duction output—had been appropriately used. But the correla
tions in this case were based on a subjective criterion which was
not shown to measure job performance accurately.
32
Circuit, which rejected another of Dr. Tiffin’s studies in
Rogers v. International Paper Co., supra, 9 EPD at p. 6593.
Lack of any job analysis was a major cause of the con
fusion prevalent among the supervisors who rated testees’
job performance for validation purposes. Eaters were given
no meaningful criteria of performance. Dr. Tiffin testified
that the ratings measured “job performance only, not per
sonality, not attitude, those things were avoided in making
the rating” (A. 166). He later defined this standard as
meaning, “Excluding a man’s attitude, just how well the
guy can do the job when he’s feeling right” (A. 175). Albe
marle’s personnel manager, who instructed the raters, told
them to “determine which ones [employees] they felt ir
respective of the job that they were actually doing, but in
their respective jobs, did a better job than the person they
were rating against” (A. 187). Given such amorphous rat
ing standards, it is improbable that the ratings were closely
tied to such critical performance criteria as would be
identified by job analysis.
The EEOC Guidelines recognize the need for objective
and job-related standards of employee performance as
crucial to formulating any reliable validation procedure,
29 C.F.E. §1607.5(c) (3), (4). Absent such standards,
founded on job analysis, there is no guarantee that the
raters’ criterion measurements are consistent or based on
significant elements of the job.62 The danger of “bias” in
such ratings goes beyond the strictly racial dimension dis-
52 Our point is well summed up in two pithy statements from
one of the leading texts on psychological testing, Guion, Personnel
Testing, supra:
It is not enough for a prediction to measure something
reliably. What it measures must also be important (p. 51).
Judgments make better criterion measures when they avoid
glittering generalities and get down to specific behavior
(p. 104).
33
cussed by Albemarle (Br, at 42). A supervisor comparing
employees of the same race without the benefit of any
pertinent criterion descriptions may unfairly rank the
employees according to subjective or unimportant judg
ments.53 For these reasons, the Fourth Circuit was prop
erly unimpressed by Albemarle’s correlation data based on
such ratings (A. 517-8). The Eighth Circuit in Rogers,
supra, 9 EPD at p. 6594, again agreed with this analysis.
The ruling of both circuits is eminently sensible.
The Court of Appeals also rejected Albemarle’s valida
tion study because it purports, without justification, to
approve testing practices much broader than those val
idated (A. 519-520). See p. 24, supra. The Court inval
idated Albemarle’s use of testing to screen all applicants
for the “pool,” regardless of what LOP they might later
move into. Albemarle now criticizes this holding as based
on an erroneous understanding of its test usage. However,
the Court of Appeals based its holding on factual assertions
in Albemarle’s Brief on Appeal.54 Moreover, the Court of
63 Different raters may well have different subjective perceptions
of what is “best” (i.e. quantity or quality of output; attitude;
regularity and dependability, etc.). The accuracy of their ratings
will vary with their presumptions. Moreover, different jobs may
require different answers which may not be forthcoming from
raters with their own predilections. “Often a rating reflects the
personal relation between man and supervisor rather than the
quality of a man’s work.” Cronbach, Essentials of Personnel Test
ing, supra, p. 127.
54 In its brief to the Fourth Circuit, Albemarle argued,
Since Employer employs people originally into a pool or
extra board from which the employee may move into any
one of the lines of progression . . . it is not known at the time
of hire into the pool in which line the employee will be placed.
So there is nothing wrong with requiring him to be available
for any line [by test qualifications]. Brief on Appeal at p. 32.
Here, however, Petitioner argues,
Unless it is assumed that Albemarle is requiring satisfactory
test scores as a condition of employment for all applicants for
34
Appeals correctly concluded that a purported test valida
tion for some jobs would not support testing for different-
jobs in the absence of job analyses showing the two sets of
jobs related in content or similarly dependent on criteria
measured by the test, see EEOC Guidelines, 29 C.F.R.
§ 1607.4(c) (2) (A. 518-9).
C. T esting Should B e E njoined.
Albemarle argues that its testing program should not
have been enjoined even if it was properly held not demon
strably job-related (Br. at 47-50). The Company suggests
that it should have another opportunity on remand to
validate its tests properly; in the interim it would continue
to use them to screen employees.
The Company’s argument is based on the erroneous
assertion that the Fourth Circuit’s decision would allow
“no further consideration” of Albemarle’s testing program
(Br. at 48). In fact, it is always open to employers to
utilize employment tests in a manner which does not ex
clude blacks or to prove such tests job-related under proper
standards. The real issue here is whether, when adverse
impact is demonstrated and no test justification is shown,
the employer may continue to utilize tests while attempting
to validate them.
Griggs v. Duke Power Co., supra, teaches that, “[i]f an
employment practice which operates to exclude Negroes
cannot be shown to be related to job performance, the prac
tice is prohibited,” 401 U.S. at 431, and places the burden
of that showing on the test-user, id. at 432. Albemarle
would have the Court reverse those principles. Since the
the pool and thereby making the tests indirectly applicable to
lines of progression for which the tests are not validated,
there is no discrimination by reason of the tests. There is no
evidence to support that assumption. . . . (Br. at 46).
35
Company lias failed to show its tests job-related, they must
be prohibited unless and until the proper demonstration is
made.
The EEOC Guidelines narrowly define the conditions
under which unvalidated tests may be temporarily used,
29 C.F.R. § 1807.9.65 Albemarle makes no showing that it
meets these conditions. It simply seeks license to continue
to discriminate while continuing to litigate.66
The issue is one of timing. This case has been in litiga
tion nearly a decade. Four years have passed since trial.
Further proceedings may be anticipated. During this
period, Albemarle should not be free to continue its testing-
program until it has met the burden of proving it lawful.
To hold otherwise would make a generation of black em
ployees casualties of litigation which their representatives
might ultimately win, but too late to affect their employ
ment careers.
II.
Back Pay Should Be Awarded Where Discriminatory
Practices Cause Loss of Earnings and There Are No
Special Circumstances Which Render the Award Unjust.
A. Back Pay Is an A ppropriate R em edy in T itle VII
Class Actions.
The principal questions presented concerning class back
pay are the proper standard for awarding that remedy,
66 In particular, the Guidelines require that some “substantial
evidence of validity” have been presented and that further valida
tion studies likely to produce the necessary additional data be in
progress, 29 C.F.R. §1607.9(a), (b) (A. 316-7).
66 An injunction pending further litigation as to validity is
particularly appropriate in this case. The effect of Albemarle’s
presently-unvalidated testing is to perpetuate the exclusion of
black employees from jobs that before 1965 were closed to them
by overt discrimination.
36
and its application here. See arguments B, C, infra. At
the threshold to these issues, defendants argue that dis
trict courts are not authorized to award back pay to non-
plaintiff class members in any Title VII cases, and that
back pay awards are individual in character. This posi
tion has been rejected by the lower courts and by Congress.
The plaintiff class consists of persons who because of
the defendants’ segregation practices were placed in lower-
paying jobs than similarly situated white employees (see
pp. 11-12, supra). These practices adversely affected the
earnings opportunities of the class as a whole, id. A com
mon remedy—back pay in the amount lost due to discrim
ination—is sought. The discriminatory actions and the
appropriate relief are of precisely the type contemplated
by the authors of amended Buie 23, F.R.Civ.P. See Ad
visory Committee’s Note to Proposed Rules of Civil Pro
cedure, 39 P.R.D. 69, 102 (1966); Robinson v. Lorillard
Corp., 444 F.2d 791, 302 (4th Cir. 1971), cert, dismissed
404 TT.S. 1006 (1971).
The lower courts have unanimously ruled that Title VII
authorizes back pay to members of a plaintiff class. The
Third,67 Fourth,58 Fifth,69 Sixth,60 Seventh,61 and Eighth62
57 Rosen v. Public Service Gas <& Electric Co., 409 F.2d 775, 780
(3rd Cir. 1969), 477 F.2d 90, 95-6 (3rd Cir. 1973).
68 Robinson v. Lorillard Corp., supra, 444 F.2d at 802.
69 United States v. Georgia Power Co., supra, 474 F.2d at 919-21;
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1375-77
(5th Cir. 1974); Pettway v. American Cast Iron Pipe Co., 494 F.2d
211, 256-7 (5th Cir. 1974) ; Franks v. Bowman Transportation Co.,
495 F.2d 398, 421-2 (5th Cir. 1974), cert, denied 42 L.Ed.2d 644
(1974) ; Baxter v. Savannah Sugar Refining Corp., 495 F.2d 436,
442-4 (5th Cir. 1974), cert, denied 42 L.Ed.2d 308 (1974); Rod
riguez v. East Texas Motor Freight Co., 505 F.2d 40, 64-5 (5th Cir.
1974).
60 Head v. Timken Roller Bearing Co., 486 F.2d 870, 876 (6th
Cir. 1973); Meadows v. Ford Motor Co., ------ - F.2d —----, 9 EPD
37
Circuits have so held. No circuit court has held to the
contrary. District court decisions and consent decrees
awarding class back pay are commonplace.”
The Equal Employment Opportunity Act of 1972, P.L.
92-261, 86 Stat. 103, modified Title VIPs back pay pro
vision, §706(g), 42 U.S.C. §2000e-5(g), and provoked exten
sive legislative debate about the availability of class-wide
remedies. The legislative history of the 1972 amendment
demonstrates Congress’s specific approval of class rem
edies including back pay.
The 1972 Amendments originated in the House. The
bill which passed the House, the “Erlenborn bill”, H.R.
9247, specifically precluded class actions by providing that
the court could,
order such affirmative action as may be appropriate,
which may include reinstatement or hiring of em
ployees, with or without back pay . . . . No order of
the court shall require the admission or reinstatement
1[9907 (6th Cir. 1975); EEOC v. Detroit Edison Co.,----- - F .2d----- -
(6th Cir. No. 74-1007, March 11, 1975), aff’g in pert, part Stamps
v. Detroit Edison Co., 365 F. Supp. 87 (E.D. Mich. 1973).
n Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719-21 (7th Cir.
1969), 489 F.2d 896, 902-04 (7th Cir. 1973) ; Sprogis v. United Air
Lines, Inc., 444 F.2d 1194, 1201-2 (7th Cir. 1971), cert, denied 404
U.S. 991 (1971).
62 United States v. N. L. Industries, Inc.. 479 F.2d 354, 378-9
(8th Cir. 1973).
63 See, e.g., decisions in Laffey v. Northwest Airlines, Inc., 7 EPD
1(9277 (D. D.C. 1974), entering order following 366 F. Supp. 763
(D. D.C. 1973); Bussell v. American Tobacco Co., 374 F. Supp
286, 300 (M.D. N.C. 1973) ; Cooper v. Philip Morris, Inc., 9 EPD
K9929 (W.D. Ky. 1974) ; Myers v. Gilman Paper Co., 9 EPD 1(9920
(S.D. Ga. 1975); Bush v. Lone Star Steel Corp., 373 F. Supp. 526,
536 (E.D. Tex. 1973) ; Patterson v. American Tobacco Co., 8 EPD
1(9722 (E.D. Va. 1974); and consent decrees cited at p. 57, n.120,
infra.
38
of an individual . . . or the payment to him of any
hack pay, if such individual . . . neither filed a charge
nor was named in a charge or amendment thereto. . . .
(emphasis supplied)64
Senator Williams introduced a bill in the Senate, S.2515,
which did not place any such restriction on class actions.65
The Senate Committee on Labor and Public Welfare re
ported out the Williams bill on October 28, 1971 with rec
ommendation that it pass, 117 Cong. Rec. 38030.66 The
Committee Report on Section 706(d) of the bill (dealing
with EEOC Commissioners’ charges) states:
This section is not intended in any way to restrict
the filing of class complaints. The committee agrees
with the courts that Title VII actions are by their
very nature class complaints,16 and that any restric
tion on such actions would greatly undermine the ef
fectiveness of Title VII. S.Rep. 415 at 27, 92nd Cong.
1st Sess. (1971) (emphasis supplied.)67
64 Two different bills were introduced in the House, early in 1971
the “Hawkins” bill, H.R. 1746, and the “Erlenborn” bill, 117 Cong
Ree. 212, 20622. The Hawkins bill did not contain any language
restricting class action remedies,
66 Senator Dominick introduced as S.2617 the Brlenborn bill
which had been passed in the House, 117 Cong. Rec. 34104. There
S.2617 was debated as an alternative to the Williams bill.
66 The same Committee also reported out the Erlenborn language,
in the Dominick bill (S.2617), but without recommendation fox-
passage, 117 Cong. Rec. 38030.
67 Note 16 cited, inter alia, Oatis v. Crown-Zellerhach Corp., 398
F.2d 496 (5th Cir. 1968), and Local 186, International Brotherhood
of Pulp, Sulphite & Paper Mill Workers v. Minnesota Mining and
Manufacturing Go., 304 F. Supp. 1284 (N.D. Ind. 1969). In Oatis,
the court held that class members need not have filed EEOC charges
in order to participate as co-plaintiffs so long as one class repre
sentative had so filed and the other class members assert common
issues, 398 F.2d at 499.
39
Similarly, Senator Williams placed in the record a Sec-
tion-by-Section Analysis explaining the changes later made
in his bill on the floor.68 The analysis of §706(f) (1) (au
thorizing EEOC to sue in district court to enforce Title
VII) states:
In establishing the enforcement provisions under this
subsection and subsection 706(f) generally, it is not
intended that any of the provisions contained therein
are designed to affect the present use of class action
lawsuits under Title VII in conjunction with Rule 23
of the Federal Rules of Civil Procedure. The courts
have been particularly cognizant of the fact that claims
under Title VII involve the vindication of a major
public interest, and that any action under the Act in
volves considerations beyond those raised by the indi-
vidual claimant. As a consequence, the leading cases
in this area to date have recognized that Title VII
claims are necessarily class complaints and that, accord
ingly, it is not necessary that each individual entitled
to relief under the claim be named in the original
charge or in the claim for relief. 118 Cong. Rec. 4942
(1972) (emphasis supplied)
The Williams bill thereupon passed the Senate, 118 Cong.
Rec. 4944 (1972).
In reconciling S.2515 with H.R. 1746 the Conference
Committee adopted the Senate position on class actions.
The Section-by-Section Analysis of the Committee’s agree
ment recites the language quoted just above in its entirety
and adds: “A provision limiting class actions was con-
68 A compromise between Senators Dominick and Williams on
other contested provisions led to the substitution of an amendment
by Senator Dominick (No. 884, 118 Cong. Rec. 3808 (1972)), which
replaced the pertinent provisions of the Williams bill, but which
did not add any restrictions on class actions.
40
tained in the House Bill and specifically rejected by the
Conference Committee,” 118 Cong. Bee. 7168, 7565 (1972).69
Both chambers accepted this compromise bill, 118 Cong.
Rec. 7170, 7573 (1972).
The back pay issue was in the forefront during Con
gress’s consideration of class remedies under §706 (g).
Thus, Rep. Erlenborn on September 15, 1971 justified his
limiting language by asserting that it would diminish un
wanted back pay exposure.70 Rep. Abzug, arguing in
opposition to the Erlenborn limitation, also stressed the
importance of the monetary award to effective class relief.71
Moreover, the Senate Committee that eliminated the Erlen
born language cited with approval a class back pay case,
69 The Analysis also provides that,
In any area where the new law does not address itself, or
in any ̂areas where a specific contrary intention is not indi
cated, it was assumed that the present case law as developed
by the courts would continue to govern the applicability and
construction of Title VII. 118 Cong. Bee. 7168, 7565 (1972).
By this time, the Courts of Appeals had clearly indicated that
class back pay awards are appropriate. See n.84, infra.
70 “We have class actions where the Commission admittedly
encourages individual complainants to file suit on their own
behalf and for the entire class that may he similarly affected.
This, plus the liability of backpay without limitation, would
create an horrendous potential liability. We would provide a
limitation on liability through a 2-year statute of limitations
We would also provide in the class action a limitation so
that' those who join in the class action or those who by timely
motion to intervene coidd he considered as the proper class,
hut not all who may he similarly situated but who are not
even aware of the fact that a case has been filed . . . . ” 117
Cong. Rec. 31973-4 (.1971) (emphasis supplied).
71 “The structure and pattern of employment discrimination will
remain untouched unless large numbers of workers are af
fected. An award in favor of one complainant will do little
to discourage an employer bent on discriminating against a
class of employees, but an award—or even the possibility of
an award—on behalf of an entire class can effectively dis
courage this kind of unlawful discrimination.” 117 Cong
Bee. 32097 (1971).
41
Local 186, International Brotherhood of Pulp, Sulphite &
Paper Mill Workers v. Minnesota Minimg and Manufactur
ing Co., 304 F. Supp. 1284, 1285, 1295 (N.D. Ind. 1969), see
n. 67, supra.
In the face of this explicit legislative history, Albemarle
and Local 425 argue that class-wide monetary relief is
impermissible because it conflicts with Title VII’s policy
favoring conciliation of complaints (Co. Br. at 63, U. Br.
at 31-33). Defendants both ignore the plain history, supra,
and distort the Congressional intent when they elevate
preference for conciliation to a remedial bar.
Although in enacting Title VII Congress hoped to facili
tate the informal resolution of complaints through con
ciliation, the courts have consistently held that actual
conciliation of EEOC complaints is not a prerequisite to
suit under Title VII.72 The Congressional purpose is ful
filled by requiring the charging party to file a complaint
with EEOC and directing EEOC to serve the complaint
on the respondent and offer its conciliation services, 42
U.S.C. §2000e-5(b).73 An EEOC charge filed by an indi
vidual, which complains of practices of discrimination, sat
isfies Congress’s intention of providing an opportunity for
conciliation and, therefore, provides the basis for a Title
VII class action, for the reasons set forth by the Fifth
Circuit:
72 Johnson v. Seaboard Air Line Railroad Co., 405 F.2d 645,
648-53 (4th Cir. 1968), cert, denied 394 U.S. 918 (1969) ; Dent v.
St. Louis-San Francisco Railway Co., 406 F.2d 399, 402-3 (5th
Cir. 1969), cert, denied 403 U.S. 912 (1971).
73 After filing his charge and allowing the conciliation period to
run, the charging party need only receive a “right to sue” letter
from EEOC in order to initiate suit under Title VII. 42 U.S.C.
§2000e-5(f) (1) ; McDonnell-Douglas Corp. v. Green, 411 U.S. 792,
798-9 (1973) • Alexander v. Gardner-Denver Co., 415 U.S 36 44-5
(1974).
42
It would be wasteful, if not vain, for numerous em
ployees, all with the same grievance, to have to process
many identical complaints with the EEOC. . . .
* * # # *
Racial discrimination is by definition class discrimina
tion, and to require a multiplicity of separate, identical
charges before the EEOC, filed against the same em
ployer, as a prerequisite to relief through resort to the
court would tend to frustrate our system of justice
and order.74
Albemarle and Local 425 offer no evidence in support of
their hypothesis that allowing class back pay would hinder
conciliation. Both reason and experience refute that asser
tion, see pp. 57-59, infra. In any event, Congress has spoken
clearly to their point, and expiicity rejected it.75
Albemarle also argues that the class back pay remedy
improperly extends the federal jurisdiction (Br. 62, 66). It
relies on two diversity decisions, Snyder v. Harris, 394 U,S.
332 (1969), and Zahn v. International Paper Go., 414 U.S.
291 (1973), that turn on the meaning of the “amount in con
troversy” requirement, 28 U.S.C. §1332(a). These cases
have no bearing on a case brought under federal civil rights
jurisdiction, 28 U.S.C. §1343. Respondents have met all the
74 Oatis v. Crown-Zellerbach Corp., supra, 398 F.2d at 498.
Accord: Bowe v. Colgate-Palmolive Co., supra, 416 F.2d at 720.
These remarks are particularly compelling in light of EEOC’s
huge and growing backlog of complaints, which already seriously
interferes with its conciliation function.
Furthermore, despite its preference for conciliation, Congress
intended that the ultimate responsibility for enforcing Title VII
would repose in the courts and that the judicial remedy should be
prompt and efficacious, 42 U.S.C. §20Q0e-5(f) (4), (5), Alexander
v. Gardner-Denver Co., supra, 415 U.S. at 36 (1974).
75 At least after the 1972 legislative activity, class back pay
cannot fairly be labelled a “court-made rule” (ef. Co. Br. 63).
43
requirements of Title VII jurisdiction, 42 U.S.C. §2000e-
5(f)(1), see n. 73, supra (A. 475).76
This Court should confirm the judgment of six circuits
that class hack pay is available in an appropriate Title VII
action.
B. A Standard D irecting District Courts to E xercise T heir
D iscretion to Award Back Pay U nless T here Are Spe
cial Circum stances W hich Make the Award U njust Is
A ppropriate in Light o f the Clear Statutory P urpose
o f Title VII.
The district court denied back pay to black workers de
spite finding that the defendants’ discriminatory practices
relegated blacks to the lower-paying jobs and denied them
equal promotional opportunity. The district court in deny
ing back pay under these circumstances ruled as if the
statutory purposes of Title VII placed no constraints on
the exercise of its discretion to deny back pay'-. The Fourth
Circuit, however, enunciated and applied a standard based
on the purpose of the applicable statutory provisions.
Thus, a plaintiff or a complaining class who is suc
cessful 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.
474 F. 2d at 142; A. 524. The Fifth77 and Sixth78 Circuits
76 Cf. Sosna v. Iowa, 42 L.Ed.2d 532, 549 n.l (1975), Mr. Jus
tice White, dissenting.
77 Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at
1375; Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d
at 251; Pranks v. Bowman Transportation Co., supra, 495 F.2d at
421; Baxter v. Savannah Sugar Refining Corp., supra, 495 at 442-
43; see United States v. Hayes International Corp., 456 F.2d 112
121 (5th Cir. 1972).
78 Head v. Timken Roller Bearing Co., supra, 486 F.2d at 876;
Meadows v. Ford Motor Company,----- F .2 d -------- , 9 E PD ([9907
(6th Cir. 1975) at pp. 6766-7.
44
have adopted the same standard as the Fourth, while the
Third79 and Seventh80 Circuits have expressly stated that
hack pay should normally be awarded to Title VII plain
tiffs who suffer economic loss as a result of discriminatory
practices.81
The standards established by the Fourth, Fifth, and
Sixth Circuits serve the important function of ensuring
that the Congressional purpose embodied in Title VII is
implemented by the district courts. It is clearly appro
priate, as the Fourth Circuit stated, that
in determining the proper scope of the exercise of
discretion, the objective sought to be accomplished by
the statute must be given great weight. Hecht Co. v.
79 Rosen v. Public Service Electric and Gas Company, supra, 477
F.2d at 96; Jurinko v. Wiegand Co., 477 F.2d 1036, 1046 (3rd Cir.
1973), vacated on other grounds, 414 U.S. 970 (1973), reinstated
497 F.2d 403 (3rd Cir. 1974).
80 Bowe v. Colgate-Palmolive Company, supra, 416 F.2d at 720;
Sprogis v. United Air Lines, Inc., supra, 444 F.2d at 1201-02.
81 The Eighth Circuit has stated that awards of back pay are
important in order to eliminate “the last vestiges of an unfortunate
and ignominious page [employment discrimination] in this coun
try’s history.” United States v. N. L. Industries, 479 F.2d 354, 379
(8th Cir. 1973). However, the Eighth Circuit further stated that,
[djespite what we have said as to the appropriateness of back
pay, we do not make such an award here. In this Circuit the
law in regard to back pay has not been adequately defined to
provide employers and unions with notice that they will be
liable for a discriminatee’s economic losses. . . . (emphasis
added)
Id., 479 F.2d at 380; see also Norman v. Missouri Pacific Railroad,
497 F.2d 594, 597 (8th Cir. 1974), cert, denied 43 LW 3416 (1975),
but see United States v. St. Louis-San Francisco Ry. Co., 464 F.2d
301 (8th Cir. en banc 1972), cert, denied 409 U.S. 1107 (1973).
Even accepting the Eighth Circuit’s description of the state of
the law as “unsettled,” the denial of back pay for that reason was
clearly improper in light of this Court’s statement that “a eourt is
to apply the law in effect at the time it renders its decision . ”
Bradley v. Richmond School Board, 416 U.S. 696, 714 (1974).
45
Bowles, 321 U.S. 321, 331, . . . Where a district court
fails to exercise discretion with an eye to the purposes
of the Act, it must he reversed. Wirtz v. B.B. Saxon
Co., 365 F.2d 457 (5th Cir. 1966), Shultz v. Parke, 413
F.2d 1364 (5th -Cir. 1969). 474 F. 2d at 141-2 (A.
523).82
The Fourth Circuit concluded that a “clear purpose” of
Title YII is to compensate workers for economic loss suf
fered as a result of unlawful employment practices. This
conclusion is fully supported by judicial authority and the
legislative history. It would he anomalous if Congress out
lawed discrimination in employment without intending full
relief for those who suffered from discrimination. Cf.
Louisiana v. United States, 380 U.S. 145, 154 (1965). The
decisions of the Courts of Appeals have unanimously held
that compensation for economic harm is a fundamental
part of Title VII’s purpose.88 Moreover, Congress in re
viewing the remedy of hack pay during the process of
amending Title VII in 1972, ratified the interpretation of
the Courts of Appeals which had held that back pay was
82 See Mitchell v. Robert de Mario Jewelry, Inc., 361 U.S. 288,
291-2 (1960), discussed infra at pp. 52-53.
83 See e.g., United States v. Georgia Power Company, supra, 474
F.2d at 921:
Given this Court’s holding that ‘[aln inextricable part of the
restoration to prior [or lawful] status is the payment of back
wages . . . it becomes apparent that this form of relief may
not properly be viewed as a mere adjunct of some more basic
equity. I t is properly viewed as an integral part of the whole
of relief . . .
Rosen v. Public Service Electric and Gas Company, supra, 477 F.2d
at 96; Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d
at 252; Head v. Timken Roller Bearing Company, supra, 486 F.2d
at 876; see United States v. N. L. Industries, supra, 479 F.2d at
379; see also Pettit v. United States, 488 F.2d 1026, 1031-2 (U.S.
Ct. Cls. 1973); Mize v. State Division of Human Rights, 33 N.Y.2d
53, 56, 349 N.Y.S.2d 364, 366 (N.Y. Ct. of Appeals, 1973).
46
an integral part of the relief which Congress intended.84
Congress considered several questions concerning back pay
in 1972; specifically, Congress considered amendments pro
posing to bar back pay in class actions,85 to require a jury
trial for Title VII cases involving back pay,86 and to im
pose a restrictive statute of limitations.87 In approving
class actions, rejecting jury trials, and selecting a more
liberal statue of limitations Congress showed a consistent
purpose to make Title VII’s remedial provisions, par
ticularly back pay, apply broadly to afford relief from
discrimination.8 8
84 Bowe v. Colgate-Palmolive Company, 416 F.2d 711, 720 (7th
Cir. 1969) ; Johnson v. Georgia Highway Express, Ine., 417 F.2d
1122, 1125 (5th Cir. 1969) ; Robinson v. Lorillard Corp., 444 F.2d
791, 802-04 (4th Cir. 1971), cert, dismissed 404 U.S. 1006 (1971) ;
Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1202 (7th Cir!
1971), cert, denied 404 U.S. 991 (1971).
85 See pp. 37-40, supra.
86 The Senate rejected Amendment No. 908, introduced by Sen
ator Ervin, which would have required a jury trial in Title VII
cases. 118 Cong. Rec. 4917, 4919-20 (1972) (remarks of Senators
Ervin and Javits).
87 The Erlenborn bill, H.R. 1746, which passed the House, had
contained a provision, section 3(e), limiting back pay liability to
two years before the filing of the complaint in court. The Williams
Bill, S.2515, which passed the Senate contained a provision limiting
liability to a period no longer than two years prior to a filing of
a charge with the EEOC. See S.2515, §706(g) (2) ; 118 Cong. Rec.
4942 (1972) (explanation by Senator Williams). The Conference
Committee adopted the more liberal Senate provision. 118 Cong.
Rec. 7168 (1972) (Section-by-Section Analysis of the Conference
Committe). See 42 U.S.C. §2000e-5(g).
88 While Title VII did not previously have a specific statute of
limitations, courts could in their discretion look to state statutes
of limitations and other factors in determining the appropriate
limits for back pay liability. Congress in specifying a liberal stat
ute of limitation, which is tolled by the filing of an administrative
charge rather than a later judicial complaint, provided for sub
stantial back pay awards. See Sape and Hart, Title V II Recon
sidered: The Equal Employment Opportunity Act of 1972 40
Geo. Wash. L. Rev. 824, 882-83 (1972).
47
Tihe Conference Commitee in its Section-by-Section
Analysis made it patently clear that §706(g) was designed
to afford full relief.
The provisions of this subsection are intended to
give the courts wide discretion exercising their equi
table powers to fashion the most complete relief pos
sible. In dealing with the present section 706(g) the
courts have stressed that the scope of relief under that
section of the Act is intended to make the victims of
unlawful discrimination ivhole, and that the attain
ment of this objective rests not only upon the elim
ination of the particular unlawful employment prac
tice complained of, but also requires that persons
aggrieved by the consequences and effects of the un
lawful employment practice be, so far as possible,
restored to a position where they would have been
were it not for the unlawful discrimination (emphasis
supplied). 118 Cong. Rec. 7168 (1972); see also 118
Cong. Rec. 4942 (1972) (Section-by-Section Analysis
introduced into Record by Sen. Williams).
Defendants’ argument that the discretion of the district
courts may be used arbitrarily to deny “the most complete
relief possible” from the economic effects of discrimination
is therefore directly contrary to Congress’ express pur
pose. That purpose would be frustrated if district courts
could, as a matter of discretion, contravene the Congres
sional intent by ruling that back pay is not an essential
part of relief. Rather, the statutory purpose requires,
that where employment discrimination has been clearly
demonstrated . . . victims of that discrimination must
be compensated if financial loss can be established.
. . . To implement the purposes behind Title VII, a
court should give ‘a wide scope to the act in order to
48
remedy, as much as possible, the plight of persons
who have suffered from discrimination in employment
opportunities’, (footnote omitted)
Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d
at 1375.89
A similar Congressional purpose underlies the award of
back pay to victims of unlawful employment practices un
der the National Labor Relations Act, U.S.C. §§151 et seq.
The NLRA back pay remedy is particularly pertinent to
the construction of the Title VII provision. As the similar
ity in language between the remedial sections of the two
statutes would suggest,90 the legislative history of Title
VII plainly indicates that the NLRA back pay remedy
served as a model for drafting Title VII.91
89 See cases cited in nn.83, 84, supra.
90 Section 10(c) of the NLRA, 29 U.S.C. §160(c) authorizes
“affirmative action including reinstatement of employees with or
without back pay . . . ” (emphasis added); Section 706(g) of
Title VII, 42 U.S.C. §2000e-5(g) is closely parallel, authorizing
“such affirmative action as may be appropriate, which may include,
but is not limited to, reinstatement or hiring of employees, with
or without back pay. . . . ” (emphasis added).
91 On March 30, 1964 Senator Humphrey, one of the principal
sponsors of the bill, stated that:
The relief sought in such a suit would be an injunction
against future acts or practices of discrimination, but the
court could order appropriate affirmative relief, such as hir
ing or reinstatement of employees and the payment of back
pay. This relief is similar to that available under the National
Labor Relations Act. . . .
110 Cong. Rec. 6549 (1964). See also 110 Cong. Rec. 7214 (1964)
(Interpretative Memorandum placed into the Record by Senators
Clark and Case) ; H.R. Rep. No. 914, 88th Cong. 1st Sess. 112
(1963) ; see United States v. Georgia Power Company, supra, 474
F.2d at 921 n.19; Pettway v. American Cast Iron Pipe Company,
supra, 494 F.2d at 252; Developments in the Law—Employment
Discrimination and Title V II of the Civil Rights Act of 1974,
49
Beginning with Phelps Dodge Corp. v. NLRB, 313 U.S.
177 (1941), this court has emphasized the importance of
back pay in cases brought pursuant to the NLRA. While
Phelps decided several important questions concerning the
application of the NLRA, it involved only a narrow compu
tational issue concerning back pay.92 The Court in Phelps
stressed the importance of back pay awards even though
the propriety of such award was not directly at issue:
Making the workers whole for losses suffered on ac
count of an unfair labor practice is a part of the vindi
cation of the public policy which the Board enforces.
84 H akv. L. Rev. 1109, 1259 n.349 (1971); Davidson, “Back Pay”
Awards Under Title VII of the Civil Rights Act of 1964, 26
Rutgers Ij. Rev. 741, 742-43 (1973). See also n.92, infra.
82 The NLRB had ordered back pay to specific workers equal to
what they would have earned absent the unlawful conduct of the
company less their actual earnings. The Second Circuit modified
the formula for calculating back pay by deducting earnings which
the workers “failed without excuse to earn”.
The NLRB appealed the modification of its formula for cal
culating back pay because it argued that the Second Circuit’s
formula would create administrative difficulties. The Supreme
Court rejected the Board’s arguments stating that there need not
be “stereotyped formulas” for computing back pay and that the
Board has discretion to derive formulas which will “attain just
results in diverse situations.” Phelps Dodge Corp. v. NLRB, supra
at 198.
The defendants inappropriately rely on this language in sup
port of their position that district courts have practically un
fettered discretion to deny back pay. Co. Br. at 52; U. Br. at 28;
see also the dissenting opinion of Judge Boreman, 474 F.2d at 145
(A. 529-30).
It should be noted that Congress in structuring the Title VII
back pay provision on the NLRA provision incorporated NLRA
case law concerning the calculation of back pay awards, as first
expressed in Phelps, into §706(g) of Title VII, 42 U.S.C. §2000e-
5(g) ■■
Interim earnings or amounts earnable with reasonable dili
gence by the person or persons discriminated against shall
operate to reduce the back pay otherwise allowable.
50
Id. at 197-98.98 The Supreme Court has consistently ad
hered to this principle,94 and the Courts of Appeals95 and
the NLRB96 have consistently applied it.97
93 Moreover, the actual holding of the Court in Phelps reversed
the exercise of discretion by the NLRB in calculating the amount
of the back pay award. This ruling directly supports the Fourth
Circuit’s decision that the discretionary rulings of the district
court may not be upheld if they are contrary to the purposes of
the statute.
94 See e.g., Nathanson v. NLRB, 344 U.S. 25, 27 (1952) NLRB
v. Seven Up Bottling Co., 344 U.S. 344, 347 (1953); Mastro
Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956); NLRB v.
Rutter-Rex Manufacturing Co., 396 U.S. 258, 263 (1969).
95 See e.g., NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178
(2nd Cir. 1965) cert, denied 384 U.S. 972 (1966); Buncher v.
NLRB, 405 F.2d 787, 790-91 (3rd Cir. en banc 1969), cert, denied
396 U.S. 828 (1969) ; NLRB v. International Union of Operating
Engineers, Local 925, 460 F.2d 589, 599 (5th Cir. 1972) ; Bon
Hennings Logging Company v. NLRB, 308 F.2d 548, 555-56 (9th
Cir. 1962) ; NLRB v. Rice Lake Creamery Co., 365 F.2d 888, 891
(D.C. Cir. 1966).
96 The NLRB policy of routinely awarding back pay has been
consistently followed. In its very first published order, the Board
awarded back pay, Pennsylvania Greyhound Lines, Inc., 1 NLRB
1, 51 (1935), enf’d sub nom. NLRB v. Pennsylvania Greyhound
Lines, Inc., 303 U.S. 261 (1938). From the first, the Board
envisaged the “development of a practically uniform policy with
respect to these orders requiring affirmative action.” NLRB An
nual Report, Yol. 1 (1936), p. 124. That policy has been that,
“in all but a few cases involving discriminatory discharges, dis
criminatory refusals to employ or reinstate, or discriminatory de
motions in violation of Section 8, subdivision (3), of the Act, the
Board has ordered the employer to offer reinstatement to the
employee discriminated against and to make whole such employee
for any loss of pay he has suffered by reason of the discrimination.”
NLRB Annual Report, Yol. 2 (1937), p. 148. See also N.L.R.B.
v. A.P.W. Products Co., 316 F.2d 899, 904-905 (2nd Cir. 1963).
enfing 137 NLRB 25 (1962).
97 The broad application of “back pay” under the NLRA is
particularly significant because, “if a word is obviously trans
planted from another legal source, whether the common law or
other legislation, it brings the old soil with it,” Frankfurter,
Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527,
537 (1947).
51
Albemarle argues that Congress altered its original
intention to model the Title VII back pay provision after
the NLRA. when it passed an amendment introduced by
Senator Dirksen (Br. 52).98 Congress’ clear intent to base
the Title VII remedy on the- NLRA remedial provision
was in no way affected by the Dirksen amendment. Sec
tion 706(e) of H.R. 7152, the predecessor of Title VII’s
5706(g) provided as follows:
If the court finds that the respondent has engaged
in or is engaging in an unlawful employment practice
charged in the complaint the court may enjoin the
respondent from engaging in such unlawful employ
ment practices, and shall order the respondent to take
such affirmative action, including reinstatement or hir
ing of employees, with or without back pay . . . as
may be appropriate, (emphasis added)
110 Cong. Rec. 12814 (1964). The Dirksen amendment,
in substance, simply changed the “shall”, emphasized above,
to “may”.99 Since the bill had already contained the pro
visions “with or without back pay” and “as may be appro
priate”,100 the change of “shall” to “may” was, as Senator
Humphrey explicitly stated, “a minor language ehang'e”
which simply clarified the statute.101
98 Substitute amendment No. 656; see 110 Cong. Rec. 12807-20
(1964).
99110 Cong. Rec. 12814 (1964) ; see 110 Cong. Ree. 12819 (1964).
100 These provisions were, of course, in the bill when Senators
Case, Clark and Humphrey stated that the back pay remedy was
modelled on the NLRA, see footnote 91, supra. Also the sponsors
of Title VII did not talk in mandatory terms, but rather stated
that back pay “could” be awarded.
101110 Cong. Rec. 12723-24 (1964) (remarks of Senator Hum
phrey).
52
The Court’s implementation of the Fair Labor Standards
Act of 1938, 29 U.S.C. §201 el seq., provides further
guidance as to the purposeful exercise of discretion by
the federal courts in designing remedies for violations of
Title VII. In Mitchell v. Robert de Mario Jewelry, Inc.,
361 U.S. 288 (1960), the district court, relying on its dis
cretion, had denied compensatory relief to employees who
had been unlawfully discharged.102 In reversing a Court
of Appeals affirmance Mr. Justice Harlan first reviewed
the purpose which should guide the use of equitable dis
cretion by the federal courts:
When Congress entrusts. to an equity court the en
forcement of prohibitions contained in a regulatory
enactment, it must be taken to have acted cognizant
of the historic power of equity to provide complete
relief in light of the statutory purposes. As this
Court long ago recognized, ‘there is inherent in the
Courts of Equity a jurisdiction to . . . give effect to
the policy of the legislature’. 361 U.S. at 291-92 (cita
tions omitted)
Justice Harlan then concluded that “because of what we
have found to be the statuory purposes there is doubt
less little room for the exercise of discretion not to order
reimbursement,” 361 U.S. at 296.103 That case is espe-
102 The Company discharged several employees because they
filed complaints with the Secretary of Labor. This discharge vio
lated 29 U.S.C. §215(a) (3). See Mitchell v. Robert De Mario
Jewelry, Inc., 260 F.2d 929, 930 (5th Cir. 1958).
103 See Porter v. Warner Holding Co., 328 U.S. 395, 397-99
(1946) (this opinion is relied on by the Court in Mitchell v.
Robert de Mario Jewelry, Inc., supra).
The Supreme Court has similarly directed that the discretion of
the federal courts in enforcing the Securities Exchange Act of
1934, 15 U.S.C. §§77b et seq. should be exercised towards provid
ing full and complete relief from violations and towards effectuat
ing the public policy of the Act. J.I. Case Co. v. Borah, 377 U.S.
426, 433-34 (1964).
53
cially compelling here, since the pertinent FLSA provi
sion did not even specifically authorize back pay,104 as
Section 706(g) of Title YII does.
In addition to insuring that the district courts properly
implement the Congressional purpose expressed in Title
VII, the standard established by the Fourth Circuit im
plements another essential function: to insure that the
decisions of the district courts within the circuit are con
sistent. If the Court of Appeals did not establish a gen
eral guide for the district courts to follow in exercising
their discretion then, cases arising within the same juris
diction on all but identical facts could lead to opposite
results, as they did before the enunciation of standards
by the Fourth, Fifth and Sixth Circuits. Judge Craven
properly phrased this problem:
The question then is whether, in light of the broad
aims of Title VII, this Court may affirm the oppo
site result as to back pay on similar factual situations
because such award rests in the discretion of the dis
trict judge. 474 F.2d at 141 (A. 522)
The standards established by the Fourth, Fifth and Sixth
Circuits serve to eliminate fundamentally inconsistent ap
plications of Title VII.106 The standards of the Fourth,
104 29 U.S.C. §217, §17 of the Fair Labor Standards Act of
1938, provides only for prohibitory injunctive relief.
105 A dramatic example of such a fundamental inconsistency of
judicial application is demonstrated by comparing the district
courts’ opinions in the instant case and in Robinson V. Lorillard
Corp., supra, aff’g 319 F.Supp. 835 (M.D. N.C. 1970). These two
eases presented startlingly similar issues of fact and la.w. In
both cases a principal issue was the departmental seniority sys
tem which perpetuated the discriminatory effects of the past seg
regated job assignments. Both cases also presented closely analo
gous defenses of “good faith” and “waiver” by plaintiffs. In this
case the district court accepted those defenses, whereas the dis-
54
Fifth, and Sixth Circuits quite properly direct district
courts to implement Title VII consistently with the pur
pose and policy Congress intended. The standards do not,
in any sense, remove all discretion from the district courts.
The district courts retain discretion to avoid unjust re
sults,106 to fashion remedies which effectively terminate
discriminatory practices and their effects,107 and to select
the most efficient and equitable remedies.108
As an example of proper discretion, Judge Craven indi
cated that an award of back pay in cases involving female
protective law statutes would be unjust, 474 F.2d at 142
(A. 524).109 The Courts of Appeals have held that these
statutes are invalid under Title VII but have denied both
triet court in Robinson awarded back pay after specifically re
jecting the two defenses.
Similar inconsistent decisions were rendered by district courts
in the Fifth and Sixth Circuits before those Circuits established
standards guiding the exercise of discretion. Compare Bush v.
Lone Star Steel Corporation, 373 F.Supp. 526, 536-37 (E.D.
Tex. 1973), with Johnson v. Goodyear Tire & Rubber Company, 349
F.Supp. 3 (S.D.Tex. 1972), rev’d 491 F.2d 1364 (5th Cir. 1974) ;
compare United States v. Bricklayers, Local No. 1, 5 EPD ^8480
('W’.D. Tenn. 1973), aff’d sub nom United States v. Masonry Con
tractors Ass’n of Memphis, Inc., 497 F.2d 871 (6th Cir. 1974), with
Head v. Timken Roller Bearing Company, 6 EPD TJ8679 (S.D. Ohio
1972), rev’d 486 F.2d 870 (6th Cir. 1973).
106 See, e.g., 474 F.2d at 142, A. 523-4.
107 Louisiana v. United States, 380 U.S. 145, 154 (1965) ; Green
v. School Board of New Kent County, 391 U.S. 430, 439 (1968);
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1,
15, 21 (1971).
108 See pp. 55-56, infra.
109 The factual patterns in all these cases are similar. Prior to the
application of Title VII many states had female protective laws
which limited the employment conditions of women, such as the
hours that women might work. Consequently, an employer’s adher
ence to these mandatory statutes resulted in reduced employment
opportunity and wages for women.
55
injunctive relief and back pay.110 The rationale for the
denial of all relief—a,part from a declaration that the pro
tective law is invalid—is the established principle that state
statutes are entitled to the presumption of validity until
there has been a judicial declaration to the contrary. See
e.g., Davies Warehouse Co. v. Bowles, 321 U.S. 144, 153
(1944).111 The Fourth Circuit has also recognized that dis
trict courts under the Moody standard would have discre
tion to deny back pay in other circumstances in order to
avoid an unjust result, See e.g., Lea v. Cone Mills Corp.,
301 F.Supp. 97,102 (M.D.N.C. 1969), aff’d in pertinent part
438 F.2d 86 (4th Cir. 1971); Roberts v. Hermitage Cotton
Mills, Inc., 8 EPD H9589 (D.S.C. 1973), aff’d 498 F.2d 1397
(4th Cir. 1974).
Moreover, the district courts have the discretion, and this
is the heart of equitable discretion, to formulate relief that
will both effectively remedy violations of Title VII and
apply fairly to the pertinent employment system.112 Dis
trict courts properly exercise their discretion when they
seek to insure both an effective remedy and an equitable
110 Kober v. Westinghouse Electric Corporation, 480 F.2d 240
(3rd Cir. 1973); Le Blanc v. Southern Bell Telephone and Tele
graph Co., 460 F.2d 1228 (5th Cir. 1972), cert, denied 409 U.S.
990 (1972) ; Manning v. General Motors Corp., 466 F.2d 812 (6th
Cir. 1972), cert, denied 409 U.S. 1086 (1973); Bosenfeld v. Southern
Pacific Company, 444 F.2d 1219 (9th Cir. 1971) ; hut see Schaeffer
v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9t.h Cir. 1972).
111 Clearly, “good faith” reliance on a state protective law statute
is fundamentally different from the assertions of “good faith”
made by the defendants. Therefore, it is inapposite for the defen
dants to rely on Kober v. Westinghouse Electric Corporation, supra,
a typical female protective law case. Co. Br. at 54 n.56, 61 n.67;
U. Br. at 19, 31. See n.126, infra.
112 See In t’l Ass’n of Heat, Frost & Asbestos Workers Local 53
v. Vogler, 407 F.2d 1047, 1052-53 (5th Cir. 1969) ; Yogler v. Mc
Carty, Inc., 451 F.2d 1236, 1238 (5th Cir. 1971); TJnited States v.
Ironworkers Local 86, 443 F.2d 544, 553 (9th Cir. 1971) cert,
denied 404 U.S. 984 (1971).
56
result for all the concerned employees and parties. Accord
ingly, courts may in some situations apply prospective
compensatory relief rather than injunctive relief,113 or
compensatory training programs,114 or particular rather
than general revisions in the seniority system.115 Lastly,
district courts have broad discretion to determine appro
priate methods for the calculation of earnings lost as a re
sult of discrimination,116 and to allocate back pay liability
among the defendants.117
The Fourth Circuit’s standard which properly guides
the district courts toward fair results does not, as defen
dants contend, conflict with the decision in Curtis v. Loe-
ther, 415 U.S. 189 (1974), (Co. Br. at 26, 53; TJ. Br. at 19,
23, 25). The issue in Curtis was whether the Seventh
Amendment required a jury trial for an award of monetary
relief pursuant to §812 of the Civil Bights Act of 1968, 42
U.S.C. §3612. The Court distinguished lower court deci
sions that a jury trial was not required by the back pay
remedy of Title VII by stating, inter alia, that “the deci-
113 See e.g., Note, Title VII, Seniority Discrimination and the In
cumbent Negro, 80 H arv. L. Rev. 1260, 1281-2 (1967); United
States v. United States Steel Corporation, 371 F. Supp. 1045, 1060
(N.D. Ala. 1973).
114 See e.g., Buckner v. Goodyear Tire & Rubber Company, 339
F. Supp. 1108, 1124-5 (N.D. Ala. 1972), ajf’d per curiam 476 F.2d
1287 (5th Cir. 1973) ; National Organization of Woman v. Bank
of California, 6 EPD ff8867 (N.D. Cal. 1973), p. 5675.
115 See e.g., Meadows v. Ford Motor Company, supra, 9 EPD at
pp. 6771-72.
116 Back pay only includes “actual” losses in pay, 474 F.2d at
142, A. 524. For a thorough discussion of the methods available
to the district court, in its discretion, for the calculation of back
pay, see Pettway v. American Cast Iron Pipe Company, supra, 494
F.2d at 259-64.
117 See e.g., Johnson v. Goodyear Tire & Rubber Company, supra,
491 F,2d at 1382.
57
sion whether to award back pay is committed to the dis
cretion of the trial judge”, 415 I7.S. at 197. This is fully
consistent with the decision below since the district courts
still maintain discretion under the Moody standard, see
pp. 55-56, supra. In fact Curtis, by referring to prior deci
sions118 which specifically direct the federal courts to exer
cise their discretion to fashion relief designed to implement
Congressional policy, lends direct assistance to the argu
ment in support of the Moody standard.
Finally, Albermarle and the Union criticize the Fourth
Circuit’s standard for determining whether a back pay
award is appropriate on a practical ground: that the stan
dard will provide an obstacle to conciliation and settle
ment.119 This argument is contrary to common sense and
experience. If no .standard guides the district court, then
the lack of predictability in the law would be an inducement
to litigate. Parties would be unable to predict whether the
district court would award back pay; as a practical matter,
the decision as to back pay liability could well turn on which
district court judge finally determined the question.
The experience in Title VII litigation since 1973, when
the Courts of Appeals established clear standards for the
exercise of discretion, indicates that the voluntary resolu
tion of employment discrimination suits has been advanced.
Governmental agencies and private litigants have con
cluded many consent decrees in Title VII actions which
have provided wide-ranging relief, including back pay.120
118 Mitchell v. Robert Be Mario Jewelry, Inc., supra; Porter v.
Warner Holding Co., supra; these decisions are discussed on pp.
52-53, supra.
119 Co. Br. at 60-61; U. Br. at 32-33.
120 See e.g., United States v. Philadelphia Electric Company, C.A.
No. 72-1483 (B.D. Pa. Sept. 21, 1973) (Consent Decree); United
States v. Eastex, Inc., C.A. No. B-73-CA-81 (B.D. Tex. Feb. 18,
58
Rather than obstructing' the elimination of employment
discrimination, a clear judicial standard governing the
award of back pay will serve the national purpose of end
ing employment discrimination by causing employers and
unions to carefully evaluate, and to change, where dis
criminatory, their employment practices without first being
subjected to administrative or judicial proceedings.121
They [back pay awards] provide the spur or catalyst
which causes employers and unions to self-examine
and to self-evaluate their employment practices and
to endeavor to eliminate, as far as possible, the last
vestiges of an unfortunate and ignominious page in
this country’s history.
United States v. N.L. Industries, Inc., supra, 479 F.2d at
379.122
1974) (Consent Decree) ; United States v. East Texas Motor Freight
System, C.A. No. 3-6025-B (N.D. Tex., Feb. 19, 1974) (Consent
Decree) ; EEOC v. Bank of America, Inc., C.A. No. C-71409CB-R
(N.D. Cal. June 24, 1974) (Consent Decree) ; EEOC v. Continental
Trailways, C.A. No. SA72-CA197 (W.D. Texas, March 19, 1973)
(Consent Decree) ; EEOC v. Preston Trucking Co., C.A. No. 72-
632-M (D. Md. June 25, 1973) (Consent Decree) ; EEOC v. Con-
tamer Corporation of America, C.A. No. 72-336-Civ.-J-T (M.D. Fla.
Nov. 4, 1974) (Consent Decree).
Mack v. General Electric Co., C.A. No. 69-2653 (E.D. Pa. 1973)
(Consent Decree); Patterson v. N.M.D.U., C.A. No. 73-Civ.-3058
(S.D.N.Y. October 25, 1974) (Consent Decree) ; Branch v. Rey
nolds Metals, C.A. No. 170-72-R (E.D. Ya. 1974) (Consent Decree) ;
Burks v. Bah cock & Wilcox Company, C.A. No. 71-C-59L (E.D.
Ya. 1974) (Consent Decree) ; Suggs v. Container Corporation of
America, C.A. No. 7058-72-P (S.D. Ala. April 1, 1974) (Consent
Decree).
121 We note, in this connection, the district court’s speculation
(A. 498)—seized upon by Albemarle—that defendants might have
sought an earlier adjudication and termination of their unlawful
practices, had they known that back pay liability was accruing.
122 See also Sprogis v. United Air Limes, supra, 444 F.2d at
1201; Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th
59
This Court has emphasized that back pay awards under
the National Labor Relation's Act are designed to give
effect to the public policy of the Act as well as to compen
sate those who suffered from unlawful employment prac
tices. NLRB v. Rutter-Rex Manufacturing Co., supra, 396
U.S. at 263; Nathanson v. NLRB, supra, 344 U.S. at 27.
Since Title VII of course effectuates a national policy as
strong as that of the National Labor Relations Act, back
pay is appropriate not only to compensate individuals but
also to ensure compliance with statutory prohibitions.
In conclusion, the standard developed in Newman v.
Piggie Park Enterprises, 390 U.S. 400 (1968), to direct
the exercise of discretion of district courts in awarding
attorneys’ fees under Title II of the Civil Rights Act of
1964, 42 U.S.O. §20Q0a-3(b), states a proper standard123 to
guide the exercise of discretion of district courts in award
ing back pay under Title VII. The rationale is similar in
both instances. The availability of back pay, like that of
attorneys’ fees, will further compliance with the law. The
provision of attorneys’ fees encourages members of the
bar to represent aggrieved persons; back pay encourages
employers and unions to scrutinize their practices, and en
courages victims of discrimination to seek redress. Both
remedies shift the financial burden of correcting discrim
ination from victim to violator.
The standard announced below directs district courts to
exercise their discretion in furtherance'of the purpose and
Cir. 1970); see Developments in the Law-—Employment Discrim
ination and Title V II of the Civil Bights Act of 1964, 84 H arv.
L. Rev. 1109, 1163 (1971).
123 “p- follows that one who succeeds in obtaining an injunction
under that title should ordinarily recover an attorney’s fee unless
special circumstances would render such an award unjust.” 390
U.S. at 402.
60
policy of Title VII, but does not improperly restrict dis
trict courts from exercising their discretion.
C. B ack Pay Is a P ro p e r R em edy in This Case.
Defendants fully eliminated none of their discriminatory
employment practices until entry of the district court’s in
junction in November, 1971, see pp. 8-12, supra.. As a result
of those practices, black employees suffered severe losses
of income, see n. 17, supra. Yet the district court, after
concluding that it had plenary discretion under §706 (g),
left the burden of these losses on the black workers. The
court gave three reasons for its ruling: (1) the absence
of bad faith non-compliance with Title VII by defendants,
including certain steps taken by Albemarle to alleviate the
severity of its discriminatory practices; (2) factors indi
cating that Albemarle might be less a culpable or more
beneficent employer than others in its locality; and (3) the
alleged lateness of plaintiffs’ specification of the back pay
claim and the possibility that defendants might have been
prejudiced thereby (A. 498). The Court of Appeals rejected
these reasons as legally inadequate to justify denying back
pay (A. 520-522).124
Both precedent and policy support the award of back
pay in this case. This Court’s reminder in Griggs v. Duke
Power Co., supra, 401 U.S. at 432, that
good intent or absence of discriminatory intent does
not redeem employment procedures or testing mecha-
124 Although the Court, because of its holding, had no occasion to
review the finding of “good faith,” the record casts substantial
doubt on whether any such finding could be. sustained. See pp. 3-
12, supra. Moreover, the district court’s finding was based in part
on its erroneous view that Albemarle’s testing program was job-
related.
61
nisms that operate as “built-in headwinds” for minority
groups and are unrelated to measuring job capability
applies to remedies as well as to finding liability. For this
reason the appellate courts have uniformly and correctly
rejected “good faith”—or the absence of “bad faith”—as
a defense for Title VII violators.126 Good faith cannot
relieve a discriminatory employer of liability under Title
VII because Congress provided back pay as a remedy for
economic injury, not for bad motives :
. . . it is argued that back pay should not be awarded
in the absence of specific intent to discriminate. A
corollary argument is that the award was improper in
light of the unsettled state of the law. The principal
answer to both points is that back pay is not a penalty
imposed as a sanction for moral turpitude; it is com
pensation for the tangible economic loss resulting from
an unlawful employment practice. Under Title VII the
plaintiff class is entitled to compensation for that loss,
however benevolent the motives for its imposition.
Robinson v. Lorillard Corp., supra, 444 F. 2d at 804.
Kober v. Westinghouse Electric Corp., 480 F.2d 240 (3rd
Cir. 1973), on which both defendants rely, is merely one in a
line of cases involving state female protective statutes.
See pp. 54-55, supra. Its reasoning is squarely based on the
126 Fourth Circuit: Robinson v. Lorillard Corp., supra, 444 F.2d
at 802, 804; Fifth Circuit: Johnson v. Goodyear Tire & Rubber Co.,
supra, 491 F.2d at 1376-1377; Pettway v. American Cast Iron Pipe
Co., supra, 494 F.2d at 253; Baxter v. Savannah Sugar Refining
Corp., supra, 495 F.2d at 442-3; Sixth Circuit: Head v. Timken
Roller Bearing Co., supra, 486 F.2d at 877; Seventh Circuit:
Waters v. Wisconsin Steel Works of International Harvester Co.,
supra, 502 F.2d at 1321; Eighth Circuit: United States v. N. L.
Industries, Inc., supra, 479 F.2d at 379. The holding of these cases
is in accord with settled principles in labor law and related fields.
See cases cited in Johnson v. Goodyear Tire & Rubber Co., supra
491 F.2d at 1377 n.37.
62
“special circumstances” presented in such, cases, see 480
F.2d at 246-8; it does not endorse the good faith defense
in any broader context.126
“Good faith” or absence of “bad faith” are unworkable
standards for back pay awards. Such standards would
inevitably involve the courts in adjudication of stibjee-
tive states of mind of employers and labor unions. Mean
ingful standards of definitive proof as to good or bad
faith would be difficult if not impossible to articulate and
apply. In practice, acceptance of such a test would as
sure the district courts an effectively unreviewable dis
cretion to implement—or to ignore—the statutory purpose.
The factors cited by the district court (A. 498) illustrate
the anomalous results that the “good faith” standard in
vites. The court found some support in the fact that
paper mill jobs on the whole may require a higher skill
level than tobacco industry jobs; yet this circumstance
cannot excuse the imposition of non-job-related criteria
like Albemarle’s educational requirement and testing pro
gram, and is totally irrelevant to the unlawful job-senior
ity system. The court further noted that Albemarle paid
126 See, e.g., Manning v. International Union, 466 F.2d 812 (6th
Cir. 1972), distinguished in Head v. Timken Boiler Bearing Co.,
supra, 486 F.2d at 877 n.10; LeBlanc v. Southern Bell Telephone
& Telegraph Co., supra, distingished in Johnson v. Goodyear Tire
<& Rubber Co., supra, 491 F.2d at 1377 (“Such an argument [as
Albemarle’s] falls of its own weight” ).
Norman v. Missouri-Pacific Railroad Co., supra, does not support
the good faith defense for which Albemarle cites it (Br. at 56).
The Eighth Circuit in Norman expressed grave doubts as to the
viability of that defense, see 497 F.2d at 596-7. Nor will Albemarle’s
citation (id.) of United States v. N. L, Industries, supra, and United
States v. St. Louis-San Francisco Railway Co., 464 F.2d 301 (8th
Cir. en banc 1972), cert, denied 409 U.S. 1107 (1973), withstand
scrutiny. Neither case as interpreted in Norman, supra, relied
primarily on good faith or absence of bad faith as its reason for
denying back pay.
63
higher wages than other local employers;127 hut this can
not justify the fact that white paper mill workers earned
substantially more than black paper mill workers because
of race. Although Albemarle purportedly began trying to
recruit black mechanics in 1964, it had made virtually no
progress by mid-1967, two years after Title VII and one
year after filing of this suit (see pp. 8-9, supra). And
while the court applauded defendants’ “voluntary” 1968
changes in the seniority system and LOP configuration,
those changes left many unnecessary obstacles to black
advancement and had little practical effect (see pp. 9-11,
supra).
The district court also found an exculpatory circum
stance in plaintiffs’ failure to claim back pay from the
outset of this case (A. 498). Its conclusion was appar
ently based on a theory of waiver or laches. Albemarle
now seeks to bar black workers from back pay because,
at an early stage of the litigation, a brief filed on their
behalf had stated that back pay would be sought only
for individuals before the court. Yet later, when it had
become clear that class-wide back pay was being upheld
by the courts, plaintiffs asserted such a claim—well over
a year before the start of the trial. See p, 13, supra.
The presence of the class back pay issue in the case was
thereafter repeatedly stated and reaffirmed in a series of
pre-trial orders of the district court.128 Moreover, plain
tiffs were ordered to answer supplementary interrogatories
concerning the basis for and amount of back pay claimed
on behalf of each class member (A. 46) and did so an
swer (A. 116-7); and individual members of the class
127 The Company’s evidence focussed on municipal civil servants,
farm labor, hospital workers, and school teachers, Co. Ex 11 12
15, 17. See Co. Br. 13.
128 See Order of September 28, 1970 (A. 38), Order of May 28,
1971 (A. 46), and Order of July 8, 1971 (A. 51).
64
were obliged by court order to file proofs of claim (A. 55-
56, 70-85).
Rule 54(c), F. R. Civ. P., directs that “every final judg
ment shall grant the relief to which the party in whose
favor it is rendered is entitled, even if the party has
not demanded such relief in his pleadings.” This directive,
the plaintiffs’ demand for judgment of back pay over one
year before trial, and its own pre-trial orders contemplat
ing back pay relief notwithstanding, the district court
denied all back pay—with respect to both the named plain
tiffs and the other class members—stating that
the defendants would be substantially prejudiced by
the granting of such affirmative relief. The defendants
might have chosen to exercise unusual zeal in having
this court determine their rights at an earlier date
had they known that back pay would be at issue
(A.498) (emphasis supplied).
This was not a finding* of fact on the part of the district
court (c/. Co. Br. at 59 n.61) but merely part of one of
its conclusions of law. By its own terms it was based on
sheer conjecture and is unsupported by the record.129 “Un
usual zeal” for an early determination of their rights has
never characterized the tactics of the defendants in any
stage of this litigation—before or after they had learned
of the back pay claim.
As shown above, back pay is a major remedy provided
by Congress to effectuate the purposes of Title YII as well
as to give financial relief to the victims of discrimination.
Such important public rights ought not lightly to be deemed
to have been waived. This Court has repeatedly held that
129 It appears to have been an afterthought, since in any event it
could have had no relevance to the back pay claims of the named
plaintiffs which the court also denied.
65
a statutory right conferred on a private party, but affect
ing the public interest, may not be waived or released if
such waiver or release contravenes the statutory policy.130
Rule 54(c) reflects the movement of the law away from
formality and ritual and towards the rendition of justice.
It has been, and should be, construed to prevent parties
from forfeiting their claims because of a harmless mis
step early in the litigation. See 10 Wright & Miller, Federal
Practice and Procedure §§2662, 2664 (1973), especially pp.
117-8 and cases there cited; 6 Moore’s Federal Practice
(2d ed. 1974) j[54.62. The attachment of draconian conse
quences to the wording of the 1966 memorandum submitted
by the class representative was especially inequitable in
light of the court’s obligation to protect the interests of
class members.131 To treat plaintiffs’ 1966 statement as a
waiver would only serve to undermine the strong Con
gressional policy against discriminatory employment prac
tices, cf. Alexander v. Gardner-!)enver Co., supra, 415
TT.S. at 51-52.
Albemarle asserts that “the long delay in adding the back
pay claims satisfies all of the elements of laches. . . .”
(Co. Br. at 58). This is transparently incorrect. Laches
may not be invoked merely upon a showing of delay; the
delay must amount to improper lack of diligence with re
sulting prejudice to the opposing party. See Costello v.
United States, 365 U.S. 265, 282 (1961); Gardner v. Panama
Railroad Co., 342 U.S. 29, 30-31 (1951) :
130 See Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 704
(1944) ; Schulte v. Gangi, 328 U.S. 108 (1946) :
Where a private right is granted in the public interest to effec
tuate legislative policy, waiver of a right so charged or colored
with the public interest will not be allowed where it would
thwart the legislative policy which it was designed to effec
tuate. 324 U.S. at 704-705.
131 Cf. Rule 23(e), F.R.Civ.P.; Risen v. Carlisle & Jacquelin, 417
U.S. 156, 175-177 (1974).
66
The equities of the parties must be considered as
well. Where there has been no inexcusable delay in
seeking a remedy and where no prejudice to the de
fendant has ensued from the mere passage of time,
there should be no bar to relief, (citations omitted)
No such “inexcusable delay” and no such prejudice is
shown here.
The question of the treatment of belated claims for back
pay has arisen in at least three circuits. They have uni
formly held that because of the importance of back pay,
such claims must be entertained. See Rosen v. Public
Service Electric <& Gas Go., supra, 409 F.2d at 780, n.20;
Robinson v. Lorillard Corp., supra, 444 F.2d at 802-03;
United States v. Hayes International Corp., 456 F.2d 112,
116, 121 (5th Cir. 1972); see also Sprogis v. United Air
Lines, Inc., supra, 444 F.2d at 1202. These cases apply
a fortiori to the instant case. In each of them, the claim
for back pay was asserted after the conclusion of trial—
not, as here, over a year before the trial was started.
See also NLRB v. Rutter-Rex Manufacturing Co., 396
U.S. 258 (1959).132 In every one of these cases, the de
fendants could have interposed the same conjecture raised
by defendants here that the late back pay claim was some
how prejudicial to them. The short answer as held in
Robinson, supra, is
In our case, because the obligation to provide back
pay stems from the same source as the obligation to
reform the seniority system, any general defenses rel
evant to the back pay award were equally relevant to
132 In Rutter-Rex, this Court reversed the Court of Appeals’ mod
ification of the NLRB’s back pay calculation which was based on
the inordinate delay (five years) of the Board in determining
back pay, and ordered the Board’s back pay award reinstated in
full.
67
the suit for injunctive relief. Any specific defenses
related only to computation of back pay may be raised
during the process of assessing individual back pay
claims, possibly before a special master. The defen
dants have in no way been prejudiced by the belated
claim. 444 F.2d at 80S.133
In his dissenting opinion, Judge Boreman suggested two
additional grounds for supporting the denial of back pay
by the district court. These were: the sale of assets of
the original employer company by one parent corporation
to another, and the possibility that the delay might have
impeded defendants’ pre-trial preparation (474 F.2d at
146 n.16; A. 531 n.16). These reasons were mere specula
tion since there was no indication in the district court’s
opinion that it had found either factor significant. Neither
ground is persuasive. The rights of victims of employment
discrimination should not be sacrificed in the crossfire of
intercorporate controversies.18* Nor will the record sup
port the conjecture as to the difficulty of preparing de
fenses to individual back pay claims. In any event, the
order of the Court of Appeals would necessitate a new and
separate hearing on individual back pay claims. Defen
dants will have the opportunity—and the burden—to mount
133 Indeed in Rental Development Corp. of America v. Lavery
304 F.2d 839, 842 (9th Cir. 1962), the very ease relied upon by
Albemarle to demonstrate that Rule 54(c) would not be applied if
“the failure to ask for particular relief substantially prejudiced the
opposing party” (Co. Br. at 59), the holding of the case was that
the issues were similar and that there was no prejudice.
134 The sale of corporate assets of the original Albemarle Com
pany from Ethyl Corp. to Hoerner-Waldorf Corp. raises merely
the question of which of the various companies involved in the
“corporate re-shuffle” (A. 35) should bear which part of the bur
den—not whether the losses are recoverable. Indeed, Ethyl Corp.
filed a cross-claim (later voluntarily withdrawn) against Hoerner-
Waldorf Corp. (A. 41) demanding that the latter defend the action
for it and hold it harmless.
68
their defenses to the back pay claims of particular class
members at that stage.136
In terms of the Fourth Circuit’s standard, there are no
special circumstances in this case which would render an
award of back pay unjust.136 And under any standard this
Court could articulate consistent with the Congressional
history and purpose, the record will not support denial
of compensation to the plaintiff class.
135 A separate proceeding to compute back pay claims following
the trial of the issue of liability is routinely ordered in Title VII
eases. See, e.g., Robinson v. Lorittard Corp., supra, 444 F.2d at 803
n.17; Baxter v. Savannah Sugar Refining Corp., supra, 495 F,2d
at 443-4; Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d
at 258-60.
136 Both defendants seek affirmance of the district court’s exercise
of discretion on the additional “special circumstances” ground that
the district court probably had other unstated reasons for its ruling
(Co. Br. at 59-60; U. Br. at 29 n.32). This hypothesis serves to
highlight the need for an appellate standard and the appropriate
ness of the Fourth Circuit’s formulation. To allow district courts,
in the name of “discretion” or as a “special circumstance,” to deny
back pay relief on the basis of unarticulated reasons or retrospec
tive rationalizations would ill serve the Congressional purpose that
such relief should be available as appropriate.
69
CONCLUSION
The judgment of the Court of Appeals for the Fourth
Circuit should be affirmed, and the case remanded to the
district court for proceedings consistent with the opinion
of the Court of Appeals.
Respectfully submitted,
Of Counsel:
J ack Greenberg
J ames M. N abrit, III
C harles S t e ph e n R alston
E ric S ch n a pper
M orris J . B aller
B arry L. G oldstein
10 Columbus Circle
Suite 2030
New York, New York 10019
R obert B elton
J. L eV onne C hambers
Chambers, Stein & Ferguson
951 S. Independence Blvd.
Charlotte, North Carolina 28202
Conrad O. P earson
203% East Chapel Hill Street
P.O. Box 1428
Durham, North Carolina 27702
T. T. Clayton
307 West Franklin Street
P.O. Box 236
Warrenton, North Carolina 27589
Attorneys for Respondents
A lbert J. R osenthal
435 West 116th Street
New York, New York 10025
LOUIS H . POLLAK
3400 Chestnut Street
Philadelphia, Pennsylvania 19174
A P P E N D I X
A1
APPENDIX
Glossary of Technical Terms Relevant to the
Testing Issue
The following terms occur frequently in the discussion
of the testing issue, with specific reference to the purported
job-relatedness of Albemarle’s tests, and in the guidelines
and authorities cited in that discussion. These terms are
defined or described according to leading texts in the psy
chological testing field, as indicated.
1. Validity.
“Undoubtedly the most important question to be asked
about any test concerns its validity, i.e., the degree to which
the test actually measures what it purports to measure.”
A. Anastasi, Psychological Testing, London: MacMillan
(3rd ed. 1968), p. 28.
“The validity of a test concerns what the test measures
and how well it does so. Id., p. 99.
“Validity refers to the degree to wdiich a test correlates
with a relevant measure of criterion of job performance.
Unless those people wdio score relatively high on a test are
also likely to perform better on the job, a test lacks validity
for that purpose and is useless for selecting personnel for
the job in question.” J. Kirkpatrick et al., Testing and
Fair Employment, New York: Newr York University Press
(1968), p. 6.
2. Validation.
“[T]he point of research is to determine whether an
appreciable relationship exists between scores on the
predictor variable and some subsequent measure of job
performance. . . .
A2
Appendix
“Validation asks two fundamental questions. The first
asks whether a relationship exists at all. If so, the second
question is whether the relationship is strong enough to
be useful.” R. M. Guion, Personnel Testing, New York:
McGraw-Hill (1965), p. 131.
3. Criterion.
“An index of occupational success used in connection
with the validation of tests is termed the criterion.” E. E.
Ghiselli, The Validity of Occupational Aptitude Tests, New
York: John Wiley (1966), p. 22.
“Prediction is based on a correspondence between one
variable, the predictor, and another variable, the job be
havior. That which is to be predicted is called the crite
rion.” Guion, supra, p. 90.
“It is important that the criterion possess a high degree
of validity. A test that can predict quality of work will
seem to be a poor test if it is judged by a criterion that
does not fairly indicate quality of work. The criterion (or
set of criteria) should cover all important aspects of the
job.” L. J. Cronbach, Essentials of Psychological Testing,
New York: Harper & Row (1970), p. 413.
4. Criterion-related validation.
“Criterion-related validity indicates the effectiveness of
a test in predicting an individual’s behavior in specified
situations. For this purpose, performance on the test is
checked against a criterion, i.e., a direct and independent
measure of that which the test is designed to predict.”
Anastasi, supra, p. 105.
“Criterion-related validity can be best characterized as
the practical validity of a test in a specified situation.” Id.
at 111.
A3
Appendix
5. Concurrent validation (cf. predictive validation).
“The term prediction can be used in the broader sense,
to refer to prediction from the test to any criterion situa
tion, or in the more limited sense of prediction over a time
interval. It is in the latter sense that it is used in the expres
sion predictive validity. The information provided by pre
dictive validity is most relevant to tests used in the selection
and classification of personnel. . . .
“In a number of instances, concurrent validity is found
merely as a substitute for predictive validity. It is fre
quently impracticable to extend validation procedures over
the. time required for predictive validity or to obtain a
suitable preselection sample for testing purposes. As a
compromise solution, therefore, tests are administered to
a group on whom criterion data are already available.
Thus, the test scores . . . of employees [may be] com
pared with their current job success.
“For certain uses of psychological tests . . . concurrent
validity is the most appropriate type and can be justified
in its own right. The logical distinction between pre
dictive and concurrent validity is based, not on time, but
on the objectives of testing. Concurrent validity is rele
vant to tests employed for diagnosis of existing status,
rather than prediction of future outcomes.” Anastasi, supra,
p. 105.
6. Correlation and Correlation Coefficient.
“Meaning of correlation. Essentially, a correlation co
efficient (r) expresses the degree of correspondence, or
relationship, between two sets of scores.” Anastasi, supra,
p. 72.
“A correlation coefficient is a statistical summary of the
relation between two variables. I t is the most common
A4
Appendix
way of reporting the answer to .such questions as :
Does this test predict performance on the job!” Cronbach,
supra, p. 128.
7. Statistical significance.
“When we say that a correlation is ‘significant at the
1 percent (.01) level,’ we mean the chances are no greater
than one out of a hundred that the population correlation
is zero. . . . Significance levels refer to the risk of error
we are willing to take in drawing conclusions from our
data. . . . Most phyehological research applies at either
the .01 or the .05 levels, although other significance levels
may be employed for special reasons.
“. . . Any correlation below that value [.05] simply
leaves unanswered the question of whether the two vari
ables are correlated in the population from which the
sample was drawn.” Anastasi, supra, p. 76.
8. Job analysis.
“Job analysis sets up hypotheses stating which abilities
and habits contribute to success on the job. No machine
like procedure of checking off one by one all possible
job elements has ever been found successful. Instead, the
psychologist studies the task with whatever insight and
psychological knowledge he can muster. Job analysis is
an art.” Cronbach, supra, p. 407.