Ford v. United States Steel Corporation Supplemental Brief for Plaintiffs-Appellants
Public Court Documents
July 17, 1975

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Brief Collection, LDF Court Filings. Ford v. United States Steel Corporation Supplemental Brief for Plaintiffs-Appellants, 1975. b448bc2d-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/aa61900a-9186-4288-b6ef-515d171bc474/ford-v-united-states-steel-corporation-supplemental-brief-for-plaintiffs-appellants. Accessed July 17, 2025.
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__ Ô â e. 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