Pullman-Standard, Inc. v. Swint Petition for a Writ of Certiorari
Public Court Documents
October 3, 1988

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Brief Collection, LDF Court Filings. Pullman-Standard, Inc. v. Swint Petition for a Writ of Certiorari, 1988. e1aba4a5-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ba911838-abc9-4100-a7cb-42f6d0798a6c/pullman-standard-inc-v-swint-petition-for-a-writ-of-certiorari. Accessed July 10, 2025.
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In the (tart nf tire United States October Term , 1988 Pullman-Standard , Inc ., A Subsidiary of The Pullman Company, Petitioner, —v.— Louis Swint, and Willie James Johnson, on behalf of themselves and others similarly situated, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT O f Counsel: C.V. Stelzenmuller Burr & Forman 3000 SouthTrust Tower Birmingham, Alabama 35203 (205) 251-3000 * Floyd Abrams Thomas J. Kavaler Samuel Estreicher Taryn V. Shelton Peter Phillips Cahill Gordon & Reindel (a partnership including professional corporations) 80 Pine Street New York, New York 10005 (212) 701-3000 * Counsel o f Record fo r Petitioner QUESTIONS PRESENTED 1. In light of Watson v. Fort Worth Bank & Trust, 108 S. Ct. 2777 (1988), did the Court of Appeals err in (a) allowing plain tiffs to establish a disparate impact challenge to a subjective, multicriteria selection system for supervisor promotions through a gross, “ bottom line” comparison between the per centage of black supervisors and the percentage of blacks in the workforce, rather than a comparison to the subgroup of promotion-eligible black workers; (b) shifting to the employer the burden of persuasion to prove the necessity of its require ments for such promotions; and (c) improperly commingling disparate treatment and disparate impact theories? 2. Did the Court of Appeals violate the strictures of General Telephone Co. v. Falcon, 457 U.S. 147 (1982), as well as the requirements of Article III of the Constitution, in allowing employees who were hired before the effective date of Title VII of the Civil Rights Act of 1964, and who never asserted individ ual claims of discriminatory denial of a supervisor promotion, to serve as representatives of a class challenging allegedly dis criminatory post-Title VII initial assignments and promotion practices? 3. Did the Court of Appeals ignore this Court’s ruling in Pulhnan-Standarcl v. Swint, 456 U.S. 273 (1982), by reaffirm ing its 1980 decision (a) overturning the District Court’s find ings on the absence of discriminatory intent in the Company’s initial departmental assignments and on the business necessity of the.Company’s requirements for supervisor promotions, and (b) substituting its own independent determination on these issues rather than remanding to the District Court for appropri ate findings? 4. In light of Owens v. Okure, 109 S. Ct. 573 (1989), did the Court of Appeals err in measuring the liability period for the 42 U.S.C. § 1981 claim by reference to Alabama’s six-year “ non residual” statute for personal injury actions? LIST OF PARTIES Petitioner Pullman-Standard, Inc. (“ Pullman” or “ the Company” ) is a subsidiary of The Pullman Company. Respon- dentsar/Louis Swim and Willie James Johnson as rep-e ema- lives of a certified class of “ all black persons who at any time subsequent to one year prior to the filing of any charges with the [Equal Employment Opportunity Commission] ha een employed by Pullman (at its Bessemer[, Alabama] plant) production and maintenance workers in positions represente by the United Steelworkers.” * Pursuant to Rule 28.1, petitioner informs the C°urt that Pullman Company is wholly owned by Pu11̂ ^ poration, which is in turn wholly owned by Affiliates of Fors mann Little & Company, a limited partnership. ii W jTv Pullman-Standard (Swint 0, H FEP Cas. (BNA) 943 948 n 20 (N D Ala 1974) (App. 94a). The decision sought to be reviewed co ^ « ^ a l S (N0SP87.™57. ^ 8 8 6 » pe„„on seeks S H S S S H S S or court papers since that date, Ampri..a AFL-CIO, and n o I ncil 1466 of the United Steelworkers of America, At l c ' u CIO, Local it o oi me were defendants- lnternational Association of Machinists, AFL-CIO Larkin, appeal No. 84-7319. Ill t a b l e of c o n t e n t s PAGE vi Table of Authorities.......................................................... ....................... 1 Opinions B elow .................................................. 2 Jurisdiction............................................................ Applicable Constitutional Provisions and Statutes........ ................. 2 Statement of the Case.......................................... . . 3A. Class Certification.......................................... B. 1974 Trial and Appeal........................................ C. Post-Teamsters Proceedings and 1980 Appeal.. D. This Court’s Ruling............................................ E. Proceedings on Remand from the Supreme Court......................................................................... REASONS FOR g r a n t in g THE W R IT ................... I This Case Raises Significant Questions as to the ' Appropriate Framework, after Watson v. For, Worth Bank & Trust, for Disparate Impact Challenges to Subjective, Multicritena Selection Systems for Supervisory Personnel................... A. The Eleventh Circuit’s Refusal to Require Plaintiffs to Demonstrate Disparate Impact with Respect to the Group of Promotion- Eligible Blacks Conflicts with Several Deci sions of this Court and Presents a Division Among the Circuits...................................... 14 \i IV PAGE B. The Court of Appeals’’ Allocation of the Burden of Persuasion to the Employer to Prove the Necessity of its Business Require ments for Supervisor Promotions was Improper Under Watson.............................. C. The Court of Appeals Improperly Commin gled Disparate Treatment and Disparate Impact Theories............................................ II The Eleventh Circuit’s Holding that Individuals ' Hired Outside the Liability Period and Who Never Asserted Individual Claims of Discrimi natory Denial of a Supervisor Promotion Are Proper Class Representatives to Assert Initial Assignment and Promotion Claims Conflicts with Decisions of this Court and Other Courts ^ of Appeals........................................................... A This Court Should Grant Review to Clarify the Proper Reach of General Telephone Co. v. Falcon, an Issue of Recurring Importance in the Administration of Title VII, and to Resolve the Division Among the Circuits .. B. The Eleventh Circuit’s Holding that the Named Plaintiffs are Adequate Class Repre sentatives Violates Article 111 Limitations on Class Action Standing.................................. HI. The Eleventh Circuit’s Refusal to Reconsider its 1980 De Novo Factfinding in Light of this Court’s Swint Opinion Warrants Review as an Exercise of Supervisory Authority..................... IV The Holding below that Alabama’s Six-Year “ Non-Residual” Statute Applies to & 19»i Claims Warrants Review in Light of Owens v. v CONCLUSION 30 PAGE a p p e n d ix Separately Provided VI TABLE OF AUTHORITIES PAGE Cases Atonio v. Wards Cove Packing Co 827 ^ 2d 439 (9th , 4 Cir. 1987), cert, granted, 108 S. Ct. 2896 (1988)........ Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395 (D.C. Cir. 1988), pet. for cert, filed, 57 U S.L.W. 3334 (U.S. Nov. 8, 1988) (No. 88-699)---- Blum v. Yaretsky, 457 U.S. 991 (1982)........................... City o f Richmond v. V.A. Croson Co., 109 S. Ct. 706 ^ (1989) .............................................................................. Connecticut v. Teal, 457 U.S. 440 (1982)....................... 16 Cox v. City o f Chicago, Nos. 88-2598, 88-2599 (7th ■ C,rj ^ Jari. 27, 1989) .................................. .............’ ’ East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395 (197.7).......................................................U ” ’ General Telephone Co. v. EEOC, 446 U.S. 318 (1980) . 22 General Telephone Co. v. Falcon, 457 U.S. 147 (1982)................................ . 13n, 21-25, 26n Goodman v. Lukens Steel Co., 777 F.2d 113 (3d> C,r- ^ 1985), a ff’d on other grounds, 482 U.S. 656 ( Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1985) 15n-16n, 17n Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987), cert. denied, 108 S. Ct. 1729 (1988)...................................... Griggs v. Duke Power Co., 401 U.S. 424 (1971)..........M, 16n Hazelwood School District v. United States, 433 U.S. 299 ^ ^ (1977).................................................................................... vn x rn 743 F 2d 199 (4th Cir. 1984), Holseyy. Armour & Co.,743 t . n ................... 24n cert, denied, 470 U.S. 1028 (19 ) International Brotherhood o f v. ^ States, 431 U.S. 324 (1977).......................................... ’ International Woodworkers v. Chesapeake Bay Ply wo ^ Corp., 659 F.2d 1259 (4th Cu. 1981)......................... Johnson v. Transportation Agency, 480 U.S. 616 (1987) 16 Larkinv. Pullman-Standard ISw XI). 854 F .M H 49 ^ (11th Cir. 1988)............................................ Lilly v. H a r r i s - T e e , ter ^ 24n Cir. 1983), cert, denied, 466 U.S. 951 U* > Linda R S.v. RichardD.. 410 U.S. 614 (1973)............. 25 Moore v. Hughes Helicopters. Inc.. 70S F.2d 475 (9th PAGE 17 Cir. 1983)............................................................. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).... 26 New York City Transit Authority v. Beazer, 440 U.S. 568 ^ (1979) .............................................................................. O ’Shea v. Littleton, 414 U.S. 488 (1974)..................... Owens v. Okure, 109 S. Ct. 573 (1989)........................... 28' 29 Parson v. Kaiser Aluminum &Che™c°l 19n 1374 (5th Cir. 1978), cert, denied, 441 U.S. 9b» O* Patterson v. McLean <«* 29n Cir. 1986), cert, granted, 108 S. Ct. to t Payne v. Travenol Laboratories. 565 F.2d 895 (5th Cir.), cert, denied. 439 U.S. 835 (1978)................................. Powersv. Alabama Department 854 F ^d ^ 1285 (11 th Cir. 1988).................................. - >;•-,±.. i i#-*s .H'/J'— viii PAGE Pullman-Standard v. M M (M M WO. « | ^ 2? (1982)..........................................A ’ ’ Robv v. St. Louis Southwestern Ry., 775 F.2d 959 (8th ^ ^ Cir. 1985)........................................................................ tfoss/m v. Ogihy & Mather, Inc., 798 F.2d 590 (2d Cir. ^ 1986)................................................................................ Schlesinger v. Keserviste Committee to Stop the War, 418 ^ U.S. 208 ......................................................................... Segar v. Sm/rt, 738 F.2d 1249 (D.C. Cir. 1984). cert, denied, 471 U.S. 1115 ................................................... Shldaker ». W , 83! F.2d 627 (7.h Cir. 1986), ^ denied, 108 S. Ct. 2900 (1988)...................................... Sosna v. Iowa, 419 U.S. 393 (1975)............................. Swint v. Pullman-Standard (Swint I), 11 FEP Cas^ (BNA) 943 (N.D. Ala. 1974).......................2-6. 7n, 8n. Swint v. Pullman-Standard (Swint II), 539 F.2d 77 (5th^ ^ Cir. 1976)....................................................... ’ ’ ’ Swint v. Pullman-Standard (Swint 19 28 (BNA) 144 (N.D. Ala. 1977)............... 8-10, 15, 17n, 19, Swint v. Pullman-Standard (Swint IV), 15 FEP Cas^ ^ (BNA) 1638 (N.D. Ala. 1977).................................. Swint v. Pullman-Standard (Swint V), 15 FEP Cas. ^ (BNA) 730 (N.D. Ala. 1978)........................................ Swint v. Pullman-Standard (Swint VI), 624 F.2d 525 (5th Cir. ,980, ,re v U 456 U.S.273 (,982,3..2n, .Oon .7n n ; a Swint v. Pullman-Standard (Swint VIII), 692 F.2d 1031^ ^ ■ 1 0 9 - » ................................................................................. ’ IX Swint v. Pullman-Standard (Swint IX), No. CV 71-P- ^ ^ 0955-5 (N.D. Ala. Sept. 8, 1986)................... Swint v. Pullman-Standard (Swint X), No. CV 71-P-^ ^ 0955-5 (N.D. Ala. Nov. 26, .................................... Vuyanich v. Republic National Bank 723 F.2d 1195 (5th Cir ), cert, denied. 469 U.S. 1073 (1984)............. Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. Watsonv. For, Worth Bank <6 , 108 S. C1.OT7 ^ (1988)..................................................... Constitutional Provision ^ ^ ^ U.S. Const. Art. Ill ................................................ Rules Federal Rules of Civil Procedure . .2, 22-25, 26n Rule 23................................................ 2, 1 In, 12, 27-28 Rule 52(a).......................................... ........ 4n Rule 60(b)(6)..................................................... Statutes 29n Ala. Code § 6-2-34(1)...................................... ^ Ala. Code § 6-2-38.......................................... ........... 28n Ala. Code § .................................................. PAGE X Civil Rights Act of 1964 PAGE Title VII, 42 U.S.C. §§ 2000e e, * * ........................passim § 703(h), 42 U.S.C. § 2000e-2(h).............................. 4 8 § 7030), 42 U.S.C. § 2000e-2(j)............................... I4 Civil Rights Law 42 U'S'C 5 1981........................................2. 3, 28-29, 29„ 42 U.S.C. § 1983 .......................................... Judicial Code 28 U.S.C. § 1254(1).................................... In the Supreme (£autt nf tlje United States October Term, 1988 No. 88-____ Pullman-Standard, Inc., a Subsidiary of The Pullman Company, Petitioner, —v.— Louis Swint, and Willie James Johnson, on behalf of themselves and others similarly situated, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Petitioner respectfully prays that a writ of certiorari issue to review the opinion and judgment of the United States Court of Appeals for the Eleventh Circuit entered in this action in appeal Nos. 87-7057 and 86-7886. OPINIONS BELOW The opinion of the Court of Appeals is reported at 854 F.2d 1549, and is reprinted in the Appendix (“ App.” ) hereto at p. la. The unreported memorandum opinions of the District Court (N.D. Ala.) dated September 8, 1986 and November 26, 1986 are reprinted at App. 262a-285a. Prior rulings in this liti gation relevant to this petition are described below and reprinted in the Appendix. 2 JURISDICTION The decision of the Court of Appeals (App. la-6 la) was entered on September 21, 1988 and a timely petition for rehear ing was denied on January 3, 1989 (App. 289a-291a). The juris diction of this Court is invoked under 28 U.S.C. § 1254(1). APPLICABLE CONSTITUTIONAL PROVISIONS AND STATUTES The pertinent text of Article III of the United States Consti tution, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and Rules 23(a) and 52(a) of the Federal Rules of Civil Procedure is set out at App. 292a-298a. STATEMENT OF THE CASE This litigation was previously before this Court in Pullman- Standard v. Swint, 456 U.S. 273 (1982) (App. 231a-258a), which held that a 1980 ruling of the then Fifth Circuit,3 revers ing a determination of the trial court, had transgressed the lim its ot proper appellate review by substituting its own findings on the question of the legality of the seniority system main tained at Pullman’s Bessemer, Alabama plant.4 The instant petition seeks review of the now Eleventh Circuit’s decision reversing, once again, the trial court by ruling that Pullman’s supervisor promotions from 1966 to 1974 worked an unjustified disparate impact under Title VII of the Civil Rights Act of 1964 ( Title VII” ), 42 U.S.C. §§ 2000e et seq., and that its depart mental assignments of new hires from 1965 to 1969 were infected by intentional racial discrimination in violation of Title VII and 42 U.S.C. § 1981 (“ § 1981” ). That decision imposes liability on Pullman on the basis of the very de novo appellate factfinding this Court rejected in Swint by means of 3 Swint v. Pullman-Standard (Swint VI), 624 F.2d 525 (5th Cir 1980) rev’d’ 456 U.S. 273 (1982) (App. 207a-230a). 4 Until it closed in 1980-81, Pullman’s plant in Bessemer, Alabama manufactured special order railway freight cars and parts. 3 an analysis that fails even to take account of, let alone apply, this Court’s intervening decision in Watson v. Fort Worth Bank & Trust, 108 S. Ct. 2777 (1988). A. Class Certification In December 1971, Louis Swint and Willie James Johnson filed a class action alleging that Pullman and the United Steel workers of America, AFL-CIO and its Local 1466 (collectively “ USW”) had engaged in racially discriminatory employment . practices in violation of Title VII and § 1981. Plaintiffs focused their challenge on the departmental seniority system maintained under Pullman’s collective bargaining agreements with the USW (covering 26 departments) and with the International Association of Machinists, AFL-CIO (“ IAM” ) (covering 2 departments), claiming it unlawfully perpetuated the effects of pre-Title VII discrimination. Under the Fifth Circuit’s then prevailing “ across-the-board” approach to Title VII class actions, the District Court certified, without a hearing, Swint and Johnson as representatives of a class5 with respect to four “ class issues” : (1) whether the departmental seniority system perpetuated the effects of past discrimination in the assignment of black employees among the various departments; (2) whether there had been discrimination in the assignment of work to persons within the same depart ment; (3) whether there had been discrimination in promotions to supervisory positions; and (4) whether there had been dis- . crimination in the failure to post changes in assignments.6 The District Court’s determination that there was no discrimination 5 The class was defined as “ all black persons who at any time subse quent to one year prior to the filing of any charges with the EEOC had been employed by Pullman (at its Bessemer plant) as production and maintenance workers in positions represented by the United Steelworkers.” Swint v. Pullman-Standard (Swint /), 11 FEP Cas. (BNA) 943, 948 n.20 (N.D. Ala. 1974) (App. 94a). 6 In the same action, Swint and Clyde Humphrey as intervenor- plaintiff asserted individual claims challenging their discharges. The District Court found that there was no racial discrimination or unlawful retaliation in connection with their discharges, and this determination was affirmed on appeal. Swint v. Pullman-Standard (Swint //), 539 F.2d 77, 105 (5th Cir. 1976) (App. 139a). 4 on issues (2) and (4) was sustained on appeal. With respect to issue (1), following this Court’s Swint decision, the District Court upheld the seniority system under Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), and was affirmed by the Eleventh Circuit. As the litigation evolved, however, an independent issue emerged concerning whether Pullman had engaged in inten tional post-Act discrimination in its departmental assignments of new hires (“ initial assignments’’), which, along with the supervisor promotions issue, are the subject of this petition. However, since both of the named plaintiffs were hired before the effective date of Title VII,7 neither had a personal stake, at the time of certification, in the challenge to post-Act initial assignments. Moreover, neither of the named plaintiffs had ever alleged an individual claim of discriminatory denial of a supervisory position8 and hence lacked a personal stake in the promotions challenge as well.9 * 7 Title VII became effective on July 2, 1965. Swint was hired on November 24, 1964; Johnson was hired on January 12, 1956 (1974 Tr. 884, 1054; App. 298a-299a, 300a). 8 Indeed, while an employee, Swint actively encouraged other black employees to reject offers of promotion to supervisor (1974 Tr. 1775-76, 2505-07, 2550-53; App. 300a-305a), was known to regard those blacks who were supervisors as “ Uncle Toms” (id. 2505-07, 2550-53; App. 302a-305a), pressured black supervisors to resign their positions (id. 3206-8; App. 305a- 306a), and, as the trial court found, was discharged because of “ insubordi nation . . . directed toward a black foreman,” Swint v. Pullman-Standard (Swim l ), 11 FEP Cas. (BNA) 943, 960 (N.D. Ala. 1974) (App. 88a); John son was made a temporary foreman at one point and was oflered a foreman position in 1974 which he declined because of poor health (1974 Tr. 899, 938; App. 299a-300a). 9 In 1975, four other black employees (William Larkin, Spurgeon Seals, Edward Lofton and Jesse Terry) filed a race discrimination suit against Pullman. Their appeal (No. 84-7319) from the District Court’s denial of their motion under Fed. R. Civ. P. 60(b)(6) to translorm a 1976 dismissal with prejudice into a dismissal without prejudice was affirmed by the Elev enth Circuit below. The Court of Appeals reasoned that there was no justili- cation for reopening their case, that the interests ol the “ Larkin plaintiffs” were amply represented in the Swint class, and that any additional evidence 5 B. 1974 Trial and Appeal After sixteen days of testimony and submission of numerous exhibits, the District Court in 1974 concluded, inter alia, that plaintiffs had not proven that the seniority system was unlawful or that the selection of supervisors was discriminatory. Swint v. Pullman-Standard (Swint I), 11 FEP Cas. (BNA) 943, 961 (N.D. Ala. 1974) (App. 90a). Concerning departmental assign ments, the District Court found that because of a 1965 arbitra tion award opening up previously all-white jobs to blacks, the company began implementing a program to eliminate barriers to advancement by blacks. . . .” Id. at 947 (App. 65a). This "effort included an agreement with the Department of Labor, establishing procedures for integrating previously segregated departments, and providing seniority carryover rights for black employees hired prior to 1965 who transferred to formerly all- white departments as well as preferential promotion rights in certain departments. The court further determined that the company’s assignments from 1965 to 1974 discloses an obvious effort . . . to ‘correct’ the racial imbalances in the depart ments. Those departments which in 1965 had been predomi nantly of one race are, without exception, closer in 1973 to the racial ratio for the plant as a whole; and those departments which had been exclusively of one race are, with one exception, no longer ‘segregated.’” Id. at 951 (App. 71a). The court found, however, that Pullman had violated Title VII insofar as ■of discrimination could have been readily presented through the Swint litiga tion. Larkin v. Pullman-Standard (Swint XI), 854 F.2d 1549, 1583-84 (11th Cir. 1988) (App. 59a-60a). The same counsel represented both the Larkin plaintiffs and the Swim class. See Swint v. Pullman-Standard (Swim IX), No. CV 71-P-0955-S, slip op. at 3 n.6 (N.D. Ala. Sept. 8, 1986) (App. 264a- 265a). 10 The court here referred to the Janitors department where two whites had been assigned during the 1965-73 period but subsequently quit. Swint I, 11 FEP Cas. at 951 (App. 71a). 6 six departments remained of single-race composition up until June 1971. Id. at 953-54 (App. 77a).11 With respect to supervisor promotions, the District Court found that salaried foremen—positions outside of the bargain ing unit—were chosen from the ranks of successful hourly (or temporary) foremen, and that “ approximately 20% of [salaried foremen] promotions since mid-1965 have been of blacks, a percentage that is not really disproportionate to the composi tion of the source group when one takes into account the pre- 1965 hourly foremen (all-white) and the necessity of some lag time for demonstration of satisfactory performance as an hourly foreman.” Id. at 958 (App. 84a).'2 Reviewing individual instances of failure to promote blacks, the court found that “ [t]he evidence has not shown a single example of a black indi cating an interest in a foreman’s job being passed over in favor of a white with less qualifications.” Id. at 958 n.50 (App. 102a). The court concluded that Pullman’s use of subjective judgment in selecting supervisors was not discriminatory. On appeal, the Fifth Circuit reversed many of the District Court’s findings. Swint v. Pullman-Standard (Swint II), 539 F.2d 77 (5th Cir. 1976) (App. 104a). Without deciding whether plaintiffs had established a prima facie case on departmental assignments, the panel held that the trial court had unduly nar rowed its inquiry, and directed it to consider on remand evi dence of discrimination in mixed-race departments, the racial composition of the two IAM departments, whether past dis 11 The District Court’s determination here was derived entirely from the absence of employees of the opposite race in those departments. In its 1977 ruling on remand, the court concluded that as to these departments, its previous determination had been incorrect. See note 15, infra. 12 The district judge found that any difference between the selection rate for black hourly foremen and the percentage of blacks in the work force was fully explained by the fact that a greater proportion of black employees were functionally illiterate or minimally literate, had declined opportunities to become hourly foremen, and, due to pre-Act segregation, needed some time to learn the range of skills necessary to perform supervisory duties. Swint /, 11 FEP Cas. at 957-58 (App. 83a-84a). 7 crimination in the departments covered by the Labor Depart ment agreement was probative of a plant-wide discriminatory policy, and whether the special skills that the District Court found were required for assignment to two departments (Weld ing and Maintenance) were justified by “ business necessity. Id. at 94-98 (App. 123a-128a).13 On the promotions issue, the Fifth Circuit apparently agreed with the trial court’s general approach of determining whether the black selection rate for salaried foremen could be explained by reference to the racial composition of the source group— i.e., hourly foremen. The court held, however, that two of the factors cited by the trial judge in explaining the relative short fall in black hourly foremen—functional illiteracy and the time lag (due to pre-Act discrimination) in acquiring supervisory skills—could not be considered in the absence of a showing of business necessity. The Fifth Circuit did agree, however, that evidence of a disproportionate number of refusals of offers of promotion by black employees and “ the recent dramatic improvement in black promotions to salaried supervisor . . . clearly indicative of the lack of discrimination in promotion” could be treated as “ counterbalancing evidence” in rebuttal of the plaintiffs’ statistical showing. Id. at 104 (App. 138a). Here, ‘too, the Court of Appeals expressly declined to decide whether plaintiffs had made out a prima facie showing of discrimina tion. Id. at 104-05 (App. 138a). 13 The District Court had found that because a high proportion of jobs in the Welding and Maintenance departments required special skills and “ typically have been filled by ‘off-the-street’ employment of persons already possessing requisite qualifications,” “ [bfare statistics showing only the racial composition of the employees in those departments do not—absent a study of the qualifications of the applicants or at least a showing of examples in which qualified blacks were not assigned to such departments—evidence dis criminatory assignments thereto.” Swim /, 11 FEP Cas. at 950 (App. 70a). The Court of Appeals, however, was of the view that “ (t]he question of absence of qualifications is relevant, but only after the determination that a pattern of discrimination has been shown; and then, the burden is on the defendant to show the absence of qualifications.” Swint II, 539 F.2d at 89 (App. 113a) (emphasis in original). 8 C. Post-Teamsters Proceedings and 1980 Appeal While the case was on remand in the trial court, this Court rendered its decision in International Brotherhood o f Teamsters v. United States, 431 U.S. 324 (1977). Relying on Teamsters, the District Court upheld Pullman’s seniority system as bona fide within the meaning of § 703(h) of Title VII. Swint v. Pullman-Standard (Swint III), 15 FEP Cas. (BNA) 144 (N.D. Ala. 1977) (App. 156a). The trial court then turned to the ques tion of discrimination in initial assignments after December 27, 1966.14 15 The trial judge concluded, in the most unequivocal terms, that the statistics on post-1966 assignments could “ give rise to no inference that assignments were being made to further a policy of segregated or racially- imbalanced departments. Indeed, if anything the reverse is true: the post-1966 assignments indicate that the company was engaged in efforts to move whites into formerly all black or predominantly-black departments and blacks into formerly all-white and predominantly-white ones.” Swint III, 15 FEP Cas. at 148 (App. 160a). The court also addressed the pointed inquiries of the Swint II panel, and found that segregation had been totally abandoned after 1965 and “ with the demise of the segregated job practice, so also went the ancillary practice of making departmental assignments based on race.” Id. at 149 (App. 162a). The court concluded that the plaintiffs “ have therefore failed to establish an essential element of their claim.” Id.'s 14 This date was considered the “ earliest possible” anterior date on the basis of a March 27, 1967 EEOC Commissioner’s charge, even though the court had substantial reservations about using a Commissioner’s charge to date liability when the instant private lawsuit grew out of later filed individ ual charges. Swint III, 15 FEP Cas. at 146 n.5 (App. 173a-174a). The date was later changed to September 28, 1966 in Larkin v. Pullman-Standard (Swim XI), 854 F.2d 1549, 1567 ( 11th Cir. 1988) (App. 28a). 15 Acknowledging that this finding was inconsistent with its determina tion in Swint / concerning the six single-race departments, the District Court Turning to the supervisor promotions question, the District Court held that whatever prima facie showing plaintiffs had made “ has been rebutted and that Pullman did not discriminate against blacks in such promotions in the time frame covered by the EEOC charges.” Id. at 151 (App. 166a). The court explained that gross comparisons of the percentage of black supervisors with the percentage of blacks in the labor market or with the percentage of blacks in the work force were inappro priate. Rather, “ [i]t is clear from the evidence, if not from com mon sense, that special skills are needed by supervisors and that .all workers are not ‘fungible’ when it comes to selection of supervisors.” Id. at 150 (App. 165a). Relying on Hazelwood School District v. United States, 433 U.S. 299 (1977), the Dis trict Court determined that the appropriate source group for salaried foremen was the ranks of hourly foremen, and when a comparison is made between these two groups, “ it is found that the number of blacks appointed to salaried supervisory posi tions is less than two standard deviations from the number expected from the composition of temporary foremen for the period.” Swint III, 15 FEP Cas. at 151 (App. 166a). The District Court proceeded to examine whether there had been post-1966 discrimination in the selection of hourly fore men. The trial judge found that “ [pjromotions of temporary foremen are departmental in all aspects,” and that [t]he determined that “ its original decision, based largely upon a mechanical application of statistical data respecting a few departments, was incorrect,” since “ there was not a policy of discriminatory assignments respecting these six departments after 1966 anymore than there was respecting the other departments.” Swint III, 15 FEP Cas. at 149 (App. 162a). As for the two 1AM departments, the trial court concluded that “ with respect to these departments, as with the other twenty-six departments, there was no policy or practice of discriminatory assignments after December 1966.” Id. at 150 (App. 163a). 16 The trial judge explicitly found that “ [o]f the 415 monthly promo tions reported from January 1969 through May 1974, 403 or 97% were 10 restriction of such temporary promotions to persons working in the department is a bona fide occupational qualification, justi fied by business necessity, under the evidence in this case.” Id. at 151 (App. 167a). Here, any short-fall in the number of black hourly foremen* 17 was due to the disproportionately higher rate of black refusals of hourly foreman promotions. Id. at 152 (App. 170a). On appeal,18 the Court of Appeals once again reversed. Swint v. Pullman-Standard (Swint VI), 624 F.2d 525 (5th Cir. 1980), rev’d, 456 U.S. 273 (1982) (App. 207a). While this Court subse quently overturned the Fifth Circuit’s reliance on its “ ultimate fact” doctrine with respect to the seniority system issue, de novo appellate factfinding pervades all of Swint VI. Thus, with respect to initial assignments, the Court of Appeals was of the view that the trial judge had made some erroneous calculations with respect to the two 1AM departments. It then summarily concluded that all of the District Court’s findings were “ factu ally unsubstantiated” and that although “ the company made significant advancements in the elimination of previous all black and all-white departments subsequent to 1966, the total employment picture indicates that departmental assignments appointments of a person then in the department. Of the 13 ‘inter departmental’ temporary promotions, virtually all involved an assignment to closely related work, e.g., an Inspector to the department in which he per formed his duties or an Assembler from one department being assigned as foreman for assembly work in another department.” Swint III, 15 FEP Cas. at 151 n.18 (App. 176a). For promotions in two departments, however, the court found “ that only Welders would be qualified to act as temporary fore men in the Welding Department and only persons with experience as a Riv eter, Assembler or Heater would be qualified to act as temporary foremen in the Steel Erection Department.” Id. at 152 (App. 169a). 17 The court found that 149 black hourly foremen were appointed from 1967 through May 1974, as contrasted with an expected figure of 175. Swint 111, 15 FEP Cas. at 151 (App. 168a). 18 After Swint 111 issued, the District Court granted plaintiffs’ motion for a third trial to put in evidence on the seniority system in light of Team sters. Swint v. Pullman-Standard (Swint IV), 15 FEP Cas. (BNA) 1638 (N.D. Ala. 1977) (App. 178a). The court thereafter issued an opinion reaffirming its Swint III ruling. Swint v. Pullman-Standard (Swint V), 15 FEP Cas. (BNA) 730 (N.D. Ala. 1978) (App. 182a). 11 continued to be infected with racial considerations, albeit to a lesser degree than during the pre-Act period.” Id. at 529 (App. 214a). On the promotions issue, the Court of Appeals characterized the District'Court’s discussion of the importance of departmen tal experience to the selection of hourly supervisors19 as a “ limi tation” on black promotional opportunities that had to be justified by business necessity. The Court of Appeals then dis agreed with the District Court that Pullman’s business needs were “ sufficiently compelling,” and further dismissed the evi dence of a disproportionate rate of black refusal of promotions as “ undeniably emanat[ing] from the very discrimination which the class members seek to eliminate.” Id. at 536 (App. 226a- 227a).20 * D. This Court’s Ruling In Pullman-Standard v. Swint (Swint VII), 456 U:S. 273 (1982) (App. 231a), this Court held that the Court of Appeals in 19 Without squarely rejecting the District Court’s precise findmgs on this point as “ clearly erroneous,” the Court of Appeals obliquely observed that “ a substantial number of salaried and temporary foremen supervise departments in which they have never worked.” Swint VI, 624 F.2d at 535 (App 226a). This observation, unaccompanied by record citation, reveals the pitfalls inherent in Swint VTs de novo reappraisal of the evidence. For exam ple the Court of Appeals did not explain whether the foremen in question had acquired relevant experience from work in related departments a ladtor the District Court rightly considered highly material (see note 16, supra). Moreover, the Fifth Circuit’s observation did not join issue with the District Court’s opinion: the trial court’s findings were that departmental experience was required for promotion to hourly foremari positions and that success!u performance as an hourly foreman made one eligible for a salaried position, typically (but not necessarily) in the same department. As we develop in our third point, the then Fifth Circuit’s proper course under Fed. R. Civ. P. Rule 52(a) if it suspected some factual error-and surely the Eleventh Circuit s unmistakable obligation after this Court’s Swint ruhng-was to remand to the District Court rather than to substitute its own lindings. 20 The Court of Appeals in Swint VI here flatly contradicted its earlier approval, in Swint II, 539 F.2d at 104 (App. 137a), of consideration of the higher rate of refusal among black employees of foreman promotions. 12 Swint VI had exceeded the proper scope of review in its treat ment of the trial court’s findings on the validity of the seniority system. The Fifth Circuit was held to have proceeded in an “ incredible” manner, explicable only in terms of that Circuit’s position that “ its own well-established Circuit rule with respect to its authority to arrive at independent findings on ultimate facts free of the strictures of Rule 52(a) also . . . permit[s] it to examine the record and make its own independent findings with respect to those issues on which the district court’s findings are set aside for an error of law.” Id. at 293 (App. 248a). Whether ultimate facts or not, this Court insisted, all factual issues are subject to Rule 52(a)’s clearly erroneous standard; the Court of Appeals’ proper role is limited to identifying legal error and “ remanding for further proceedings to the tribunal charged with the task of factfinding in the first instance.” Id. E. Proceedings on Remand from the Supreme Court On remand, the Fifth Circuit returned the case to the trial court for further findings on the “ locking-in” effect of the seniority system; it did not, however, reconsider its determina tion as to the initial assignments and promotions issues. Swint v. Pullman-Standard (Swint VIII), 692 F.2d 1031 (5th Cir. 1982) (App. 259a). Confined by this “ limited remand,” 21 the District Court held that Swint VI was “ law of the case” and that it was bound to find Pullman liable on those issues. On cross-appeals, the Eleventh Circuit (which inherited this litigation) reached several conclusions warranting this Court’s review. Larkin v. Pullman-Standard (Swint XI), 854 F.2d 1549 (11th Cir. 1988) (App. la). First, in complete disregard of this Court’s intervening decision in Watson v. Fort Worth Bank & Trust, 108 S.Ct. 2777 (1988), the Court of Appeals reaffirmed Swint VTs finding of liability on the promotions issue. Plain- tilts were held to have made out a prima facie case under the 21 Although Swim Vlll contains language suggesting a broader remand, the ruling ol the Eleventh Circuit below makes clear that “ the case was returned to the district court under a limited remand,” 854 F.2d at 1578 (App. 50a), and that this Court’s Swim ruling “ did not change the law”- and was limited to the seniority system issue, id. at 1582 (App. 57a) (emphasis in original). 13 disparate impact theory despite the absence of any showing of disparity with respect to the promotion-eligible group, on the premise that all of Pullman’s black employees were “ theoreti cally eligible for positions at least as temporary supervisors. . . Swint XI, 854 F.2d at 1581 (App. 55a). The burden of persuasion was therefore placed on Pullman to dem onstrate the business necessity of its supervisory requirements. In the Eleventh Circuit’s view, this Court’s Swint ruling con tained “ no suggestion” that Swint VTs liability finding on pro motions was infirm, and hence required no reconsideration of that determination. Rather, Swint VI was viewed as holding that neither prior experience in the particular or related depart ment nor the greater incidence of refusals by black employees to become hourly foremen could be relied upon because of Pull man’s.past initial assignment discrimination. Id. at 1582 (App 57a). Second, the court ruled that Swint and Johnson were appro priate class representatives even though they were both hired before the effective date of Title VII and hence had no personal stake with respect to the post-Act initial assignments claim. The court reasoned that since plaintiffs were challenging a “general policy of discrimination,” they were adequate representatives within an exception to this Court’s holding in General Tele phone Co. v. Falcon, 457 U.S. 147, 159 n. 15 (1982). Swint XI, 854 F.2d at 1564, 1572-73 (App. 24a, 38a-40a).22 Third, the court held that the initial assignments issue was properly treated as an independent claim, id. at 1571 (App. 36a-37a), without explaining why this Court’s Swint opinion did not require reconsideration of that question as well. 22 The court acknowledged that “ Pullman’s argument that it had no basis on which to raise a standing claim earlier in the proceeding is persua sive. Falcon was new law; in fact, the decision reversed a ruling from this cir cuit.” Swim XI, 854 F.2d at 1572 (App. 38a). 14 REASONS FOR GRANTING THE WRIT I. This Case Raises Significant Questions as to the Appropriate Framework, after Watson v. Fort Worth Bank & Trust, for Disparate Impact Challenges to Subjective, Multicriteria Selection Systems for Supervisory Personnel. Responding to the need to provide some method of challeng ing subjective selection systems which may be used as a covert means for accomplishing intentional discrimination, this Court in Watson v. Fort Worth Bank & Trust, 108 S.Ct. 2777 (1988), upheld the use of the disparate impact theory to challenge such systems. Justice O’Connor’s plurality opinion recognizes, how ever, the peculiar dangers of this theory when it is applied not to scored tests and other proxies for individualized consideration initially envisioned in Griggs v. Duke Power Co., 401 U.S. 424 (1971), but to subjective, multicriteria selection systems. So applied, it has the potential to subject every facet of an employ er’s decision-making process to burdensome, difficult-to- achieve validation requirements, thus creating virtually irresistible pressure to engage in quota practices in order to avoid those requirements. Such a result, the Watson plurality cautioned, would be contrary to at least the spirit, if not the let ter, of Congress’ judgment in Section 703(j) of Title VII, 42 U.S.C § 2000e-2(j), that this statute does not compel racially- balanced hiring and promotions. As the Court of Appeals applied the Griggs approach to Pull man’s promotion practices—and as it rejected out-of-hand the District Court’s careful attempt to identify the appropriate group of promotion-eligible black workers and to take into con sideration Pullman’s aggressive post-Act measures to place its black workers on an equal footing—the message to employers to hire and promote on a quota basis is unmistakably clear. The Court has heard argument this Term in Atonio v. Wards Cove Packing Co., 827 F.2d 439 (9th Cir. 1987), cert, granted, 108 S. Ct. 2896 (1988) (No. 87-1387), to consider post -Watson issues with respect to the hiring of entry-level workers. This case presents an opportunity for establishing the appropriate ground-rules for the very different context of promotion of supervisory personnel. 15 A. The Eleventh Circuit’s Refusal to Require Plaintiffs to Demonstrate Disparate Impact with Respect to the Group of Promotion-Eligible Blacks Conflicts with Several Deci sions of this Court and Presents a Division Among the Circuits. The Eleventh Circuit held that plaintiffs were not required to demonstrate disparate impact with respect to the promotion- eligible group. Although acknowledging the need in theory to establish some level of a “ relevance threshold” concerning eli gibility, the Court of Appeals deemed that threshold met here simply by comparing “ the percentage of blacks in the Pullman workforce, all of whom were theoretically eligible for positions at least as temporary supervisors, with the percentage of blacks who were actually selected.” Swint XI, 854 F.2d at 1581 (App. 55). The court thus swept aside the District Court s contrary factual finding that all Pullman workers, black or white, were not “ theoretically eligible” for all temporary foreman posi tions, but rather that experience in the particular or related department was normally required. See Swint III, 15 FEP Cas. at 151 & n.18 (App. 167a, 176a). Moreover, the Eleventh Cir cuit blanketly rejected Pullman’s stated promotional criteria for salaried foreman positions, which included knowledge ot particular departments and successful experience as a tempo rary foreman, as either “ impossible to incorporate into statisti cal proof or . . . themselves the result of discrimination.” Swint XI, 854 F.2d at 1581 (App. 56a). In effect, then, the Eleventh Circuit permitted plaintiffs to put Pullman to the burden of proving business necessity through a gross, “ bottom line” comparison of the percentage of black workers to the percentage of black supervisors—a comparison which wholly fails to take into account minimal threshold qualifications. This approach, longstanding with the Eleventh Circuit,23 reflects a form of “ bottom line” reasoning 23 In Powers v. Alabama Department o f Education, 854 F.2d 1285 (11th Cir. 1988), the Eleventh Circuit insisted that Watson required no change in its well-established position, reflected in Swint XI as well.as Griffin 16 repudiated in Connecticut v. Teal, 457 U.S. 440 (1982). More over, it contradicts the Watson plurality’s insistence that plain tiffs are “ responsible for isolating and identifying the specific employment practices” causing the alleged adverse impact, and for demonstrating that those practices in fact caused the minority group exclusion. See Watson, 108 S.Ct. 2788-89. This Court has made clear that statistical analysis of discrimi nation must reflect an assessment of the eligible applicant or employee pool. Thus, in Hazelwood School District v. United States, 433 U.S. 299, 308 n.13 (1977), a disparate treatment case, this Court cautioned that “ [w]hen special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.” Even in the context of voluntary affirmative action pro grams, the type of “ imbalance” that may legitimately provide a basis for such preferences requires a comparison of those actu ally hired or promoted with “ those in the labor force who pos sess the relevant qualifications.” Johnson v. Transportation Agency, 480 U.S. 616, 632 & 633 n.10 (1987) (defining the Title VII prima facie case). This principle was most recently reaf firmed in City o f Richmond v. V.A. Croson Co., 109 S. Ct. 706, 725 (1989): “ where special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discrimi natory exclusion must be the number of minorities qualified to undertake the particular task.” '4 v. Carlin, 755 F.2d 1516 (11th Cir. 1985). In the Court of Appeals’ view, “ plaintiffs alleging class-wide discrimination In promotions are not required to isolate the particular aspect of the promotional process that is responsible for the discriminatory impact,” and a prima facie case may be established without accounting for the absence of relevant experience in a supervisory line of progression. See Powers, 854 F.2d at 1293-94. 24 * 24 It offers little comfort to suggest, as the Court of Appeals did, that plaintiffs should be free to mount Griggs suits without regard to “ employer- specific qualifications” because such qualifications “ should be subjected to the light of day and evaluated to see if they are truly necessary to the employ- 17 The holding of the Elevenlh Circuit below squarely conflicts with the position of the Ninth Circuit and, in all Probability, the Seventh Circuit as well. Applying Hazelwood, the Ninth Circuit would insist on a qualified labor pool comparison in the case of a disparate impact challenge to the promotion policies of an omnlnver like Pullman, who promotes from within. Thus, in 1983) the court held that in “ promotion cases, it will be neces sary for the plaintiff to show that the pool of eligible employees is qualified for promotion to a position for which it is mam e that special skills are required.” Moore specifically applied this principle to first-line supervisory positions: As the ‘dentifica- don of a job position as ‘supervisor’ implies at least a modicum o f job-re ated experience,” it was plaintiff’s responsibility to identify a pool of employees eligible for supervisory positions who possessed the requisite experience. Id. at 485. More recently, the Seventh Circuit has recognized, m Cox v. City o f Chicago, Nos. 88-2598, 88-2599 (7th Cir. Jan. 27, 1989) that Watson’s identification and causation requirements preclude plaintiffs from establishing a prima facie impact case through “ underrepresentation statistics,” even when challeng . . . n o v i 8S4 F 2d at 1582 n.50 (App. 56a). Statistics based on ^ “employee population “ containing individuals lackinf , " ^ ^ ‘‘ 5 m s s w s : r ; Pow r . d n i l ™ lidaTon lenviremenis on ample,ers. In an, even,, the DisI.k Com, expressly toond ih .i the dep.r,mental experience reqmrement hourly foremen was “ justified by business necessity. Swim III. Cas. at 151 (App. 167a). 25 Several pre- Watson rulings are consistent with the Eleventh Circuit. See, , g „ Shidaker v. Tisch, 833 F.2d.627 (7th T T a t ' l 'u s' i m ^ r K o w e ” . u» ike ,he Com, of Appeals below, " h e i e n * Cileuh in S t i L e r and the D C . Circni, in Seguewould a, Lrsi permit a defendam to defeat a prima facie case b , showing that pla, on an “ underrepresentation statistics" approach that may no ^ s,-. t j % . - < **- V. Carlin, supra). 18 ing subjective promotion systems. As the Seventh Circuit now acknowledges, plaintiffs must prove adverse impact through “ eligibility rate statistics” that focus on the pool of blacks qual ified for the higher-level position: “ Eligibility rate statistics, not underrepresentation statistics, encompass this causation re quirement.” Cox, slip op. at 11. By contrast, the Eleventh Cir cuit’s view is that Watson requires no change at all in what is in essence its longstanding underrepresentation-statistics approach. See Powers v. Alabama Department o f Education, 854 F.2d 1285, 1293-94 (11th Cir. 1988); note 23, supra. This Court should grant certiorari both to resolve this con flict and to clarify the plaintiff’s burdens in a disparate impact challenge to subjective multicriteria selection systems for super visory personnel. B. The Court of Appeals’ Allocation of the Burden of Persua sion to the Employer to Prove the Necessity of its Business Requirements for Supervisor Promotions was Improper Under Watson. The rationale for allowing a disparate impact challenge to subjective systems is that it serves as a useful adjunct to an intentional discrimination case—to capture situations where “ the problem of subconscious stereotypes and prejudices would remain.” Watson, 108 S. Ct. at 2786. The Watson plurality urged, however, that the “ business necessity” or “ job relatedness” doctrine, as applied to subjective systems, should not be interpreted as shifting the ultimate burden of proof to the defendant: “ On the contrary, the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plain tiff at all times. Thus, when a plaintiff has made out a prima facie case of disparate impact, and when the defen dant has met its burden of producing evidence that its employment practices are based on legitimate reasons, the plaintiff must ‘show that other tests or selection devices, without a similar undesirable racial effect, would also serve the employer’s legitimate interest in efficient and trustworthy workmanship.’ Factors such as the cost or 19 other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employ er’s legitimate business goals.” Watson, 108 S, Ct. at 279 (citation omitted). In this case, the Court of Appeals misconceived the proper allocation of burdens in a Watson-type challenge. The court held that “ ftlhe burden—not just of production but ot persuasion-was then on Pullman to show that the practice challenged arose from a non-discriminatory business neces sity ” and that “ Pullman had offered no legally acceptable evi dence that its subjective selection procedure was a business necessity.” Swint XI, 854 F.2d at 1580 (App. 53a) Even on the assumption arguendo that a prima facie case had been estab lished, the burden-allocation below was improper on two counts. First, Pullman’s burden should have been one of pro duction only, of producing evidence of legitimate business rea sons bearing “ ‘a manifest relationship to the employment in question’ ’’—similar to that which sufficed in New York City Transit Authority v. Beazer, 440 U.S. 568, 587 n.31_( Watson 108 S. Ct. at 2790-91 (plurality opinion). The District Court’s'findings in Swint III make clear that Pullman success fully carried such a burden, thus removing any basis for a rea sonable inference that its departmental experience requirement for hourly foremen or its use of subjective criteria was a pretext for intentional discrimination. Second, the appeals court erred in relieving plaintiffs of their ultimate burden to. show reason able alternative selection criteria,26 27 for in the absence of such proof the inference of pretextual discrimination-which is the 26 hTtowers, supra, the Eleventh Circuit held despite Watson that the burden of persuasion remains with the defendant. See 854 at 27 The Court of Appeals clearly placed this burden on Pullman, requir ing that its supervisory requirements “ must ‘not only loster sal^ a|ld el”n ciency but must be essential to that goal . . . and there must not be an acceptable alternative that will accomplish that goal equally well with a les c differential racial impact.’ ” Swint VI, 624 F.2d at 536 (App, 26a, Parson v. Kaiser Aluminum & Chemical Carp., 575 F.2d 1374 (5th Ur. 1978), cert, denied, 441 U.S. 968 (1979). 20 principal focus of a Watson-lypc challenge—cannot be sus tained.28 * C. The Court of Appeals Improperly Commingled Disparate Treatment and Disparate Impact Theories. Since Title VII plaintiffs may be expected, after Watson, to utilize both disparate treatment and disparate impact theories in the same challenge to a subjective system, this Court should grant review to clarify the extent to which findings in the treat ment phase of a case can be used to impeach or undermine the employer’s rebuttal case in the impact phase. A recurring theme of both the Eleventh Circuit opinion, and the Swint VI ruling it reaffirms, is that Pullman could not properly rely on a depart mental experience requirement or evidence of a disproportion ate refusal of black workers to accept hourly foreman positions because it had been found to have engaged in discriminatory initial assignments. See Swint XI, 854 F.2d at 1582-83 (App. 57a-58a); Swint VI, 624 F.2d at 536 (App. 227a). In so ruling, the Court of Appeals impermissibly blurred the critical distinction between treatment and impact theories, dis regarding the central limitations of each theory. Liability for disparate treatment requires a finding of discriminatory moti vation. This was found (by the Court of Appeals) to exist for a particular period (October 1965-January 1969) and only with respect to one aspect of the employer’s operations (departmen tal assignment of new hires). That finding was then used by the court to nullify, as a practical matter, the employer’s ability to maintain an otherwise legitimate supervisor selection system, but without any proof of intentional discrimination affecting such selections. In the absence of a finding of plant-wide inten tional discrimination infecting all of Pullman’s selection processes—a finding never made in this case and one which could not be made on this record—the Eleventh Circuit effected the functional equivalent of such a finding by disallowing Pull- 28 Indeed, the District Court found that “ (t]he only suggested alterna tive in the evidence, that by one of plaintiffs’ witnesses, was that [plant-w ide) seniority should be followed in making appointments of foremen. An objec tive standard to be sure, but hardly an apt one.” Swint I, 11 FEP Cas. at 958 n.54 (App. 102a). 21 man’s business-necessity rebuttal case. As this part of the case was predicated on an impact rather than intentional bias theory, Pullman was entitled to a fair hearing on the business justification for its supervisory requirements. II The Eleventh Circuit’s Holding that Individuals Hired Out side the Liability Period and Who Never Asserted Individ ual Claims of Discriminatory Denial of a Supervisor Promotion Are Proper Class Representatives to Assert Ini tial Assignment and Promotions Claims Conflicts with the Decisions of This Court and Other Courts of Appeals. The Eleventh Circuit held that respondents Swint and John son were proper representatives to assert class claims regarding initial assignments and supervisor promotions even though, at the outset of the suit as well as at the time of certification, they had not the slightest personal stake in either claim.' Acknowl edging that General Telephone Co. v. Falcon, 457 U.S. 147 (1982), had rejected the Fifth Circuit’s previous “ across-the- board’’ approach to Title VII class actions, the Court of Appeals reasoned that this case came within the “ general policy of discrimination” exception identified in footnote 15 of Fal con. See Swint XI, 854 F.2d at 1573 (App. 40a). The Court of Appeals’ sweepingly broad interpretation of Falcon effectively permits the exception to swallow the rule, placing in the hands of any artful pleader the means to accomplish “ across-the- board” certification in virtually every Title VII case. Moreover, the ruling below directly conflicts with decisions of other cir cuits and disregards Article III limitations on class representa tive standing. This case thus'presents a well-defined conflict requiring this Court’s resolution, as well as the opportunity to clarify the reach of Falcon and to reaffirm the standing require ments imposed by Article 111. 29 Both named plaintiffs were hired and initially assigned well before ihe effective date of Title VII and commencement of the liability period. Moreover, neither could have been injured by Pullman’s promotion prac tices- indeed, Swint was a vocal, militant opponent of black employees who agreed to serve as supervisors, and Johnson had himself rejected an offer ol promotion. (See notes 7 & 8, supra). 22 A. This Court Should Grant Review to Clarify the Proper Reach of Falcon, an Issue of Recurring Importance in the Administration of Title VII, and to Resolve the Division Among the Circuits. The central teaching of both Falcon, and its predecessor East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395 (1977), is clear: careful attention to the typicality and common ality requirements of Rule 23 “ remains indispensable” even in Title VII suits. Falcon, 457 U.S. at 157; Rodriguez, 431 U.S. at 405. Falcon expressly rejected the “ across-the-board” doctrine as undermining Rule 23’s insistence on an essential identity of interest between the class and its representatives. Falcon, 457 U.S. at 157-59. Thus, this Court demands that a class represent ative “ be part of the class and ‘possess the same interest and suffer the same injury’ as the class members,” Rodriguez, 431 U.S. at 403, quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216 (1974); and that the class claims be limited “ to those fairly encompassed by the named plaintiff’s claims,” Falcon, 457 U.S. at 156, citing General Tel ephone Co. v. EEOC, 446 U.S. 318 (1980). Here, the Eleventh Circuit has resurrected precisely what Rodriguez and Falcon sought to put to rest. The named plain tiffs were held to be proper Rule 23 representatives because “ [fjrom the start, the plaintiffs’ basic complaint has been that Pullman prevented black employees from moving into its higher-level positions.” Swint XI, 854 F.2d at 1573 (App. 39a). Characterizing the injuries suffered by the named plaintiffs and the class as “ [t]he same injury” —that is, “ being locked into . . . lower-paying jobs” —the Eleventh Circuit determined that the only real question was through which employment practice this result ultimately came about—“ whether it was the discrimi nation in assignments or the nature of the seniority system, or both, that prevented blacks from moving up the job ladder.” Id. (App. 40a) Yet, the Court of Appeals failed to require, as mandated by Rodriguez and Falcon, that at least one of the two named plaintiffs be injured by each—not to say any—of these practices. The Eleventh Circuit attempted to fit the facts of this case into one of two exceptional situations recognized in footnote 15 2? of Falcon. Specifically, the court invoked the so-called second exception as authority for its conclusion that Pullman “ oper ated under a general policy of discrimination” that manifested itself in the challenged practices “ in the same general fashion.” See Falcon, 457 U.S. at 159 n.15. In this case, however, there was neither a single employment practice nor a subjective decision-making process identified as common to both assign ments and supervisor promotions. Although the named plain tiffs may have been able to claim injury from the seniority system insofar as it allegedly perpetuated pre-Act discrimina tion, they “ could have suffered no injury as a result o f” post- Act discrimination in departmental assignments of new hires, “ and they [are] therefore, simply not eligible to represent a class of persons who did allegedly suffer [such] injury. Rodri guez, 431 U.S. at 403-404. The same applies to their claimed status as class representatives on the supervisor promotions issue. To hold, as the Court of Appeals did, that a policy of such amorphous scope as keeping blacks “ locked into . . . lower-paying jobs” or preventing them “ from moving up the job ladder” satisfies the “ general policy” exception is to accord footnote 15 an unwarranted breadth that threatens to swallow the very rule announced in the body of the Falcon opinion. The reservation in footnote 15 has generated inconsistent applications of Falcon in the various circuits, leading some courts to believe that the Falcon holding, as qualified by foot note 15, does not completely foreclose across-the-board actions.30 31 Other courts have construed Falcon more strictly, undertaking exacting reviews of class certification and rejecting expansive applications of footnote^ 15 that would essentially revive “ across-the-board” attacks. 30 See, e.g., Rossini v. Oglivy & Mather, Inc., 798 F.2d 590, 598 (2d Cir. 1986) (standing affirmed where named plaintiff “ attempted to prove that [the employer] had denied women opportunities to advance themselves, either as she sought to do, by transfer, or as other class members sought, by training or promotion,” through various employment practices including the use of a subjective evaluation system). 31 See eg Wagner v. Taylor, 836 F.2d 578, 593 (D.C. Cir. 1987) (employee denied promotion could not represent a class consisting of disap- 24 Moreover, the ruling below directly conflicts with decisions of the Third and District of Columbia Circuits over whether employees, like named plaintiffs here, hired outside the liability period are proper class representatives to challenge discrimina tion in initial assignments occurring during the liability period. See Goodman v. Lukens Steel Co., I l l F.2d 113, 124 (3d Cir. 1985), a ff’d on other grounds, 482 U.S. 656 (1987) (“ All of the named plaintiffs, however, were originally hired outside the limitations period, and therefore, none have a viable complaint about discrimination in initial assignment. Thus, no representa tive adequately represents the class on this particular claim.” ); Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1409-10 (D.C. Cir. 1988), pet. fo r cert, filed, 57 U.S.L.W. 3334 (U.S. Nov. 8, 1988) (No. 88-699) (named plain tiffs could not represent class challenge to high school diploma requirement of apprenticeship program because they “ were too old to challenge the . . . requirement within the statutory limi tations periods, or were not injured by it because they had no interest in enrolling in the [program] during those periods” ).32 The class representative holding below also conflicts with the Eighth Circuit over whether employees, like named plaintiffs here, who never alleged individual claims of discriminatory denial of a supervisory position may represent a class challenge to allegedly discriminatory promotion practices. See Roby v. St. Louis Southwestern Ry., 775 F.2d 959, 962 (8th Cir. 1985) (“ [bjecause [named plaintiffs] were not affected by the Rail pointed applicants and of employees who were fired, denied promotions, or discriminated against in the terms and conditions of employment); Holsey v. Armour & Co., 743 F.2d 199, 216 (4th Cir. 1984), cert, denied, 470 U.S. 1028 (1985) (same application procedure and entirely subjective criteria appli cable to both employees and outside applicants for same jobs does not con stitute significant proof warranting single class treatment within meaning of footnote 15); Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 333-34 (4th Cir. 1983), cert, denied, 466 U.S. 951 (1984) (named plaintiff’s claim, although overlapping on several important pieces of proof with class claims, nonetheless failed to justify single class treatment for more than one employ ment practice as provided in footnote 15). 32 See also International Woodworkers v. Chesapeake Bay Plywood Corp., 659 F.2d 1259, 1270 (4th Cir. 1981) (pre-Falcon decision consistent with Eleventh Circuit below). 25 road’s promotion policies, they were not proper class represent atives for those employees who are affected by these policies.” ). This Court is thus presented with a conflict in the circuits over whether a named plaintiff may represent a class claim of discriminatory initial assignments when that plaintiff’s initial assignment occurred outside the liability period, or a class claim of discriminatory denials of promotion even though that plain tiff lacked an individual promotion claim. Inasmuch as these are issues that arise frequently in Title VII cases, this Court should grant certiorari in order to resolve the conflict and clar ify the scope of the purported “ general policy of discrimina tion” exception reserved in footnote 15 of Falcon. B. The Eleventh Circuit’s Holding that the Named Plaintiffs are Adequate Class Representatives Violates Article III Limitations on Class Action Standing. A private Title VII suit brought on behalf of a class depends not only on the satisfaction of Rule 23 but also upon a repre sentative plaintiff who has constitutional standing to raise the class claims. To meet the threshold requirement imposed by Article III, a named plaintiff must satisfy two prerequisites. First, he “ ‘must allege some threatened or actual injury result ing from the putatively illegal action before a federal court may assume jurisdiction.’ ” O ’Shea v. Littleton, 414 U.S. 488, 493 (1974), quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973). Second, a named plaintiff must have suffered an injury in the same manner as have the members of the class he seeks to represent. See O’Shea, 414 U.S. at 495; Sosna v. Iowa, 419 U.S. 393, 402-03 (1975). Indeed, this Court has repeatedly cau tioned: “ It is not enough that the conduct of which the plaintiff complains will injure someone. The complaining party must also show that he is within the class of persons who will be concretely affected. Nor does a plaintiff who has been subject to injurious conduct o f one kind possess by virtue of that injury the necessary stake in litigating con duct o f another kind, although similar, to which he has not been subject.” 26 Blum v. Yaretsky, 457 U.S. 991, 999 (1982) (emphasis sup plied); see Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-167 (1972). The Court of Appeals below has departed inexplicably from the longstanding requirements of Article III and the decisions of this Court in neglecting to address whether the named plain tiffs had constitutional standing to adjudicate each of the claims they now seek to raise on behalf of the class.33 The named plaintiffs never had a constitutionally cognizable initial assignments claim. Furthermore, insofar as they were never injured individually by the denial of a promotion, they do not now and never did have constitutional standing to assert a chal lenge to Pullman’s promotion practices and hence lacked stand ing to litigate that claim on behalf of a class. The Eleventh Circuit’s summary disregard of the Article III dimension of plaintiffs’ class representative status presents a conflict with rulings of this Court and the Fifth Circuit, see e.g., Payne v. Traveno! Laboratories, Inc., 565 F.2d 895, 898 (5th Cir.), cert, denied, 439 U.S. 835 (1978); Vuyanich v. Republic National Bank, 723 F.2d 1195, 1200 (5th Cir.), cert, denied, 469 U.S. 1073 (1984),34 * warranting a grant of certiorari. III. The Eleventh Circuit’s Refusal to Reconsider its 1980 De Novo Factfinding in Light of this Court’s Swint Opinion Warrants Review as an Exercise of Supervisory Authority. The Eleventh Circuit took the view that this Court’s opinion in “ Swint VII did not change the law” —that it had not engaged in improper factfinding except as to the seniority system. Swint XI, 854 F.2d at 1582 (App. 57a) (emphasis in original). There is, however, no way to make sense of much of the Fifth Cir cuit’s 1980 ruling as to issues other than the seniority system as 33 Although a Rule 23 case, Falcon implicitly recognizes the mandate of Article 111 underlying the requirements of Rule 23. “The mere fact,” the Court stated, “ that an aggrieved private plaintiff is a member of an identifi able class of persons of the same race or national origin is insufficient to establish his standing to litigate on their behalf all possible claims of discrimi nation against a common employer.” Falcon, 457 U.S. at 159 n. 15. 34 Swint X I also conflicts in this regard with an earlier Eleventh Circuit ruling in Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987), cert, denied, 108 S. Ct. 1729 (1988). 27 anything but de novo appellate factfinding. Although sanc tioned at the time under the Fifth Circuit’s “ ultimate fact doc trine, that judicial approach is squarely at odds with this Court’s Swint opinion. Thus, for example, on the initial assignments issue, there had been no prior finding by either the District Court or the Court of Appeals that a prima facie “ pattern or practice” case of intentional discrimination had been made out. Yet, in Swint VI, after finding some errors in the trial judge’s calculations with respect to the two IAM departments, the Court of Appeals baldly announced that it had “ carefully reviewed the post-Act assignment statistics” and that “ they clearly” support the plaintiffs’ contention on the existence of a discriminatory post- Act initial assignments policy. Swint VI, 624 F.2d at 529-30 (App. 214a). But here, as on the seniority issue, “ the District Court was not faulted for misunderstanding or applying an erroneous definition of intentional discrimination,” Swint VII, 456 U.S. at 287 (App. 243a). Moreover, even if, for the sake of argument, the District Court had made an error of law or the appeals court had some doubts about the trial court s statistical analysis, this Court’s Swint ruling teaches that a remand for new factfinding was the only proper course consistent, with Rule 52(a). The existence of discriminatory intent with respect to the post-Act initial assignments, “whether an ultimate fact or not . . . is a factual matter subject to the clearly-erroneous standard of Rule 52(a). It' follows that when a district court’s finding on such an ulti mate fact is set aside for an error of law, the court of appeals is not relieved of the usual requirement of remand ing for further proceedings to the tribunal charged with the task of factfinding in the first instance.” Id. qt 293 (App. 248a). On the promotion issue, the Eleventh Circuit attempted to characterize its earlier ruling as based on the District Court s misapplication of the legal standard. Even if true, this called, at most, for a remand as opposed to appellate factfinding. But such a characterization of Swint VI does not, in any event, withstand analysis. The District Court found that Pullman’s 28 limitation of hourly foreman promotions to employees with experience in a particular or closely-related department was “ justified by business necessity under the evidence in this case.” Swint III, 15 FEPCas. at 151 (App. 167a). The Swint VI court simply disagreed “ that the business need advanced by the defendants for the limitation which restricts the promotion of blacks to supervisory positions is sufficiently compelling to override the significant racial impact.” Swint VI, 624 F.2d at 535-36 (App. 226a).35 This was appellate factfinding, pure and simple, which the Eleventh Circuit has chosen to reaffirm in the face of this Court’s contrary instructions on the proper role of appellate review. The Court is understandably reluctant to review opinions for compliance with Rule 52(a), but here the Eleventh Circuit’s fail ure to conform to its strictures in the very case in which this Court insisted on such compliance warrants a grant of certiorari in the exercise of the Court’s supervisory authority. IV. The Holding Below that Alabama’s Six-Year “ Non- Residual” Statute Applies to § 1981 Claims Warrants Review in Light of Owens v. Okure. The District Court held that Alabama’s residual statute of limitations for personal injury actions36 should apply to date 35 The appeals court may also have been unduly influenced by its now rejected perpetuation-of-pre-Act-discrimination ruling on the seniority sys tem issue, finding that “ these variables relied upon by the district court do not weigh heavily enough to lessen the appellants’ empirical conclusions that black employees were locked in the lower paying jobs and departments.” Swim VI, 624 F.2d at 536 (App. 227a). Despite the Eleventh Circuit's effort at minimizing this language, 854 F.2d at 1583 (App. 59a), the so-called “ locking-in effect” was clearly (and improperly) used to discredit Pullman’s business-necessity rebuttal case. 36 Swim v. Pullman-Standard (Swim X), No. CV71-P-0955-S (N.D. Ala. Nov. 26, 1986) (App. 278a). That statute, currently codified at Section 6-2-38 of the Alabama Code, now provides for a two-year statute of limita tions. However, prior to 1985, the statute, then codified as Section 6-2- 39(a)(5) of the state code, provided for a one-year period. 29 recovery for plaintiffs’ § 1981 claims.37 The Court of Appeals reversed, opting for the six-year Alabama statute for actions alleging “ trespass to person or liberty.” 38 Subsequent to the Eleventh Circuit’s pronouncement, however, this Court issued its decision in Owens v. Okure, 109 S. Ct. 573 (1989), holding that where state law provides more than one statute of limita tions for personal injury actions, courts considering § 1983 claims should borrow the limitations period from that state’s general or residual statute. Moreover, this Court specifically referred to the statute selected by the District Court below as the one applicable to § 1983 claims in Alabama. Owens v. Okure, 109 S. Ct. at 580 n.9. Insofar as the statute of limita tions that applies to claims under § 1983 should apply equally to those brought under § 1981, see Goodman v. Lukens Steel Corp., supra, 111 F.2d at 120, it is clear that the limitations period applicable to the instant case is not the one imposed by the Court of Appeals but the one-year provision contained in Alabama’s residual statute. 37 i This point assumes, for the sake of discussion, that § 1981 reaches private discrimination—an issue currently under reconsideration in this Court in Patterson v. McLean Credit Union, 805 F.2d 1143 (4th Cir. 1986), cert, granted, 108 S. Ct. 65 (1987). 38 Swim XI, 854 F.2d at 1567-70 (App. 29a-35a). Ala. Code § 6-2- 34(1) (1977). > CONCLUSION For all these reasons, Petitioner requests that its Petition for a Writ of Certiorari be granted. 30 O f Counsel: C.V. Stelzenmuller Burr & Forman 3000 SouthTrust Tower Birmingham, Alabama 35203 (205) 251-3000 Respectfully submitted, *Floyd Abrams Thomas J. Kavaler Samuel Estreicher Taryn V. Shelton Peter Phillips Cahill Gordon & Reindel (a partnership including professional corporations) 80 Pine Street New York, New York 10005 (212) 701-3000 * Counsel o f Record for Petitioner