Ford v. United States Steel Corporation Supplemental Brief for Plaintiffs-Appellants

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IN THE UNITED STATES COURT OF APPEALS

CPy(\|N^0^1

W u c J ^ j

FOR THE FIFTH CIRCUIT 
NO. 73-3907________

JOHN S. FORD, et al.,
Plaintiffs-Appellants 
k

-vs-

UNITED STATES STEEL CORPORATION, et al.,
Defendants-Appellees.

SUPPLEMENTAL BRIEF FOR PLAINTIFFS-APP r»O

OSCAR W. ADAMS 
JAMES K. BAKER 
U. W. CLEMON

Suite 1600 - 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG 
JAMES M. NABR.IT, III 
BARRY L. GOLDSTEIN 

Suite 2030 
10 Columbus Circle 
Nev7 York, New York 10019

Attorneys for Plaintiffs-Appellants



T A B L E O F C O N T E N T S
Page

TABLE OF AUTHORITIES ........................  i
BRIEF .......................................  1
CERTIFICATE

Table of Authorities
Albemarle Paper Co. v. Moody, Nos. 74-389 and 

74-428, 43 U.S.L.W. 4880, 9 EPD
para. 10, 230 (June 25, 1975) ..........  Passim

Culpepper v. Reynolds Metals Company,421 F. 2d 888 (5th Cir., 1970) ..........  2
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....  4
Johnson v. Georgia Highway Express, 488 F.2d

714 (5th Cir. , 1974) ...................  2
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

1364 (5th Cir., 1974) ..................  2
Miller v. International Paper Co., 408 F.2d

283 (5th Cir., 1969) ...................  2
Pettway v. American Cast Iron Pipe Co., 494 F.2d

211 (5th Cir., 1974) ...................  2, 3, 4
United States v. Allegheny-Ludlum Industries,

No. 74-3056 (5th Cir., appeal pending) 3
United States v. Georgia Power Co., 474 F.2d

906 (5th Cir., 1973) ...................  3
United States v. Hayes International, 456 F.2d

112, (5th Cir., 1973) ..................  3
United States v. N.L. Industries, 479 F.2d

354 (8th Cir., 1973) ...................  5



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 73-3907

JOHN S. FORD, et al.,
Plaint iffs-Appellants, 
-vs -

UNITED STATES STEEL CORPORATION, 
et al.,

Defendants-Appellees.

SUPPLEMENTAL BRIEF FOR PLAINTIFFS-APPELLANTS

This supplemental brief is filed pursuant to this
Court's request to discuss the effect of Albemarle Paper Co.

1/v. Moody on this appeal and to respond to the brief submitted 
on behalf of the Union defendants-appellees.

The Supreme Court's decision in Moody made emphatic 
what this court has repeatedly stated for several years: 
when an employer or union has engaged in practices which result 
in economic loss to blacks, then back pay is an appropriate

1/ Nos. 74-389 and 74-428, decided June 25, 1975, 43 U.S.L.W. 
4880, 9 EPD H10, 230. The citation in this brief refers to 
the Slip Opinion.



remedy which should ordinarily be awarded.
It follows that, given a finding of unlawful 

discrimination, backpay should be denied only 
for reasons which, if applied generally, would 
frustrate the central statutory purposes of 
eradicating discrimination throughout the 
economy and making persons whole for injuries 
suffered through past discrimination."^

14/It is necessary, therefore, that if a 
district court does decline to award backpay, 
it carefully articulate its reasons.

(Slip Opinion at 14) .
The Court's strong statement on backpay is based on

the twofold purpose of Title VII. The first purpose is to
3/"eradicate" discrimination in employment. The Supreme Court

4/stated that backpay in a sense forms a real financial incentive, 
a "spur or catalyst", to insure compliance with the fair em­
ployment laws. The Supreme Court's analysis adds substantial
strength to the standard established by this Circuit. This

5/Court in the Johnson-Pettway line of cases did not rely on 
this argument in establishing the standard for backpay, but

2/

2/ There is no question that the unlawful practice of 
defendants resulted in economic harm to the class of black 
workers before this Court. Plaintiffs' Reply Brief at 10-15.
3/ This Court has repeatedly recognized this purpose of Title 
VII as a necessary guide to judicial decision, see, e.g.,
Miller v. International Paper Co., 408 F.2d 283, 294 (5th Cir., 
1969); Culpepper v. Reynolds Metals Company. 421 F.2d 888, 891 
(5th Cir., 1970); Johnson v. Georgia Highway Express, 488 F.2d 
714, 716 (5th Cir., 1974).
4/ See Plaintiffs' Brief at 64-66
5/ Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (1974); 
Pettway v. American Cast Iron Pipe Company. 494 F.2d 211 (1974).

- 2 -



rather relied on the Supreme Court's second argument for an
award of backpay — i.e., compensation to the victims of dis-

6/crimination. This additional argument for awarding backpay 
serves to strengthen the standard.

The second basic purpose of Title VII which "informs" 
courts as to the appropriate standard for awarding backpay is 
the "make-whole" purpose: to place the victims of discrimina­
tion, through an award of backpay, in the economic position 
in which they would have been but for the unlawful employment
practices. The Supreme Court's analysis of this primary pur-

7/
pose is basically the same as this Court's analysis.

To be made "economically whole" from the defendants 
unlawful employment practices is precisely what the plaintiff 
class seeks in this litigation. It is no answer to this claim, 
as the defendants make, that an industry-wide consent decree, 
was entered which will afford some class members some money, 
see United States v. Allegheny-Ludlum Industries, No. 74-3056.

6/ This Court apparently rejected reliance on this ground in 
establishing its backpay standard because it looked upon back­
pay as essentially "an equitable award for past economic injury 
Pettway v. American Cast Iron Pipe Co., supra at 253; but see 
United States v. Georgia Power Company. 474 F.2d 906, 919 (5th 
Cir., 1973); United States y. Hayes International, 456 F.2d 
112, 119 (5th Cir., 1972). Of course, under this Court's 
application of its standard there was no need to reach this 
argument, since the cases before this Court, like the Ford case 
presented instances where unlawful practices had economically 
harmed black employees and back pay was necessary in order to 
make them whole.
7/ Compare Moody, Slip Opinion at 11-15 with Johnson v. Good­
year Tire & Rubber Co., supra at 1376, and Pettway v. American 
Cast Iron Pipe Co., supra at 251-53.

- 3 -



There was no determination by the district court, and in 
fact there were no facts presented to the district court, 
that the backpay to be parcelled out pursuant to the consent 
decree satisfies the "make-^whole" requirements of Moody (or

8/Pettway).
It is clear that the Supreme Court's standard in Moody9/

unmistakably rules out the defenses of "good faith" and
"uncertainty in the law" which the district court had erroneously
relied on. In fact, the Supreme Court's ruling on "good faith",
if anything, expands this Court's rejection of "good faith" as 

10/
a defense.

It is important to note that the Court applied the
1970 Testing Guidelines of the EEOC to pre-1970 testing

11/
practices of Albemarle Paper Company. (Slip Opinion at 6).

8/ The method of calculation, the period covered or the 
method of distribution of the amount remains a mystery.
See Plaintiffs' Reply Brief at 19-23.
9/ The Supreme Court specifically followed the rules established 
in NLRA cases, that backpay is appropriate even where the employee 
acted in "good faith". Slip Opinion at 15, n.16; see Johnson v. 
Goodyear Tire & Rubber Company, supra at 1377, n.37.
10/ First, the Court stated that if the defendants acted in "bad 
faith", then they may make "no claims whatever on the Chancellor's 
conscience". Slip Opinion at 15. Second, the Court specifically 
did not approve the cases holding that a "good faith" reliance on 
a state female protective 'law is a defense to a claim for backpay. 
Slip Opinion at 16, n.18; see the concurring opinion of Justice 
Blackmun at pp. 2-3 which indicates that the stringent rule of 
the majority removing the defense of “good faith" will require 
reversal of the female protective law cases.
11/ Of course, the first authoritative judicial decision on 
testing was not rendered until 1971, Griggs v. Duke Power 
Company, 401 U.S. 424.

-4-



The Supreme Court did not exclude from an award of backpay
the wages lost by blacks who were denied jobs as a result
of Company's unlawful tests. Any denial of backpay because
of the "unsettled state of the law" would directly contravene
the standards established by the Supreme Court. If companies
or unions realized that they could escape backpay because
their precise discriminatory practice had not been judicially
determined unlawful, or applied in the context of their in-

12/dustry, then the award of backpay would hardly provide a 
strong "spur or catalyst" to self-reform. Further, if the 
"unsettled state of the law" was a valid defense, it would 
totally negate the "make•-whole" purpose of Title VII.

12/ The Steelworkers ingenuous argument, that there is 
a judicially created exemption from back pay for the steel 
industry has been raised again in their Supplemental Brief.
This argument has been fully discussed by the plaintiffs 
at pages 16-19 of their Reply Brief. The argument does not need another response here except to respond to one point 
raised in the Steelworkers' brief. adoption of some

The Steelworkers argue that the Supreme Court's/language 
in United States v. N.L. Industries, 479 F.2d 354, 379 (8th 
Cir., 1973) , in Moody (Slip Opinion at 11) indicates that the 
Court adopts a totally unrelated substantive position of the 
Eighth Circuit: that since the law is not clearly settled
concerning unlawful seniority in that Circuit backpay is in­
appropriate. There is no indication that the Supreme Court 
in any way approved the position of the Eighth Circuit. The 
Steelworkers argument is a unique interpretation of case 
citation (the plaintiffs cited N.L. Industries in their 
Brief at p . 65).

- 5 -



In conclusion, Moody clearly established a standard
for the award of backpay which when measured against the
clear discriminatory practices at Fairfield Works and the
resulting economic loss suffered by black workers requires
this Court to reverse the district court and remand for an
appropriate determination of back pay designed to make the 

13/class economically whole.

Respectfully submitted,

OSCAR W. ADAMS 
JAMES K. BAKER 
U. W. CLEMON

Suite 1722 - 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG 
JAMES M. NABRIT, III 
BARRY L. GOLDSTEIN

10 Columbus Circle 
Suite 2030
New York, New York 10019

13/ The Supreme Court approved the award of backpay to a class. 
Slip Opinion at 7-8, n.8.

- 6 -



CERTIFICATE OF SERVICE

I hereby certify that on this 17th day of July, 
1975, I served two copies of the foregoing Plaintiffs- 
Appellants1 Supplemental Brief upon each of the following 
counsel of record by depositing copies of same in the 
United States mail, adequate postage prepaid.

James R. Forman, Jr., Esq.
Thomas, Taliaferro, Forman, Burr & Murray 
1600 Bank for Savings Building 
Birmingham, Alabama 35203
Jerome A. Cooper, Esq.
Cooper, Mitch & Crawford 
409 North 21st Street 
Birmingham, Alabama 35203
Demetrius C. Newton, Esq.
Suite 1722 - 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203
Beatrice Rosenberg
Assistant General Counsel
Equal Employment Opportunity Commission
Office of General Counsel
1206 New Hampshire Avenue, N.W.
Washington, D.C. 20506
Michael H. Gottesman, Esq.
Bredhopf, Barr, Gottesman, Cohen & Peer 
1000 Connecticut Avenue 
Suite 1300 
Washington, D.C.
Robert Moore, Esq.
Department of Justice 
Civil Rights Division 
Washington, D.C. 20036

Attorney for Plaintiffs-Appellants