Harris v. Allegheny-Ludlum Industries Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    I n  th e

Qlmtrt at tfjp In t l^  Matm
October Teem, 1975 

No.............

Sidney S. H arris, et al.,

v.

Allegheny-Ludlum I ndustries, I nc., et al., 

and
United States of America, et al.

Petitioners,

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

J ack Greenberg 
J ames M. Nabrit, III 
Charles Stephen Ralston 
Barry L. Goldstein 
Deborah M. Greenberg 
Eric Schnapper 

10 Columbu's Circle 
New York, New York 10019

Oscar W. Adams 
J ames K. Baker 
U. W. Clemon 
Caryl P rivett 

2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

Bernard D. Marcus 
415 Oliver Building 
Pittsburgh, Pennsylvania 15222

Sidney Raskind
1901 First National Life Building 
Houston, Texas 77002

Gabrielle K. McDonald 
Mark T. McDonald 

Suite 203
1834 Southmore Boulevard 
Houston, Texas 77004

Gerald Smith 
Kenneth J ohnson 
Norris Ramsey 

711 St. Paul Street 
Baltimore, Maryland 21201

Counsel for Petitioners



Opinions Below ..................... ...... -....—................—...... 1

Jurisdiction ........ ........... ......................... ....—............... 2

Question Presented ........ ................................................ 2

Statutory Provisions Involved ..................... .......... .....  2

Statement of the Case...... ............................................. 4

Reasons for Granting the Writ ........    7
1. The Importance of The Issues Involved ___  7
2. The Proposed Waiver of Future Injunctive

Relief .......................................................   11
3. The Proposed Waiver of Future Monetary

Relief .......................................     15

Conclusion ....................................................................    17

A ppendix

Opinion of the District Court, June 7, 1974 _____ la
Opinion of the Court of Appeals, August 18,1975 .. 13a
Opinion of the District Court, January 6, 1976.....120a
Order of the District Court, January 6, 1976.......126a

I N D E X

PAGE

T able op Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ..14,16 
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 12,

13,14,16



11

Carroll v. Bethlehem Steel Corp. (D. Md., No. M-
75-374) .............. ...........-........-.... -................. ..............  9

Chatman v. United States Steel Corp. (N.D. Cal. No. 
0-75-1239) ...... .... .......................................... .. .......... 9

Dickerson v. United States Steel Corp. (E.D. Pa., No.
73-1292) ...... .......................................... ..................-  9

Dickerson v. United States Steel Corp., cert, denied,
421 U.S. 948 (1975) ........ .............. ............ ..............  9

Ford v. United States Steel Corp., 520 F.2d 1043 (5th 
Cir. 1975) ............................ ....................... ..............  7

Harris v. Republic Steel Corp. (N.D. Ala. No. 74- 
P-3345) .................................................... .................... 9

Johnson v. Railway Express Agency, 421 U.S. 454 
(1975) ................ ..... ................. .....................-.......-....  10

Lane v. Bethlehem Steel Corp. (D. Md., No. 71-580-H) 9
Louisiana v. United States, 380 U.S. 145 (1965) ___  14

Rodgers v. United States Steel Corp. (W.D. Pa. No.
71-793) ________ ________ ___________-.......... -....  9

Rodgers v. United States Steel Corp., 508 F.2d 152 
(3rd Cir. 1975), cert. den. sub nom., United States 
Steel Corp. v. Rodgers, 46 L.Ed. 2d 50 (1975) ......  9

Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S.
1 (1971) _____ _______ ____-...... .......-.................... 14

Taylor v. Armco Steel Corp. (S.D. Tex. No. 68-129) 9

United States v. Bethlehem Steel Corp., 446 F.2d 652 
(2nd Cir. 1971)

PAGE

7



Ill

United States v. Trucking Employers, Inc., (D.D.O.

PAGE

C.A. No. 74-453) ........................ ................................  10

Waker v. Republic Steel Corp. (N.D. Ala., Nos. 71-
179, 71-180, 71-181, 71-185) ....... .............. ....... .......... 9

Williamson v. Bethlehem Steel Corp. (W.D.N.Y. No. 
71-487) ........................................................................  9

Other Authorities:
In the Matter of the Bethlehem Steel Corp., Decision 

of the Secretary of Labor, Docket No. 102-68, Jan. 
15, 1973 ............ ..... ..... ........... .... ................................ 7



I n  t h e

(Emurt nf IIjt I n M  Stairs
October T eem , 1975 

No.............

S idney S. H arris, et al.,

v.
Petitioners,

A llegheny-Ludlttm I ndustries, I nc ., et al., 
and

U nited S tates oe A merica, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

The petitioners Sidney S. Harris, et al., respectfully 
pray that a writ of certiorari issue to review the judgment 
and opinion of the United States Court of Appeals for the 
Fifth Circuit entered in this proceeding on August 18, 1975.

Opinions Below

The opinion of the court of appeals is reported at 517 
F.2d 826, and is set out in the Appendix, pp. 13a-119a. 
The opinion of the district court of June 7, 1974, is re­
ported at 63 F.E.D. 1, and is set out in the Appendix, pp. 
la-12a. The opinion and order of the district court of 
January 6, 1976, which are not reported, are set out in the 
Appendix, pp. 120a-127a.



9

Jurisdiction

The judgment of the court of appeals was entered on 
August 18, 1975. On November 4, 1975, Mr. Justice Powell 
signed an order extending the time for the filing of this 
petition until January 15, 1976. This Court’s jurisdiction 
is invoked under 28 U.S.C. §1254(1).

Q uestion  P resen ted

In this employment discrimination case, did the Court of 
Appeals err in holding valid a waiver, executed pursuant 
to an industrywide government-employer-union consent 
decree, of the right to sue for injunctive relief and back 
pay to remedy an employer’s or union’s failure, subsequent 
to the decree’s entry, to eliminate continued effects of past 
discrimination?

Statutory P rovision s Involved

Section 706(f)(1) of the 1964 Civil Rights Act, as 
amended, 42 U.S.C. §2000e-5(f) (1):

If a charge filed with the Commission pursuant to 
subsection (b) is dismissed by the Commission, or if 
within one hundred and eighty clays from the filing of 
such charge . . . the Commission has not filed a civil 
action under this section . . .  or the Commission has 
not entered into a conciliation agreement to which the 
person aggrieved is a party, the Commission . . . shall 
so notify the person aggrieved and within ninety days 
after the giving of such a notice a civil action may be



3

brought against the respondent named in the charge 
(A) by the person claiming to be aggrieved. . . .

Section 706(g), 42 U.S.C. §2000e-5(g) :
If the court finds that the respondent has inten­

tionally engaged in or is intentionally engaging in an 
unlawful employment practice charged in the com­
plaint, the court may enjoin the respondent from en­
gaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate, 
which may include, but is not limited to, reinstatement 
or hiring of employees, with or without back pay (pay­
able by the employer, employment agency, or labor or­
ganization, as the case may be, responsible for the 
unlawful employment practice), or any other equitable 
relief as the court deems appropriate. . . .  No order 
of the court shall require the admission or reinstate­
ment of an individual as a member of a union, or the 
hiring, reinstatement, or promotion of an individual 
as an employee, or the payment to him of any back 
pay, if such individual was refused admission, sus­
pended, or expelled, or was refused employment or ad­
vancement or was suspended or discharged' for any 
reason other than discrimination on account of race, 
color, religion, sex, or national origin or in violation 
of section 704(a).

Section 1981, 42 U.S.C.:

All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts . . .  as is 
enjoyed by white citizens. . . .



4

Statem ent o f  the Case

On April 12, 1974, the United States filed this action in 
the Northern District of Alabama alleging that nine major 
steel companies and the United Steelworkers of America 
had engaged in discrimination on the basis of race and 
sex. The parties simultaneously presented to the District 
Court two lengthy consent decrees which had been agreed 
upon by the parties prior to the commencement of the action. 
The district judge approved both decrees on the day they 
were submitted. The decrees provide for certain injunctive 
relief to be administered by an Implementation Committee 
at each of several hundred plants and overseen by a na­
tional Audit and Review Committee. With the exception 
of a single member of the Audit and Review Committee, 
every voting member of these committees was appointed 
by, and serves at the pleasure of, the defendants. The 
decrees also required an offer of payment in lieu of back 
pay to most minority employees employed at the plants 
involved, conditioned upon the execution of a release of 
certain claims under Title VII of the 1964 Civil Rights Act 
and other laws. The question presented by this petition 
is the permissible scope of the releases which minority em­
ployees will be asked to sign.

Petitioners are black steelworkers employed at steel 
plants covered by the decrees. Some petitioners are parties 
to six Title VII cases pending in several district courts 
prior to the filing of this action j1 others have charges pend­
ing before the Equal Employment Opportunity Commission 
(E.E.O.C.). Nine days after the decrees were approved 
petitioners moved to intervene for the limited purposes of 
attacking the legality of certain provisions of the decrees 1

1 See cases cited, p. 26a, n. 10. Counsel representing- petitioners 
are counsel of record in these eases.



5

and restricting the scope of any waiver to be required. 
The District Court, after clarifying the decrees in certain 
material respects, concluded they were lawful. Pp. la-12a. 
The Court of Appeals construed the decrees so as to elim­
inate, for the most part, those aspects which petitioners 
had claimed were illegal.2 3

Petitioners advanced three objections to the scope of 
the proposed waivers. Petitioners urged, first, that the 
proposed waivers were invalid to the extent to which they 
purported to preclude an employee from suing for addi­
tional back pay if the back pay which he received under 
the decrees was less than the total compensable economic 
loss which he suffered prior to the date the decrees were 
entered because of unlawful discrimination by the defen­
dants. Both the District Court and the Court of Appeals 
construed the release proposed by the signatories to include 
such a waiver, and both held such a waiver valid as a rea­
sonable compromise of an accrued monetary claim. Pp.

2 The Court of Appeals construed paragraph 19 of decree I to 
require that E.E.O.C. not recommend acceptance of the back pay 
unless it found, after an individualized investigation, that the
decrees had in fact fully remedied the charging party’s complaint. 
Pp. 93a-94a. Paragraph C of the decrees, which petitioners objected 
to as requiring the government to oppose any systemic relief 
sought in private actions, was held merely to require the govern­
ment to suggest that consideration of such actions be deferred 
while the government sought to negotiate appropriate relief under 
the decrees. Pp. 85a-88a. The Fifth Circuit ruled that the 
decrees in no way reduced the information which must be given 
to the Office of Federal Contract Compliance, or limited the au­
thority of the Secretary of Labor to invoke sanctions if a steel 
company engaged in discrimination, Pp. 96a-100a. The Court 
of Appeals mooted petitioners’ objection that the decrees did not 
require detailed periodic reports to the district court by reading 
such a requirement into a directive of the Audit and Review Com­
mittee. Pp. 103a-105a. Certain problems remain as to whether 
the signatories are complying with the decrees as construed by 
the Fifth Circuit, and are the subject of ongoing litigation in the 
lower courts.



6

10a-12a, 54a-57a. Petitioners do not seek review of this 
aspect of the Fifth Circuit’s decision.

Petitioners further objected that the proposed release 
appeared to cover monetary claims for losses occurring 
after the entry of the decrees. The District Court’s opinion 
did not consider whether this was within the scope of the 
proposed waiver or, whether such claims could be relin­
quished in advance. The Court of Appeals apparently 
understood the proposed release to include such a waiver, 
Pp. 57a-64a; it held such a waiver valid subject to a 
limitation the precise impact of which is unclear. See p. 
15, infra.

Third, petitioners contended that the proposed releases 
would be invalid to the fextent that they purported to limit 
the right of an employee to sue for necessary injunctive 
relief if, despite the decrees, an employer continued to 
enforce a seniority system which perpetuated, or otherwise 
failed to end, any continuing effects of past discrimination. 
The District Court, in its 1974 opinion, made no mention 
of the issue. The Court of Appeals’ opinion concluded that 
the decrees did not contemplate such an injunctive waiver, 
and included certain dicta regarding the validity of such 
a waiver, the meaning of which is in dispute.

On remand the defendants urged that the Fifth Circuit 
had misconstrued the decrees, and moved to amend the 
decrees to include an injunctive waiver. Petitioners op­
posed the amendment on the ground that such a waiver 
would be invalid and that the amendment was otherwise 
improper. The District Court, on January 6, 1976, held 
that petitioners were no longer parties to the case, rejected 
their renewed motion to intervene, and approved the amend­
ment. Pp. 120a-127a. The signatories contended, and 
the District Court apparently concluded, that the Fifth



7

Circuit dicta liad indicated that such an injunctive waiver 
would be lawful. The District Court then stated it would 
entertain a motion to intervene for the purpose of moving 
to reconsider the amendment on the narrow ground that 
the signatories in 1974 had not in fact agreed to provide 
in the decrees for an injunctive waiver. P. 122a. The 
January 6, decision, to the extent that it excluded peti­
tioners from the case and rejected their contentions that 
the amendment was improper as a matter of law, is the sub­
ject, of an appeal and petition for writ of mandamus before 
the Fifth Circuit. Within 10 days of the January 6 opinion 
petitioners intervened in the district court and moved to 
set aside the amendment on the narrow ground permitted 
by the district court. The consideration of that motion has 
been deferred pending discovery as to the intent of the 
signatories in 1974.

It is with reg’ard to these second and third objections to 
the scope of the proposed release that certiorari is sought.

R easons for  G ranting the W rit

1. T he Im portance o f  T he Issues Involved

Although the consent decrees deal with a variety of forms 
of discrimination, the critical problem in the steel industry 
is reform of the seniority system. Prior to the entry of 
the decrees, and especially before 1968, most steel plants 
operated by the defendant companies maintained segre­
gated departments and lines of progression.3 The depart­
ments and lines of progression to which blacks were as-

3 See Ford v. United States Steel Corporation, 520 F.2d 1043 (5th 
Cir. 1975) ; United States v. Bethlehem Steel Corporation, 446 
F.2d 652 (2nd Cir. 1971) ; In the Matter of the Bethlehem Steel 
Corporation, Decision of the Secretary of Labor, Docket No. 102- 
68, January 15, 1973.



signed were generally limited to poorly paid and un­
pleasant jobs. Although this discrimination in initial 
assignment has to some extent abated, many minority em­
ployees have been unable to transfer into traditionally 
white jobs because of the defendants’ seniority system. 
Under that system when a vacancy occurs in an all-white 
department, applicants from within the department are 
given preference over employees from other departments. 
Thus if a job were sought by a white within the depart­
ment who had worked for the company for only a year, 
and by a black from another department who had worked 
there for 20 years, the position would be awarded to the 
white on the basis of “seniority.” The seniority system 
perpetuates in this manner the effect of past discrimina­
tion in initial assignment.

Until the seniority system is overhauled so as to elim­
inate this special treatment for employees in traditionally 
all-white departments, black employees will continue to 
earn less than whites solely on account of their race. The 
consent decrees required certain changes in seniority sys­
tems, and contemplated further negotiations among the sig­
natories with regard to seniority; whether, as petitioners 
contend, the decrees are unlikely to produce meaningful 
reforms of the seniority systems is a question whose an­
swer will not be known for several years. The parties pro­
pose that, as a condition of receiving a lump sum in 1976, 
more than 40,000 minority employees sign a waiver which 
provides that, to the extent that the government is unable 
or unwilling to negotiate reform of the seniority system 
under the consent decrees, those employees will be locked 
into their predominantly black departments for the rest of 
their lives, unable to seek in any federal or state court in­
junctive relief to reform that system or monetary compen­
sation for the loss they may sutler in the years to come.



9

The District Court correctly recognized that it was of 
paramount importance to sound judicial administration 
that, before any waivers be solicited from such a large 
group of employees, there be a definitive judicial decision 
as to the permissible scope of the release. If that question 
is not finally resolved in the instant case, it will have to 
be relitigated every time an employee who signed a waiver 
brings an action alleging* that the seniority system at his 
plant perpetuates the effect of past discrimination in as­
signment. The validity of the contested aspects of the 
waivers will also affect whether employees who sign them 
will remain as class members in the numerous private class 
actions now pending against the defendant companies. Thus 
the circulation and execution of waivers in plants covered 
by such class actions will necessarily give rise to a com­
plex round of litigation as to class membership in all such 
actions.4 The mere proposal to solicit such waivers has 
already spawned two petitions for writs of certiorari in 
such private actions;5 * the impact of the actual execution 
of such waivers will be substantially greater. Under the 
decrees waivers will be sought in plants in over 40 districts 
in ten different circuits. A definitive decision by this Court 
as to the permissible scope of a waiver of Title YU rights 
will, as a practical matter, substantially reduce the volume

4 The cases in which that issue would have to be resolved include 
Harris v. Republic Steel Corp., No. 74-P-334-S (N.D. A la.); Waker 
v. Republic Steel Corporation, Nos. 71-179, 71-180, 71-181, 71-185 
(N.D. A la.); Dickerson v. United States Steel Corp., No. 73-1292 
(E.D. Pa.) ; Rodgers v. United States Steel Corp., No. 71-793 (W.D. 
Pa.); Carroll v. Bethlehem Steel Corp., No. M-75-374 (D. Md.) ; 
Lane v. Bethlehem Steel Corp., No. 71-580-H (D. Maryland) ; 
Williamson v. Bethlehem Steel Corp., No. 71-487 (W.D.N.Y.) ; 
Chatman v. United States Steel Corporation, No. C-75-1239 (N.D. 
Cal.); Taylor v. Armco Steel Corp., No. 68-129 (S.D. Tex.).

5 Rogers v. United States Steel, cert. den. 46 L.Ed. 2d 50 (1975) ;
Dickerson \. United States Steel, cert. den. 421 U.S. 948 (1975).



10

and scope of litigation produced by the solicitation of 
waivers from tens of thousands of employees.

Such a decision by this Court is also necessary to estab­
lish guidelines for the government in other cases. The 
Department of Justice and the E.E.O.C. enter each year 
into a substantial number of consent decrees and more 
than 5,000 conciliation agreements which generally involve 
some form of waiver. The type of waiver agreed to varies 
from the sweeping prospective release in the instant case 
to a more narrow release of accrued money claims such 
as used in the nationwide trucking consent decree.6 These 
differences reflect differing responses by government attor­
neys to efforts by negotiators for companies and unions to 
turn such decrees or agreements into devices to impede or 
thwart private litigation. The thrust of such efforts is to 
defeat the intent of Congress that the remedies provided 
to employees and to the government remain independent 
and complementary. Alexander v. Gardner-Denver Co., 415 
U.S. 36, 47-48 (1974). See, Johnson v. Railway Express 
Agency, 421 U.S. 454 (1975). Petitioners maintain that 
here, as in other eases,7 the government has gone too far 
in acceding to employer and union demands that a con­
sent decree be used in this manner. To the extent that the 
Court of Appeals has also erroneously accepted the sweep­
ing waiver sought by the defendants, it has sanctioned a 
concession which the government will be hard pressed to 
withhold in subsequent cases. That error will, unless cor­
rected by this Court, have ramifications far beyond this 
particular case.

These problems, arising as they must in federal courts 
throughout the country, require the definitive nationwide

6 United States v. Trucking Employers, Inc., C.A. No 74-453 
D.D.C.

7 See pp. 55a-58a, n. 30.



11

resolution which, only this Court can provide. Even within 
the Fifth Circuit the decision of the Court of Appeals has
failed to clearly resolve the questions presented by this 
petition. The Fifth Circuit’s decision sanctioned a release 
as to the “continuing effects of past discrimination” and 
ruled unlawful any release with regard to post-decree acts 
of discrimination, but left in doubt whether a company’s 
future failure to reform its seniority system to end such 
continuing effect would itself constitute a new act of dis­
crimination. See pp. 57a-64a. The latter question is of 
critical importance to both this case and a substantial 
segment of American industry. The disagreement among 
the parties as to the proper construction of the Fifth Cir­
cuit’s decision became apparent four months after that 
decision when the defendants moved to amend the decrees 
to provide for an injunctive waiver, arguing that an em­
ployee could waive in advance his right to sue to reform 
the seniority system since, in defendant’s view, the future 
application of such a system would not constitute a new 
act of discrimination. The questions posed by the proposed 
waiver of future monetary and injunctive relief are too 
important to the other related pending cases, to govern­
ment policy, and to the tens of thousands of minority 
employees in the steel industry, to be left in the ambiguous 
state created by the decision of the Court of Appeals.

2. T he P roposed  W aiver o f  Future Injunctive R elief

Whether the defendants, prompted by the consent de­
crees, will in fact reform their seniority systems to permit 
blacks to compete for promotions on an equal basis with 
whites is, as of now, a matter of conjecture. The consent 
decrees in this regard constitute a framework for further 
negotiation between counsel for the government, the em­
ployers, and the union. Many critical areas, such as the 
merger of departments and lines of progression, are ex-



12

pressly reserved as subjects for further discussion on a 
plant by plant basis. Pp. 104a-05a. The provisions of both 
decrees are to be reconsidered by the signatories in 
1976. It cannot now be foreseen whether, in the years 
ahead, the substantive provisions of the decrees, together 
with such further concessions as the government can exact, 
will, in any particular plant, eliminate the discriminatory 
aspects of the pre-decree seniority system.

The parties propose that, as a condition of receiving a 
payment in lieu of back pay under the decrees, the release 
required of each employee include a waiver of his right to 
sue for necessary injunctive relief if the seniority system 
is not fully reformed. P. 126a. Should a minority em­
ployee sign such a waiver and subsequently discover 
that he is still locked into a poorly paid all-black depart­
ment, he will have no right to sue. At a plant where the 
decrees are generally ineffective, a whole generation of 
black workers would, for the rest of their careers, be rele­
gated to the jobs to which they were initially assigned on 
the basis of race. Although the consent decrees can be 
vacated on the motion of any signatory in 1979, the waivers 
remain binding for the indefinite future. The signatories 
insist that, even if a court should at some future date hold 
a seniority system illegal because it perpetuates the effect 
of pre-decree discrimination, the employer would be free 
to apply that illegal system to any employee who had 
signed an injunctive waiver.8 Such a release is not a 
compromise of accrued claims, it is a license to break the 
law.

In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 
an aggrieved employee, prior to commencing a Title YII 
action, sought arbitration under a procedure which pro-

8 Transcript of Hearing of January 2, 1976, pp. 26-30; 34-35.



13

vided that it would be “final and binding upon the Com­
pany, the Union, and any employee or employees involved”. 
415 U.S. at 42. The arbitrator found there was no racial 
discrimination, and the employer argued that the employee, 
by submitting his claim to binding arbitration, had waived 
his rights to sue under Title YII. This Court held:

We are also unable to accept the proposition that peti­
tioner waived his cause of action under Title YII. To 
begin, we think it clear that there can be no prospec­
tive waiver of an employee’s rights under Title YII 
. . . Title VII’s strictures are absolute and represent 
a congressional command that each employee be free 
from discriminatory practices . . .  In these circum­
stances, an employee’s rights under Title VII are not 
susceptible of prospective waiver. 415 U.S. at 51-52.

The waiver in Alexander was prospective in that, although 
the disputed employer conduct occurred before the pur­
ported waiver, the employee committed himself in advance 
to obtaining only so much relief as the arbitration would 
thereafter award. The holding of Alexander applies a 
fortiori to the waiver proposed in this case. Not only is 
an employee asked to limit himself to such seniority relief 
as the government chooses to negotiate for him, the em­
ployee is asked to do so with regard to seniority problems 
which, as a result of unforeseeable patterns of vacancies, 
layoffs, and attrition, may only arise several years in the 
future.

Respondents seek to avoid the obviously prospective 
nature of such a waiver by asserting that the only “act of 
discrimination” was the creation prior to 1974 of black 
and white departments and that the application of a rule 
which gives preference to employees of the all-white depart­
ment is not an “act of discrimination”, but merely a “eon-



14

tinued effect of past discrimination.” Since the “discrimina­
tion” occurred in the “past”, respondents reason that the 
waiver is retrospective even when applied to events tran­
spiring in 1980 or later. But Alexander cannot be distin­
guished by such semantic sleight of hand. No court in the 
land would uphold releases signed by the parents of school 
age children purporting to relinquish their right “to elim­
inate from the public schools all vestiges of state imposed 
segregation.” Swann v. Charlotte-M ecldenburg Board of 
Education, 402 U.S, 1, 15 (1971). Nor would this Court 
enforce a waiver signed by a citizen denied the right to 
vote which contained language abandoning the right to 
judicial relief which would “so far as possible eliminate the 
discriminatory effects of the past as well as bar like dis­
crimination in the future.” Louisiana v. United States, 380 
U.S. 145, 154 (1965); see, Albemarle Paper Co. v. Moody, 
422 U.S. 405, 418-19 (1975). The proposed waiver of the 
right to sue for injunctive relief is no different; to the 
extent the Court of Appeals approved such a waiver its 
opinion is in conflict with the decision of this court in 
Alexander.

The respondents maintain, and the district court appar­
ently concluded, that the Fifth Circuit held that such an 
injunctive waiver would be valid.9 Petitioners believe the 
Court of Appeals’ decision is ambiguous as to whether, and 
if so when, a defendant’s failure to reform a seniority sys­
tem which perpetuated the effect of past discrimination 
would itself constitute a new “act of discrimination” relief 
from which, under the Fifth Circuit’s opinion, could not 
be waived. Pp. 60a-64a. As is more fully set out in the ac­
companying Motion to Defer Consideration, whether the re­
lease to be required of employees should include an injunc­
tive waiver is still the subject of proceedings in both the

See Transcript of Hearing of January 2, 1976, pp. 49-53.



15

District Court and Court of Appeals. For this reason peti­
tioner would suggest that consideration of this petition be 
postponed until the lower courts have finally decided 
whether to permit the inclusion of such an injunctive 
waiver.

3. T he P roposed  W aiver o f  Future M onetary R elief

In return for the back pay to be offered under the con­
sent decrees, the defendants propose that the release re­
quired from each employee waive his monetary claims “for 
damages incurred at any time because of continued effects 
of complaint or decree-covered acts or practices which took 
place on or before the entry date of the consent decrees.” 10 
P. 57a. The Court of Appeals held that minority em­
ployees could compromise in this manner their back pay 
claims for financial loss which occurred prior to the date 
of the consent decrees, April 12, 1974. Pp. 64a-81a. Peti­
tioners do not seek review of this aspect of the Fifth Cir­
cuit’s decision. Petitioners maintain, however, that the 
Court of Appeals erred insofar as11 it approved the use of 
a release which would waive an employee’s right to sue for 
financial loss which occurs after the entry of the consent 
decrees because of the defendant’s failure to end the con­
tinuing effects of past discrimination.

A waiver of back pay claims which will accrue at some 
future date is a prospective waiver forbidden by this

10 Paragraph 18(c) of consent decree I proposes that the release 
“bar recovery of any damages suffered at any time after the date 
of entry of this decree by reason of continued effects of any such 
discriminatory acts which occurred on or before the date of entry 
of this Decree”. P. 55a. (Emphasis added) 11

11 It is unclear at what point, if any, a defendant’s failure to 
end such continuing effects would constitute a new “act of dis­
crimination” for which back pay could be sought. See pp. 13-14. 
The actual release approved by the District Court contained no 
limitation of this sort on the prospective monetary waiver.



16

Court’s decision in Alexander v. Gardner-Denver Co., 415 
U.S. 36 (1974). See p. 13, supra. Such, a prospective 
waiver of Title VII rights is also inconsistent with Albe­
marle Paper Co. v. Moody, 422 U.S. 405 (1975). Back pay 
is mandated in Title VII cases, not merely to make an 
employee whole for any violation of his rights, but also 
to deter an employer or union from failing to correct em­
ployment practices which discriminate or continue the 
effects of past discrimination.

If employers faced only the prospect of an injunctive 
order, they would have little incentive to shun prac­
tices of dubious legality. I t is the reasonably certain 
prospect of a back pay award that “provide [s] the 
spur or catalyst which causes employers and unions 
to self-examine and to self-evaluate their employment 
practices and to endeavor to eliminate, so far as pos­
sible, the last vestiges of an unfortunate and ignomin­
ious page in this country’s history.” 422 U.S. at 417-18.

The critical question in the steel industry is whether the 
employers and union will modify the seniority system so 
that the pre-decree discriminatory assignment of a genera­
tion of blacks to all-black and poorly paid departments 
will not have a continuing discriminatory impact on those 
blacks in the years ahead. Should minority employees 
execute the proposed waivers they would have the effect, 
if valid, of removing any financial incentive for the steel 
companies and union to reform that seniority system. If 
the companies and union are rendered immune from such 
liability, the spur for reform contemplated by Title VII 
would be vitiated. To the extent that the Court of Appeals 
approved such a prospective waiver of monetary relief, its 
decision is inconsistent with the decisions of this Court, in 
Alexander and Moody.



17

CONCLUSION
For the above reasons a writ of certiorari should issue 

to review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, III 
Charles S teph en  R alston 
B arry L. Goldstein 
D eborah M. Greenberg 
E ric S chnapper

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

Oscar W , A dams 
J ames K . B aker 
U. W. Clemon 
Caryl P rivett 

2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

B ernard D. Marchs 
415 Oliver Building 
Pittsburgh, Pennsylvania 15222

S idney R askind
1901 First National Life Building 
Houston, Texas 77002

Gabrielle K . M cD onald 
Mark T. M cD onald 

Suite 203
1834 Southmore Boulevard 
Houston, Texas 77004

Gerald S m ith  
K enn eth  J ohnson 
N orris R amsey

711 St. Paul Street 
Baltimore, Maryland 21201

Counsel for Petitioners



A P P E N D I X



l a

O p in ion  o f th e  D istric t C ourt, Ju n e  7, 1 9 7 4

U nited S tates of America, By William B. S axbe, the At­
torney General, on Behalf of Peter J, Brennan the 
Secretary of Labor, and the Equal Employment Op­
portunity Commission,

Plaintiff,
v.

A llegheny-Ludlum I ndustries, I nc ., et al.,

Defendants.

Civ. A. No. 74-P-339-S
United States District Court 

N. D. Alabama, S. D.
June 7, 1974

Robert T. Moore, Dept, of Justice, William L. Robinson, 
Equal Employment Opportunity Commission, William J. 
Kilberg, Sol. of Labor, Dept, of Labor, Washington, D. C., 
for plaintiff.

Ralph L. McAfee, Cravath, Swain & Moore, New York 
City, William K. Murray and James R. Forman, Jr., 
Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, 
Ala., for defendant Companies.

Michael H. Gottesman, Washington, D. C., Jerome A. 
Cooper, Cooper, Mitch & Crawford, Birmingham, Ala., for 
defendant Steelworkers.

Judith A. Lonnquist, NOW, Chicago, 111., Jack Green­
berg, New York City, Oscar W. Adams, Jr., Adams, Baker 
& Clemon, Birmingham, Ala., Gerald A. Smith, Baltimore,



2a

Md., Bernard D. Marcus, Kaufman & Harris, Pittsburgh, 
Pa., Arthur J. Mandell, Mandell & Wright, Houston, Tex., 
William E. Jones, NAACP, New York City, J. Richmond 
Pearson, Birmingham, Ala., for petitioners for interven­
tion.

Memorandum of Opinion-

P ointer, .District Judge.
After months of negotiations pursuant to the govern­

mental conciliation function of Title VII, 42 TJ.S.C.A. 
§ 2000e et seq., the parties herein reached a tentative agree­
ment as to a manner and means for correcting allegedly 
discriminatory employment practices of a systemic nature 
at some 240 steel plants and other steel-related facilities 
throughout the nation. The agreement was reduced to 
writing in the form of two consent decrees entered into by 
the United States, through various governmental agencies 
including the Justice Department, the Labor Department 
and the Equal Employment Opportunity Commission, as 
plaintiff, and by nine steel companies and the United Steel­
workers of America, as defendants. The proposed decrees 
were presented to, and entered by, this court on April 12, 
1974, resulting in a broad national settlement of Title VII, 
and related, disputes between the United States and the 
ten defendants. The provisions reflect a thoughtful and 
earnest attempt to respond to—and to reconcile competi­
tion between—charges of employment discrimination made 
on behalf of black, female, and Spanish surnamed workers 
and applicants.

Consent Decree I takes the form of an injunction with 
respect to those matters which, in general, have previously 
been affected by collective bargaining between the com-

Opinion of the District Court, June 7, 1974



3a

parties and the union. The decree provides for a restruc­
turing of seniority rules and regulations, primarily using 
plant continuous service as a base; specifies procedures 
respecting transfers, promotions, vacancies, layoffs and 
recalls; and enumerates affirmative action guidelines and 
goals with respect to trade and craft positions and initial 
selection and assignment of employees. In recognition that 
general standards may require tailoring to meet local 
problems and that experience may indicate the inadequacy 
of some of the remedial steps, implementation procedures 
and enforcement tools are established through a structure 
of Implementation Committees, composed of company, 
union and minority members, at each affected facility, as 
well as an Audit and Review Committee which is national 
in scope. A mechanism for expeditious and co-ordinated 
resolution of the multitude of pending EEOC charges re­
specting these defendants is established. A potential back­
pay fund of $30,940,000.00 is created, along with guidelines 
for calculating and disbursing awards to electing indi­
vidual employees affected by past discrimination. Juris­
diction is retained by the court for a period of at least five 
years.

Consent Decree II takes the form of a general injunc­
tion respecting those aspects of employment which are, es­
sentially, company-controlled and not normally subject to 
collective bargaining agreements. The companies are gen­
erally enjoined from any form of employment discrimina­
tion and are obligated to institute a program of affirmative 
action with respect to hiring, initial assignments, and man­
agement training programs, as well as affirmative recruit­
ment of minorities. See Morrow v. Crisler, 491 F.2d 1053 
(CA5 1974); Franks v. Bowman Transportation Co., 495 
F.2d 398 (CA5 June 3, 1974). The court retains jurisdic­

Opinion of the District Court, June 7, 1974



4 a

tion for at least five years; and, as also is true regarding 
Consent Decree I, the consent decree between the govern­
ment and the defendants does not purport to bind any 
individual employee or to prevent the institution or mainte­
nance of private litigation.

Shortly after entry of these decrees, various individuals 
and organizations sought to intervene. A hearing was set 
for May 20, 1974, with the request that briefs be filed by 
May 13th and reply briefs by the hearing date. This memo­
randum is addressed to the claims for intervention and 
certain other issues raised thereby and is issued after a 
study of the motions, briefs, reply briefs, and oral argu­
ment presented at the May 20th hearing.

I ntervention

The court concludes that §§ 707(e) and 706 of Title VII, 
42 U.S.C.A. §§ 2000e-6(e) and 2000e-5, confer upon some 
petitioners a right to intervene within the meaning of Rule 
24(a)(1), F.R.Civ.P. This statutory right is provided to 
a “person or persons aggrieved” within the meaning of 
Title VII. In this context, the term refers to those in­
dividuals with respect to whom alleged discrimination by 
the defendants is within the scope of a charge which has 
heretofore been presented to the EEOC, without regard 
to whether such charge was filed by them, by fellow em­
ployees with similar complaints, by an organization on 
their behalf, or by a member of the EEOC, and without 
regard to whether or not they are named plaintiffs or actual 
or putative class members in pending litigation.

Most of the individual petitioners—including some who 
joined in the petitions of the Ad Hoc Committee and of the

Opinion of the District Court, June 7, 1974



5a

National Organization of Women1—meet the test for inter­
vention of right under Rule 24(a)(1) as just stated. The 
court concludes that the balance of the individual peti­
tioners—including one who is the principal officer of the 
Rank and File Committee, the other organizational peti­
tioner—should also be allowed to intervene, given the 
rather limited purpose for which intervention is being 
allowed, under the provisions of Rule 24(a) (2) or 24(b) (2).

The court denies the requests for intervention by the 
three organizations, the Ad Hoc Committee, NOW, and the 
Rank and File Committee. While such organizations may 
have authority to file charges with the EEOC and even to 
file lawsuits with respect thereto, they are not “persons 
aggrieved” for the purpose of any statutory right of inter­
vention under Rule 24(a)(1). In view of the allowed inter­
vention of officers or members of such organizations, it 
appears that adequate representation is being afforded for 
any interest the organizations may have. See Rule 24(a) (2) 
and Hines v. Rapides Parish School Board, 479 F.2d 762 
(CA5 1973). Nor, indeed, have the organizations demon­
strated a sufficient interest qua organizations to justify the 
additional problems of management and inconvenience 
caused by unnecessary intervenors. See Bennett v. Madison 
County Board of Education, 437 F.2d 554 (CA5 1970); 
Horton v. Lawrence County Board of Education, 425 F.2d 
735 (CA5 1970). 1 *

Opinion of the District Court, June 7, 1974

1 On May 20, NOW was given leave, essentially nunc pro tunc, 
to amend its pleadings, which were filed only on behalf of the 
organization, to name not more than three individual women who 
were to be allowed to intervene pursuant to Rule 24(a) (1) or (b).
Such amended pleadings were filed with the court on June 4, 1974.



Such intervention as is allowed is permitted at this time2 
for the limited purposes of seeking to stay or vacate the 
consent decrees and to question the contemplated releases 
of hack-pay claims in connection with the payments of hack- 
pay to electing employees under the decree. "While the inter- 
venors are to he hound hy the decision made with respect 
to such limited issues, the court does not consider that such 
intervenors, or any class which they may represent, are at 
present hound, as a matter of res adjudicata or collateral 
estoppel, to the terms of the consent decrees themselves.

No evidentiary hearings are needed with respect to the 
issues on which intervention has been allowed. Based upon 
responses by counsel to questions posed hy the court at the 
May 20th hearing, it is clear that any additional hearings 
would merely involve an attempt by intervenors to demon­
strate in greater detail the alleged deficiencies and prob­
lems presented by the decrees, e. g., that the decrees are 
somewhat open-ended and that there may he already some 
understandings or proposals as to the manner in which 
such details will he resolved.3 There was no indication, 
however, that any evidence would be tendered respecting 
the basic allegations against the decrees which are not 
apparent upon the record. Moreover, time weighs heavy 
in this dispute, for not only must implementation go for­
ward to meet timetables in the decree, but also delay would

2 This is without prejudice to the rights of individuals to seek 
further intervention, in accordance with the ruling's herein, re­
specting specific questions which have arisen or may arise in the 
future. See Hine’s v. Rapides Parish School Board, 479 F.2d 762 
(CA5 1973). The limitation upon present intervention is placed 
so that the resolution of the fundamental questions will not be 
delayed by disputes over matters which, in essence, are details.

3 See note 2 supra.

Opinion of the District Court, June 7, 1974



7a

adversely affect many of the admittedly prophylactic pro­
visions of the decrees to the detriment of the beneficiaries 
of Title VII. As the court is convinced that the suggested 
evidence would not materially contribute to the resolution 
of the limited issues upon which intervention has been 
allowed, there is no sound reason to schedule an evidentiary 
hearing.

Opinion of the District Court, June 7, 197A

A lleged I llegality oe Consent Decree

Intervenors attack the consent decree on various grounds 
of alleged illegality, including vagueness; venue deprival; 
lack of advance notice; enforcement by violators; insuffi­
ciency of relief ; direct interference with rights of indi­
viduals to file, maintain or pursue individual remedies; and 
a renunciation of statutory responsibility by executive 
agencies.

Without here separately listing the considerations in­
volved in each of these thrusts, the court concludes that, 
as attacks on the decrees as a whole, they are due to be 
denied and overruled, and that the intervenors do not 
demonstrate or suggest anything illegal, improper or funda­
mentally unsound in these decrees, which, it should be em­
phasized, are not binding on individual employees.

By undertaking to resolve by settlement the myriad of 
problems regarding employment discrimination in the steel 
industry—discussions to which individual employees and 
their supporting organizations were not privy—the execu­
tive agencies have not renounced their statutory responsi­
bilities as alleged. Such efforts are consistent, not incon­
sistent, with the statutorily mandated duty of conference, 
conciliation and persuasion embodied in Title VII. It more­



8a

over appears that the commitment4 * undertaken by the 
government with respect to pending or future Title YII 
litigation involving these defendants does not preclude the 
government from advocating, and bringing expeditiously 
into court if a satisfactory resolution is not accomplished 
through the settlement procedures established, a claim for 
other relief by an aggrieved employee.

The court does recognize that these decrees may, as a 
practical matter, impede, if not impair, some interests of 
private litigants. Indeed, it must be assumed that conces­
sions during settlement negotiations were motivated in part 
by the desire of the parties to avoid, by anticipatory cor­
rections, future litigation and to provide more expeditious 
solutions even in matters already in the judicial processes. 
Justice delayed may, it is said, be justice denied. More­
over, it must be kept in mind that resolution in this forum 
of issues between the government and the defendants does 
not preclude additional—or even inconsistent—relief in 
favor of private parties in other litigation. As stressed by 
Congress in the passage of Title YII and its amendments, 
settlement offers the principal hope for rapid correction 
of the ills of employment discrimination, preserving, how­
ever—as here—the right to litigate where the persons 
aggrieved are not parties to the conciliation agreement and 
believe the settlement to be unsatisfactory.

4 A letter from the original parties herein was received by the
court on June 3, 1974. Such has been filed on record as it serves 
to clarify the obligations of the United States with respect to future 
action pursuant to the consent decrees. Nor would it be sound to 
assume that the government can not oppose relief sought by a 
private litigant: for example, if a particular black plaintiff, due 
to his own situation, were to seek an occupational seniority rule 
considered by the EEOC to be generally adverse to the interests 
of other black employees, it could hardly be asserted that the 
EEOC is bound to advocate such relief.

Opinion of the District Court, June 7, 1974



9a

Some of the wording of the consent decrees may on its 
face improperly affect the maintenance of private actions. 
For example, the decrees provide for mailing of back-pay 
notices even to those involved in pending litigation as 
named plaintiffs or as determined or putative class mem­
bers. In view of the court’s retained powers and in. view 
of the presence of the parties to this litigation before other 
forums, such problems, as they are identified, can be sat­
isfactorily resolved, and no doubt there will be a need 
from time to time for liaison and co-ordination between this 
court and other forums. The decrees may require clarifica­
tion in some particulars and, indeed, as administration of 
the decrees continues, there will doubtless be problems 
which were not considered or anticipated by the parties or 
which run counter to their expectations during negotia­
tions. Should such eventualities occur, the court, by virtue 
of paragraph 206 of Consent Decree I and paragraph 26 
of Consent Decree II, has jurisdiction of this cause for 
the purpose of issuing subsequent orders, consistent with 
principles of due process, as necessary to further the pur­
poses and objectives of these decrees.7

6 "20. Retained Jurisdiction—The court hereby retains jurisdic­
tion of this cause for the purpose of issuing any additional orders 
or decrees needed to effectuate, clarify or enforce the full purpose 
and intent of this Decree.

Anytime after the conclusion of five (5) years from the date of 
this decree, any party may move to dissolve this decree in whole 
or in part.”

6 “2. The court hereby retains jurisdiction of this cause for the 
purpose of issuing any additional orders or decrees needed to 
effectuate, clarify or enforce the full purpose and intent of this 
decree and/or the agreement attached hereto.

Anytime after the conclusion of five (5) years from the date of 
this decree, any party may move to dissolve this decree in whole 
or in part.”

7 By leters of June 3, 1974, referred to in note 4 supra, the 
original parties herein have stated that all parties accept the

Opinion of the District Court, June 7, 1974



10a

The court finds nothing illegal respecting the consent 
decrees themselves, neither in the basic axjproach to settle­
ment reflected therein, the way in which such were negoti­
ated and entered, nor the manner in which such will be 
implemented. Parenthetically, the court notes that the sug­
gestion that advance notice was a requirement for the 
decree—which does not rise to the status of a class action 
decree—would likely haunt, if adopted by the court, the 
intervenors and their sponsoring organizations in other 
litigation. Cf. Eisen v. Carlisle & Jacquelin, 42 U.S.L.W.
4804, ----- U.S. ------, 94 S.Ct. 2140, 40 L.Ed.2d 732 (May
28, 1974).

A lleged I llegality oe B ack-P ay R elease

In connection with the claim of illegality, some inter­
venors have raised the question of the binding effect of a 
release executed by employees who accept back-pay under 
the decree. The consent decree, however, while providing 
for the use of such a release, does not contain a judicial 
finding or conclusion that such could be efficacious. This is 
an issue in which all parties have an interest and, as a 
practical matter, is in need of a present resolution. The 
basic question is whether a signed release in exchange for 
the payment of back-pay determined under a settlement

Opinion of the District Court, June 7, 1974

court’s view of authority to review any action taken pursuant to 
the decrees, including actions of the Audit and Review Committee, 
whether or not any party requests such review. Also, such parties, 
while perhaps disagreeing with the court as to the limits involved, 
acknowledge the concept of retained jurisdiction with respect to 
the effectuation of the full purpose of the decrees. Notwithstanding 
any such disagreement with the court’s view of such powers, the 
parties advised the court “that none of them wishes to cancel or 
revoke its consent or withdraw from the Consent Decrees in the 
above-captioned case.”



11a

procedure, as contemplated in paragraph 18(g) of Consent 
Decree I, can be valid as a matter of public policy.

Intervenors cite, among other similar decisions, Schulte 
v. Gang!, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114 (1946), 
an FLSA case, for the proposition that such a release 
would be invalid as contravening public policy. Such FLSA 
cases are, however, distinguishable from the instant case. 
Relief under the FLSA is defined, 29 U.S.C.A. § 216(c), 
while Title YII relief is more flexible, 42 U.S.C.A. § 2000e- 
5(g). While the amount of back-pay for an FLSA viola­
tion is, essentially, a matter of simple calculation subject 
only to the statutory requirements of the Act, Title VII 
back-pay awards are much more difficult of ascertainment 
as such are subject to innumerable variables. Schulte 
seems to be most concerned with the leverage afforded em­
ployers if employees could be persuaded or coerced into 
waiving statutory pay minimums.

The legislative history of Title VII, as well as the Act 
itself in providing substantial mechanisms for conciliation 
and settlement, 42 U.S.C.A. §§2000e-5(b) and (f), indi­
cates a Congressional desire for out-of-court settlement 
of Title VII violations.

In Alexander v. Gardner-Denver Co., 42 U.S.L.W. 4212, 
4219, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) the 
Supreme Court indicates that there presumably may be 
an effective release of Title VII claims where the parties 
enter into a voluntary settlement. For such a waiver to 
be effective, however, the employee’s consent to the set­
tlement must be both “voluntary and knowing”. Id. at 4219 
n. 15, 415 U.S. 52, 94 S.Ct. 1021, 39 L.Ed.2d 147. See also 
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 at 
notes 152 and 156a (CA5 1974), in which the Fifth Circuit

Opinion of the District Court, June 7, 1974



12a

seems to indicate its approval of voluntary settlement of 
similar issues.

This court concludes that there can he a legal waiver 
of hack-pay claims where, for valuable consideration, a 
release is signed knowingly and voluntarily, with adequate 
notice which gives the employee full possession of the 
facts. Such a ruling, however, is not to be taken as a pro­
spective ruling on the question of the efficacy of any par­
ticular release, as such would require an individual de­
termination of the factual setting in which such a release 
may he executed.

Conclusion

For the reasons indicated, the court has allowed inter­
vention by the individual petitioners for the limited pur­
poses of seeking to stay or vacate the consent decrees and 
of challenging the legal efficacy of settlement releases of 
back-pay claims and has denied the claims of such inter- 
venors with respect thereto. Intervention by other peti­
tioners or for other purposes has, at present, been denied. 
By separate document, the order of the court with respect 
to such matters is filed concurrently herewith.

O pin ion  o f  th e  D is tr ic t  C o u rt, J u n e  7r 1974



13a

O p in ion  o f th e  C ourt o f A ppeals, A ugust 18, 1975

U nited S tates op A merica, et al.,

Plaintiffs-Appellees, 
v.

A llegheny-Ludlum I ndustries, I nc., et al.,

Defendants-Appellees,

S idney S. H arris, et al.,

Intervenors-Appellants,

N ational Organization F or W omen, I nc., et al.,

Movants-Appellants.

No. 74-3056

United States Court of Appeals - 
Fifth Circuit

Aug. 18, 1975

Oscar W. Adams, Jr., Birmingham, Ala., Kenneth L. 
Johnson, Baltimore, Md., Bernard D . Marcus, Pittsburgh, 
Pa., Arthur J. Mandell, G-abrielle K. McDonald, Mark T. 
McDonald, Houston, Tex., J. Richmond Pearson, Birming­
ham, Ala., Nathaniel R. Jones, NAACP, New York City, 
for S. S. Harris and others.

Judith A. Lonnquist, Chicago, 111., Kenneth L. Johnson, 
Emily M. Rody, Baltimore, Md., Jack Greenberg, James 
M. Nabrit, I I I ,  Barry L. Goldstein, New York City, for 
National Organization for Women and others.



O pinion  o f  the C o u rt o f  A p p e a ls , A u g u s t  18, 1975

William J. Kilberg, Sol. of Labor, U. S. Dept, of Labor, 
Washington, D. C., Wayman G. Scherrer, U. S. Atty., Bir­
mingham, Ala., Leonard L. Scheinholtz, Pittsburgh, Pa., 
Eobert T. Moore, U. S. Dept, of Justice, Washington, D. C., 
Francis St. C. O’Leary, Pittsburgh, Pa., William A. Carey, 
Gen. Counsel, William L. Eobinson, Joseph T. Eddins, 
EEOC, Washington, D. C., for U.S.A. and Wheeling-Pitts- 
burgh Steel Corp.

William K. Murray, James E. Forman, Jr., Birmingham, 
Ala., for U. S. Steel Corp., Allegheny-Ludlum Industries, 
Eepublic Steel, Youngstown Corp., Bethlehem Steel, Wheel- 
ing-Pittsburgh Steel, Armco Steel, National Steel, Jones- 
Laughlin.

Michael H. Gottesman, Washington, D. C., Jerome 
Cooper, Birmingham, Ala., for Steelworkers.

Carl B. Frankel, Asst. Gen. Counsel, United Steelworkers 
of America, Pittsburgh, Pa., Marshall Harris, Asso. Sol. 
Labor Eelations, Civ. Eights, Dept, of Labor, Washington, 
D. C., Vincent L. Matera, Pittsburgh, Pa., for U. S. Steel 
Corp.

Ealph L. McAfee, New York City, for Bethlehem Steel.
David Scribner, New York City, James H. Logan, Pitts­

burgh, Pa., Elizabeth M. Schnieder, Doris Peterson, Center 
for Constitutional Eights, New York City, for amici curiae.

Appeals from the United States District Court for the 
Northern District of Alabama.

Before T hobjstberry, M organ and Clark, Circuit Judges.

T hornberry, Circuit Judge:

These appeals present novel and important issues which 
require us to consider the scope of the federal government’s



15a

authority to encourage and negotiate expeditious and effi­
cient settlement of widespread charges of employment dis­
crimination in the nation’s steel industry. Some of these 
issues are procedural in nature; others call into question 
the substantive legality of the means utilized. Some issues 
are ripe for decision; others are essentially hypothetical 
and conjectural. During the interim between the oral argu­
ment of these appeals in December, 1974 and the present, 
we have carefully examined the attacks which have been 
advanced against the settlement. Our conclusion is that the 
settlement has not been shown to be in any respect unlawful 
or improper, and hence its terms, conditions, and benefits 
must go forward immediately in their entirety.

I. I ntroduction and B ackground

On April 12, 1974, a complaint was filed in the federal 
district court for the Northern District of Alabama. The 
plaintiffs were the United States, on behalf of the Secre­
tary of Labor, and the Equal Employment Opportunity 
Commission. Nine major steel companies1 and the United 
Steelworkers of America were named as defendants. The 
suit involved some 240-250 plants at which more than 
300,000 persons are employed, over one-fifth of whom are 
black, Latin American, or female. Alleging massive pat­
terns and practices of hiring and job assignment discrim­
ination on the bases of race, sex, and national origin, the

1 The companies are Allegheny-Ludlum Industries, Inc., Armeo 
Steel Corporation, Bethlehem Steel Corporation, Jones and Laugh- 
lin Steel Corporation, National Steel Corporation, Bepublic Steel 
Corporation, United States Steel Corporation, Wheeling-Pittsburgh 
Steel Corporation, and Youngstown Sheet & Tube Company. Ac­
cording to one estimate, the complaint reached seventy-three per­
cent of the country’s basic steel industry. Brief for the appellee 
steel companies at 3 n. 2.

Opinion of the  C o u rt of A p p e a ls , A u g u s t  18, 1975



16a

complaint sought to enforce the edicts of Title YII of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e 
et seq., and contractual obligations under Executive Order 
11246, as amended, 3 C.F.R. 160 et seq. (1974).

The complaint charged that the companies had violated 
Title VII and Executive Order 11246 by hiring and assign­
ing employees on impermissible grounds, and by restricting 
ethnic minorities and females to low-paying and undesir­
able jobs with scant opportunities for advancement. The 
complaint also charged the companies and the union with 
formulating collective bargaining contracts which estab­
lished seniority systems for promotion, layoff, recall and 
transfer so as to deprive minority and female employees 
of opportunities for advancement comparable to those 
enjoyed by white males.

The filing of the complaint culminated more than six 
months of intensive, hard-fought negotiations between, on 
one side, the EEOC and Departments of Justice and Labor, 
and on the other the companies and the union. Simultane­
ously with the filing of the complaint, the parties announced 
to the court that a tentative nationwide settlement had been 
reached. The parties multilateraliy reduced their agree­
ment to the form of two extensive written consent decrees. 
Describing the decrees as “a thoughtful and earnest attempt 
to respond to—and to reconcile competition between— 
charges of employment discrimination made on behalf of 
black, female, and Spanish surnamed workers and appli­
cants,” 2 District Judge Pointer signed and entered the 
documents later that same day.3

2 See United States v. Allegheny-Lndlura Indus., Inc., N.D.Ala. 
1974, 63 F.R.D. 1, 3.

8 The two consent decrees are reprinted in BNA FBP Manual 
431:125—152 (1974). The correct entry date, as reflected in the 
record, is April 12, 1974, rather than April 15.

O pin ion  of the  C o u rt of A p p e a ls , August 18, 1975



17a

Consent Decree I is aimed at the practices of the union 
as well as those of the steel companies. It permanently 
enjoins the defendants from “discriminating* in any aspect 
of employment on the basis of race, color, sex or national 
origin and from failing or refusing to fully implement” 
the substantive relief set forth therein. The items covered 
by Consent Decree I are mainly matters historically encom­
passed by collective bargaining. The substantive relief 
falls into three basic categories: (1) immediate implemen­
tation of broad plantwide seniority, along with transfer 
and testing reforms, and adoption of ongoing mechanisms 
for further reforms of seniority, departmental, and line of 
progression (LOP) structures, all of which are designed 
to correct the continuing effects of past discriminatory 
assignments; (2) establishment of goals and timetables for 
fuller utilization of females and minorities in occupations 
and job categories from which they were discriminatorily 
excluded in the past; and (3) a back pay fund of $30,- 
940,000, to be paid to minority and female employees 
injured by the unlawful practices alleged in the complaint.4

Consent Decree II and its accompanying Agreement deal 
with aspects of employment which are mainly company- 
controlled and thus not subject to collective bargaining. 
The companies again are broadly enjoined from any form 
of unlawful employment discrimination. Also, Consent De­

4 Paragraph 18(c) of Consent Decree I defines as the affected 
classes of emplojrees eligible to receive back pay: (1) minority 
(black and Spanish-American surnamed) employees in Production 
and Maintenance units who were employed prior to January 1, 
1968; (2) all females in Production and Maintenance units as of 
the date of decree entry; and (3) those former employees who 
retired on pension within the two years preceding entry of the 
decrees, who, if they were still employed, would be within group 
(1) or group (2). Provision is also made for payment of baek 
pay to surviving spouses of otherwise eligible deceased employees.

O pin ion  o f the C o u rt o f  A p p e a ls , A u g u s t  18, 1975



18a

cree II requires the companies to initiate affirmative action 
programs in hiring, initial assignments, promotions, man­
agement training, and recruitment of minorities and fe­
males.

The decrees must be made to function in varying and 
peculiar situations in accordance with the parties’ ambi­
tious objectives. Furthermore, the parties contemplated 
that unforeseen interpretive issues will inevitably arise 
and require resolution. With these considerations in mind, 
the decrees provide for the establishment of implementa­
tion and enforcement procedures through a system of Im­
plementation Committees. These committees are estab­
lished at each major plant to which the decrees are made 
applicable. Each committee includes at least two union 
representatives, one of whom is a member of the largest 
minority group in the plant,5 and an equal number of com­
pany members. The government is entitled to designate a 
representative to meet with any Implementation Commit­
tee. The Implementation Committees are charged with as­
suring compliance with Consent Decree I, including changes 
in local seniority rules and LOPs, as well as the establish­
ment of goals and timetables for affirmative action under 
paragraph 10. In addition, it is the Implementation Com­
mittees’ responsibility to furnish employees with informa­
tion about their rights under the settlement.

The Audit and Review Committee, established under 
paragraph 13 of Consent Decree I, is the hub mechanism 
in the decrees’ system of continuing review, enforcement, 
and compliance. It is composed on an industry-wide basis

5 Paragraph 12 of Consent Decree I provides for a second min­
ority member at plants in which at least ten percent of the em­
ployees comprise a second minority group, unless one of the union 
representatives is already from that minority group.

O pin ion  o f  the  C o u rt o f  A p p e a ls , A u g u s t  18, 1975



19a

of five management members, five union members, and one 
government member. It meets regularly to oversee com­
pliance with the decrees and to resolve disputes which come 
before it, including any questions that the Implementation 
Committees have been unable to resolve. Matters which 
the Audit and Eeview Committee cannot resolve unan­
imously may be brought before the district court. Fur­
thermore, all parties to the decrees have stipulated on the 
record that paragraph 20 of Consent Decree I, which vests 
the district court with continuing jurisdiction for at least 
five years, permits the court to review fully and, if nec­
essary, correct any action taken pursuant to the decrees, 
irrespective of whether a party requests such review. Be­
ginning no later than December 31, 1975, the Audit and 
Eeview Committee wall review the entire experience under 
Consent Decree I. The committee may then propose 
remedial steps at any plant in order to overcome deficien­
cies in either the decree or its results. If the government 
representative remains dissatisfied with a committee pro­
posal, he may take the matter to the district court. Finally, 
the Audit and Eeview Committee is responsible at least 
annually for reviews of the various Implementation Com­
mittees’ performance in establishing and fulfilling affirma­
tive action goals in job assignment, hiring, promotion and 
seniority, and minority-female recruitment.

As the district court correctly determined, neither de­
cree purports “to bind any individual employee or to pre­
vent the institution or maintenance of private litigation.” 6 
At the time of the decrees’ entry, hundreds of employment 
discrimination charges were pending against the defen­
dants before the EEOC and federal district courts scattered

Opinion o f the C o u rt o f  A p p e a ls , A u g u s t  18, 1975

63 F.R.D. at 4.



20a

throughout the country. Between twenty and sixty thou­
sand minority and female individuals then stood beneath 
the overlapping umbrellas of these charges as members of 
putative aggrieved classes in actions seeking systemic in­
junctive relief and back pay. Thousands still do, and the 
problems of administrative and judicial management are 
truly awesome.7 The consent decrees establish a formula

7 A revealing illustration is the purported class action involving 
United States Steel’s Fairfield Works in Alabama, now pending 
on appeal before this court, No. 73—3907, Ford, et al. v. United 
States Steel Corp., et al., partially reported below at 371 F.Supp. 
1045 (N.D.Ala. 1973). Approximately 12,000 people are employed 
at Fairfield Works, around 3,100 of whom are black. Between six 
and eight private class actions were consolidated for trial. Back 
pay was awarded to some members of three classes, but denied as 
to the other classes. A total of sixty-one people, or thirteen percent 
of the members of the certified private classes, received back pay 
awards. The other eighty-seven percent, or 403 blacks, were denied 
back pay. Nonetheless, in anticipation of the appeal, the district 
court on May 2, 1973 amended the class certification order to re­
define the plaintiff class as: (1) all blacks, except those already 
members of a private class whose rights had been adjudicated, who 
had been employed at Fairfield Works at any time prior to Jan­
uary 1, 1973; and (2) all blacks who had unsuccessfully sought 
employment at Fairfield Works prior to January 1, 1973. Although 
we have no reliable estimate on the combined size of the resulting 
class, subclass (1) alone is sufficiently large to have encouraged 
the defendants to enter into consent decrees with the government, 
in which $30.9 million is promised in back pay, “several million 
dollars” of which represents United States Steel’s allotment, prin­
cipally for blacks, but also for female and Spanish-surnamed work­
ers at Fairfield Works. Brief for Appellee United States Steel 
Corp., at 7, No. 73—3907, Ford, et al. v. United States Steel Corp., 
et al.

The Fairfield Works case also involved pattern or practice charges 
brought by the United States, resulting in an appeal by the govern­
ment from denial of certain injunctive relief and denial of back 
pay to black employees who were not represented in the private 
class actions. Since the government is now admittedly satisfied 
with the rate retention and back pay provisions of subsequently- 
negotiated Consent Decree I, paragraphs 8 and 18 thereof respec­
tively, it has withdrawn its appeal in Ford pending our decision

Opinion of the Court of Appeals, August 18, 1975



21a

for expeditious and coordinated resolution of the multitude 
of pending charges. With respect to pending cases in 
which district courts have already entered remedial de­
crees, the government, companies, and union have agreed 
to petition those courts for amendments to conform their 
relief to that contained in the consent decrees. The same 
action is being taken with respect to orders of the Secre­
tary of Labor, rendered pursuant to Executive Order 
11246, which were issued prior to entry of the decrees. In 
regard to other pending litigation, the parties to the con­
sent decrees have agreed that release forms and notices to 
employees pursuant to subparagraphs 18(g) and (h) of 
Consent Decree I shall be forwarded to the courts trying 
the private actions, as well as to Judge Pointer for ap­
proval prior to distribution to all other affected employees. 
The parties have agreed on the record that they will ob­
serve any order or instruction issued by any of these 
courts. Audit and Review7 Committee Directive No. 1, 5,
May 31, 1974.

Under introductory paragraph C of each decree, the 
government has stipulated that in future cases involving 
private claims for relief, other than hack pay, wdiich would 
be inconsistent with the systemic relief provided by the 
decrees, the government will suggest to the forum court 
that the relief sought is unwarranted in the separate pro­

O pinion  o f  the  C o u rt o f  A p p e a ls , A u g u s t  18, 1975

as to the validity of the consent decrees sub judice. Stipulation of 
the Parties, filed July 8, 1974.

Last but not least, in an Order filed December 23, 1974, Judge 
Pointer entered an unopposed amendment in Ford conforming the 
injunctive relief for Fairfield Works to that provided by the 
consent decrees, in all minimum respects except back pay. Since 
the issue of classwide back pay is still on appeal to this court in 
Ford, Judge Pointer ordered postponement of further back pay 
availability in that case until final decision of the appeals in Ford 
and in this case.



22a

ceeding. The government, however, may proceed through 
the Audit and Review Committee mechanism to recommend 
that matters raised in the separate proceeding be sub­
mitted to Judge Pointer for resolution within the frame­
work of the consent decrees. The government concedes, of 
course, and no one seriously argues contrariwise, that no 
forum court will be legally obliged to follow any govern­
ment recommendation of dismissal, stay, or transfer as to 
any separate suit filed in such court.

With respect to charges pending at the administrative 
level at the time of the decrees’ entry, the EEOC has 
agreed in paragraph 19 to expedite its processing schedule. 
The Commission will first identify those charges that al­
lege violations for which the appropriate remedies are 
wholly within the scope of the decrees. In those cases, the 
EEOC will consider the charges settled and so notify the 
charging party. In addition, it will recommend to the 
charging party that he or she accept the back pay provided 
under paragraph 18(c) of Consent Decree I. As discussed, 
infra, the charging party is free to reject the EEOC’s rec­
ommendation and commence a private suit for greater back 
pay or any other relief. As for pending charges that re­
late to matters which are not wholly within the scope of 
the decrees, the Commission will conduct the usual in­
vestigations and attempt to conciliate the charges. In all 
such cases, the time in which a charging party must decide 
whether to claim the back pay under paragraph 18 will be 
suspended during the administrative proceedings.

The overriding goal of the United States, the Secretary 
of Labor, the EEOC, the companies, and the union is 
comprehensive, final and fair settlement of charges of un­
lawful employment discrimination arising from patterns 
and practices alleged upon the part of the companies and

Opinion of the Court of Appeals, August 18, 1975



23a

the union up to and including the entry date of the consent 
decrees. Accordingly, introductory paragraph C of each 
decree provides for binding resolution, between and among 
the parties to the decrees, of all issues treated by the de­
crees, together with all issues which may arise as future 
effects of the resolved pre-decree discriminations. To the 
extent the defendants maintain compliance with the de­
crees as to issues covered and which through the various 
procedures may become covered thereby, the government 
has agreed that it shall deem the defendants to have com­
plied with Title VII and Executive Order 11246.8 As to 
matters which originate in discriminations occurring prior 
to and including the entry date, and which are covered by 
the complaint or the decrees, the settlement is res judicata 
between and among its signatories.

Two important factors, however, warrant clarification at 
this point. First, no private individual, as such, is a party 
to the consent decrees. Thus, the consent decrees do not 
seek by their terms to bind private individuals by way of 
res judicata or estoppel by judgment. It is only through 
the acceptance of the back pay and legally effective execu­
tion of the release contemplated by paragraph 18(g) of 
Consent Decree I that a private individual can compro­
mise, by virtue of the decrees, any right that he may have. 
Apart from the $30,940,000 back pay fund, paragraphs 17 
and 18 establish mandatory procedures for fully informing 
private parties of their rights. Paragraph 18 sets up spe­
cific guidelines and standards for computing and delivering 
back pay awards to electing employees. The Implementa­
tion Committees, the Audit and Review Committee, and

8 Paragraph 16 of Consent Decree I contains a corresponding 
stipulation on behalf of the Secretary of Labor and the Office of 
Federal Contract Compliance.

O pin ion  o f th e  C o u rt o f  A p p e a ls , A u g u s t  18, 1975



24a

ultimately the district court bear the critical responsibility 
to insure that individual employees have the opportunity 
to make free, intelligent decisions whether to accept the 
back pay under the consent decrees.

The second factor relates to the nature of the consent 
decrees’ finality as contemplated by paragraph C. In that 
paragraph, the plaintiffs United States, the Secretary of 
Labor, and the EEOC have stated in so many words that 
they consider the decrees remedially adequate to bring the 
defendants into present compliance with federal anti-dis­
crimination law and to compensate individual employees 
for the past and continuing effects of the alleged discrim­
inatory practices which the decrees enjoin. Because the 
plaintiffs believe that the decrees are sufficient to those pur­
poses, they have stipulated that the decrees are res judicata 
with respect to all legal, factual, and remedial issues within 
the scope of the complaint and the decrees. In other words, 
the plaintiffs—and we take the parties at their word at oral 
argument—have merely consented to proceed within the 
mechanics of the decrees in lieu of filing additional law­
suits and seeking additional judgments against the de­
fendants with respect to matters covered by the decrees.

Also because they believe that the decrees provide ade­
quate relief, the plaintiffs have agreed that compliance with 
the decrees shall be deemed compliance with Title VII and 
Executive Order 11246. Nonetheless, it is our understand­
ing of the submissions to this court on behalf of all par­
ties to the decrees that the government remains entirely 
free, from and after the date of entry, to police the im­
plementation of the decrees for repeated or new violations 
of the injunctive provisions, and furthermore that the gov­
ernment shall be entitled to treat such suspected violations 
as new violations of Title VII and/or Executive Order

O pin ion  o f the  C o u rt o f  A p p e a ls , A u g u s t  18, 1975



25a

11246, by reason of which the government shall not be 
barred from bringing the matter to the attention of the 
district court for new injunctive correction, if necessary. 
Correspondingly, in light of the parties’ stipulation as to 
the scope of the district court’s continuing jurisdiction, we 
construe paragraph 20 of Consent Decree I as authorizing 
any aggrieved individual to proceed in similar fashion. If 
the grievance arises from a transaction or episode to which 
the injunctive provisions of the decrees apply, then we 
understand the court directly.9 If the grievance involves an 
allegation of new discrimination occurring subsequent to 
entry date, then it is our understanding that the individual 
may file a charge with the EEOC, and/or a lawsuit if he 
or she chooses, and expect the same quality of administra­
tive and judicial consideration to which an employment 
discrimination complainant would be entitled in any other 
American industry.

Having sketched—by no means exhaustively—the terms 
of the settlement, the parties’ interpretation thereof, and * 20

9 Of course, the parties to the decrees will encourage the grievant 
to proceed initially through Implementation and Audit and Review 
Committee channels, if the grievant seeks systemic relief. Also, 
that procedure obviously will be the most viable alternative for 
employees who reside at a distance from the Northern District of 
Alabama. Yet the decrees themselves—and particularly paragraph
20 of Consent Decree I, see also paragraph 2 of Consent Decree 
IT—are open-ended in that they do not purport to impose adminis­
trative exhaustion requirements upon the individual in excess of 
those otherwise imposed by law. Thus, it is quite reasonable to 
infer that any obstacles which the individual may encounter en 
route to any given courthouse must arise by virtue of rules of law 
or compromises that exist independently of the bare terms of the 
consent decrees. In any event, with respect to questions concerning 
any matter resolved by the decrees, the parties thereto have stipu­
lated that the district court may assume jurisdiction on its own 
motion. Hence, the decrees do not by their own force attempt to 
inhibit anyone’s access to judicial process or the availability of 
judicial review.

O pinion  o f the C o u rt o f  A p p e a ls , A u g u s t  18, 1975



26a

our general understanding of what the parties intended by 
their words and deeds, we turn now to the adversary en­
vironment which produced these appeals.

II. P rivate I ntervention :
Complaints, P roceedings, and A ppeals

The consent decrees were entered on April 12, 1974. By 
May 17, 1974, three organizations, four individuals, and six 
groups10 of plaintiffs in actions pending before various 
district courts had moved to intervene and to vacate the 
decrees. The district court invited the movants to file 
briefs, offer proof, and make oral arguments at the hear­
ing conducted on May 20. At the conclusion of the hear­
ing, the court narrowed the issues in intervention to two 
points: (1) whether the decrees should be stayed or va­
cated as unlawful or improper in their entirety; and (2) 
the validity of the contemplated releases of claims for addi­
tional relief in connection with the payment of back pay 
to employees so electing under the consent decrees.

The district court granted intervention as of right, in- 
tendedly pursuant to § 706(f)(1) of Title VII, 42 U.S.C.

O pin ion  of the  C o u rt o f  A p p e a ls , A u g u s t  18, 1975

10 The Harris group, certain members of which are the principal 
appellants herein, consists of seven sub-groups, the first of which 
claims to represent all black employees, past, present, and future, 
of all defendant companies at plants in which the Steelworkers’ 
Union is the employees’ bargaining representative. The next six 
sub-groups claim to represent six private classes in pending ac­
tions: Harris, et al. v. Republic Steel Corp., et al., N.D.Ala., C.A. 
No. 74—P—3345; Ford, et al. v. United States Steel Corp., et al., 
N.D.Ala., C.A.No.66—625, see note 7, supra; Taylor, et al. v. Armco 
Steel Corp., et ah, S.D.Tex., C.A.No.68—129; Walker, et al. v. 
Republic Steel Corp., et ah, N.D.Ala., C.A.Nos.71—179, 71—180, 
71—181, 71—185; Lane, et al. v. Bethlehem Steel Corp., et ah, 
D.Md., C.A.No.71—580—H ; Rodgers, et al. v. United States Steel 
Corp,, et al., W.D.Pa., C.A.No.71—1793.



27a

% 2000e-5(f) (1), and F.R.Civ.P. 24(a)(1), to a group of 
thirty-six individuals with respect to whom charges of 
discrimination on the part of the defendants had "been filed 
with the EEOC. Thirty-three of these individuals were 
members of the Harris group. The court also granted per­
missive intervention under F.R.Civ.P. 24(b) to the prin­
cipal officer of the Rank and File Team, an organization 
composed of rank and file members of the Steelworkers’ 
Union. Judge Pointer denied all other motions for inter­
vention, including* that filed by the National Organization 
of Women (NOW), appellant herein. Among the thirty- 
six persons as to whom the court allowed intervention by 
right, however, three were women specifically appointed by 
NOW at Judge Pointer’s request, and represented by 
NOW’s counsel throughout the proceedings.11

In his memorandum opinion of June 7,1974, see 63 F.R.D. 
1, 5, Judge Pointer refused to stay or vacate the consent 
decrees and upheld their validity against the interveners’ 
attacks. He determined first that no evidentiary hearing 
was needed, since the intervenors sought mainly to pre­
sent legal hypotheses and argument rather than evidence. 
Next, the court rejected contentions that the government 
had abdicated or bargained away its responsibilities under 
Title VII and Executive Order 11246. While recognizing 
that the decrees may require authoritative construction 
and clarification from time to time, Judge Pointer deemed 
such potential difficulties within his control by virtue of 
the court’s continuing jurisdiction. With respect to the 11

11 On June 4, 1974, Judge Pointer permitted NOW to file an 
amended complaint in intervention on behalf of the three women, 
who represented aggrieved classes of former, present, and future 
female employees of the defendant steel companies. Judge Pointer 
also received from NOW extensive briefs concerning the effects of 
the consent decrees upon the rights of females.

Opinion o f  the  C o u rt o f A p p e a ls , A u g u s t  18, 1975



28a

alleged illegality of the back pay settlement releases, Judge 
Pointer defined the issue as “whether a signed release in 
exchange for the payment of back-pay determined under a 
settlement procedure, as contemplated in paragraph 18(g) 
of Consent Decree I, can be valid as a matter of public 
policy.” Id. at 7. Belying on recent language by the Su­
preme Court,12 he held in the affirmative, provided the em­
ployee’s consent is both “ ‘voluntary and knowing,’ ” with 
“adequate notice which gives the employee full possession 
of the facts.” Id.

As a procedural matter, Judge Pointer also relaxed his 
earlier orders denying intervention to the majority of the 
movants. The final memorandum of June 7 denies such 
intervention without prejudice to the rights of private par­
ties to seek further intervention as to questions which may 
arise in the future. Similarly, whereas Judge Pointer con­
sidered his opinion binding upon those to whom he granted 
intervention as to the issues therein determined, he stated 
explicitly that he did not consider any private intervenor 
or class of private parties bound by principles of res judi­
cata to the consent decrees. Id. at 4 n. 2, 5.

NOW appeals the district court’s refusal to allow inter­
vention by the organization qua organization. It has also 
filed a brief and presented oral argument on the merits in 
behalf of the three female appellants to whom Judge 
Pointer granted intervention. The intervenors from the 
Harris group appeal the district court’s judgment sustain­
ing the overall legality of the consent decrees, although 
they complain primarily about the back pay features rather 
than the decrees’ injunctive provisions. No other appeals

Opinion o f the C o u rt o f  A p p e a ls , A u g u s t  18, 1975

12 See Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 & n. 15, 
94 S.Ct. 1011, 1021 & n. 15, 39 L.Ed.2d 147, 160 & n. 15 (1974) .



29a

are properly before this court.13 For the reasons which 
follow, we affirm the judgment of the district court insofar 
as it rejected the contentions of the Harris intervenors 
and the three females nominated by NOW. We dismiss the 
appeal of NOW qua organization for want of jurisdiction.

I I I .  D enial oe NOW’s Motion to I ntervene

Logical analysis of any question concerning intervention 
in federal court begins with Rule 24 of the Federal Rules 
of Civil Procedure.14 The rule establishes ground rules for

O pin ion  o f  the C o u rt o f A p p e a ls , A u g u s t  18, 1975

13 The record reflects that attorneys for the Harris group also 
listed the National Ad Hoc Committee of Steelworkers, as to which 
the district court denied intervention, in the Harris intervenors’ 
Notice of Appeal. On appeal, however, the Ad Hoc Committee has 
filed only a brief as Amicus Curiae, joined by the District 31 
Committee to Defend the Right to Strike along with the Rank and 
File Team. Of the issues briefed by Amici, only those relating to 
the alleged illegality of the back pay releases have been presented 
to this court by the briefs of NOW, the three women represented 
by NOW, and the Harris intervenors. The other issues briefed by 
Amici were not raised in the district court, and for that reason 
we shall not consider them. Cf. Wisconsin Barge Line, Inc. v. 
Coastal Marine Transport, Inc., 5 Cir. 1969, 414 F.2d 872, 876, 
and eases cited.

14 Rule 24.
Intervention

(a) Intervention of Right. Upon timely application anyone shall 
be permitted to intervene in an action: (1) when a statute of the 
United States confers an unconditional right to intervene; or (2) 
when the applicant claims an interest relating to the property or 
transaction which is the subject of the action and he is so situated 
that the disposition of the action may as a practical matter impair 
or impede his ability to protect that interest, unless the applicant’s 
interest is adequately represented by existing parties.

(b) Permissive Intervention. Upon timely application anyone 
may be_permitted to intervene in an action: (2) when a statute of 
the United States confers a conditional right to intervene; or (2) 
when an applicant’s claim or defense and the main action have a 
question of law or fact in common. When a party to an action



30a

two categories of intervention: section (a) establishes the 
procedures for timely intervention as of right, whereas 
section (b) recognizes discretion in the district court to 
permit intervention in two specified situations, again upon 
timely application.

Besides timeliness, Rule 24 details other preconditions 
to intervention. Under section (a), intervention as of right 
is authorized (1) when an act of Congress confers an un­
conditional right to intervene, or (2) when the applicant 
claims an interest in the subject matter of the action and 
shows that the action’s disposition may, as a practical 
matter, impair or impede the ability to protect that interest, 
unless the applicant’s interest is adequately protected by 
other parties to the suit. Thus, (a)(1) intervention pre­
supposes reliance on a statute. By contrast, the inquiry 
under subsection (a)(2) is a flexible one, which focuses on

O pin ion  o f  th e  C o u rt o f  A p p e a ls , A u g u s t  18, 1975

relies for ground of claim or defense upon any statute or executive 
order administered by a federal or state governmental officer or 
agency or upon any regulation, order, requirement, or agreement 
issued or made pursuant to the state or executive order, the officer 
or agency upon timely application may be permitted to intervene 
in the action. In exercising its discretion the court shall consider 
whether the intervention will unduly delay or prejudice the ad­
judication of the rights of the original parties.

(c) Procedure. A person desiring to intervene shall serve a 
motion to intervene upon the parties as provided in Rule 5. The 
motion shall state the grounds therefor and shall be accompanied 
by a pleading setting forth the claim or defense for which inter­
vention is sought. The same procedure shall be followed when a 
statute of the United States gives a right to intervene. When the 
constitutionality of an act of Congress affecting the public interest 
is drawn in question in any action to which the United States or 
an officer, agency, or employee thereof is not a party, the court 
shall notify the Attorney General of the United States as provided 
in Title 28, U.S.C. § 2403.
As amended Dec. 27, 1946, eff. March 19, 1948; Dec. 29, 1948 
eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966̂  
eff. July 1, 1966.



31a

the particular facts and circumstances surrounding each 
application. Since 1966, we have consistently held that 
(a)(2) intervention as of right must be measured by a 
practical rather than technical yardstick. E. g., Martin v. 
Travelers Indem. Co., 5 Cir. 1971, 450 F.2d 542, 554; Diaz 
v. Southern Drilling Corp., 5 Cir. 1970, 427 F.2d 1118, 
1123-25, cert, denied sub nom., Trefina xl.Gf. v. United 
States, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970); 
Atlantis Development Corp. v. United States, 5 Cir. 1967, 
379 F.2d 818, 822-29. A denial of an application for inter­
vention by right which was timely filed, as here, is subject 
to the usual scope of our appellate review over questions 
of law. An erroneous denial will be reversed. Weiser v. 
White, 5 Cir. 1975, 505 F.2d 912, at p. 916. On the other 
hand, if the appellate court finds that the claim of right to 
intervene was without merit, then it must dismiss the appeal 
for want of judisdiction, since the order denying interven­
tion does not constitute a final judgment. Id. See also C. 
Wright, Federal Courts §75, at 332 (1970).

The rules pertaining to permissive intervention are 
slightly different. Eule 24(b) authorizes permissive inter­
vention (1) when a federal statute confers a conditional 
right to intervene, or (2) when the application raises a 
question of law or fact which is material to the main action. 
In exercising its discretion, the district court is required 
to consider whether permissive intervention would unduly 
jeopardize or delay the determination of the original suit. 
On appeal, the denial of a motion for permissive interven­
tion is unreviewable, unless the trial court abused its dis­
cretion. Brotherhood of E. E. Trainmen v. Baltimore & 
Ohio E. E., 331 U.S. 519, 524, 67 S.Ct. 1387, 1390, 91 L.Ed. 
1646, 1650 (1947); Martin v. Ivalvar Corp., 5 Cir. 1969, 411 
F.2d 552. If no abuse of discretion is demonstrated, then

O pin ion  of the C o u rt of A p p e a ls , A u g u s t  18, 1975



32a

once again the district court’s order is not appealable and 
we must dismiss the appeal for want of a final order. 
Weiser v. "White, supra; C. Wright, supra.

NOW’s principal contention asserts an absolute, uncon­
ditional right of intervention in favor of the organization. 
NOW thus seeks to enter the lawsuit under Rule 24(a)(1). 
NOW argues that this absolute, unconditional right is con­
ferred upon it by § 706(f)(1) of Title VII, as amended, 
Pub.L.No.92-261, § 4(a) (March 24,1972), 42 U.S.C. § 2000e- 
5(f)(1). Section 706(f)(1), which, as pertinent, contains 
the procedures for filing charges with the EEOC and the 
filing of lawsuits by the Commission or charging parties 
when conciliation fails, confers upon the “person or persons 
aggrieved” a right to intervene in a civil action brought 
thereunder by the Commission. NOW contends that since 
it is a civil rights-oriented feminist organization which has 
been permitted on occasions to file charges with the EEOC 
on behalf of women, and since on at least one occasion 
it has been made as a party-plaintiff in a sex discrimina­
tion lawsuit,15 it should therefore be deemed a “person 
aggrieved” in its own stead. NOW argues that judicial 
recogition of an unconditional organizational right of inter­
vention would yield socially desirable results, since the 
organization would receive valuable stature and publicity

O pin ion  o f th e  Court o f Appeals, August 18, 1975

15 NOW informs us that it is one of the plaintiffs in a class action 
employment discrimination suit pending before the federal district 
court in Maryland, styled Baltimore Chapter of NOW; Cathleen 
J. Beasley and. Catherine N. Lloyd v. Bethlehem Steel Corp., et al., 
No. M—74—377. Brief for Appellants NOW, et al., at 6. NOW 
asserts that its filing of charges with the EEOC, for example on 
behalf of all female employees of United States Steel at Gary, 
Indiana (Charge No. TCH 4—1985, filed March, 1974), has been 
instrumental in generating a favorable climate for conciliation and 
settlement in the steel industry.



33a

which would encourage female workers throughout the 
nation to seek its assistance.

Without drawing any finer distinctions, the district court 
held that NOW is not a “person aggrieved” within the 
meaning of § 706(f)(1). In the court’s view, NOW did 
not demonstrate a sufficiently concrete interest qua orga­
nization to justify the additional problems of management 
and inconvenience to other parties (including, presumably, 
the beneficiary employees of the consent decrees) that 
might result from duplicative intervention. The fact that 
NOW previously had been permitted to designate three 
female intervenors, whom its counsel ably represented, 
weighted heavily in Judge Pointer’s calculus. See 63 F.E.I). 
at 4.

While perhaps a court might be persuaded by Judge 
Pointer’s conclusion that NOW is not a “person aggrieved” 
within the meaning of § 706(f) (1),16 we defer decision of 
that question in favor of an approach which we consider

16 Cf. Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 
1368-69, 31 L.Bd.2d 636, 646 (1972) :

The requirement that a party seeking review must allege 
facts showing that he is himself adversely affected does not 
insulate executive action from judicial review, nor does it 
prevent any public interests from being protected through the 
judicial process. It does serve as at least a rough attempt to 
put the decision as to whether review will be sought in the 
hands of those who have a direct stake in the outcome. That 
goal would be undermined were we to construe the APA to 
authorize judicial review at the behest of organizations or 
individuals who seek to do no more than vindicate their own 
value preferences through the judicial process. The principle 
that the Sierra Club would have us establish in this case would 
do just that.

(footnotes omitted.)
But see Warth v. Seldin, -----  U.S. ----- , -----  95 S.Ct. 2197

2211, 44 L.Ed. -----  (1975):
There is no question that an association may have standing 

in its own right to seek judicial relief from injury to itself

O pin ion  of th e  C o u rt of A p p e a ls , A u g u s t  18, 1975



34a

more directly dispositive. We hold that this was not a 
proper case for intervention as of right by any private 
party or organization pursuant to Rule 24(a)(1). Specif­
ically, we hold that intervention as of right was not con­
ferred in this proceeding by any act of Congress. We do so 
because it is plain from a careful examination of the 
government’s complaint that this was not in substance a 
§ 706 action, but rather a “pattern or practice” action au­
thorized by § 707, 42 U.S.C. § 2000e-6, which the EEOC 
was empowered to institute by virtue of the transfer of 
functions outlined in § 707(c).17 Insofar as the United 
States and the Secretary of Labor joined as plaintiffs to 
enforce the obligations imposed on the defendants by Ex­
ecutive Order 11246, the district court’s jurisdiction was 
based on 28 U.S.C. § 1345.18

O pin ion  o f th e  C o u rt o f  A p p e a ls , A u g u s t  18, 1975

and to vindicate whatever rights and immunities the associa­
tion itself may enjoy. Moreover, in attempting to secure relief 
from injury to itself the association may assert the rights of 
its members, at least so long as the challenged infractions 
adversely affect its members’ associational ties.

In Warth the Court described the question of standing as essen­
tially a matter of “whether the constitutional or statutory provision 
on which the claim rests properly can be understood as granting
persons in the plaintiff’s position a right to judicial relief.” -----
U.S. a t ----- , 95 S.Ct. at 2207 (footnote omitted). Note that whereas
§ 706(f) (1) of Title YII creates civil actions and rights of inter­
vention in favor of “Person [s] aggrieved,” § 703, 42 U.S.C. § 2000e- 
2, makes it unlawful to discriminate against “any individual.” 
(emphasis added).

17 As of March 24, 1974, the EEOC assumed the full range of 
“pattern or practice” functions which had belonged, to the Justice 
Department since the effective date of Title YII, July 2, 1965. 
Accordingly, NOW appears to accept as correct our statement in 
the text, that this was a § 707 “pattern or practice” action. Brief 
for Appellants NOW, et ah, at 6.

18 28 U.S.C. § 1345: “Except as otherwise provided by Act of 
Congress, the district courts shall have original jurisdiction of all



O pin ion  o f th e  C o u r t o f A p p e a ls , A u g u s t  18, 1975

Nothing in § 707 or in any other federal statute con­
ferred an unconditional right of intervention upon any 
private individual or association thereof. The “pattern or 
practice” action under § 707, which is conspicuously silent 
in regard to intervention, must be carefully contrasted 
with the actions contemplated by § 706. Under § 707, the 
EEOC' (formerly the Attorney General) may institute a 
“pattern or practice” suit anytime that it has “reasonable 
cause” to believe such a suit necessary. See United States 
v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, 
438, cert, denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 
815 (1972). Section 707 does not make it mandatory that 
anyone file a charge against the employer or follow ad­
ministrative timetables before the suit may be brought. 
It was unquestionably the design of Congress in the enact­
ment of § 707 to provide the government with a swift and 
effective weapon to vindicate the broad public interest in 
eliminating unlawful practices, at a level which may or 
may not address the grievances of particular individuals. 
See Rodriguez v. East Texas Motor Freight, 5 Cir. 1974, 
505 F.2d 40, at p. 66; United States v. International Ass’n. 
of Bridge, Structural, and Ornamental Iron Workers, 7 
Cir. 1971, 438 F.2d 679, cert, denied 404 U.S. 830, 92 S.Ct. 
75, 30 L.Ed.2d 60 (1971). Rather, it is to those individual 
grievances that Congress addressed § 706, with its atten­
dant requirements that charges be filed, investigations con­
ducted, and an opportunity to conciliate afforded the re­
spondent when “reasonable cause” has been found. On the

civil actions, suits or proceedings commenced by the United States, 
or by any agency or officer thereof expressly authorized to sue by 
Act of Congress.” See United States v. Local 189, United Paper- 
makers, E.D.La.1968, 282 F.Supp, 39, 43, aff’d, 5 Cir. 1969, 416 
F.2d 980, cert, denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 
(1970).



36a

other hand, the mere fact that some charges were filed, or 
that efforts were made toward conciliation, does not in our 
view transform what the government may properly bring 
and does bring as a § 707 “pattern or practice” action into 
a § 706 action. See United States v. Ironworkers Local 86, 
9 Cir. 1971, 443 F.2d 544, 551-52, cert, denied, 404 U.S. 984, 
92 S.Ct. 447, 30 L.Ed.2d 367 (1971).

We have studied closely the language of the two sections 
in reaching the foregoing conclusions. If only the words of 
the statute were available, one might plausibly argue that 
§ 707(e), 42 U.S.C. §2000e-6(e), incorporates § 706(f)(1) 
intervention as of right into “pattern or practice” proce­
dure. Section 707(e), enacted as another of the 1972 amend­
ments to Title VII, provides that the EEOC shall have the 
authority, subsequent to March 24, 1972, “to investigate 
and act on” charges of pattern or practice discrimination 
filed in behalf of aggrieved individuals. Section 707(e) 
concludes: “All such actions shall be conducted in ac­
cordance with the procedures set forth in section 2000e-5 
[§ 706] of this title.”

Arguably, these procedures include intervention as of 
right by aggrieved parties. The legislative history indicates 
otherwise, however, and in the absence of an express provi­
sion for intervention we choose to follow its signals. In 
the first place, we have discovered no legislative history 
evincing a favorable congressional attitude toward uncon­
ditional private intervention in government “pattern or 
practice” litigation. In the legislative history which speaks 
most closely to the point, the House Committee on Educa­
tion and Labor described the enacted precursor to § 707(e) 
as a measure which merely “ [a]ssimilate[d] procedures for 
new proceedings brought under Section 707 to those now 
provided for under Section 706 so that the Commission

O pin ion  of th e  C o u r t of A p p e a ls , A u g u s t  18, 1975



37a

may provide an administrative procedure to be the counter­
part of the present Section 707 action.” (emphasis added).19 
Thus, while Congress apparently intended that the EEOC 
have investigative and conciliatory authority in “pattern or 
practice” situations comparable to its existing powers in 
§ 706 cases, there is no indication that Congress intended 
the duplication of procedures to extend beyond the admin­
istrative level. The EEOC, of course, may not enact stat­
utes, and it is a statute that Rule 24(a)(1) requires.

We emphasize that our disposition of the 24(a)(1) as­
pect of the intervention question is based primarily on 
what we find to be the correct construction of § 707 and its 
legislative history. We are comforted, however, by the Sev­
enth Circuit’s recent decision in EEOC v. United Air Lines, 
7 Cir. 1975, 515 F.2d 946, in which the court reached the 
same conclusion, though ultimately its affirmance -was based 
on the untimeliness of the intervenors’ application. Also, 
we find persuasive support for our refusal to effectively 
imply an unconditional statutory right in the strong judicial 
policy against nonexpress private intervention in govern­
ment enforcement litigation when an adequate private rem­
edy is freely accessible. See, e. g., Sam Fox Publishing 
Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 
604 (1961). See also Battle v. Liberty Nat’l. Life Ins. Co., 
5 Cir. 1974, 493 F.2d 39, 52, cert, denied, 419 U.S. 1110, 95 
S.Ct. 784, 42 L.Ed.2d 807 (1975). This policy likewise ap­
plies to applications for intervention by right under Rule 
24(a) (2), and applications for permissive intervention un­
der Rule 24(b). See SEC v. Everest Mgt. Corp., 2 Cir. 
1972, 475 F.2d 1236; United States v. Automobile Mfrs.

19 H. Rep. No. 92-238, reporting H.R. 1746, 92d Cong., 2d Sess., 
1972 U.S.Code Cong. & Admin.News 2137, at 2164 (reporting 
§ 707(f) of H.R. 1746).

O pin ion  o f the  C o u rt o f A p p e a ls , A u g u s t  18, 1975



38a

Assn., C.D.Cal.1969, 307 F.Supp. 617, 619, aff’d per curiam, 
397 U.S. 248, 90 S.Ct. 1105, 25 L.Ed.2d 280 (1970). Cf. 
NAACP v. New York, 413 U.S. 345, 368, 93 S.Ct. 2591, 2604, 
37 L.Ed.2d 648, 664 (1973).

Without any aim on our part to denigrate whatever so­
cial benefit may accrue from participation in the proceed­
ings by organizations such as NOW, or to impose NOW’s 
motives or sincerity, we note that NOW lias offered no 
commanding legal or policy arguments to warrant a rule 
allowing its intervention as of right. NOW places much 
reliance on EEOC v. American Tel. & Tel. Co., E.D.Pa.1973, 
365 F.Supp. 1105, aff’d in part, appeals dismissed in part, 
3 Cir. 1974, 506 F.2d 735. There the court granted interven­
tion by right, under § 706(f)(1) and Rule 24(a)(1), to a 
labor union insofar as certain issues raised in the union’s 
application related to grievances with respect to which 
charges had been filed with the EEOC, and to remedy 
which the Commission had filed a suit that led to an in­
dustry-wide consent decree. American Tel. & Tel., however, 
was a suit brought by the Commission pursuant to § 706. 
It was not a § 707 “pattern or practice” action. See 506 
F.2d at 740. The issue before the court was whether the 
union could be considered an “aggrieved” party for pur­
poses of § 706(f)(1). The case is not authority for the 
proposition sought to be established sub judice. At any 
rate, we think that a labor union which is party to the col­
lective bargaining agreement presents a far stronger case 
for intervention than does an organization such as NOW, 
provided that conflicts of interest are minimized.20

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

20 A labor union is elected to represent in collective bargaining 
the employees who depend on the company for their jobs and 
livelihood. When the company, as in American Tel. & Tel., enters 
into a settlement with the government in an effort to resolve com-



39a

In summary, we have determined that NOW enjoyed 
no unconditional statutory right to intervene under F.R. 
Civ.P. 24(a)(1). The matter is mostly ended .at this point, 
but we pause briefly to consider whether the district court 
could have erred in refusing to grant NOW intervention 
under Rule 24(a)(2) or (b). With respect to (a)(2) inter­
vention as of right, NOW obviously claims an interest in 
the subject matter of the action. We believe, however, that 
NOW fails the other two prongs of the test. NOW has not 
shown that the district court’s decision to enter the consent 
decrees as between the government and the defendants may, 
as a practical matter, operate to impair or impede the pro­
tection of its interest. Neither NOW nor any of its mem­
bers is bound by res judicata or estopped to the consent 
decrees. See Rodriguez v. East Texas Motor Freight, 5 
Cir. 1974, 505 F.2d 40 at p. 65; Williamson v. Bethlehem 
Steel Corp., 2 Cir. 1972, 468 F.2d 1201, 1203, cert, denied,

O pin ion  o f the  C o u rt o f A p p e a ls , A u g u s t  18, 1975

plaints of alleged employment discrimination, the union deriva­
tively acquires a mandatory duty to negotiate alternatives to the 
provisions—e.g., those relating to seniority, or as in the Bell ease 
pregnancy leave—of the existing collective bargaining contract. If 
the settlement contains features the legality or propriety of which 
is questionable, then the union may have a definite, cognizable 
interest qua union in contesting those features. Cf. Kilberg, Cur­
rent Civil Rights Problems in the Collective Bargaining Process: 
The Bethlehem and AT&T Experiences, 27 Vand.L.Rev. 81, 101, 
106 (1974). Furthermore, the union’s ability to protect its interest 
may well be impaired or impeded if it is not allowed to intervene 
in the settlement formalization proceedings. Id. At the very least, 
it would be anomalous to assume in such cases that the employees’ 
bargaining representative’s interest is adequately served by the 
government or the employer. Nevertheless, the union must care­
fully tailor its role in intervention in order not to unduly favor 
or discriminate against the interests of particular segments of its 
membership. See EEOC v. American Tel. & Tel. Co., 3 Cir. 1974, 
506 F.2d 735, 741.



40a

411 U.S. 931, 93 S.Ct. 1893, 36 L.Ed.2d 390 (1973). See also 
Sam Fox Publishing Co. v. United States, supra, 366 U.S. 
at 689-90, 81 S.Ct. at 1313, 6 L.Ed.2d at 609. Furthermore, 
the district court explicitly qualified the denial of interven­
tion as a denial without prejudice to future intervention.
Cf. NAACP v. New York, supra. Finally, plenary legal 
remedies remain fully available to NOW’s membership and 
perhaps, or so NOW has asserted, to the organization it­
self.21 The policy against private intervention in govern-

21 For that reason, NOW’s reliance on eases such as Trbovich v. 
UMW, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972), is mis­
placed. Trbovich was an action by the Secretary of Labor under 
§ 482(b) of the LMRDA, 29 U.S.C. §401 et seq., to set aside a 
union’s election of officers because of alleged violations of Title IV 
of the Act, § 481 et seq. The statute provided that the suit by the t 
Secretary constituted the exclusive remedy, and union members 
are barred by law from bringing private actions. Since the Secre­
tary thus functioned as the union members’ only advocate for the 
protection of their valuable rights against the union, and because 
of the Secretary’s corresponding and potentially conflicting duty 
to consider the broader public interest, the Court held that the 
union member who filed the original complaint with the Secretary 
was entitled to limited intervention under Rule 24(a)(2). Here, 
by contrast, although the government was obliged to represent the 
public interest, the consent decrees do not purport to affect the 
availability of relief from employment discrimination through pri­
vate actions under Title VII, the Civil Rights Act of 1866 (42 
U.S.C. § 1981), the labor law duty of fair representation, or any 
other applicable federal law. Compare Hodgson v. UMW, 1972,'
153 U.S. App.D.C. 407, 473 F.2d 118, 122 n. 15, 128-30 (suit by 
Secretary under Title III of LMRDA is res judicata as against 
union members; Rule 24(a) (2) intervention allowed).

Also to be distinguished are cases such as Atlantis Development 
Corp. v. United States, 5 Cir. 1967, 379 F.2d 818 (title to prop­
erty) ; Martin v. Travelers Indem. Co., 5 Cir. 1971, 450 F.2d 542 
(liability insurance coverage) ; and Nuesse v. Camp, 1967, 128 
U.S.App.D.C. 172, 385 F.2d 694 (conflict between federal banking 
laws and state law), in which courts have granted (a) (2) inter­
vention because of the practical disadvantages that would follow 
from peculiar stare decisis effects, if intervention were not allowed. 
Again contrasting this case, we have difficulty conceiving of how 
the consent decrees—products of negotiation rather than contested

O pin ion  o f the  C o u rt o f A p p e a ls , A u g u s t  18, 1975



41a

ment litigation, noted supra, militates against the allowance 
of (a)(2) intervention here; NOW makes no colorable 
showing of inadequacy in the government’s representation 
of the public interest. In any event, NOW fails the third 
element of the (a)(2) test. Having participated through 
its nominees and counsel during these entire proceedings, 
NOW cannot be heard to complain of the adequacy of the 
feminist representation.

Insofar as NOW’S application may be deemed to have 
sought permissive intervention under Rule 24(b), no abuse 
of discretion has been shown in the denial. The district 
court was clearly justified in determining that the interests 
of the majority of the affected individuals predominated 
over NOW’s interest in further delaying implementation 
of the decrees’ reforms. Such determinations must be 
viewed in light of the circumstances as they existed at the 
time. EEOC v. United Air Lines, supra, 515 F.2d at 949. 
In this case, a full hearing had been held and NOW had 
received ample opportunity to present its arguments. The 
court below did not err in denying further intervention.

O pin ion  o f the  C o u rt o f A p p e a ls , A u g u s t  18, 1975

litigation—are likely to carry stare decisis effects measurably ad­
verse to NOW or its membership in any future proceeding. A 
careful analysis of the decrees demonstrates that such an assump­
tion would be not only quite premature, but al'so naively critical 
of the perceptive abilities of the judiciary. See Judge Motley’s 
lucid discussion in Leisner v. New York Tel. Co., S.D.N.Y.1973, 
358 F.Supp. 359, 369-70. Cf. Pettway v. American Cast Iron Pipe 
Co., 5 Cir. 1974, 494 F.2d 211, 221 n. 21; Rodriguez v. East Texas 
Motor Freight, 5 Cir. 1974, 505 F.2d 40, at p. 65; Dickerson v. 
United States Steel Corp., E.D.Pa. 1974, 64 F.R.D. 351.

In no respect does this case bear genuine resemblance to the kind 
of bizarre problems encountered in Cascade Natural Gas Corp. v. 
El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 
814 (1967). See Kaplan, Continuing Work of the Civil Committee: 
[etc.] (/), 81 Harv.L.Rev. 356, 405-06 (1967).



42a

Consequently, NOW’s appeal qua organization must be 
dismissed.22

III. T h e  A ppeals on the  Me r it s : Challenges 
to the  Consent D ecrees

A. Scope of Review

Before proceeding with our examination of the appel­
lants’ numerous and provocative challenges to the consent 
decrees, it is appropriate that we outline the rules of law 
which govern the parameters of our review. Initially, it 
cannot be gainsaid that conciliation and voluntary settle­
ment are the preferred means for resolving employment 
discrimination disputes. As early as 1968, Judge Bell wrote 
for this court: “It is thus clear that there is great em­
phasis in Title VII on private settlement and the elimina­
tion of unfair practices without l i t ig a t io n Oatis v. Crown 
Zellerbach Corp., 5 Cir. 1968, 398 F.2d 496, 498 (emphasis 
added). Subsequently, in Dent v. St. Louis-San Francisco 
By. Co., 5 Cir. 1969, 406 F.2d 399, 402, Judge Coleman 
advanced the same thesis:

Thus it is quite apparent that the basic philosophy 
of these statutory provisions is that voluntary compli-

22 Although we have determined that intervention as of right 
under F.R.Civ.P. 24(a) (1) was not available to the private parties 
and groups who sought intervention in this ease, some of whose 
applications were granted below on the assumption that § 706(f) 
(1) of Title VII conferred such right, we. proceed nonetheless to 
consider the merits of the attacks lodged against the consent de­
crees by the remaining intervenor's-appellants. We do so on the 
assumption that the district court, having concluded that certain 
parties ought to be granted intervention either by right or by 
permission, would have allowed those parties to intervene in any 
event under either 24(a)(2) or (b). No appellee has suggested 
by way of cross-assignment or otherwise that we should not go 
forward to the merits.

Opinion of the Court of A p p e a ls , A u g u s t  18, 1975



43a

ance is preferable to court action and that efforts 
should be made to resolve these employment rights by 
conciliation both before and after court action.

(emphasis added). In Culpepper v. Reynolds Metals Co., 
5 Cir. 1970, 421 F.2d 888, 891, we declared that “the cen­
tral theme of Title YII is ‘private settlement’ as an effec­
tive end to employment discrimination,” citing Oatis. Next, 
in Hutchings v. United States Industries, Inc., 5 Cir. 1970, 
428 F.2d 303, 309, Judge Ainsworth stated:

[I] t is clear that Congress placed great emphasis upon 
private settlement and the elimination of unfair prac­
tices without litigation (citing Oatis) on the ground 
that voluntary compliance is preferable to court action, 
(citing Dent). Indeed, it is apparent that the primary 
role of the EEOC is to seek elimination of unlawful 
employment practices by informal means leading to 
voluntary compliance.

(emphasis added).23
Our recent excursions into this area have not detoured 

from the foregoing principles, but have emphasized instead 
their practical value. In the most sweeping of all our em­
ployment discrimination decisions, Pettway v. American 
Cast Iron Pipe Co., 5 Cir. 1974, 494 F,2d 211, 258, we said 
in regard to the firmly established, but nonetheless thorny 
and speculative matter of awarding classwide back pay:

Opinion of the Court of Appeals, August 18, 1975

23 Accord, Guerra v. Manchester Terminal Corp., 5 Cir. 1974, 
498 F.2d 641, 650; Airline Stewards and Stewardesses v. Ameri­
can Airlines, Inc., 7 Cir. 1972, 455 F.2d 101, 109; Fekete v. United 
States Steel Corp., 3 Cir. 1970, 424 F.2d 331, 336; Bowe v. 
Colgate-Palmolive Co., 7 Cir. 1969, 416 F.2d 711; Jenkins v. 
United Gas Corp., 5 Cir. 1968, 400 F.2d 28.



44a

Initially, we approve the district court’s intention of 
referring the back pay claims to a Special Master, Fed. 
R.Civ.P. 53. United States v. Wood, Wire & Metal 
Lathers Int. Union, Local 46, 328 F.Supp. 429, 441 
(S.D.N.Y. 1971). However, the court ancl the parties 
may also consider negotiating an agreement. E. g., 
Johnson v. Goodyear Tire & Rubber Co., 349 F.Supp. 
3, 18 (S.D. Tex. 1972), 491 F.2d 1364 (5th Cir. March 
27, 1974); United States v. Wood, Wire & Metal 
Lathers, Int. Union, Local 46, supra 328 F.Supp. at 
444 n. 3. An alternative is to utilise the expertise of 
the intervening Equal Employment Opportunity Com­
mission to supervise settlement negotiations or to aid 
in determining the amount of the ward.

(emphasis added).
Nor has the Supreme Court maintained detached silence 

in regard to the deference courts should accord the pro­
cesses of voluntary conciliation and settlement. Describing 
Title VII and the functions of the EEOC, Mr. Justice 
Powell in Alexander v. Gardner-Denver Co., 415 U.S. 36, 
44, 94 S.Ct. 1011, 1017-18, 39 L.Ed.2d 147, 156 (1974), wrote 
for the Court:

Cooperation and voluntary compliance were selected 
as the preferred means for achieving [the elimination 
of unlawful employment discrimination]. To this end, 
Congress created the Equal Employment Opportunity 
Commission and established a procedure whereby State 
and local equal employment opportunity agencies, as 
well as the Commission, would have an opportunity 
to settle disputes through conference, conciliation, and 
persuasion before the aggrieved party was permitted 
to file a lawsuit. In the Equal Employment Oppor-

Opinion of the Court of Appeals, August 18, 1975



45a

tunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, Con­
gress amended Title VII to provide the Commission 
with further authority to investigate individual charges 
of discrimination, to promote voluntary compliance 
with the requirements of Title VII, and to institute 
civil actions against employers or unions named in a 
discrimination charge.

(emphasis added). In Gardner-Denver the Supreme Court 
stressed the importance of voluntary settlement in voicing 
its disapproval of a policy of deferral to binding arbitra­
tion. In the Court’s view, such a policy could adversely 
affect the arbitration system as well as the vindication of 
individual rights, since the employee—fearful of the arbi­
tral forum—might elect to bypass arbitration and file a 
lawsuit instead. “The possibility of voluntary compliance 
or settlement of Title VII claims would thus be reduced, 
and the result could well be more litigation, not less.” 415 
U.S. at 59, 94 S.Ct. at 1025, 39 L.Ed.2d at 164. (emphasis 
added).

So far, we have emphasized only one side of the coin— 
the side which places a premium on the achievement of 
voluntary compliance. In doing so, we have not overlooked 
that the “final responsibility for enforcement of Title VII 
is vested with federal courts,” Gardner-Denver, supra, 415 
U.S. at 44, 94 S.Ct. at 1018, 39 L.Ed.2d at 156, and that 
“Congress gave private individuals a significant role in 
the enforcement process of Title VII.” Id. See also Mc­
Donnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 
1817, 36 L.Ed.2d 668 (1973); Griggs v. Duke Power Co., 
401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).24 Nor

Opinion of the Court of Appeals, August 18, 1975

24 Statements to the same effect may be found in virtually all of 
the ease's which we have canvassed in stressing the importance of



46a

have we forgotten that “the private right of action remains 
an essential means of' obtaining judicial enforcement of 
Title VII.” Gardner-Denver, supra, 415 U.S. at 45, 94 S.Ct. 
at 1018, 39 L.Ed.2d at 156 (emphasis added), and cases 
cited. We are fully mindful, moreover, that the EEOC’s 
limited resources permit it to undertake serious conciliation 
or lawsuits in only a small fraction of the cases on its 
docket.25 For that reason, the congressional scheme con­
tinues to depend in substantial measure upon “private at­
torneys general” who, through their lawsuits in the federal 
courts, elicit enunciation of the great bulk of policies and 
principles which serve to flesh out the basic congressional 
mandate.

Yet we deal here with one of those rare instances in 
which the government has, to its satisfaction, successfully 
negotiated a comprehensive voluntary accord. At least os­

Opinion of the Court of Appeals, August 18, 1975

conciliation and settlement, and in legion others as well. See, e.g., 
Gamble v. Birmingham Southern R. R., 5 Cir. 1975, 514 F.2d 678, 
at p. 686. To repeat the citations would be superfluous in view of 
the Supreme Court’s repeated and emphatic recognition of the 
important enforcement role played by private suitors.

25 According to one fairly recent source, the EEOC—to no one’s 
surprise—“suffers from a considerable work backlog.” It is re­
ported that as of June 30, 1971, some 32,000 cases were backlogged, 
and that the processing of a charge may consume eighteen to 
twenty-four months. Further, after the EEOC finds reasonable 
cause, another six months usually passes before it seeks conciliation.

In fiscal 1972, the last year prior to implementation of the 1972 
amendments which gave the EEOC power to sue, the Commission 
found reasonable cause to assert unlawful discrimination against 
only 1,390' employers. Settlement was attempted to some degree 
with 792 of these employers, but only 268 attempts resulted in a 
partial or complete success. Note, The Tentative Settlement Class 
and Class Action Suits Under Title V II of the Civil Rights Act 
72 Mich.L.Rev. 1462, 1463 n. 11, 1464 n. 17 (1974).

Another source reports that as of the close of fiscal 1974, the
EEOC’s backlog had grown to nearly 98,000 charges. 181 BNA_
DLR—D-l, 5 (Sept. 17, 1974).



47a

tensibly, the government has done precisely what it ought 
to do as a matter of public policy in order to vitiate the 
need for additional industry-wide litigation. On the other 
hand, the product of the considerable efforts on behalf of 
the government, the steel companies, and the union does 
not purport to foreclose any alternatives that may other­
wise exist for individuals who had rather litigate than par­
ticipate in the entire settlement.26 We say entire because

Opinion of the Court of Appeals, August 18, 1975

26 In this respect, the consent decrees present a situation some­
what analogous to that recently examined by the Supreme Court
in Johnson v. Railway Express Agency, Inc., -----  U.S. ----- , 95
S.Ct. 1716, 44 L.Ed.2d 295 (1975). In Johnson it was argued that 
the timely filing of an employment discrimination charge with the 
EEOC, pursuant to Title VII, should be held to toll the applicable 
state statute of limitations for a suit under 42 U.S.C. § 1981 on 
the same cause of action. Rejecting the argument, the Supreme 
Court reiterated the theme of Gardner-Denver that the various 
legal remedies for employment discrimination are cumulative and 
complementary. From the grievant’s standpoint, “ [u]nder some 
circumstances, the administrative, route may be highly preferred
over the litigatory; under others the reverse may be true.” -----
U.S. a t ----- , 95 S.Ct. at 1720, 44 L.Ed.2d at 302.

The most significant feature about Johnson is its emphasis on 
the principle that the choice over which way to proceed belongs to 
the grievant:

Petitioner argues that a failure to toll the limitation period 
in this case will conflict seriously with the broad remedial and 
humane purposes of Title VII. Specifically, he urges that 
Title VII embodies a strong federal policy in support of con­
ciliation and voluntary compliance as a means of achieving 
the statutory mandate of equal employment opportunity. He 
suggests that failure to toll the statute on a § 1981 claim dur­
ing the pendency of an administrative complaint in the EEOC 
would force a plaintiff into premature and expensive litiga­
tion that would destroy all chances for admnistrative concilia­
tion and voluntary compliance.

We have noted this possibility and, indeed, it is conceivable, 
and perhaps almost to be expected, that failure to toll will 
have the effect of pressing a civil rights complainant who 
value's his § 1981 claim into court before the EEOC has com­
pleted its administrative proceeding, (footnote omitted). * * *



48a

the injunctive relief provided by the consent decrees ex­
tends to all affected steelworkers, regardless whether they 
elect to accept the back pay and execute the releases. The 
question at this point, then, is through what lens do we 
judge the adequacy of the settlement as against the inter- 
venors’ objections, bearing in mind that Congress and the 
Supreme Court have expressed a preference for voluntary 
compliance above all other tools of enforcement?

We think the answer was delivered nearly fifteen years 
ago by Judge (now Chief Judge) Brown in Florida Trailer 
and Equipment Co. v. Deal, 5 Cir. 1960, 284 F.2d 567, in 
which an objecting creditor sought to void a referee and 
district court-approved settlement, reached pursuant to the 
Bankruptcy Act, between the trustee of the insolvent estate 
and a lien creditor. There we stated:

Of course, the approval of a proposed settlement does 
not depend on establishing as a matter of legal cer­
tainty that the subject claim or counterclaim is or is 
not worthless or valuable. The probable outcome in

Opinion of the Court of. Appeals, August 18, 1975

But the fundamental answer to petitioner’s argument lies in 
the fact—presumably a happy one for the civil rights claim­
ant—that Congress clearly has retained § 1981 as a remedy 
against employment discrimination Separate from and inde­
pendent of the more elaborate and time consuming procedures 
of Title VII.

------U.S. a t ------ , 95 S.Ct. at 1722, 44 L.Ed.2d at 304. Likewise
in this case, individual employees will find themselves faced with 
the choice whether to timely accept back pay under the consent 
decrees, for which no litigation will be necessary, or file private 
charges and/or lawsuits and risk the usual litigatory uncertainties 
in quests for greater recoveries. We know of no policy or rule of 
law, however, which forbids the erection of such a choice when its 
effect is to leave the individual grievant in a position no worse, 
but in fact better, than that occupied in the absence of the settle­
ment, which, of course, is not binding on the individual unles's he 
or she so desires.



49a

the event of litigation, the relative advantages and 
disadvantages are, of course, relevant factors for eval­
uation. But the very uncertainty of outcome in litiga­
tion, as well as the avoidance of wasteful litigation 
and expense, lay behind the Congressional infusion of 
a power to compromise. This is a recognition of the 
policy of the law generally to encourage settlements. 
This could hardly be achieved if the test on hearing 
for approval meant establishing success or failure to 
a certainty. Parties would be hesitant to explore the 
likelihood of settlement apprehensive as they would 
be that the application for approval would necessarily 
result in a judicial determination that there was no 
escape from liability or no hope of recovery and hence 
no basis for a compromise.

284 F.2d at 571. Judge Brown continued:
Obviously, it would not be a settlement if to obtain 
approval the Trustee would have to demonstrate that 
he could not succeed had the preference claim been 
pressed. All that he must do is establish to the rea­
sonable satisfaction of the Referee that, all things con­
sidered, (citation omitted), it is prudent to eliminate 
the risks of litigation to achieve specific certainty 
though admittedly it might be considerably less (or 
more) than were the case fought to the bitter end. * * *

Id. at 573 (emphasis added).
Despite the appearance of an occasional contextual

gloss,27 the approach to judicial evaluation of proposed set­

Opinion of the Court of Appeals, August 18, 1975

27 E. g., West Virginia v. Chas. Pfizer & Co., S.D.N.Y.1970, 314 
F.Supp. 710, 740, aff’d, 2 Cir. 1971, 440 F.2d 1079, cert, denied, 
sub nom., Cotier Drugs, Inc. v. Chas. Pfizer & Co., 404 U.S. 871,



50a

tlements announced in Deal lias drawn firm adherents 
among the federal courts. See City of Detroit v. Grrinnell 
Corp., 2 Cir. 1974, 495 F.2d 448, 455-56 (objectors must 
show clear abuse of discretion in trial court’s approval of 
settlement); Bryan v. Pittsburgh Plate Glass Co., 3 Cir. 
1974, 494 F.2d 799, 803, cert, denied, Abate v. Pittsburgh 
Plate Glass Company, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 
146 (1974) (settlement not unfair simply because many 
class members oppose i t ) ; Greenspun v. Bogan, 1 Cir. 1974, 
492 F.2d 375, 381 (only where one side is so clearly cor­
rect that offer in compromise becomes clearly unreasonable 
does trial court abuse discretion in approving settlement); 
Ace Heating & Plumbing Co., Inc. v. Crane Co., 3 Cir. 1971, 
453 F.2d 30, 34 (great weight is accorded the trial judge’s 
views); West Virginia v. Chas. Pfizer & Co., 2 Cir. 1971, 
440 F.2d 1079, 1085-86, cert, denied, see footnote 27, supra, 
(appellate court will disturb settlement approval only upon 
clear showing of abuse of discretion). See also Young v. 
Katz, 5 Cir. 1971, 447 F.2d 431.

Applying the Deal approach to the issues before us, we 
align ourselves with certain propositions which were re­
cently developed by the Second Circuit in its review of a 
similar, though less expansive, Title VII settlement, see 
Patterson v. Newspaper and Mail Deliverers’ Union of New 
York and Vicinity, 2 Cir. 1975, 514 F.2d 767. In the first 
place, the scope of our review is narrow and we should 
interfere with the implementation of the consent decrees 
only upon a clear showing that the district judge abused 
his discretion by approving the settlement. Next, to the

Opinion of the Court of Appeals, August 18, 1975

92 S.Ct. 81, 30 L.Ed.2d 115 (1971) (“fair, reasonable and ade­
quate”) ; McCray v. Beatty, D.N.J.1974, 64 F.R.D. 107, 110 (court 
“would not approve a settlement that appeared inequitable or un­
fair to any party to the suit”).



51a

extent that the settlement may in occasional respects ar­
guably fail short of immediately achieving for each affected 
discriminatee his or her “rightful place,” we must balance 
the affirmative action objectives of Title YII and Execu­
tive Order 11246 against the equally strong congressional 
policy favoring voluntary compliance. The appropriate­
ness of such balancing is especially clear, as here, “in 
an area where voluntary compliance by the parties 
over an extended period will contribute significantly to­
ward ultimate achievement of statutory goals.” 514 F.2d 
at 771. Nor should we substitute our notions of fairness 
and adequacy of the relief for those of the parties and 
Judge Pointer, absent a strong showing that the district 
court failed to satisfy itself of the settlement’s overall fair­
ness to beneficiaries and consistency with the public in­
terest. Finally, and of utmost importance, we are without 
authority to modify or rewrite the parties’ agreement. Our 
only alternative, if it were shown that Judge Pointer abused 
his discretion or overlooked an illegal provision, would be 
to vacate his approval of the entire settlement and remand 
for trial of the government’s “pattern or practice” com­
plaint. See United States v. Atlantic Ref. Co., 360 U.S. 19, 
23, 79 S.Ct. 944, 946, 3 L.Ed.2d 1054, 1057 (1969); Patter­
son, supra, 514 F.2d at 772. Cf. United States v. Blue Chip 
Stamp Co., C.D.Cal. 1967, 272 F.Supp. 432, 440, aff’d per 
curiam sub nom., Thrifty Shoppers Scrip Co. v. United 
States, 389 U.S. 580, 88 S.Ct. 693, 19 L.Ed,2d 781 (1968).

To the foregoing observations we add a few remarks 
which we think are particularly pertinent to these appeals. 
The central issue here is not whether the consent decrees 
achieve some hypothetical standard constructed by imagin­
ing every benefit that might someday be obtained in con­
tested litigation. The question which we must decide is 
whether the responsible government agencies may lawfully

Opinion of the Court of Appeals, August 18, 1975



Opinion of the Court of Appeals, August 18, 1975

conciliate and settle by consent decree charges of discrim­
ination cutting across an entire industry in a manner which 
assures cooperative defendants that they will not face fu­
ture government lawsuits on those claims, and which ac­
cords the defendants the opportunity to offer final satis­
faction to aggrieved individuals who are willing to accept 
tenders of back pay and execute the releases. Throughout 
their arguments, the appellants imply that private suits 
by thousands of unspecified employees whose grievances 
are generally covered by the decrees would be virtually 
certain to achieve far better results thon those obtained by 
the government. Yet this implication, stripped of its rhet­
oric, goes really only to back pay insofar as the Harris ap­
pellants have challenged seriously the adequacy of the de­
crees’ injunctive measures neither in the district court nor 
in this court.38 Only the three female appellants have done 28

28 The extremely dubious validity of the appellants’ implication 
is highlighted by certain examples. Although Title YII had been 
in effect almost nine years at the time of the consent decrees’ entry, 
private actions had been instituted at no more than a dozen of the 
250 plants covered by the decrees. Of these private actions, only 
one had proceeded to final judgment, the Fairfield Works case, see 
note 7, supra. In that case sweeping injunctive reforms were or­
dered and implemented, but the district court denied back pay to 
the overwhelming majority of aggrieved steelworkers. Whereas 
the consent settlement extends offers of back pay to all production 
and maintenance minority employees hired before 1968 and all 
female employees hired before the date of the decrees, the back 
pay awarded in the Fairfield case was limited to sixty-one blacks 
hired before 1963.

Furthermore, the Fairfield order provided affirmative relief 
only to black's. The consent decrees provide such relief to females 
and Spanish-surnamed Americans as well. Consent Decree II, for 
example, establishes as an interim affirmative goal that twenty 
percent of all new hires in production and maintenance depart­
ments shall be females.

Also, the order in Fairfield provided for rate retention only to 
blacks who transferred within three years of the date of the order.



53a

so, and their contentions—though they certainly suggest 
possibilities—do not approach any stretch of certainty. 
Against the overwhelmingly speculative advantage that 
might accrue to a small number of aggrieved persons if 
the decrees were vacated must be weighed the certain loss 
to all of the immediate injunctive benefits and the unim­
peded opportunity to receive some back pay today—instead 
of after months or years of litigation. Additional losses 
which must be considered include the nation’s investment in 
the resources consumed by the federal agencies in negotiat­
ing these decrees, as well as the chance justly to finalize a 
matter that otherwise would burden agencies and courts and 
continue to disrupt an industry vital to the nation’s security 
for years to come. We proceed now to examine specific is­
sues raised by the appellants.

Opinion of the Court of Appeals, August 18, 1975

Consent Decree 1 creates a rate retention remedy which applies 
to all female and minority employees with plant seniority as of 
January 1, 1968, and who may wish to transfer at any time in the 
future. The rate retention in Fairfield lasted for only one year 
following transfer; the retention period under Consent Decree I 
continues for up to two years.

Finally, the time factor alone is illuminating as it surfaces in 
these cases. It seek six months to try the Fairfield suit. The re­
lief eventually ordered there is no more impressive than the re­
forms which were hammered out by the government, the steel 
companies, and the union during six months of negotiations. If 
we consider back pay, then the Fairfield relief per capita is far 
less than under the decrees. The appellants here do not dispute 
the steel companies’ estimate that if an equivalent amount of time 
were used to litigate the issues at each of the 250 plants covered 
by the decrees, it would take at that rate ten years to try just the 
liability issues. If after trial the back pay issues were referred 
to a special master for individualized computations, after giving 
consideration to various defenses, including lack of qualification, 
voluntary freezing, refusal to bid, and physical fitness, and if one 
hour were allotted each of 60,000 claimants, over twenty-eight 
years of trial time could be consumed. Brief for appellee steel com­
panies at 11 n. 14.



54a

B. Alleged Illegality of Bach Pay Releases
The subject of back pay is treated in paragraph 18 of 

Consent Decree I. The parties to the decree begin with the 
understanding that disagreement exists over whether any 
affected employee is entitled to back pay, and if so how 
much. Paragraph 18 continues:

In final resolution of that dispute and in full compen­
sation for all alleged injuries suffered by such [ag­
grieved eligible employees] by reason of any unlawful 
acts and practices within the scope of the complaint 
or this Decree, as well as any future claim of dam­
ages by reason of the continuance of the effects of 
such past discriminatory acts and practices, all of the 
parties have agreed as follows:

#  #  #  #  #

(g) The amount of back pay determined to be due 
to each affected employee29 shall be tendered to him in

Opinion of the Court of Appeals, August 18, 1975

29 Subsection (e) of paragraph 18 sets forth the factors to be 
considered by the Audit and Beview Committee in identifying 
eligible recipients and computing individual awards. Those em­
ployees who have been most adversely affected for the longest 
periods are supposed to receive the highest sums. The average 
award is approximately $500 ($30,940,000) divided by 60,000 
black, Latin American, and female employees). Some employees 
will receive more, others will receive less; but in no event will an 
electing eligible employee, see paragraph 18(c) of Consent Decree 
I and footnote 4, supra, whose plant service antedates 1968 receive 
less than $250. All females who were employed in a production 
and maintenance unit as of the date of decree entry are eligible 
for back pay. We were advised at oral argument that the indi­
vidual awards will represent pro rata shares across the member­
ships of particular seniority subclasses. Such a method designed 
to equitably and efficiently distribute the gross recovery was ap­
proved in Pettway, supra, 494 F.2d at 263 n. 154. Obviously, 
there is no single “correct” formula.



55a

accordance with procedures established by the Audit 
and Review Committee. In order to receive such back 
pay, each affected employee shall be required to execute 
a release, in a form approved by the Audit and Review 
Committee, of any claims against or liability of the 
Company, the Union, their officers, directors, agents, 
local unions, members, employees, successors and as­
signs, resulting from any alleged violations based on 
race, color, sex (exclusive of the matters referred to 
in paragraph D of this Decree), or national origin, 
occurring on or before the date of entry of this Decree, 
of any equal employment opportunity laws, ordinances, 
regulations or orders, including but not limited to Title 
VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. § 2000e et seq., the Civil Rights Act of 1866, 
42 U.S.C. § 1981 et seq., Executive Order 11246, as 
amended, the United States Constitution, the duty of 
fair representation under the Labor Management Re­
lations Act, 29 U.S.C. § 151 et seq., and any other ap­
plicable federal, state or local constitutional or stat­
utory provisions, orders or regulations. Such release 
will also bar recovery of any damages suffered at any 
time after the elate of entry of this decree by reason 
of continued effects of any such discriminatory acts 
which occurred on or before the date of entry of this 
Decree.30

30 The provision for the release by electing employees of claims 
against the defendant's in exchange for back pay was patterned 
after the release which was utilized with the Bell System consent 
decree, EEOC v. American Tel. & Tel., supra. See BNA FEP 
Manual 431:73, at 431:77, 431:79 (parts A VXII.A; B II.B.). 
Whereas the Bell release encompassed “any claims for alleged vio­
lations . . . based upon occurrences prior to” the date of decree 
entry, Con'sent Decree I specifically provides for the release of

Opinion of the Court of Appeals, August 18, 1975



56a

All appellants attack the legality and efficacy of the 
quoted provision on a variety of grounds. They argue that 
paragraph 18(g) .unlawfully forces minority and female 
employees to waive their 'statutory right to bring private 
actions as a condition of obtaining any relief in a govern­
ment “pattern or practice” suit. Alternatively, they argue 
that the release constitutes an illegal prospective waiver 
of the employee’s Title VII rights. They contend next that 
the release interferes "with the employee’s right to seek 
independent remedies, a right which they assert may not 
be compromised as a matter of public policy. Moreover, 
the appellants maintain that the back pay fund is grossly 
inadequate by comparison with the recoveries that could 
be had in contested litigation, and hence that the decrees 
are plainly unfair to minority and female employees.

Eschewing as premature any ruling on the validity of 
any particular employee’s release, the district court con­
cluded that the appellants’ arguments were lacking in merit 
as attacks on the decrees as a whole. Judge Pointer held

Opinion of the Court of Appeals, August 18, 1975

“any claims . . . resulting from any alleged violations . . . occur­
ring on or before” entry date, and for “any damages” suffered 
after decree entry “by reason of continued effects” of pre-decree 
discriminatory acts or practices. Although the appellants here 
presume that the language of the Bell release necessarily falls 
short of any compromise as to continued effects, the difference is 
not entirely apparent to us. If the parties to this decree had not 
inserted the additional specific limitation concerning continued 
effects, but which is itself restricted to claims for damages, it 
seems that both releases reasonably could be thought to mean the 
same thing: i. e., a bar to additional relief of any kind for con­
tinuing effects of past discriminations. Cf. A. Corbin, Contracts 
§ 598, at 588 (I960). Since under our analysis of the law we think 
such a release could be valid, but since at the same time the re­
lease sub judice does not cover every item that other parties might 
choose to include, it is unnecessary for us to place a definitive con­
struction on the Bell release or attempt to reconcile its meaning 
with that of any other release.



57a

that “there can be a legal waiver of back-pay claims where, 
for valuable consideration, a release is signed knowingly 
and voluntarily, with adequate notice which gives the em­
ployee full possession of the facts.” 31 We agree, but in 
order to delineate more precisely the contours of the ap­
plicable rule of law, we hold that the employee may release 
not only claims for additional back pay, but also claims 
for other relief—including injunctive—provided the re­
leased claims arise from antecedent discriminatory events, 
acts, patterns, or practices, or the “continuing” or “future” 
effects thereof so long as such effects are causally rooted- 
in origin, logic, and factual experience—in discriminatory 
acts or practices which antedate the execution of the re­
lease, and provided, of course, that the release is executed 
voluntarily and with adequate knowledge, as described by 
Judge Pointer.

Reduced to their simplest terms, the items to be released 
by electing employees pursuant to paragraph 18(g), in re­
turn for back pay, are: (1) all claims (subject to an excep­
tion not now germane) asserting unlawful employment dis­
crimination by the defendants and/or their agents or 
privies insofar as such claims are based on acts or practices, 
within the scope of the government’s complaint or the con­
sent decrees, which were completed on or before the date 
of the decrees’ entry; and (2) claims for dam-ages incurred 
at any time because of continued effects of complaint or 
decree-covered acts or practices which took place on or 
before the entry date of the consent decrees.

There are certain potential rights, however, with respect 
to which we do not understand paragraph 18(g) to envision 
a compromise. That is because a waiver of these rights 
either does not follow from a fair reading of paragraph

Opinion of the Court of Appeals, August 18, 1975

31 63 F.R.D. at 7.



58a

18(g) (number (1)), or else they are “prospective” and 
employees may not waive them (numbers (2) and (3)). 
We list them as follows:

(1) The release will not bar an employee from suing in 
the future for additional injunctive relief if the reforms 
contemplated by the decrees do not eliminate continued 
effects which are causally grounded in past acts or prac­
tices of discrimination. For example, suppose a minority 
or female employee had been assigned to a lowly job in an 
undesirable LOP or pool at some point prior to April 12, 
1974. At that point the employee became “locked” into a 
departmental seniority system whereby, in bidding for more 
desirable vacancies in other departments against white 
males with less plant seniority, the minority or female 
employee would be denied the new job for want of superior 
departmental seniority, though qualifications were other­
wise equal. As of the decrees’ entry, the aggrieved em­
ployee suddenly obtained plantwide seniority, and at 
minimum the right to bid for entry-level jobs in other 
departments on that basis. See paragraph 7 of Consent 
Decree I. Suppose, then, that subsequent to April 12, 1974 
the aggrieved employee successfully bids for an entry-level 
job in a new department which offers substantial oppor­
tunity for advancement, perhaps to a trade or craft de­
partment. Because of his or her basic qualifications and 
superior plantwide seniority, however, the employee feels 
that a higher job in the unit should have been awarded 
instead of the entry-level position. Yet at his or her plant 
the general rule is ethnically and sexually neutral three- 
step bidding under paragraph 7(a). We are aware of no 
feature of the release which would preclude this employee 
from filing a charge with the EEOC, and/or an eventual 
lawsuit, seeking suspension of three-step bidding at the

Opinion of the Court of Appeals, August 18, 1975



59a

plant, at least in his or her ease. To the extent the plant’s 
transfer procedure restrains otherwise qualified, plant- 
senior minorities and females from reaching their “rightful 
places,” then it may perpetuate the effects of past discrim­
ination. See Stevenson v. International Paper Co., 5 Cir. 
1975, 516 F.2d 103, at pp. 114, 116. We emphasize may 
because the answer is not now available; it will depend on 
the manner in which future circumstances and business 
necessities develop. Of course, regardless of the success or 
failure of the employee’s challenge to the transfer pro­
cedure, his or her release may be pled in bar to a claim 
for damages based on whatever effects of past discrim­
ination the procedure might have continued while it existed. 
This variety of grievance is precisely the kind to which 
the decrees are directed—present effects of former systemic 
discrimination. The decrees may quickly remedy such prob­
lems, if they are given a chance.

(2) Any employee who feels aggrieved by the defen­
dants’ palpable disobedience of the terms of the decrees 
may sue, in effect, to enforce them. Although the defen­
dants’ promise to comply runs directly to the government, 
rather than to employees, the defendants readily concede 
that an episode of nonadherence to the decrees may con­
ceivably constitute a new violation of the law and give 
rise to a new cause of action under Title YII or other 
applicable law. Whether a particular instance of noncom­
pliance may give rise to a new claim for damages, injunc­
tive relief, or perhaps both or neither, will again depend 
on the circumstances. If, for example, a minority or female 
individual could show that the company failed to fulfill an 
affirmative action goal for promotion to higher-paying 
trades and crafts, see paragraph 2(a) (1) of the Agreement 
accompanying Consent Decree II; that such failure was

Opinion of the Court of Appeals, August 18, 1975



60a

due to discrimination; and that he or she was qualified and 
would have been promoted at an earlier date but for the 
discrimination, then arguably the employee would be en­
titled to the first promotional vacancy and some amount 
of money for the period during which promotion was denied. 
On the other hand, the company may be able to show that 
no one was promoted during the relevant period, or that 
the promotions which did occur were based on unusual 
needs or other business necessities. Under those circum­
stances the employee may be entitled, if at all, to no more 
than a right of first refusal when the next vacancy occurs.

(3) Clearly apart from compliance or noncompliance 
with the decrees, the release cannot preclude a suit for any 
form of appropriate relief for subsequent injuries caused 
by future acts or undertakings the effects of which are 
equivalent to the otherwise compromised, noneompensable 
effects of past discriminations covered by the complaint 
or the decrees. Thus, the defendants are responsible for 
their conduct relating to job assignments, tests, qualifica­
tion requirements, transfers, layoffs, and collective bar­
gaining to the extent these items are carried out after 
April 12, 1974. If the defendants engage in new discrim­
ination (of course, they deny that they have engaged in any 
heretofore), they will be fully liable for its provable effects 
and for provable economic losses caused thereby, regard­
less whether complaining employees signed releases as to 
other claims. Thus, it essentially appears that all an em­
ployee really waives in terms of “continued effects” by sign­
ing a release is his or her speculative accrual of further 
damages due to the inconceivable possibility that the de­
fendants would take no corrective action whatsoever subse­
quent to the entry of the consent decrees. Obviously they 
may not sit still for long, or they will be in contempt—or

Opinion of the Court of Appeals, August 18, 1975



61a

perhaps the warm waters of private litigation if their in­
action breaches an express obligation which they have as­
sumed under the decrees.

This last aspect of the release can have no other ac­
ceptable meaning, for notwithstanding that the systemic 
reforms contained in the decrees have been put into op­
eration, thereby undertaking to break the chains of past 
causation as it were, the defendants have an ongoing stat­
utory responsibility independent of the decrees to see that 
the corrective measures and goals established thereunder 
are maintained and updated so that the effects of past dis­
crimination will be wiped out as quickly as due diligence 
and business necessity permit. See Pettway, supra, 494 
F.2d at 248. This is especially the case with regard to the 
elimination of discriminatory departmental seniority struc­
tures, tests, and other customs that can unlawfully restrict 
the mobility of minorities and females within and between 
LOPs. On the other hand, neither the decrees nor the laws 
impose upon the defendants an impossible burden to in­
sure that each victim arrives at his or her “rightful place” 
at once. In cases like this, involving large numbers of work­
ers, it can rarely be determined how much a given employee 
would have earned or what job he or she would have oc­
cupied during a particular period but for the effects of sys­
temic discrimination. Pettivay, supra, at 260, 262. Seldom 
can more than speculative back pay relief be obtained si­
multaneously with seniority reform, for despite massive 
court-ordered competitive advantages and objective cri- 
teria-based affirmative action, many aggrieved employees 
will not immediately achieve their “rightful places,” but 
only a more favorable start on the road toward better jobs. 
See, e. g., Pettway, supra, 494 F.2d at 249, 258 (back pay 
normally stops accruing when reformed seniority goes into

O pin ion  o f  the C o u rt o f  A p p e a ls , A u g u s t  18, 1975



62a

effect); Johnson v. Goodyear Tire & Rubber Co., 5 Cir. 
1974, 491 F.2d 1364, 1375, 1379 (same; individual circum­
stances vary and not all class members are automatically 
entitled to back pay); United States v. Georgia Power Co., 
5 Cir. 1973, 474 F.2d 906, 927.32 33 These substantial, flexible 
decrees offer much remedial potential in reconciling con­
flicting demands left by decades of history which cannot 
be undone. Through the releases as to “continuing effects,” 
the defendants will merely be purchasing for themselves 
a reasonable oportunity to utilize the decrees in removing 
any lingering obstacles that impermissibly prevent minority 
and female employees from reaching the road to their 
“rightful places.” If the defendants leave gaps in their 
performance of this prospective duty by engaging in prac­
tices that reinstitute the discriminatory systems and effects 
which they have promised to rectify, then most positively 
they will be subject to suit for such conduct even by em­
ployees who signed releases in return for back pay. In 
this respect the defendants walk a very thin rope. If, how­
ever, they meet their responsibilities with consistency, then

O p in io n  o f th e  C o u r t o f A p p e a ls , A u g u s t  18, 1975

32 See also Rodriguez v. Bast Texas Motor Freight, supra, 505 
F.2d at 64 at 1284-87; Bing v. Roadway Express, Inc., 5 Cir.
1973, 485 F.2d 441, 450; United States v. Bethlehem Steel Corp., 
2 Cir. 1971, 446 F.2d 652, 660; United States v. Jacksonville 
Terminal Co., 5 Cir. 1971, 451 F.2d 418, 452, cert, denied, 406 U.S. 
906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972); Local 189, United 
Papermakers v. United States, 5 Cir. 1969, 416 F.2d 980, 988, cert, 
denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970). See 
generally Note, Title VII, Seniority Discrimination, and the In­
cumbent Negro, 80 Harv.L.Rev. 1260, 1266-82 (1967). Of course, 
the remedy of rate retention, see note 28, supra, operates to reduce 
the lag employees experience in reaching their rightful places by 
encouraging them to take advantage of opportunities to transfer 
into new jobs. See United States v. Bethlehem Steel Corp., supra, 
446 F.2d at 660.



63a

the law regards each employee’s ensuing progress as a 
matter of his or her personal talent and initiative.

Lest we be thought to decide more than is necessary for 
purposes of this controversy, we simply note that our con­
struction of paragraph 18(g), just advanced, does not 
wholly comport with the views of either the government, 
the steel companies, the union, the Harris appellants, or 
the three female appellants. Nor do those parties’ inter­
pretations—even among the appellees—reflect total consis­
tency. Therefore, it was appropriate that we examine and 
indicate the meaning of paragraph 18(g), insofar as that 
meaning can be gathered from the provision’s plain lan­
guage in light of certain limitations which the law imposes 
upon the defendants’ ability to enforce an employee-ex­
ecuted waiver. To be sure, other issues—legal and factual 
—will arise as the consent decrees are implemented, no­
tices furnished, back pay accepted, releases executed, and 
lawsuits filed. It is sufficient for our purposes, however, 
to observe that ample opportunities will exist in other cases 
to grapple with those issues under, inter alia, the law of 
contracts. See generally A. Corbin, Contracts § 1292 (1962). 
Our present inquiry is confined to the narrower question 
whether paragraph 18(g) reflects such illegality or impro­
priety that the district court’s approval of the consent set­
tlement should be set aside.

Paragraph 18(g) would provide for an unlawful proce­
dure only if it contemplated a release by employees of pro­
spective rights. Such a proscribed device has been char­
acterized by the Supreme Court as “a waiver in advance of 
a controversy.” Wilko v. Syan, 346 U.S. 427, 438, 74 S.Ct. 
182, 188, 98 L.Ed. 168, 177 (1953). Cf. Alexander v. Gard- 
ner-Denver Co., supra, 415 U.S. at 51, 94 S.Ct. at 1021, 39 
L.Ed.2d at 160. Here, all the ingredients of controversy to

Opinion of the Court of Appeals, August 18, 1975



64a

be compromised under paragraph 18(g) have their oper­
ative and legally consequential origin in acts, patterns, and 
practices which were performed by the defendants up to 
and including April 12, 1974. Those operative ingredients 
are thus antecedent to any possible compromise, not pro­
spective. Accordingly, it will be feasible for the Audit and 
Review Committee, the Implementation Committees, and 
the EEOC in the case of parties with pending charges, to 
furnish eligible employees with comprehensive, relevant 
information about their rights (for example, their putative 
membership in pending private class actions) before any 
back pay is delivered and before any releases are signed. 
Such information is calculated to insure that each electing 
employee settles knowingly and voluntarily, and with an 
understanding of the manner and extent to which the de­
crees remedy his or her grievance.

Yet the appellants contend that an intelligent, voluntary 
compromise of even an unliquidated, antecedent claim is 
unenforceable against the employee as a matter of law and 
public policy. They argue that since Congress attached the 
highest priority to the eradication of employment discrim­
ination, and since Congress established a variety of inde­
pendent remedies for making whole its victims, then a set­
tlement of a claim in one forum or proceeding cannot be 
raised by the same defendant in bar to another proceeding 
for more back pay. They maintain that the employee’s vol­
untary release in settlement of a claim for a disputed and 
concededly uncertain sum33 can bar the employee only

Opinion of the Court of Appeals, August 18, 1975

33 When mammoth groups of affected employees are involved, 
as here, individual back pay awards can only be calculated by a 
process fraught with speculation and conjecture. See Pettway, 
supra, 494 F.2d at 260-62.



65a

from obtaining further recoveries in the same forum and 
under the same nomenclature as appertained to the pro­
ceeding which resulted in compromise. Specifically, appel­
lants contend that an employee’s release can bar the em­
ployee from recovering against these same defendants only 
in another government “pattern or practice” suit insti­
tuted on the same cause of action, as if such were likely 
to occur.

This is a novel and ingenious line of argument. It is 
calculated to circumvent the dicta in Gardner-Denver, supra, 
415 U.S. at 52 & n. 15, 94 S.Ct. at 1021 & n. 15, 39 L.Ed.2d 
at 160 & n. 15, and to gain maximum possible mileage from 
the FLSA and related cases led by Brooklyn Savings Bank 
v. O’Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945).34 
We reject the theory.

The appellate attempt to obfuscate the issue by mixing 
several distinct ideas, including election of remedies, pro- * 56

O p in io n  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

34 See also D. A. Schulte, Inc. v. Gangi, 328 U.S. 108, 66 S.Ct. 
925, 90 L.Ed. 1114 (1946) ; Martino v. Michigan Window Clean­
ing Co., 327 U.S. 173, 66 S.Ct. 379, 90 L.Ed. 603 (1945); Phila­
delphia, B. & W. R. R. v. Schubert, 224 U.S. 603, 32 S.Ct, 589,
56 L.Ed. 911 (1912) (stipulation for release of railroad’s negli­
gence liability in return for participation in relief fund held un­
enforceable under FELA) ; Torre's v. American R, R. of Porto 
Rico, 4 Cir. 1946, 157 F.2d 255, cert, denied, 329 U.S. 782, 67 
S.Ct. 204, 91 L.Ed. 671 (1947) ; Bingham v. Airport Limousine 
Service, W.D.Ark.1970, 314 F.Supp. 565; Baker v. California 
Shipbuilding Corp., S.D.Cal.1947, 73 F.Supp. 322. But see Boyd 
v. Grand Trunk Western Ry., 338 U.S. 263, 266, 70 S.Ct. 26, 28, 
94 L.Ed. 55, 57 (1949) ; Cullen v. Pennsylvania R. R„ 332 U.S. 
625, 631, 68 S.Ct. 296, 298, 92 L.Ed. 242, 246 (1948); Garrett v. 
Moore-MeCormick Co., Inc., 317 U.S. 239, 248, 63 S.Ct. 246, 252, 
87 L.Ed. 239, 245 (1942) ; Blanco v. Moran Shipping Co., 5 Cir. 
1973, 483 F.2d 63, cert, denied, 416 U.S. 904, 94 S.Ct. 1608, 40 
L.Ed.2d 108 (1974); Antonioli v. Lehigh Coal & Nav. Co., 3 Cir. 
1971, 451 F.2d 1171, 1175 n. 15, cert, denied, 406 U.S. 906, 92 
S.Ct. 1608, 31 L.Ed.2d 816 (1972) ; Urbino v. Puerto Rico Ry. 
Light & Power Co., 1 Cir. 1947, 164 F.2d 12, 14.



66a

speetive waiver, liquidated as opposed to unliquidated dam­
ages, and congressional policies underlying different stat­
utes. The most egregious element in this mixture is the 
appellants’ fallacious equation of the principles of election 
of remedies and release of a cause of action. They cor­
rectly cite Gardner-Denver for the propositions that Con­
gress has created parallel and overlapping remedies to 
combat employment discrimination, that the employee may 
pursue those remedies in separate forums, and that “an 
employee’s rights under Title VII are not susceptible to 
prospective waiver.” 415 U.S. at 51, 94 S.Ct. at 1021, 39 
L.Ed.2d at 160. They fail to recognize, however, that 
Gardner-Denver does not hold or imply that an aggrieved 
employee may freely seek additional relief in other forums 
after he has voluntarily released in one forum his claims 
arising from the same operative factual complex, for val­
uable consideration. A full and adequate compensation for 
a wrong, founded in various remedial measures, is one 
thing, a succession of compensations, each seeking to be 
full and adequate, quite another.

Gardner-Denver holds only that “an individual does not 
forfeit his private cause of action if he first pursues his 
grievance to final arbitration under the nondiscrimination 
clause of a collective-bargaining agreement.” 415 U.S. at 
48, 94 S.Ct. at 1020, 39 L.Ed.2d at 158. Eviscerating Dewey 
v. Reynolds Metals Co., 6 Cir. 1970, 429 F.2d 324, 332, aff’d 
by equally divided Court, 402 U.S. 689, 91 S.Ct. 2186, 29 
L.Ed.2d 267 (1971), the Supreme Court explained quite 
succinctly the basis for its decision. Arbitration is a col­
lective right; a Title VII cause of action is a personal right. 
When the employee submits a grievance to arbitration, he 
or she is pursuing a contract right which flows from the 
collective bargaining agreement. The rights asserted in a

O pin ion  o f the C o u rt o f A p p e a ls , A u g u s t  18, 1975



67a

Title YII suit flow, by -contrast, from an act of Congress 
independent of the traditional labor-management bargain­
ing process. Most fundamentally, however, the Supreme 
Court recognized that the congressional policy behind the 
various Title YII remedies for aggrieved workers (charges, 
investigations, conciliations, EEOC suits on behalf of 
charging individuals, and private suits) could be frustrated 
in unionized industry if those remedies were subject 
to contractual revision, in a “final and binding” manner, 
through the majoritarian give-and-take of collective bar­
gaining.35 Consequently, neither do the rights conferred by 
Title YII constitute a proper subject of collective bargain­
ing, nor may the employer approach the employee directly 
in an effort to obtain a prospective waiver “as part of the 
economic bargain” with the union, or, by extension, with 
the employee even if there is no union.

The appellees rely heavily on certain language in 
Gardner-Denver, which concededly is dicta. Still Justice 
Powell’s statements appear carefully-considered, and, given 
the apparent unanimity with which the Justices accepted 
them, we agree with Judge Pointer that appellees’ reliance 
is well-taken. The Court stated:

The actual submission of petitioner’s grievance to arbi­
tration in the present case does not alter the situation 
[that prospective Title VII rights may not be waived]. 
Although presumably an employee may waive his cause 
of action under Title VII as part of a voluntary settle­

35 The Court also emphasized that “the arbitrator has authority 
to resolve only questions of contractual rights” ; that the nondis­
crimination clause of the collective bargaining contract may differ 
from the language of Title YII; and that judicial review of final 
and binding decisions in arbitration i's narrowly circumscribed by 
the Steelworkers Trilogy. 415 U.S. at 53, 94 S.Ct. at 1022, 39 
L.Ed.2d at 160.

Opinion of the Court of Appeals, August 18, 1975



68a

ment,15 mere resort to the arbitral forum to enforce 
contractual rights constitutes no such waiver.

*  #  #  #  #

Footnote 15 is as follows:
10 In this case petitioner and respondent did not enter 

into a voluntary settlement expressly conditioned on a 
waiver of petitioner’s cause of action under Title VII. 
In determining the effectiveness of any such waiver, a 
court would have to determine at the outset that the 
employee’s consent to the settlement was knowing and 
voluntary.

*  *  *  #  #

415 U.S. at 52 & n. 15, 94 S.Ct. at 1021 & n. 15, 39 L.Ed.2d 
at 160 & n. 15.

The appellants attack this language with other nondeci- 
sional language found in footnote 14. There the Court sug­
gested that in eases where the employee prevails at arbi­
tration but later seeks judicial relief, courts are capable 
of adjusting their remedies to prevent duplicative recov­
eries. The Court added that if the employee obtained relief 
at arbitration “fully equivalent to that obtainable under 
Title VII,” then there would be no need for a lawsuit or 
additional relief from the courts.

We believe that any apparent conflict is wholly super­
ficial, and that the two statements are easily reconciled by 
reference to what was at issue in Gardner-Denver, and 
what was not. In the first place, Gardner-Denver did not 
involve the volitional release of a cause of action. It did 
involve the question whether an employee’s resort to bind­
ing arbitration operates as a binding election of remedies. 
For reasons mentioned previously the Court answered that 
question in the negative, and footnote 14 is fully consistent

O p in ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975



69a

therewith. The consistency is reinforced by the remainder 
of footnote 15: “In no event can the submission to arbi­
tration of a claim under the nondiscrimination clause of a 
collective-bargaining agreement constitute a binding waiver 
with respect to an employee’s rights under Title VII.” 
(emphasis added).

In no respect does footnote 14, or anything else in 
Gardner-Denver, support the assertion that an aggrieved 
employee who freely settles his or her unliquidated demand 
with the employer or the union may reciprocate by suing 
the same deefndant at a later date on the same cause of 
action, merely because the employee grows dissatisfied with 
the payment for which he or she settled. Very frankly, we 
cannot conceive of how any employment discrimination dis­
pute could ever be resolved outside, or indeed inside, the 
courtroom, if defendants were forbidden to obtain binding, 
negotiated settlements. No defendant would ever deliver 
money, promises, or any other consideration—not even a 
peppercorn—except after entry of a contested, final court 
order, and even this, on appellants’ reasoning, might not 
end the matter. The EEOC and judicial caseloads would 
swell to chaotic dimensions. Industrial peace would be need­
lessly threatened. The 'Situation would be greatly inequi­
table to private parties who, for lack of funds or otherwise, 
failed to sue on their own and yet also preferred not to 
take their chances with unpredictable, protracted class 
actions managed by strangers, a matter over which present 
practice often leaves them little or no option.36 In sum,

36 See the discussion at footnotes 85-86, infra, and accompanying 
text. See also Johnson v. Georgia Highway Express, Inc., 5 Cir. 
1969, 417 F.2d 1122, 1127 (Title VII class action under F.R.Civ.P. 
23(b)(2), seeking systemic injunctive relief and back pay; God- 
bold, J., specially concurring) :

Some of the difficulty may be sifted out by findings of the 
trial court at or during the trial that the plaintiff adequately

Opinion of the Court of Appeals, August 18, 1975



70a

appellants’ theory is as unrealistic, unsound, and ultimately 
rooted in dogmatism as its thoroughly discredited obverse— 
the notion that private nonparties are bound by res judicata 
or estoppel to the results of government “pattern or prac­
tice” suits. Such a doctrine is unheard of. It deprives the 
employee of the chance to make a choice that previously 
was not available, even though the opportunity itself does 
not cost the employee a wink. It is contrary to the policies 
and procedures that heretofore have been followed in em­
ployment discrimination cases.87 It seemingly has been 37

Opinion of the Court of Appeals, August 18, 1975

represents the class. But this issue itself may be determined 
in the absence of 99.9% of those affected, who have had no 
notice or Service of process or right to be heard and who may 
feel that the plaintiff in the particular case (or his counsel, 
or both) is the last person they want representing them.

(footnote omitted). Cf. Miller v. Mackey International, Inc., 5 
Cir. 1975, 515 F.2d 241, at p. 244 (F.R.Civ.P. 23(b)(3) class ac­
tion; Bell, J., specially concurring; arguing for opt-in class actions 
when large numbers of putative members are involved).

37 Under § 706(b) of Title VII, 42 TJ.S.C. § 2000e-5(b), the 
EEOC is obligated to attempt to conciliate employment discrim­
ination charges upon which the Commission has found “reasonable 
cause.” If it appears that a charge can be resolved informally, 
the EEOC affords the aggrieved party an opportunity to partici­
pate in the settlement. See § 706(f)(1). A typical conciliation 
agreement reads as follows:

The Charging Party deems this Agreement to be fair and 
equitable, and hereby waives, releases and covenants not to 
sue the Respondent with respect to any matters which were 
or might have been alleged as charges filed with the Equal 
Employment Opportunity Commission, subject to perform­
ance by the Respondent of the promises and representations 
contained herein. . . .

1 CCH Emp. Prac. Guide if 1680.02, at 1449 (1973) (emphasis 
added).

The legislative history of the 1972 amendments to Title VII 
leaves no doubt that persons who execute such conciliation agree­
ments may not thereafter maintain lawsuits against respondents. 

[The enacted bill] contains . . , a provision for termination 
of the right of private action once the Commission . . ..



71a

Opinion of the Court of Appeals, August 18, 1975

rejected by this court on a previous occasion, see Rodri­
guez v. East Texas Motor Freight, supra.™ We explicitly 
refuse to recognize it here.

There remain the matters of public policy and the alleged 
insufficiency of the back pay fund. We are aware of no 
case which has held, or even suggested, that an employee’s 
binding release for valuable consideration of a disputed 
(in fact and amount) employment discrimination claim vio­
lates public policy. Appellants point to no such cases, but 
rely instead upon two early decisions under the Fair Labor 
Standards Act, 29 TJ.S.C. § 201 et seq., Brooklyn Savings 
Bank v. O’Neil, supra, and D. A. Schulte, Inc. v. Gangi, 
supra note 34, together with various progeny. Although 
these decisions established that the right under the FLSA 
to receive “minimum wages, promptly paid” plus time-and- 38

enters into a conciliation or settlement agreement which is 
satisfactory to the Commission and to the person aggrieved. 
If such an agreement is not acceptable to the aggrieved party, 
his private right of action is preserved.

H.Rep.No.92-238, reporting H.E, 1746, 92d Cong., 2d Sess., 1972 
U.S.Code Cong & Admin.News, 2137, at 2148 (reporting § 715 of 
H.R. 1746). See also Leisner v. New York Tel. Co., S.D.N.Y.1973, 
358 F.Supp. 359, 367.

38 We hold, therefore, that the consent decree does not operate 
as collateral estoppel to prohibit any members of the plaintiff 
class from participating in relief in this case, (citation omit­
ted). Those members of the plaintiff class who accept compen­
sation under the consent decree and sign a release, of course, 
are bound by the terms of the release. But no other members 
of the plaintiff class lose any right to relief in the instant case.

505 F.2d at p. 65 (emphasis added). See also Pettway v. American 
Cast Iron Pipe Co., supra, 404 F.2d at 267 (Bell, J., specially con­
curring) (encouraging use of consent decrees to settle back pay 
claims) ; United States v. Georgia Power Co., N.D.Ga. Jan. 31, 
1974, No. 12355, at 14 (“Amended and Final Decree” following 
our remand; employees must execute “general release” as condition 
of obtaining back pay in government pattern or practice suit; 
approved in Pettway, supra, 494 F.2d at 262 n. 152, 264 n. 156a).



72a

one-half for overtime was absolutely enforceable upon pain 
of damages, they are clearly distinguishable from this case 
and furnish no support to appellants.

Neither O’Neil nor Schulte held that employees may not 
accept compromise payments and waive their claims for 
further relief in situations where the fact of liability or 
the amount thereof is disputed. In O’Neil, for example, 
the Supreme Court expressly limited as the issue before it 
“whether in the absence of a bona fide dispute between the 
parties as to liability” an employee could waive the liqui­
dated damages to which the statute entitled him. 324 U.S. 
at 704, 65 S.Ct. at 900, 89 L.Ed. at 1307. The Court took 
great care not to decide “what limitation, if any . . . the 
Act places on the validity of agreements between an em­
ployer and employee to settle claims arising under the Act 
if the settlement is made as a result of a bona fide dispute 
between the two parties, in consideration of a bona fide 
compromise and settlement.” 324 U.S. at 714, 65 S.Ct. 
at 905, 89 L.Ed. at 1313.

In Schulte the Court held that where the only bona fide 
dispute concerned whether the employer was covered by 
the FLSA, the employee was not bound to his or her com­
promise for less than the statutory liquidated reparation. 
The Court reasoned very simply that in the absence of any 
dispute other than mere coverage, an employer covered by 
the Act should not be able to escape its statutory obliga­
tion on the theory that coverage was not altogether clear. 
Again, however, the Court noted that it was not passing 
on the quite different question whether a covered employer 
could enter into a settlement with its employees where a 
bona fide dispute existed as to liability or amount.89 More- 39

39 “Nor do we need to consider here the possibility of compro­
mises in other situations which may arise, such as a dispute over

Opinion of the Court of Appeals, August 18, 1975



73a

over, in Schulte the Court left open the possibility that it 
might approve consent decrees which compromised the 
amount of payment even where liability and amount were 
not seriously disputed: “ [W]e think the requirement of 
pleading the issues and submitting* the judgment to judi­
cial scrutiny may differentiate stipulated judgments from 
compromises by the parties.” 328 U.S. at 113 n. 8, 66 S.Ct. 
at 928 n. 8, 90 L.Ed. at 1118 n. 8.

Subsequent to O’Neil and Schulte, the courts of appeals 
dismissed the argument that those decisions somehow for­
bade voluntary compromises, executed pursuant to consent 
judgments, with respect to sums the amount of or liability 
for which was disputed. See, e. g., Urbina v. Puerto Rico 
Ry. Light & Power Co., 1 Cir. 1947, 164 F.2d 12 (employees 
settled for minimum FLSA wage plus overtime but not 
liquidated damages; release constitutes effective bar to sub­
sequent suit for liquidated damages; “the rule of the 
Schulte case goes to the verge of the law and this being 
our view we decline to extend that rule any further”) ; 
Bracey v. Luray, 4 Cir. 1947,161 F.2d 128. See also Bowers 
v. Remington Rand, Inc., 7 Cir. 1946, 159 F.2d 114, cert, 
denied, 330 U.S. 843, 67 S.Ct. 1083, 91 L.Ed. 1288 (1947) 
(employer and employee may settle by agreement question 
whether sleeping time at jobsite constitutes working time).

Nor did the decisions of the Supreme Court on similar 
questions under other statutes yield any indication that the 
O’Neil-Schulte strict FLSA approach would be extended. 
In Callen v. Pennsylvania R.R., 332 U.S. 625, 68 S.Ct. 296, 
92 L.Ed. 242 (1948), the Court considered the possible val­
idity of a release under a statute which specifically pro­
hibited any contract for an employer’s exemption from li­

Opinion of the Court of Appeals, August 18, 1975

the number of hours worked or the regular rate of employment.” 
328 U.S. at 114, 66 S.Ct. at 928, 90 L.Ed. at 1118.



74a

ability for injuries to employees. (§ 5, Federal Employers’ 
Liability Act, 45 U.8.C. §55). Tbe Court ruled that a re­
lease could be valid because

[i]t is obvious that a release is not a device to exempt 
from liability but is a means of compromising a claimed 
liability and to that extent recognizing its possibility. 
Where controversies exist as to whether there is lia­
bility, and if so for how much, Congress has not said 
that parties may not settle their claims without litiga­
tion.

332 U.S. at 631, 68 S.Ct. at 298, 92 L.Ed. at 246. The later 
case of Boyd v. Grand Trunk Western R.R., 338 U.S. 263, 
70 S.Ct. 26, 94 L.Ed. 55 (1949), upon which appellants rely, 
is not to the contrary. There the Court explained that 
Callen correctly distinguishes “a full compromise enabling 
the parties to settle their dispute without litigation, which 
we held did not contravene the Act, from a device [exclu­
sive venue contract] which obstructs the right of the 
[FELA] plaintiff to secure the maximum recovery if he 
should elect judicial trial of his cause." 338 U.S. at 266, 
70 S.Ct. at 28, 94 L.Ed. at 58. (emphasis added). Cf. also 
Duncan v. Thompson, 315 U.S. 1, 7, 62 S.Ct. 422, 424, 86 
L.Ed. 575, 579 (1942).

In Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 
63 S.Ct. 246, 87 L.Ed. 239 (1942), the Court held that bene­
fits conferred upon seamen by the law of admiralty and 
the Jones Act, 46 U.S.C. § 688, may be released if it is 
shown by the proponent that the waiver “was executed 
freely, without deception or coercion, and that it was made 
by the seaman with full understanding of his rights.” 40

40 317 U.S. at 248, 63 S.Ct. at 252, 87 L.Ed. at 245. The Court 
added that “ [t] he adequacy of the consideration and the nature of

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975



75a

In Blanco v. Moran Shipping Co., 5 Cir. 1973, 483 F.2d 
63, cert, denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ecl. 2d 108 
(1974), we recently reaffirmed the Garrett formulation as 
the “classic test” of a valid and binding release.41

To be sure, the appellants’ public policy position is ten­
able insofar as the O’Neil-Schulte line of cases once stood 
rather inflexibly for the idea that certain benefits under 
protective legislation would be sold for a song unless safe­
guarded by extraordinary measures. Yet it remains that 
those cases were tied closely to the mandatory terms of 
particular statutes, the labor conditions that produced those 
statutes, and what the Court believed was a clearly dis­
cernible congressional intent. Since then, courts have de­
clined in most instances to fashion comparable doctrine 
from whole cloth, the stronger reasoning being that the 
rubric of “unequal bargaining power” all too often tempts 
the judiciary to promulgate social values which, at best, 
intrude upon the legislative sphere, and at worst reflect 
imprecise apprehensions of economics and desirable public 
policy. See, e.g., Walling v. Portland Terminal Co., 330 
U.S. 148, 155, 67 S.Ct. 639, 643, 91 L.Ecl. 809, 814 (1947) 
(Jackson, J., concurring) (“Interminable litigation, stimu­
lated by a contingent reward to attorneys is necessitated 
by the present state of the Court’s decisions”).

Perhaps it was in an effort to mollify Justice Jackson’s 
indignation that Congress enacted the Portal-to-Portal Pay 
Act in 1947,42 one provision of which (29 U.S.C. § 253(a))

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

the medical and legal advice available to the seaman at the time 
of signing the release are relevant to an appraisal of this under­
standing.”' Id. (footnote omitted).

41 See also Antonioli v. Lehigh Coal & Nav. Co., supra note 34.
42 It is interesting to note that when Congress enacted the Portal- 

to-Portal Pay Act, it listed as one of the prompting considerations



76a

expressly declared that FLSA claims “may hereafter be 
compromised in whole or in part, if there exists a bona fide 
dispute as to the amount payable by the employer to his 
employee,” provided, of course, that the parties utilize an 
hourly rate equal to the minimum wage. The Act also pro­
vided for waivers of liquidated damages, § 253(b), and 
announced that its effect would be retroactive as to “any 
compromise or waiver heretofore so made or given.” 29 
TJ.S.C. § 253(d). See McCloskey & Co. v. Eckart, 5 Cir. 
1947, 164 F.2d 257.

So sharply undercut by Congress even in their immediate 
ambit, O’Neil and Schulte inescapably provide no support 
to appellants. Nor do the FELA, Truth-in-Lending Act, or 
other cases briefed by appellants cast the slightest shadow 
of doubt upon Congress’ selection of voluntary conciliation 
and compliance as the preferred means—or means at least 
as viable as any other—for the vindication of Title VII 
rights. Though the appellants’ contentions may possibly 
have vitality in rare situations where amounts due “may 
be mathematically calculated by simple arithmetic,” e. g., 
Watkins v. Hudson Coal Co., 3 Cir. 1945, 151 F.2d 311, 314, 
we agree with Judge Pointer and the appellees that they 
will seldom apply, if ever, to Title VII seniority cases, 
which are inevitably attended by “the impossibility of 
calculating the precise amount of back pay.” Pettway, 
supra, 494 F.2cl at 260. Accordingly, we hold that para­
graph 18(g) does not violate public policy.

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

that, if the Supreme Court’s line of decisions under the FLSA 
were allowed to persist, “the courts of the country would he bur­
dened. with excessive and needless litigation and ehampertou's prac­
tices would be encouraged.” Act of May 14, 1947, c. 52, § 1, 61 
Stat. 84, 29 TJ.S.C. § 251(a) (7).



77a

Appellants next assert that an average of $500 per eli­
gible employee in immediate, litigation-free back pay is a 
priori inadequate and that the consent decrees therefore 
must be vacated. Our limited scope of review neither re­
quires nor permits us to decide this question in a manner 
which resolves each and every doubt, as if that were pos­
sible in any event.43 Nor may we pick and choose between 
conflicting factual hypotheses as if we were a jury.44 * We 
are concerned, instead, with a scale of probabilities: the 
probable outcome of contested litigation, balanced against 
its probable costs in time, money, and public resources. 
Bryan v. Pittsburgh Plate Glass Co., supra, 494 F.2d at 
801; Florida Trailer and Equipment Co. v. Deal, supra. 
Furthermore, we think it appropriate to take account of 
the injunctive relief provided by the consent decrees. That 
plenary relief, diligently implemented and monitored ac­
cording to the terms of the decrees, will greatly shorten 
the timespan during which “continuing effects” back pay 
claims might otherwise continue to mount. Cf. Patterson 
v. Newspaper Deliverers’ Union, supra. Correspondingly, 
it is undeniably in the defendants’ interests to promptly 
implement the reforms, for surely some eligible employees

43 See Pettway, supra, 494 F.2d at 261:
[W]hen the class size or the ambiguity of promotion or hiring 
practices or the multiple effects of discriminatory practices 
or the illegal practices continued over an extended period of 
time calls forth the quagmire of hypothetical judgment dis­
cussed earlier, a class-wide approach to the measure of back 
pay is necessitated. It should be emphasized that this is not 
a choice between one approach more precise than another. 
Any method is simply a process of conjectures.

(footnotes omitted).
44 Cf. Id. at n. 151: “The process of computation and burden of

proof is not an ‘either, or’ approach.”

O p in io n  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975



78a

I will decline the tender of back pay in the anticipation of 
accruing and suing for more,45 which is their right.

Viewed from the foregoing perspective, appellants’ con­
tention of inadequacy must be rejected. Their argument 
comes in essentially two parts: first, an allegation that 
$500 per employee is considerably less than the awards 
which have been won in comparable contested lawsuits; 
second, they assert that the offered sums are fatally insuffi­
cient because the appellees have not shown those sums to 
equal “100% of the amount to which each employee would 
be entitled if the government, or the employee, successfully 
litigated [each] back pay claim to final judgment.” 46

The second argument is clearly without merit in two 
respects. In the first place, the burden—if one is to be 
assigned—is upon the appellants to demonstrate abuse of 
discretion in Judge Pointer’s acceptance of the decrees. 
More substantially, however, appellants have assumed that 
virtually every back pay claimant would succeed in court, 
either in a private suit or on the coattails of a government 
suit. The experience of the one contested suit which they 
cite—the Fairfield Works case, see footnotes 7 and 28, 
supra—does not support the assumption. Nor may the 
appellants reasonably assume that the government would 
sue every defendant at every affected plant and department 
for back pay in the absence of, or simultaneously with, the

O p in io n  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

45 A tactic whose likelihood of success we considered an open 
question. Compare Williamson v. Bethlehem Steel Corp., supra, 
468 F.2d at 1203 (private parties are not hound by success or 
failure of the government in a “pattern or practice” action), with 
Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d at 258 
(back pay normally stops accruing when reformed seniority goes 
into effect).

46 Brief for appellants, Harris, et al., at 31 (emphasis added).



79a

private litigation which they seek to pursue. As we discuss, 
infra, the government labors under no legal obligation to 
sue any particular party upon any given occasion. In any 
event, the Fairfield Works case illustrates a variety of other 
factors—mainly considerable delay and expense to all par­
ties—which subtract from appellants’ preference for liti­
gation over voluntary compliance. That much we may 
assuredly say without commenting one way or the other 
about the merits of the back pay issues which are presently 
on appeal in the Fairfield case.

Moreover, to the extent appellants contend that the aver­
age claimant’s recovery in Fairfield exceeded the average 
award under the consent decrees, their argument is mis­
leading. They note that around sixty employees recovered 
$201,000, or an average of $3,350 per successful employee. 
They do not mention, however, that more than 3,000 other 
employees were held entitled to no back pay, with the 
result that the average award per claimant came to around 
sixty dollars, or $440 less than under the consent decrees. 
Nor do they mention that the Fairfield awards were based 
on a 150 percent-of-actual loss theory, the additional fifty 
percent representing an estimate for unm atured fu ture  
effects of past discrimination. See 371 F.Supp. at 1060. It 
is also useful to note that within the three departments 
in which the sixty (or sixty-one) successful claimants 
worked, there were some 298 other members of these classes 
who received no back pay, and that holding was not ap­
pealed. Nor were appeals taken from the classwide denials 
of back pay in the other private actions, which involved 
about 105 employees. Without saying more about the Fair- 
field case, we may candidly observe that it is far from 
clear that any particular employee would be better off if 
he or she awaited contested litigation in lieu of accepting

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80a

the back pay provided by the consent decrees.47 If the 
decrees were vacated, however, it is clear that litigation-

47 The method utilized by Judge Pointer for computing and 
awarding back pay within the three Fairfield departments and 
corresponding private classes as to which he found that the se­
niority system had caused economic damages to blacks is set forth 
in 371 F.Supp. at 1060. Generally speaking, the court awarded 
the fund generated by each class’s proof on a “winner take all” 
basis to the “oldest” blacks in the class from the standpoint of 
plant seniority in light of a hypothetical reconstruction of employ­
ment histories which had been dominated by “younger” whites 
and to some degree post-Act-hired blacks between July 2, 1965 
and the entry of the court’s remedial decree. Thus, for purposes of 
awarding back pay, the “oldest” blacks were permitted to “leap­
frog” in order of plant seniority. Once the historic vacancies in 
pertinent LOPs had been accounted for, however, no more blacks 
in the three successful classes received back pay.

The relatively small total membership (approximately 360) of 
those three classes made the reconstruction method feasible on an 
individualized basis by virtue of the court’s assumption of blacks’ 
equal fitness for promotion when competing with whites in the 
line, and devotion of each flow chart to a single LOP. With this 
group of blacks, but especially with a larger group, other methods 
of class-wide distribution might have been used, see note 29, supra, 
but no one complained on appeal about the method selected by 
Judge Pointer. Interestingly, if the court had used a pro rata 
schedule, the average recovery per claimant—assuming some re­
covery by each claimant—would have been somewhat as follows: 
the Hardy class—154 blacks at $280 each; the McKinstry class— 
170 blacks at $270 each; the Ford class—35 blacks at $3,200 each. 
In summary, although precise comparison is impossible absent data 
on the numbers of class members who were hired after 1967 and 
are thus ineligible for back pay under the Consent Decree, it re­
mains reasonably clear that of the three successful classes, only the 
smallest—the Ford group—benefitted on the average per claimant 
from contested litigation. Of course, since the decree does not 
offer settlement of back pay claims to post-1967 black male hires 
in the steel industry, the presence of such hires in the Fairfield 
private classes should cancel out for purposes of comparing per 
claimant average recoveries under both the Fairfield decree and 
the Consent Decree. In other words, the average recovery per 
eligible claimant Still should be greater under the decree. If the 
fifty percent “future pay” increment used by Judge Pointer in 
Fairfield is factored out, then the difference increases accordingly.

Opinion of the Court of Appeals, August 18, 1975



81a

free back pay would be lost to those whose claims were 
factually weak and, though arguably entitled to some back 
pay, probably could not otherwise recover. See F.R.Civ.P. 
53(a) (findings made by a district judge may not be dis­
turbed unless “clearly erroneous”). In addition, the im­
mediate industry-wide injunctive reforms—which benefit 
60,000 minority and female steelworkers—would likely 
evaporate, at least until after years of trials and appeals. 
Absent a much stronger showing than this, it would plainly 
be irresponsible for us to assume that the vast majority 
of affected employees would be persuaded by appellants’ 
gratuitous advice, or that such advice is rendered in those 
employees’ best interests. Cf. Air Line Stewards and Stew­
ardesses v. American Airlines, Inc., supra.iS The consent 
decrees offer minority and female employees the oppor­
tunity to make an informed and voluntary choice over 
whether the tendered back pay is satisfactory to them. No 
reason is suggested why we ought not consider them com­
petent to make such a decision. Absent a compelling show­
ing that the average of $500 per employee represents noth­
ing but a mere pittance, we think that sum, together with 
each eligible employee’s free option to reject his or her 
tender and sue for more, especially in light of the injunc- 48

48 [T]he Commission asserts that the relief afforded by the pro­
posed settlement is substantially narrower than it would be 
if the suits were to be successfully litigated. This is precisely 
the sort of gratuitous opinion that the parties are entitled not 
to have foisted upon them under the scheme of Title VII. 
Suffice it to say that as a general proposition the public inter­
est may indeed be served by a voluntary settlement in which 
each side gives ground in the interest of avoiding litigation. 
This is especially true within the confines of Title VII where 
“there is great emphasis . . .  on private settlement and the 
elimination of unfair practices without litigation.” (citing 
Oatis, Culpepper, and Bowe v. Colgate-Palmolive Co., supra). 

455 F.2d at 109.

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975



82a

tive relief which extends to all, amply satisfies any legal 
requirements with respect to the size of the back pay fund 
in this consent decree settlement.

C. Alleged Unlawful Abdication of Responsibilities By 
Agencies of Government

Apart from the items just discussed, the appellants level 
a series of attacks against selected provisions of the con­
sent decrees which relate to the mechanics and procedures 
of ongoing enforcement. Though their specific targets 
vary, these attacks share a common theme: the argument 
that the involved government agencies and the court below 
have both exceeded their authority and unlawfully aban­
doned duties and commitments which are assertedly man­
datory under the law. Essentially, appellants maintain that 
the policies of Title VII and Executive Order 11246 either 
have been or will be nullified by certain allegedly illegal 
features of the decrees. These include purported enforce­
ment at the whim of violators, interference with the right 
of individuals to prosecute separate suits, venue deprival 
with respect to such separate suits, lack of jurisdiction in 
the court below to approve or enforce the decrees, and, in 
several subrespects, alleged renunciation of legal obliga­
tions by executive agencies. The district court rejected 
these complaints on the grounds, first, that none demon­
strated illegality in the decrees as of entry, and second, 
that the court’s full complement of continuing equity powers 
will be sufficient to permit adjustment and resolution of 
future problems within the framework of the decrees as 
they arise.49 We agree in each instance.

49 63 F.R.D. at 5-6. Judge Pointer explained:
The decrees may require clarification in some particulars and, 
indeed, as administration of the decrees continues, there will

Opinion of the Court of Appeals, August 18, 1975



83a

We begin with introductory paragraph C of each decree, 
which—insofar as appellants challenge it—provides :

If a private individual seeks, in a separate action or 
proceeding, relief other than back pay which would add 
to or be inconsistent with the systemic relief incorpo­
rated in this Decree, the plaintiffs will undertake to 
advise the Court or other forum in which such private 
action or proceeding is brought that such relief in that 
action or proceeding is unwarranted.

Appellants charge that this promise by the government 
constitutes an unlawful “disestablishment” of Title VIII’s 
enforcement structure. Their argument is premised on the 
assumption that “ [t]he limited resources available to [the * * * * * * * * * *

O p in io n  o f the C o u rt o f A p p e a ls , A u g u s t  18, 1975

doubtless be problems which were not considered or antici­
pated by the parties or which run counter to their expectations
during negotiations. Should such eventualities occur, this
court, by virtue of paragraph 20 of Consent Decree I and
paragraph 2 of Consent Decree II, has jurisdiction of this
cause for the purpose of issuing subsequent orders, consistent
with principles of due process, as necessary to further the
purpose and objectives of these decrees.

63 F.R.D. at 6. (footnotes omitted). This pronouncement, of which 
no one complain's, came on the heels of a stipulation by all parties 
to the decrees that the district court “will have the full panoply 
of powers traditionally enjoyed by equity courts in enforcing con­
sent decrees—powers which are substantial. See, e. g., United 
States v. Swift [& Co.], 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 
L.Ed. 999, 1005 (1932) ; United States v. Armour & Co., 402 TJ.S. 
672, 674-5, 91 S.Ct. 1752, 29 L.Ed.2d 256 and note two thereat,
[402 U.S. 673, 675, 91 S.Ct. 1752, 1754 n. 2, 29 L.Ed.2d 256, 259 
n. 2] (1971). . . . ” The stipulation was precipitated by Judge 
Pointer’s earlier indication in open court that he would not ap­
prove an agreement which restricted the judicial role to admin­
istration of a “dry trust arrangement.” Appendix at 160. None­
theless, in addition to joining the stipulation, each party to the 
decrees affirmatively disclaimed any desire to withdraw from the 
settlement.



84a

EEOC] are appropriated solely to support litigation on 
behalf of minority employees.” 60 Perhaps because the as­
sumption would be untenable in application even if it were 
valid in the abstract, appellants omit to mention the re­
mainder of paragraph C:

Provided that, since this Decree provides for review 
by the Audit and Review Committee with ultimate 
review by this Court, the plaintiffs may recommend 
that matters raised in such separate action or proceed­
ing should be submitted to this Court for resolution 
under the terms of this Decree.

At the outset, we should emphasize what paragraph C 
does not do, contrary to appellants’ apparent belief. First, 
it does not obligate the government to appear in private 
actions to oppose or seek transfer of claims for back pay 
in excess of the sums to be tendered under the consent 
decrees. Thus, if an aggrieved employee chooses to de­
cline the back pay tendered under pargraph 18(g) of Con­
sent Decree I in hope of securing a greater recovery in 
court, the government is not obligated by paragraph C to 
oppose that request. Next, paragraph C clearly does not 
require the government to oppose requests in private ac­
tions for additional individual relief, as distinguished from 
systemic. If a minority or female individual claims that 
he or she was not hired, or was discharged, or was other­
wise discriminated against because of racial, nationality, 
or sex-based reasons, and if the grievance can be appro­
priately remedied without revision of the decrees’ systemic 
scheme, then paragraph C does not obligate the govern­
ment to oppose such relief in the separate action.

Opinion of the Court of Appeals, August 18, 1975

60Brief for Appellants Harris, et al, at 45 (emphasis added).



85a

Moreover, paragraph C does not commit the government 
to oppose even requests for additional or inconsistent 
systemic relief on their merits. Through the Audit and 
Review Committee and the right of each of its parties to 
take a given matter before the court, the consent decrees 
contain an internal mechanism for generating additional 
systemic remedies when and if they are needed.51 The par­
ties also recognize that the government, under paragraph 
C, can do no more than suggest its position to the court in 
which a separate action for systemic relief is brought.52

61 Thus, the argument by appellants that the review procedure 
under the decrees resembles the union and management-controlled 
Railroad Adjustment Board in Glover v. St. Louis-San Francisco 
Ry., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969), is inaccu­
rate. Here, not only may the government unilaterally take mat­
ters before the court if the company or union delegations of the 
Audit and Review Committee fail to agree with the government, 
but also the court may exercise jurisdiction on its own motion, and 
furthermore aggrieved employees may go to court in the variety 
of ways discussed heretofore, none of which is restricted by any 
exhaustion requirement imposed by the decrees themselves.

62 For this reason, appellants’ contention that the consent de­
crees may operate to effectively repeal the venue provisions of 
Title VII, § 706(f) (3), 42 U.S.C. § 2000e-5(f) (3), i:s without merit. 
If, for example, a private individual filed suit in the Western Dis­
trict of Pennsylvania seeking systemic relief additional to or in­
consistent with that provided by the decrees, then potentially the 
court could transfer the action to the Northern District of Ala­
bama, if, for example, the relevant employment records were kept 
there, and the transfer was “ [f]or the convenience of parties and 
witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). Obvi­
ously, the issue in each such action will turn on the particular cir­
cumstances, and such questions as transfer, stay as a matter of 
comity to allow the Audit and Review Committee or Judge Pointer 
to resolve the grievance, or dismissal (with or without prejudice) 
if the grievance is already remedied, will properly belong to the 
judge of the forum court. Appellants are wrong in suggesting 
that federal judges will somehow view the decrees as an excuse to 
refuse to follow the law.

Similarly, appellants are incorrect in contending that the court 
below lacked jurisdiction to approve the decrees. Appellants rely

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975



86a

The government cannot bind private parties and it cannot 
bind any court. If a court concludes that the decrees fail 
to provide adequate relief for a particular complaint, then 
it has its usual power to proceed with the action. Para­
graph C simply implements the parties’ agreement that, in 
view of the self-correcting features of the decrees, the exis­
tence of the power to issue further injunctions does not nec­
essarily mean that its exercise would be wise in every case. 
As a purely legal matter, however, the only effect that the 
government’s performance of its paragraph C promise can 
consistently be expected to produce is assurance that judges 
hearing private actions will be advised of the decrees, their 
internal adaptability, and the parties’ view that changes 
should be accomplished thereunder in lieu of duplicative 
or conflicting injunctions. Cf. Dickerson v. United States 
Steel Corp., E.D.Pa.1974, 64 F.E.D. 351. The district court 
for the Northern District of Alabama stands prepared, for 
a period of at least four more years, to undertake “liaison 
and coordination” with other forums.53 On the other hand, 
a forum court will be fully at liberty to treat the govern­
ment’s advice in a particular case with the same hospitality

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

on an assumption that a federal court is without authority to en­
join the United States into performance of its promise in para­
graph C, or to hold the government in contempt for failure to so 
perform. We need not decide this- question, for the res judicata 
effect of paragraph C constitutes ample “case or controversy” con­
sideration for the settlement. If appellants’ point were some day 
sustained, then perhaps one could say that the defendants lost on 
part of the bargain (though no defendant suggests that it expects 
ever to seek an injunction or contempt order against the govern­
ment) . That, however, would not destroy nunc pro tunc the court’s 
jurisdiction to enter the decrees. See notes 17 and 18, supra, and 
accompanying text.

63 63 F.R.D. at 6.



87a

by which we received the appellants’ advice concerning the 
size of the back pay fund.64

That, in summary, is what the parties bargained for. 
To us it represents nothing unlawful or improper; indeed, 
the government in all likelihood could file similar advice 
with forum courts even if there were no consent decrees.66

54 See note 48, supra, and accompanying text. See also Dickerson, 
supra.

56 Assume for purposes of illustration that the government had 
pressed its “pattern or practice” complaint in this case through 
contested litigation, and that the court was in the process of formu­
lating an injunction for implementation at major steel plants 
operated by each of the defendants. Assume also that private 
actions for systemic seniority relief at those plants were then 
pending against the same defendants before various other district 
courts. There are a variety of ways in which the government could 
bring to those courts’ attention matters which it deemed of signifi­
cant public interest. For example, suppose the involved agencies 
felt that the public interest would be served by uniform seniority 
reforms. The EEOC could assert this view in an application for 
permissive intervention under § 706 (f)(1) of Title VII, or as 
amicus, see, e.g., Bing v. Roadway Express, Inc., supra, or, pre­
sumably, through the Justice Department by way of suggestion. 
See 28 IJ.S.O. § 517. Cf. International Prods. Corp. v. Koons, 2 
Cir. 1963, 325 F.2d 403 (State Department). Likewise, the Justice 
Department could apply for intervention under F.R.Civ.P. 24, in 
order to assert the Secretary of Labor’s desire for uniform treat­
ment of issues which implicated the administration of Executive 
Order 11246. Alternatively, the Justice Department could file an 
amicus brief or suggestion on behalf of the Secretary. In fact, no 
reason appears why amicus briefs or suggestions could not be filed 
even subsequent to entry of a final judgment in the “pattern or 
practice” action. Thus, in the case before us the only thing that 
has changed is the capacity in which the plaintiffs intend to assert 
the public interest in uniformity. Because the consent decrees are 
already res judicata, the government, generally speaking, will not 
attempt to intervene in private actions and thereby become a suitor. 
It will instead file advisory suggestions or amicus submissions with 
the forum courts. If the government could permissibly do an 
equivalent thing in an atmosphere of contested litigation, then we 
fail to see how the substitution of voluntary compliance through

O pin ion  o f the C o u rt o f A p p e a ls , A u g u s t  18, 1975



88a

As Judge Pointer incisively noted in terms of the policies 
and interests at stake, it would not be sound to assume 
that the government may not oppose relief sought by a 
private litigant.

[F]or example, if a particular black plaintiff, due to 
his own situation, were to seek an occupational se­
niority rule considered by the EEOC to be generally 
adverse to the interests of other black employees, it 
could hardly be asserted that the EEOC is bound to 
advocate such relief.

63 F.B.D. at 5 n. 4. And in any case, we may not reason­
ably assume that the administration of paragraph C will 
produce improper consequences—such as venue deprival. 
Such a problem is not now before us in the form of an 
actual controversy.

Appellants further contend that the consent decrees il­
legally restrict the EEOC’s power to sue under §706 of 
Title VII. Proceeding from their assumption, noted 
earlier,* 56 appellants argue that the res judicata effect of 
paragraph C unlawfully denies minority and female em­
ployees a statutory “right” to representation by the Com­
mission in lawsuits to redress each employee’s charge of 
discrimination for which there may be “reasonable cause.” 

We think the appellants are again incorrect, for we are 
convinced that the EEOC has no such obligation, statutory 
or otherwise. Title VII vests in each private aggrieved

O p in io n  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

consent decrees might alter the result, unless one assumes that 
settlement is inherently less effective relief-wise than litigation 
and that its effects are therefore to he discouraged. Appellants 
have not shown that to he the case.

56 See note 50, supra, and accompanying text.



89a

party the right to bring a prompt civil action in federal 
court, if the Commission has not already filed suit in the 
individual’s behalf or conciliated a settlement which the 
grievant has accepted as satisfactory. Congress gave the 
EEOC broad discretion to determine which suits it will 
bring under § 706 (and §707), and which it will leave to 
be brought by private parties. Section 706(f) (1) expressly 
states that if the Commission has been unable to nego­
tiate a conciliation agreement acceptable to it, then it “may 
bring a civil action . . .” (emphasis added). Section 707, 
relating to “pattern or practice’’ suits—which presumably 
even appellants would agree are not mandatory upon any 
particular occasion, uses precisely the same permissive 
language. Nor is Title VII’s legislative history helpful to 
appellants on this point. In its enactment of the 1972 
amendments, Congress gave no positive indication that it 
intended to require the EEOC to sue anybody, except as 
the agency thought it advisable in the exercise of sound 
discretion. The appellants point to no authoritative leg­
islative history or any case law to the contrary.57

57 A case cited by appellants, Adams v. Richardson, 1973, 156 
U.S.App.D.C. 267, 480 F.2d 1159 ten bane), offers them no com­
fort. There the court affirmed an injunction ordering the Depart­
ment of Health, Education and Welfare to perform certain re­
sponsibilities under Title VI of the Civil Rights Act of 1964, 42 
U.S.C. § 2000d et seq., which were entrusted to the agency by 
Congress in order to prevent the disbursement of federal aid to 
segregated school systems. Apart from involving an entirely dif­
ferent statute, § 2000d-l, under which HEW not only was author­
ized but also “directed to effectuate” the edict of § 2000d, Adam.s 
presented the rather untenable argument that the means of enforce­
ment chosen by the agency was absolutely unreviewable. The court 
rejected the argument, yet it did so on surprisingly narrow grounds. 
It ruled that “ [a] consistent failure to [initiate aid termination 
proceedings] is a dereliction of duty reviewable in the courts.” 480 
F.2d at 1163 (footnote omitted). Here, by contrast, no one con­
tends that EEOC enforcement decisions are unreviewable; indeed,

O pin ion  o f the  C o u rt o f A p p e a ls , A u g u s t  18, 1975



90a

The EEOC’s decision not to select individual charges 
against the steel companies and the union for suit by the 
agency under § 706 was a reasonable exercise of discre­
tion, particularly since the most serious and pervasive of 
those charges were properly within the scope of a “pattern 
or practice” complaint. The backlog of charges is such 
that the Commission must choose its cases for maximum 
impact.68 Given the enormous gains achieved through the 
consent decrees, it surely was not arbitrary or capricious 
for the EEOC to decide that it would channel its limited 
resources to suits in other industries.

We conclude, therefore, that no individual has a “right” 
to prosecution of his or her case by the EEOC upon any 
given occasion. In the present case the agency has ob­
tained major systemic relief for minorities and females 
through voluntary compliance. Because any employee who 
remains dissatisfied with that relief retains his or her pri­
vate right of action, the appellants miss the point when 
they assert that the EEOC has “surrendered private 
rights,” and that it has “traded off” the rights of some 
employees in return for benefits to others. Paragraph C 
constitutes neither of those horribles, but merely an exer- * 58

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

though our scope of review is narrow, we understand our role to 
require thorough exploration of legal details. Moreover, no one 
contends that the EEOC has embarked upon a consistent course 
of “dismantling” Title VII. Such an argument would be ludicrous. 
If it constitutes a precondition to judicial review of the Commis­
sion’s exercise of discretion, then it would seem that we have 
already exceeded the proper scope of our review.

58 During the first two fiscal years in which the EEOC had the 
power to sue under § 706, less than two-tenths of one percent of 
over 100,000 charges filed resulted in actual litigation. Statements 
by former EEOC Chairman Powell before House Labor Subcom­
mittee on Equal Opportunities, 181 BNA—DLR—D-l, 2-5 (Sept 
17, 1974). ,



91a

cise by the agency of its discretion to decide what actions 
it will leave to private enforcement.

Making substantially the same arguments which they 
advanced against paragraph C, appellants now shift their 
attack to paragraph 19 of Consent Decree I, which states:

(a) Promptly following the date of entry of this 
Decree, plaintiff [EEOC] shall review every charge 
pending against any defendant. Such review shall iden­
tify all such charges alleging unlawful employment 
practices wholly within the scope of this Degree. With­
in 60 days after completion of such review, EEOC 
shall advise the charging party in each case so iden­
tified that, in view of the relief provided under this 
Decree, EEOC finds the practice complained of has 
been resolved by this Decree and recommends to each 
such charging party entitled to back pay under this 
Decree that he accept such relief and execute the re­
lease.

(b) With respect to all pending charges which allege 
unlawful employment practices not wholly within the 
scope of this Decree, EEOC shall conduct an expedited 
investigation of such charges and attempt to resolve 
each such charge in a manner consistent with the prin­
ciples set forth in Title VII and this Decree. * * *

Again emphasizing the first half of the government’s 
undertaking but omitting- to deal with the second, appel­
lants assert that the EEOC has unlawfully relinquished its 
statutory duty to conciliate charges of discrimination for 
which “reasonable cause” exists. See § 706(b) of Title VII, 
42 U.S.C. §2000e-5(b). This would be a serious complaint

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92a

if it had a firmer foundation, for § 706(b) does say that 
the Commission “shall endeavor to eliminate any such al­
leged unlawful employment practice by informal methods 
of conference, conciliation, and persuasion.” (emphasis 
added). Although we have held that “an effort to con­
ciliate by the EEOC is not in any sense a condition pre­
cedent to the charging party’s right to seek judicial con­
sideration of his grievance.” 69 that rule follows from the 
fact that the aggrieved individual is not responsible for 
the actions and inactions of the agency. "We have never 
held, or even suggested, that the EEOC is excused from 
its statutory duty to conciliate when it seeks the assistance 
of the courts in order to enforce the mandates of Title YII 
on behalf of specific aggrieved parties, pursuant to § 706. 
The reported cases on the point are to the contrary. See, 
e. g., EEOC v. Western Elec. Co., D.Md. 1974, 382 F.Supp. 
787, 796; EEOC v. Container Corp., M.D.Fla. 1972, 352 
F.Supp. 262, 265. One court has even indicated that the 
Commission may have similar responsibilities in connec­
tion with “pattern or practice” suits brought under § 707 
subsequent to the effective date of the 1972 amendments. 
United States v. Masonry Contractors Assn., 6 Cir. 1974, 
497 F.2d 871, 875-76 (dicta). Cf. § 707(e) of Title YII, 42 
U.S.C. § 2000e-6(e). This is such a lawsuit.

We have determined, however, that this case does not 
require us to attempt to settle these intricate questions in 
terms of congressional intent with respect to jurisdiction.

69 Miller v. International Paper Co., 5 Cir. 1969, 408 F.2d 283, 
291 (emphasis added); See Gamble v. Birmingham Southern R. R., 
5 Cir. 1975, 514 F.2d 678, at p. 688; Danner v. Phillips Petroleum 
Co., 5 Cir. 1971, 447 F.2d 159, 161. See also McDonnell Douglas 
Corp. v. Green, 411 U.S. 792, 798-800, 93 S.Ct. 1817, 1822-23, 36 
L.Ed.2d 668, 675 (1973) ; Beverly v. Lone Star Lead Const. Corp.. 
5 Cir. 1971, 437 F.2d 1136.

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93a

For one thing, the appellants do not touch this portion of 
their argument in those terms. For another, any duty to 
conciliate as a matter of the EEOC’s power to sue was 
fully satisfied during the six months of negotiations which 
led to the consent decrees. Appellants equate “conciliation” 
with give-and-take bargaining; nowhere do they assert that 
the decrees are not clearly the products of give-and-take 
bargaining. Nor do they advance any sort of attack di­
rectly against paragraph 19(b), which plainly does con­
template that the Commission will attempt to conciliate 
those charges which are “not wholly within the scope” of 
the decrees.

Thus, we are left very narrowly with a contention that 
paragraph 19(a) illegally obligates the EEOC to drop all 
efforts to conciliate certain charges which were pending at 
the time of decree entry: namely, those which allege “un­
lawful employment practices wholly within the scope” of 
the decrees. The resolution of this issue is not difficult; it 
follows from a careful consideration of the descriptive 
terminology “wholly within the scope.” For once, the two 
sides in this dispute are fundamentally close together on 
the correct result. Appellants suggest that in cases where 
the Commission concludes that the decrees will in fact re­
solve an employee’s problems, it should so advise the em­
ployee. They add that where the Commission thinks an 
employee needs additional or inconsistent relief, it should 
seek to conciliate an agreement on that basis.60

Subject to one area of qualification, which we think is well 
taken, the appellees agree. Accordingly, we construe para­
graph 19 to mean that a charge is uwholly within the scope 
of the Decree” if the decree both encompasses the nature

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

60 Brief for Appellants Harris, et al., at 56.



94a

of the charged discrimination and contains a remedy which 
the EEOC deems adequate and appropriate for the par­
ticular grievance. Unless the Commission is satisfied that 
each of these conditions is met, then it has not only the 
right but also the duty to conciliate the charge separately 
under subparagraph (b) in lieu of advising the grievant 
to settle or accept an immediate right-to-sue letter.61

Nevertheless, it is important to stress that the question 
whether a given charge lies “wholly within the scope” of 
the decrees is ultimately a matter committed to the sound 
judgment of the EEOC, although we do not suggest that 
the agency’s exercise of judgment would be entirely im- 
reviewable in every conceivable circumstance. Yet appel­
lants seem to believe that the agency is duty-bound to seek 
precisely the relief desired by every charging party. That 
is not so. The EEOC does not stand in a lawyer-client pos­
ture vis-a-vis the persons who are protected by Title VII.62 
Rather, the Commission must endeavor to eliminate dis­
crimination in a manner consistent with the public in­

Opinion of the Court of Appeals, August 18, 1975

61 For example, a charge may complain of a practice—such as 
departmental seniority—which in numerous respects is treated by 
Consent Decree I. However, the specific grievance may relate to 
a line of progression or seniority rule for which detailed relief has 
not yet been formulated pursuant to pre-January 1975 reviews. 
See Consent Decree I, paragraphs 4(a) (2), and 6, and 7(d). The 
EEOC will conciliate such charges. Moreover, the charging party 
will not have to make an election over whether to sign a release 
in return  ̂for back pay until informal pursuit of appropriate 
individualized relief Succeeds or fails, which should occur within 
one year after the initial tender of back pay at his or her plant. 
Consent Decree I, paragraph 19(b), (c).
. 62 Tllis. 18 best illustrated by the charging party’s unconditional 

right to intervene in order to protect his or her own interests in a 
§ 706 suit brought by the Commission, which otherwise cuts off 
the private party’s right to sue under Title VII. See 5 706(f) (1) 
42 U.S.O §2000e-5(f)(l). v M



95a

terest. Cf. Bryan v. Pittsburgh Plate Glass Co., supra, 
494 F.2d at 803. That responsibility attaches to concilia­
tions as well as to lawsuits. Obviously, any charging party 
who feels that the relief under the decrees is inadequate 
has a statutory right, upon receipt of his or her notice from 
the EEOC, to institute a private action seeking additional 
or inconsistent relief. As we explained earlier, the EEOC’s 
failure to obtain through conciliation the particular relief 
'sought wall in no way bar the private party’s suit.63 In 
conclusion, we find no merit to appellants’ complaints about 
the conciliation procedure established by paragraph 19.

The final installment in this series of objections con­
cerns the relationship of paragraph C of each decree and 
paragraph 16 of Consent Decree I to the functions of the 
Secretary of Labor and the Office of Federal Contract Com­
pliance under Executive Order 11246. Insofar as is pres­
ently material, paragraph C of each decree provides that, 
as to all plaintiffs—including the Secretary, the decrees are 
res judicata and resolve all issues of employment discrimi­
nation to which the decrees are directed. Paragraph l(j> of 
Consent Decree I adds that

So long as the defendants are in compliance with the 
provisions of this Decree and of Consent Decree II 
entered this date, the Secretary of Labor and the Of­
fice of Federal Contract Compliance shall rely upon 
the continuing audit of that compliance by Govern­
ment representatives to the Implementation Commit­

63 By virtue of this rule, each of the intervenors-appellants is 
already a member of a putative plaintiff class in a pending private 
action which was instituted without waiting for the EEOC to com­
plete conciliation efforts. Thus, appellants’ concerns about con­
ciliation seem rather ironic at this point, although we have as­
sumed their standing to raise the issue since no appellee has con­
tested standing.

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975



96a

tees and by the Government member of the Audit and 
Review Committee as adequate for purposes of all 
compliance reviews under Executive Order 11246, as 
amended, at the plants and facilities listed in para­
graphs 3(c) and (d).

Appellants broadly assert that these provisions are un­
lawfully calculated to relieve the companies of their duty 
to comply with the Executive Order, and moreover to dis­
pense with the OFCC’s responsibility to police govern­
ment contractors’ efforts to achieve and maintain compli­
ance. Appellants suggest that pargraph 16 has or will have 
several purported illegal effects: abolition or dilution of 
compliance reviews; lax reporting and review of manda­
tory affirmative action plans; failure by the government to 
cancel or refuse to award contracts due to noncompliance 
with the Executive Order; compliance audits by violators; 
violation by the OFCC of its own regulations concerning 
enforcement hearings; and lack of jurisdiction in the dis­
trict court.

These contentions are meritless, singly and collectively. 
Paragraph 16 neither states nor implies that the companies 
are excused from compliance with Executive Order 11246. 
In fact they are not. Paragraph 16 merely designates the 
government representatives to the Implementation Com­
mittees and the government member of the Audit and Re­
view Committee as compliance officers for the purposes of 
compliance reviews. Such designation is specifically author­
ized by :§ 401 of Executive Order 11246.64

64 3 C.F.R. at 177 (1974). Section 401 provides:
The Secretary of Labor may delegate to any officer, agency, 

or employee in the executive branch of the Government, any 
function or duty of the . Secretary under Parts II [nondis-

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97a

Under paragraph 16 of Consent Decree I, the OFCC will 
rely on the government’s continuing audit of the companies 
as adequate for purposes of the Executive Order, as long 
as they remain in compliance with the decrees. If the gov­
ernment concludes that the companies have violated the 
decrees, then not only may it seek judicial enforcement on 
behalf of the Secretary,* 66 but also the OFCC is in no re­
spect inhibited by the decrees from invoking all sanctions 
available to it—including contract cancellation66 and re­
fusal,-to enter further contracts.67 Nor do the decrees pur­
port to affect any of the Secretary’s other enforcement 
alternatives set forth in subparts C and D of Executive 
Order 11246.

Substantively, the decrees are replete with indications 
of how compliance with the decrees is tied directly to com­
pliance with the Executive Order. Paragraph 3(b) of the 
Agreement incorporated into Consent Decree II requires 
an affirmative action plan approved by the OFCC pursuant 
to the Order;68 paragraph 3(e) provides for annual OFCC 
review of goals and timetables established by that plan in 
order “to determine if they should be adjusted and in order 
to monitor the companies’ efforts to meet and comply with 
such goals and timetables.” In addition to this general 
obligation to submit affirmative action plans for approval,

crimination in employment] and III [nondiscrimination pro­
visions in federal construction contracts] of this Order, except 
authority to promulgate rules and regulations of a general 
nature.

66 Executive Order 11246, § 209(a) (2), 3 C.F.R. at 173-74 
(1974).

66 Id. § 209(a) (5).
67Id. § 209(a) (6).
68 Id. § 202(1), 3 C.F.R. at 170 (1974); 41 C.F.R. §§ 60-1.40, 

60-2.1 et seq. (1974).

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98a

paragraph 10 of Consent Decree I specifically requires the 
companies to implement affirmative action programs for 
trade and craft jobs in accordance with “Revised Order 
No. 4.” 69 Similarly, paragraph 3(a) of Consent Decree 
IPs Agreement provides for OFCC approval of all goals 
and timetables relating to the hiring of minorities and fe­
males where underutilized. Paragraph 11 of Consent De­
cree I orders the companies not to use tests or other 
selection procedures for hiring, assignments, or promotions 
unless such procedures have no disparate impact on minori­
ties and females or unless they have been validated in ac­
cordance with the Secretary of Labor’s regulations.70 
Finally, paragraph 15 of Consent Decree I and Audit and 
Review Committee Directive No. 1, discussed infra, make 
available to the government representatives, and in turn 
the OFCC, all information that it could obtain or would 
require under the Executive Order. All parties to the 
decrees stipulate that any further material needed may be 
obtained by the government member of the Audit and Re­
view Committee.

Under these circumstances, we fail to see how the appel­
lants can seriously argue that the consent decrees have 
diminished either the companies’ obligation to comply or

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

69 41 C.F.R. § 60-2.1 et seq. (1974). Revised Order No. 4 pro­
vides, inter alia, that affirmative action plans “must include an 
analysis of areas in which the contractor is deficient in the utiliza­
tion of minority group's and women. . . .” Id. § 60-2.10 et seq.

70 41 C.F.R. § 60-3.1 et seq. (1974). Paragraph 11 provides that 
such tests also must be validated in accordance with the EEOC’s 
“Guidelines on Employee Selection Procedures,” 29 C.F.R. § 1607 
et seq., which were recently accorded definitive authoritative effect
by the Supreme Court. Albemarle Paper Co. v. Moody, ------  U.S.
----- , 95 S.Ct. 2362, 44 L.Ed,2d ------  (1975).



9 9 a

the Secretary’s duty (or ability) to enforce.71 True, the 
OFCC provisions are novel, but that alone does not render 
them unlawful. "We know of no policy in the law which 
encourages duplication of bureaucratic efforts and expendi­
tures in the absence of a showing that some tangible public 
benefit will accrue. Appellants have made no such showing 
here, nor have they attempted to deal with the fact that 
Congress has turned its face against such duplication. As 
one of the 1972 amendments to Title VII, Congress enacted 
§ 715, 42 U.S.C. § 2000e-14. That section established an 
Equal Employment Opportunity Coordinating Council, 
composed of the Secretary of Labor, the Attorney General, 
and the Chairpersons of the EEOC, the Civil Service Com­
mission, and the Civil Eights Commission, Congress spe­
cifically gave the Council “the responsibility for develop­
ing and implementing agreements, policies and practices 
designed to maximize effort, promote efficiency, and elimi­
nate conflict, competition, duplication and inconsistency 
among the . . . branches of the Federal Government re­
sponsible for the implementation and enforcement of equal 
employment opportunity legislation, orders, and policies.” 
We agree with the appellees that the Secretary of Labor’s

71 Appellants appear to complain, for example, that paragraph 
3(e) of the Agreement acccompanying Consent Decree II amounts 
to a promise by the OFCC to allow the Audit and Review Com­
mittee to finally decide any disputes that may arise under Ex­
ecutive Order 11246. Paragraph 3(e) simply means that the com­
pany and the government representative, who i's the Secretary’s 
delegate as well, shall have an opportunity to resolve the matter 
before drastic sanctions such as contract cancellation are invoked. 
This is entirely consistent with § 209(b) of the Executive Order, 
which requires efforts to conciliate disputes voluntarily prior to 
seeking court orders or cancelling contracts. 3 C.F.R. at 174 
(1974). See also § 205, Id. at 172 (contracting officers are to seek 
compliance through “conference, conciliation, mediation, or per­
suasion”).

O pin ion  o f th e  C o u rt o f  A p p e a ls , A u g u s t  18, 1975



100a

role as a participant in negotiating the decrees, and in shar­
ing his authority with the other government agencies, 
directly implements the congressional mandate in § 715 
and comports fully with the aim of Executive Order 11246 
which is to assure that bidders for government contracts 
do not discriminate.

In conclusion, the appellants’ contention regarding the 
jurisdiction of the district court is frivolous and due to be 
rejected.72 As for any potential violations by the Secretary 
of Labor or the QFCC of Executive Order 11246 or the 
regulations promulgated thereunder, no ripe, justiciable 
controversy is presented for our consideration. We have 
no reason to suspect that the appropriate offices will not 
conduct such hearings and allow such participation (see, 
e. g., 41 C.F.R. § 60-1.26(b)) as the Constitution and laws 
may require when and if disciplinary action against the 
steel companies becomes necessary.

D. Adequacy of Judicial Supervision
This aspect of the appeal raises the question whether the 

district court abused its discretion by entering the consent 
decrees without simultaneously ordering the periodic 
preparation and submission of detailed progress reports 
independent of the information to be generated under the 
decrees. The appellants concede, at least arguendo, that 
the court has unlimited supervisory powers pursuant to its 
retained jurisdiction, but they ask us to presume that it 
will lack sufficient information upon which to properly 
assess the decrees’ viability in practice.

Reference to the law and the record demonstrates that 
appellants’ fears are overwhelmingly speculative and in­

Opinion of the Court of Appeals, August 18, 1975

72 See note 18, supra, and' accompanying text.



101a

consequential as a ground for vacating the decrees. It 
appears to us that their complaint originates from a basic 
misconception of the nature of the parties’ agreement. The 
Supreme Court has explained that:

Consent decrees are entered into by parties to a case 
after careful negotiation has produced agreement on 
their precise terms. The parties waive their right to 
litigate the issues involved in the case and thus save 
themselves the time, expense, and inevitable risk of 
litigation. Naturally, the agreement reached normally 
embodies a compromise; in exchange for the saving of 
cost and elimination of risk, the parties each give up 
something they might have won had they proceeded 
with the litigation. Thus the decree itself cannot be. 
said to have a purpose; rather the parties have pur­
poses, generally opposed to each other, and the re­
sultant decree embodies as much of those opposing 
purposes as the respective parties have the bargaining 
power and skill to achieve. For these reasons, the scope 
of a consent decree must be discerned within its four 
corners, and not by reference to what might satisfy 
the purposes of one of the parties to it. Because the 
defendant has, by the decree, waived his right to liti­
gate the issues raised, a right guaranteed to him by 
the Due Process Clause, the conditions upon which 
he has given that waiver must be respected, and the 
instrument must be construed as it is written, and not 
as it might have been written had the plaintiff estab­
lished his factual claims and legal theories in litigation.

United States v. Armour & Co., 402 U.S. 673, 681-82, 91 
S.Ct. 1752, 1757, 29 L.Ed.2d 256, 262 (1971) (emphasis in 
original and footnote omitted).

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102a

O pin ion  o f th e  C o u rt o f  A p p e a ls , A u g u s t  18, 1975

In a large number of cases which have gone to contested 
judgments under Title VII73 and in other areas of civil 
rights74 the courts have included comprehensive reporting 
requirements in their decrees. Defendants who were found 
guilty of discrimination have been ordered to report di­
rectly to the court so that the federal judge might monitor 
their corrective efforts. Such reporting is designed to 
assist the court in implementing its decree by identifying 
problems for which additional or clarifying orders may be 
necessary. In this case, by virtue of bargaining skill or 
whatever, the defendants successfully pretermitted con­
tested litigation and—at least for the time being—the man­
agement of employment relations in the steel industry by 
direct federal injunction. Not illogically, the consent de­
crees contain no directive requiring the defendants to re­
port to the court at established intervals. Instead, the de­
fendants have assumed the obligation, inter alia, to furnish 
certain information to the Audit and Review Committee 
on a regular basis and to the government upon request,

73 See, e.g., Pranks v. Bowman Transp. Co., 5 Cir. 1974, 495 
F.2d 398, 421, cert, granted, 95 S.Ct. 1421 (1975) ; Pettway, supra, 
494 F.2d at 263-64; Brown v. Gaston County Dyeing Machine Co., 
4 Cir. 1972, 457 F.2d 1377, 1383; United States v. IBEW, 6 Cir. 
1970, 428 F.2d 144, 151; Parham v. Southwestern Bell Tel. Co., 8 
Cir. 1970, 433 F.2d 421, 428.

74 E.g., Raney v. Board of Education of Gould School Dist., 391
U.S. 443, 449, 88 S.Ct. 1697, 1700, 20 L.Ed.2d 727, 732 (1968) ; 
Green v. County School Bd. of New Kent County, 391 U.S 430 
439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716, 724 (1968); Singleton 
v. Jackson Municipal Separate School Dist., 5 Cir. 1969, 419 F.2d 
1211 vacated in part, 396 U.S. 226, 90 S.Ct. 467, 24 L.Ed.2d 382 
(1969), rev’d in part, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed 2d 477 
cert, denied, 396 U.S. 1032, 90 S.Ct. 611-12, 24 L.Ed.2d 530 (1970)’ 
on remand, 5 Cir. 1970, 425 F.2d 1211; Kemp v. Beasley 8 Cir’ 
1968, 389 F.2d 178, 191. , . ■'



103a

thereby subjecting themselves to the court’s contempt 
power for recalcitrance. Similarly, no one disputes that 
the court can require production of any information that 
it might desire in aid of its continuing jurisdiction. Yet it 
ought not be overlooked that the parties shared a par­
amount purpose in settling this matter as they did: that is, 
while the court is vested with final authority to see that 
the decrees are carried out in conformity with the law’, the 
parties have expressed a preference for a scheme which 
contemplates ongoing voluntary compliance in an unusual 
day-to-day atmosphere of self-government. In the absence 
of a contested judicial resolution of the issues raised by 
the government’s complaint, we are obliged to respect that 
purpose. United States v. Armour & Co., supra.

Consequently, we deem as the sole issue presently be­
fore us whether the mechanics of information compilation 
and production established by the decrees are fundamen­
tally sufficient and serviceable to assist, rather than sub­
vert, the district court’s role. The appellants would have 
the steel companies file detailed periodic reports concern­
ing a number of items: (1) all promotions, including iden­
tities of bidding employees and the races of successful 
bidders ; (2) identities and ethnic information regarding all 
“helpers” who qualified for apprenticeship training; (3) 
similar information as to all employees who received such 
training; (4), identities and raises of all persons hired for 
clerical and technical jobs; (5) names and races of all per­
sons enrolled in management training programs; (6) names 
and races of all persons appointed to supervisory positions; 
(7) names and ethnic information about employees affected 
by force reductions; and (8) “detailed information” about 
retained wage rates among LOP transferees. They flatly

O pin ion  o f the C o u rt o f  A p p e a ls , A u g u s t  18, 1975



104a

assert that “[n\one of this information will be provided 
to the District Court under the Consent Decrees.” * 76

We think the appellants are clearly wrong. In the first 
place, paragraph 15 of Consent Decree I and paragraph 5 
of Decree I I ’s Agreement expressly obligate the companies 
to maintain complete records on virtually every item listed 
by the appellants, plus information as to sex. Under para­
graph 15(b), the government (on its own motion or at the 
court’s instance) need only ask for these records in order 
to obtain them. Moreover, appellants seemingly have ig­
nored certain key provisions of Directive No. 1 of the 
Audit and Review Committee, dated May 31, 1974, which is 
in the record and copies of which were furnished to appel­
lants on June 3, 1974. There the Audit and Review Com­
mittee order that its staff76 “shall keep written records of 
all actions taken in performance of the Committee’s duties 
under Consent Decrees I  and II.” Such records are to be 
prepared by company officials, verified by the government, 
the union, and the companies for accuracy, and further­
more “ [cjopies of such written records shall be made avail­
able to all members of the Committee and to the United 
States District Court for the Northern District of Alabama 
■ . . for its review.” (emphasis added). Directive No. 1 also 
provides that every implementation Committee must keep 
-written records “of all actions taken in performance” of its 
duties, and that copies thereof shall be made available to 
the court. It goes without saying that the duties of the

76 Reply Brief for Appellants Harris, et al., at 21 (emphasis in 
original).

76 Ten attorneys from the EEOC and the Departments of Justice 
and Labor are assigned to monitor the decrees’ implementation and 
to report to the government member of the Audit and Review 
Committee. Brief for Appellee United States, at 43 n. 35.

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975



105a

Implementation Committees and the Audit and Review 
Committee include, above all else, monitoring the progress 
of the companies and the union under every paragraph of 
each consent decree. The progress of the companies and 
the union, in turn, can be measured by nothing other than 
the progress of minority and female steelworkers in all 
phases of employment. Complete reports on that progress 
will be “made available,” i. e., delivered, to the district court 
“for its review.” Directive No. 1 can have no other reason­
able meaning, and appellants’ argument to the contrary— 
that it means the court will never see anything but the 
minutes of committee meetings—is unreasonable and un­
acceptable.

In a last-ditch effort, appellants imply that Directive No. 
1 is but a mere subterfuge—that the parties to the decrees 
did not sincerely mean what they said. Appellants ask us 
to presume that the Audit and Review Committee will re­
peal Directive No. 1, perhaps next week, maybe next month, 
in an effort to conceal information from the district court. 
We need only mention that the record contains absolutely 
no evidence to that effect, and hence we respectfully de­
cline to indulge in that presumption. The district court 
possesses plenary authority to deal with such contingencies 
as they may arise. The appellants’ claim of inadequate 
judicial supervision is purely and simply without merit.

E. Lack of Prior Notice
The final contention raised by all appellants is that the 

decrees should be invalidated on the ground that interested 
private parties and their counsel were not invited to par­
ticipate in pre-decree negotiations, nor were they given 
advance formal notice and opportunity to intervene prior 
to entry of the decrees by the district court. To eliminate

Opinion of the Court of Appeals, August 18, 1975



106a

much confusion at the outset, we repeat that we are con­
cerned with a consent judgment between agencies of the 
federal government, nine steel companies, and a union. 
This judgment, in the form of an industry-wide settlement 
of disputes relating to employment discrimination, was 
reached after months of conciliations among the parties 
and the filing of an undisputedly proper § 707 “pattern or 
practice” complaint by the government. To the extent ap­
pellants believe that the absence of prior notice and op­
portunity to intervene abridged an unconditional right of 
intervention, that belief should be dispelled by part II of 
our opinion, supra.

Moreover, we know of nothing in § 707 or in any other 
statute, order, or regulation which suggests that the parties 
must permit private individuals to participate in their 
conferences before the government may finalize a “pattern 
or practice” consent decree. Cf. Hadnott v. Laird, 1972, 149 
U.S.App.D.C. 358, 463 F.2d 304, 308. For reasons explained 
heretofore, private rights do not rise and fall on the out­
come obtained by the government. “In short, the Govern­
ment’s right and duty to seek an injunction to protect the 
public interest exist without regard to any private suit or 
decree.” United States v. Borden Co., 347 U.S. 514, 519, 74 
S.Ct. 703, 706, 98 L.Ed. 903 (1954). As a matter of policy, 
we think it highly doubtful that participation in “pattern 
or practice” conciliations by everyone who so desired would 
serve either the public interest or the interests of minority 
and female employees.77 The remarkable feature of the

77 Citing a policy of the Department of Justice under which 
proposed antitrust consent decrees are made public for “comment 
or criticism” thirty days prior to entry, appellants ask us to order 
the EEOC and Department of Labor to adopt a similar policy for 
Title YII—Executive Order, 11246 consent decrees. Appellants 
assert that we have the necessary authority by virtue of our general

Opinion of the Court of A p p e a ls , A u g u s t  18, 1975



107a

present decrees is that so many self-interested parties were 
able to leave so few unresolved remedial issues. The major 
concessions yielded by the defendants could have been ob­
tained only by all parties to the negotiations working to­
gether unselfishly toward a settlement keyed to broader 
public goals. If a multitude of intervenors and representa­
tives of private individuals with conflicting personal in­
terests had participated in the framing of the decrees, then 
probably no comparable industry-wide agreement could 
have been reached.

The appellants’ demand for notice and hearing prior to 
judicial approval of the consent decrees is not well taken. 
Assuming arguendo that the 1972 amendments to Title VII 
did not affect the capacity of private persons to maintain 
a “pattern or praetice”-type cause of action,78 we do not 
think that appellants were indispensable parties.79 No bona

O p in io n  of th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

supervisory appellate jurisdiction. Perhaps appellants are correct, 
but we decline at this time to so order the agencies. The issue is 
not fully briefed, and our reluctance is based on an exercise of 
discretion. The appellants’ idea, however, may deserve serious con­
sideration by the appropriate departments of government.

78 At least one court has rejected the contention that the amend­
ments narrowed the permissible scope of private Title VII actions 
instituted subsequent thereto. See Dickerson v. United States Steel 
Corp., supra, 64 F.R.D. at 359-60 (by vesting EEOC with power 
to sue, Congress intended to supplement, rather than supplant, 
existing remedies).

79 F.R.Civ.P. 19:
Buie 19.

Joinder of Persons Needed for Just Adjudication
(a) Persons to be Joined if Feasible. A person who is sub­

ject to service of process and whose joinder will not deprive 
the court of jurisdiction over the subject matter of the action 
shall be joined as a party in the action if (1) in his absence 
complete relief cannot be accorded among those already parties, 
or (2) he claims an interest relating to the subject of the



108a

fide contention is made that appellants’ joinder was essen­
tial to fashioning a complete, final, and enforceable judg­
ment as between the government and the defendants. See 
Advisory Committee Note, 1966 Amendments to F.R.Civ.P. 
19. Furthermore, as we have reiterated throughout, every 
appellant and every employee whom appellants purport to 
represent retains his or her private right of action in its

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975

action and is so situated that the disposition of the action in 
his absence may (i) as a practical matter impair or impede 
his ability to protect that interest or (ii) leave any of the 
persons already parties subject to a substantial risk of incur­
ring double, multiple, or otherwise inconsistent obligations by 
reason of his claimed interest. If he has not been so joined, 
the court shall order that he be made a party. If he should 
join as a plaintiff but refuses to do so, he may be made a 
defendant, or, in a proper ease, an involuntary plaintiff. If  
the joined party objects to venue and his joinder would render 
the venue of the action improper, he shall be dismissed from 
the action.

(b) Determination by Court Whenever Joinder not Feasible. 
If a person as described in subdivision (a) (l)-(2) hereof can­
not be made a party, the court shall determine whether in 
equity and good conscience the action should proceed among 
the parties before it, or should be dismissed, the absent person 
being thus regarded as indispensable. The factors to be con­
sidered by the court include: first, to what extent a judgment 
rendered in the person’s absence might be prejudicial to him 
or those already parties; second, the extent to which, by pro­
tective provisions in the judgment, by the shaping of relief, 
or other measures, the prejudice can be lessened or avoided; 
third, whether a judgment rendered in the person’s absence 
will be adequate; fourth, whether the plaintiff will have an 
adequate remedy if the action is dismissed for nonjoinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting 
a claim for relief shall state the names, if known to the 
pleader, of any persons as described in subdivision (a) (l)-(2) 
hereof who are not joined, and the reasons why they are not 
joined.

(d) Exception of Class Actions. This rule is subject to the 
provisions of Buie 23.



109a

entirety.80 Obviously, the nonjoinder of appellants and 
other minority and female steelworkers subjects each de­
fendant to “a substantial risk of incurring double, multiple, 
or otherwise inconsistent obligations.” Quite arguably, 
however, that is a risk Congress intended to impose. With­
out a doubt it is one which the defendants are willing to 
incur. In any case, the appellants have neither identified 
all of the persons whom they would have the court join 
as plaintiffs, nor did they present any evidence concerning 
the physical feasibility of such joinder. We conclude that 
the district court did not abuse any principles of “equity 
and good conscience” in proceeding as it did, especially in 
view of the drastic and disfavored remedy of dismissal 
which is dictated by Rule 19 where indispensability is 
inescapable. Cf. United States v. Masonry Contractors 
Assn., supra, 497 F.2d at 875. Note also that the district 
court took special care in the “shaping of relief,” F.R.Civ.P. 
19(b), to avoid prejudice with respect to future interven­
tion, even by persons who already had been allowed to 
intervene, in the event additional questions arise concern­
ing the decrees in operation. 63 F.R.D. at 4 n. 2, 5. This

80 This follows from the rule that the judgment in a govern­
ment “pattern or practice” action simply does not hind private 
individuals, unless they voluntarily choose to become parties to it. 
See note 38, supra. Hence, we also fail to see how the consent 
decree's “raise difficult questions under . . . the Due Process 
Clause.” Brief for Appellants Harris, et al., at 87. Specifically, 
we cannot conceive of how the decrees operate as an “adjudica­
tion” of appellants’ rights, or how their terms may deprive the 
appellants of life, liberty, or property—particularly when, as we 
have determined, no private person has a “right” to advancement 
of his or her specific claim in litigation brought by the govern­
ment, or to representation by the government in court in a 
capacity comparable to attorney and client. See Mullane v. Cen­
tral Hanover Bank & Trust Co., 339 U.S. 306, 313, 70' S.Ct. 652, 
656-57, 94 L.Ed. 865, 872, (1950). See also our discussion of 
paragraphs C and 19, supra.

O p in ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975



110a

procedure may well prove to be more useful over the life 
of the decrees than would a single opportunity for a con­
test preceded by formal notice to all interested individuals, 
assuming such notice were physically and fiscally possible.

Actually, any further consideration of appellants’ theory 
in terms of joinder of parties becomes hopelessly distorted 
and unproductive. It appears to us—though again the argu­
ment is utterly vague and conelusory81—that their real 
objective is to convert what began as a government “pattern 
or practice” suit into an eventual F.R.Civ.P. 23 class action. 
Under Rule 23(a) one or more members of a class may 
initiate a class action when, inter alia, “(1) the class is so 
numerous that joinder of all members is impracticable . . . 
(emphasis added). This criterion is consistent with the 
scope in which appellants purport to prosecute these ap­
peals : “Appellants intervened for the express purpose of 
assuring that all aggrieved employees, to the extent prac­
ticable, were given adequate notice and an opportunity to 
be heard prior to final approval of the D e c re e s 82 and: 
“National Organization for Women, Inc., Present and 
Former Female Employees of Defendant Companies.” 83

81 Brief for Appellants Harris, et al., at 87.
82 Reply Brief for Appellants Harris, et al., at 23. See also 

footnote 10, supra. The Harris intervenors’ complaint in inter­
vention before the district court was to the same effect. Specific 
reliance was placed on Rule 23. Appendix at 130a.

83 Certificate Required by Fifth Circuit Local Rule 13(a), Brief 
for Appellants NOW, et al. Because these 13(a) certificates are 
sometimes worded broadly in the interest of caution—for which 
the court is appreciative—we add the following extract from 
NOW’S amended complaint in intervention, filed in behalf of the 
three female appellants, which leaves no room for doubt:

3. Plaintiffs Beasley, Fix and Halascsak bring this action 
pursuant to Rule 23(b)(2) and (3), F.R.C.P., on behalf of 
all former, present and future female employees of Defendant

O pin ion  o f th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975



111a

We need not delve into a labyrintMan search for the 
answer to whether the district conrt somehow erred in 
failing to certify the proceedings below as a class action 
before finally entering the decrees, for no one has briefed 
or argued the point in exactly those terms. Yet we find 
both ironic84 and puzzling the apparent assumption that 
class action treatment necessarily would have yielded the 
results sought by appellants. In the context of Title VII 
and employment discrimination generally, such actions 
today are conducted typically pursuant to F.R.Civ.P. 23(b) 
(2), which presupposes allegations that the defendant has 
acted or refused to act in a manner hostile to the group, 
thus making declaratory or injunctive relief appropriate 
in favor of the entire class, if warranted by the evidence.85 
The (b)(2) class is by definition a cohesive aggregate, and 
hence its members are said to be bound by a “superior” 
res judicata effect. See Wetzel v. Liberty Mutual Ins. Co.,
3 Cir. 1975, 508 F.2d 239, cert, denied ----- TJ.S. ------ , 95
S.Ct. 2415, 44 L.Ed.2d 679 (1975); LaChapelle v. Owens-

O pin ion  o f th e  C ourt o f A p p e a ls , A u g u s t  18, 1975

Companies. * * * The class is also composed of female persons 
who were, or might become members of the Defendant United 
Steelworkers of America, AFL-CIO, and who have been and 
continue to be or might be adversely affected by the practices 
complained of herein.

Appendix at 168a.
84 As did Judge Pointer. See 63 F.R.D. at 7.
86 See, e.g., Franks, supra, 495 F.2d at 421-22; Pettway, supra, 

494 F.2d at 256-57; Johnson v. Goodyear Tire & Rubber Co., supra, 
491 F.2d at 1375; Bing v. Roadway Express, Inc., supra, 485 F.2d 
at 447-48; Robinson v. Lorillard Corp., 4 Cir. 1971, 444 F.2d 791, 
801-02, cert, dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 
655; Bowe v. Colgate-Palmolive Co., supra, 416 F.2d 711, 720. 
The usual arguments for (b)(2) treatment proceed from the 
theorem that “racial discrimination is by definition class discrim­
ination.” E.g., Dickerson v. United States Steel Corp., supra, 64 
F.R.D. at 357-59.



112a

Illinois, Inc., 5 Cir. 1975, 513 F.2d 286, 288 n. 7 ((b)(2) 
members may not “opt out”) ; 3B. J. Moore’s Federal Prac­
tice 23.31 [1], at 23-526-27 (1974). Thus, unlike the 23(b) 
(3) “common question” class action (most frequently uti­
lized in suits for money damages), as to which Rule 23(c) 
(2) requires individual notice to the fullest practicable 
extent, Rule 23 contains no specific notice requirement for 
(b)(2) actions.86

Even so, in connection with awards of classwide back pay 
we have suggested that some form of notice should be dis­
tributed in order to overcome “the problem of binding un­
identified class members.” Pettway, supra, 494 F.2d at 257. 
But experience teaches that such notice may come late in 
the litigation. Id. Moreover, in view of Eisen v. Carlisle & 
Jacquelin, 417 U.S. 156, 177 n. 14, 94 S.Ct. 2140, 2152 n. 14, 
40 L.Ed.2d 732, 748 n. 14 (1974), and Sosna v. Iowa, 419 
U.S. 393, 396 n. 4, 95 S.Ct. 553, 556 n. 4, 42 L.Ed.2d 532, 539 
n. 4 (1975), we must approach skeptically the notion that 
such notice must issue at all—at least at the expense of 
someone other than a volunteer—in class actions other than 
(b)(3) actions. In Eisen the Supreme Court carefully laid 
aside the dual problem of what notice, if any, might some­
day be necessary in favor of a (b)(1) or (b)(2) class’s 
absent members, and who would be responsible for the 
expense. In Sosna, however, the Court indicated quite 
plainly that since the suit sought injunctive and declaratory

86 The notice contemplated by Rule 23(d)(2), for example, is 
not mandatory, but rather discretionary with the trial court. 
Bing, supra, 485 F.2d at 448. “The rule . . . does not command 
the giving of any notice to members of (b) (1) and (b) (2) types 
of class actions, and ‘in the degree that there is cohesivenes's or 
unity in the class and the representation is effective, the need for 
notice to the class, will tend toward a minimum.’ ” 3 B. J. Moore’s 
Federal Practice j[ 23.72, at 23-1421 (1974), quoting Advisory 
Committee Note, 1966 Amendments to F.R.Civ.P. 23.

Opinion of the C o u rt of Appeals, A u g u s t  18, 1975



113a

relief, but not monetary relief, “the problems associated 
with a Buie 23(b)(3) class action, which were considered 
by this Court last Term in [Eisen],” did not exist. Id. 
Thus, speaking conservatively, it is by no means clear that 
advance notice to all affected individuals would have fol­
lowed had the district court permitted appellants to litigate 
the merits of the consent decrees in a procedurally less- 
onerous form of Rule 23 class action. Of course, after 
Eisen, we do not suppose that appellants would have wished 
to proceed pursuant to Rule 23(b)(3), although we intimate 
no opinion concerning the nature of relief, if any, which 
may require a (b)(1) or (b)(2) action to accommodate the 
notice prescription applicable to class actions under (b) (3). 
We simply note, by way of summary, that appellants appar­
ently seek to reach a particular destination—advance notice 
to all aggrieved steelworkers—by a rather dubious and, 
perhaps, prohibitively expensive route.

Nevertheless, some private parties were allowed to inter­
vene and attack the decrees’ legality subsequent to their 
entry. Certainly that factor alone did not moot the com­
plaints about the absence of prior notice, but we have de­
termined that those complaints lack merit. With respect 
to the party scope of the subsequent intervention, only 
NOW complains, and we have already rejected NOW’s 
contentions. The dispute over participation by aggrieved 
employees thus reduces to the settled principle “that inter­
vention will not be allowed for the purpose of impeaching 
a decree already made.” United States v. California Coop. 
Canneries, 279 U.S. 553, 556, 49 S.Ct. 423, 424, 73 L.Ed. 838, 
841 (1929). Naturally the rule is not inflexible, and we 
think the district court acted wisely in allowing the inter­
vention that took place. See Shapiro, Some Thoughts on 
Intervention Before Courts, Agencies, and Arbitrators, 81

O pin ion  o f  th e  C o u rt o f A p p e a ls , A u g u s t  18, 1975



114a

Harv.L.Rev. 721 (1968). Yet the court clearly was entitled 
to limit the issues as it did, and to deny vacation of the 
decrees absent a convincing showing that they operated to 
violate substantial rights of the intervenors. See generally 
3 B. J. Moore’s Federal Practice UH 24.16 [1] , 24.16 [5], at 
24-595-96, 24-651-52 (1974). They do not, and that decides 
this point.

O pin ion  o f the  C o u rt o f A p p e a ls , A u g u s t  18, 1975

IV. R elief fob W omen

On behalf of the three female appellants whom it was 
permitted to appoint as intervenors, NOW complains of 
certain alleged deficiencies in the items of relief afforded 
women under the consent decrees. These objections go 
squarely to the adequacy-in-fact of the decrees’ remedial 
provisions, and therefore our limited scope of review pre­
cludes substitution of our judgment for that of the par­
ties. We find none of these alleged shortcomings fatal to 
the decrees’ legality, nor did their possible existence render 
Judge Pointer’s approval of the decrees an abuse of dis­
cretion. We briefly discuss these objections.

First, NOW claims that the nation’s female workforce 
is severely underrepresented in the steel industry. Con­
ceding at least “tokenism” by the steel companies in the 
hiring of women since Title VII took effect on July 2, 1965, 
NOW nevertheless contends that gross underrepresenta­
tion persists—mainly in production and maintenance jobs 
and in trades and crafts—because many more women would 
be engaged in such occupations today but for alleged whole­
sale discharges and bans on new female hires in the post­
war 1940’s. NOW thus asserts that today’s shortage of 
females in traditionally “male” jobs is a “present effect” 
of 1940’s sex discrimination; that each of its victims should



115a

be identified and immediately hired or reinstated with full 
constructive seniority and back pay from two years prior 
to the filing of the first such charge; and that the consent 
decrees are defective as a matter of law because they do 
not provide this relief.

We may assume that NOW is correct on all the facts 
and most of the law, but the consent decrees stand. As­
suming, for example, that massive discrimination in the 
1940’s survived the effective date of Title VII, that con­
structive seniority could properly be awarded, and that its 
recipients could show themselves entitled to some amount 
of back pay, the hurdles of limitations and laches are by 
now virtually insurmountable, as NOW admitted in the 
district court. Under these circumstances the decrees 
clearly are not fatally deficient for want of relief to women 
who were discharged or refused employment thirty years 
ago. In the event any woman feels she can sustain such a 
claim, the decrees plainly do not affect her ability to pursue 
it in a private suit.

Next, NOW attacks paragraph 10(a) of Consent Decree 
I, which provides that affirmative goals for female pro­
motion into trades and crafts shall be based on the per­
centage of females in production and maintenance jobs. 
Proceeding once more from the alleged historic exclusion 
of women from both types of jobs, NOW maintains that 
paragraph 10(a) “makes a mockery” out of any obliga­
tion on the companies’ part to promote females into trades 
and crafts.

NOW has simply overlooked paragraph 2(a)(1) of the 
Agreement incorporated into Consent Decree II. That para­
graph establishes as an interim goal, subject to annual re­
view, that twenty percent of all new hires in production 
and maintenance shall be female. That goal, together with

O pin ion  o f the  C o u rt o f  A p p e a ls , A u g u s t  18, 1975



116a

mandatory utilization analyses, is likewise to be submitted 
to the OFGC for approval pursuant to Executive Order 
11246.87 Trade and craft jobs are among the more de­
sirable and difficult in the plant. It is no surprise that the 
parties would create priorities in filling those jobs for per­
sons already employed in the plant and thus familiar with 
its operations. Because the present number of women oc­
cupying production and maintenance jobs is small, NOW 
is correct in that the initial effect of the decrees is to set 
a relatively small numerical goal for females in trades and 
crafts. That condition, however, should be cured rather 
quickly as more women are hired into production and main­
tenance units and goals are periodically recomputed on 
the basis of plant population. As the percentage represen­
tation of women in production and maintenance grows by 
virtue of Decree I I ’s hiring requirement, the numerical 
rate for female advancement to trades and crafts should 
rise correspondingly. And again, any woman who dislikes 
the goals established by the decrees retains her right to 
seek additional or inconsistent relief in court without for­
feiting whatever benefits the decrees confer upon her.

NOW’s final exclusively-feminist contention is a chal­
lenge to the decrees’ failure to provide seniority carryover 
and rate retention for women who may seek to transfer 
from a technical, clerical, or plant security job into pro­
duction and maintenance. NOW asserts that such relief is 
mandated by Bing v. Roadway Express, Inc., supra, where 
we held that a black “city” driver who had been di scrim -

87 We note that NOW apparently has also overlooked the fifty 
percent minority-female trade and craft ratio set forth in para­
graph 10(d) of Consent Decree I, as well as the twenty-five per­
cent minority-female supervisory goal and affirmative action duties 
undertaken by the companies in subparagraphs 2(a)(3) and (c), 
respectively, of Decree IPs Agreement.

O pin ion  o f  the  C o u rt o f A p p e a ls , A u g u s t  18, 1975



117a

inatorily excluded from a higher-paying “road” position 
was entitled to “road” seniority from the date at which he 
would have transferred, based on his qualifications, but 
for racial discrimination. We believe NOW places far too 
general a reliance on BING. Truck driving is essentially 
truck driving, though firms sometimes require more ex­
perience for “road” positions. By contrast, secretarial work 
and rail straightening are, at least in obvious respects, 
quite different. At any rate, the female appellants did not 
introduce any evidence into the record which might enable 
a court to develop this point in greater detail. Accordingly, 
we assume from our common experience that clerical- 
technical-plant security and production-maintenance are 
basically unrelated occupations. Of course, even if we are 
incorrect, and we know there are some similar jobs—e. g., 
production record-keeping, the present state of affairs is 
not irrevocable; the progress under each decree is subject 
to continuing review and modification as circumstances 
justify. Likewise, any woman who considers herself ag­
grieved may file a charge and/or a lawsuit. The decrees 
themselves are not made unlawful simply because they 
presently fail to deal with every conceivable allegation of 
discrimination in the steel industry. In conclusion, NOW’s 
claims on behalf of the three female appellants are with­
out merit; NOW’s misunderstanding of eligibility for back 
pay is easily resolved by a careful reading of paragraph 
18(c) of Decree I; all other contentions are considered and 
rejected.

V. Conclusion

We would be remiss if we failed to mention the decision 
of the Supreme Court in Albemarle Paper Co. v. Moody, 
----- U.S. ——, 95 S.Ct. 2362, 44 L.Ed.2d------ , which was

Opinion of the Court of Appeals, August 18, 1975



118a

handed down on June 25, 1975, as we neared completion 
of our work in this case. We have reviewed Moody care­
fully—indeed with great particularity its repeated empha­
sis that one of Title YII’s paramount purposes is “to make 
persons whole for injuries suffered on account of unlawful
employment discrimination.” At p .----- , 95 S.Ct, at p. 2372.
This emphasis is entirely consistent with the opinions from 
our circuit which we have cited or discussed herein. Fur­
thermore, we are fully mindful that Moody reaffirms as 
“ ‘[t]he general rule . . . that when a wrong has been done, 
and the law gives a remedy, the compensation shall he 
equal to the injury.’ ” Id. a t ----- , 95 S.Ct. at p. 2372, quot­
ing Wicker v. Hoppock, 73 U.S. 94, at 99, 6 Wall. 94, at 
99, 18 L.Ed. 752.

Yet Moody does not affect our thinking about this case. 
The critical portion of the Court’s rejection of “good faith” 
as a general defense to liability for back pay—a rejection 
already accomplished in a number of our decisions—begins 
on page 14 of the opinion, viz: “It follows that, given a 
finding of unlawful discrimination. . . .” (emphasis added). 
We may reasonably assume that the Court chose its words 
cautiously, for shortly thereafter it discussed in some detail 
the meaning of “clearly erroneous” in the context of other 
issues presented by Moody. Here, of course, we have no 
judicial finding of unlawful employment discrimination, 
only two consent decrees. To our knowledge they are gov­
erned by rules of law substantially less rigorous than those 
which govern contested litigation. Correspondingly, the 
scope of our appellate review is narrower, though no less 
deliberate. In sum, we adhere to our conclusions that these 
consent decrees are consistent with the public interest,., that 
they represent a sound and reasonable exercise of the dis­
cretion possessed by the executive agencies, and that they

Opinion o f  the  C ourt o f  A p p e a ls , A u g u s t  18, 1975



119a

Opinion of the Court of Appeals, August 18, 1975

implement the policies of Title VII and related laws to an 
exceptionally thorough degree. Unless settlement is to be 
held unlawful, we do not think the decrees may be struck 
down.

For the reasons assigned heretofore, the judgment of the 
district court is 

Affirmed.



120a

UNITED STATES DISTRICT COURT 
N orthern D istrict of A labama 

S outhern D ivision 

No. CA 74-P-339-S

O pin ion  o f  t h e  D istric t C ourt, Jan u a ry  6 , 1976

U nited S tates, et al.,
Plaintiffs,

■—vs.—

A llegheny-Ludlum I ndustries, I nc., et al.,

Defendants.

Memorandum of Opinion

On January 2,1976, the court heard argument on a series 
of motions and, at the conclusion of the hearing, announced 
orally its conclusions thereon. While the rulings and the 
rationale were set forth from the bench, it is appropriate 
to enter an abbreviated memorandum of opinion and order.

1. Motion by defendants for amendment of Consent 
Decree 1. The defendants assert that Consent Decree I, 
as interpreted by the Court of Appeals, 517 F.2d 826, 852- 
856 (CA5 1975), fails in one particular to memorialize the 
actual agreement reached by the parties to the litigation 
and that, given the contractual nature of a consent decree, 
it should be amended (or reformed) to conform to the 
actual agreement of the parties. While the plaintiffs have 
not joined in this motion, they state that they are estopped 
to deny the defendants’ allegations and indeed have ac­



121a

knowledged to the court that the defendants accurately 
characterize the true agreement reached by the parties, 
one which by mutual mistake was not expressed in the 
written agreement presented to the court (as construed by 
the appellate court).

This is not a situation where a party is seeking to amend 
a consent decree to provide for a contingency which, though 
never agreed upon by the parties, is needed to satisfy the 
purposes of the parties or some of them. Cf. U.S. v. 
Armour & Co., 402 U.S. 673 (1971). It is rather based 
upon the assertion, undisputed by the parties to the agree­
ment, that the written record of that agreement is by 
mutual mistake of the parties contrary to what they actu­
ally agreed upon. That the written agreement has received 
the imprimatur of the court should not change the right of 
the parties to obtain a correction, at least if intervening 
rights of innocent persons have not accrued during the 
interim.

The focus is not upon what the parties’ present inten­
tions and desires may be, nor even upon what their private 
intentions may have been at the time of agreeing with one 
another. The question is whether they did in fact actually 
come to a “meeting of the minds” on a matter which, as it 
turns out, is, by mutual mistake, not embodied in their 
written agreement.

The parties are in accord as to having come to such a 
“meeting of the minds”. Lest, however, this accord be 
possibly the result of their present desires, the court be­
lieves that an opportunity should be given to some “third 
persons”, having an interest (though no accrued rights) 
in perpetuating the original language of the Consent De­
cree, to test, after appropriate discovery, the correctness 
of the parties’ present recollections of what they agreed

O p in io n  o f the  D is tr ic t C o u rt, J a n u a r y  6, 1976



122a

upon in the past. While affording such an opportunity, 
however, the court should give due consideration to the 
unanimity from the parties themselves both as to the facts 
and as to their opposition to any delay in the premises.

Accordingly, the court has (1) granted the defendants’ 
motion to amend Consent Decree I and entered such amend­
ment, (2) allowed the requesting intervenors to intervene 
under F.R.Civ.P. Rule 24(b) for the purpose of filing a 
motion to reconsider the granting of defendants’ motion,
(3) denied intervenors’ oral motion for a stay of the amend­
ment, and (4) granted intervenors’ motion for discovery 
limited, however, to evidence in support of their motion 
to reconsider upon the ground that the language of para­
graph 18(g) of Consent Decree I, as construed by the 
Court of Appeals, represents the true agreement of the 
parties as to the scope of the releases to be tendered to 
affected employees.

2. Motion on behalf of Audit and Review Committee for 
approval of proposed release forms and notice forms to be 
submitted to affected employees. The proposed release and 
notice, as submitted by the Audit and Review Committee, 
are approved by the court with certain changes. Appro­
priate changes shall be made in the following respects:

(1) To reflect the expanded scope of the release in 
view of the granting of defendants’ motion to amend 
Consent Decree I.

(2) To clarify the effect of the release upon pend­
ing litigation.

(3) To clarify that access to the Implementation 
Committee for information in no way precludes an

O pin ion  o f th e  D is tr ic t C o u rt, J a n u a r y  6, 1976



123a

employee from seeking other advice and counsel of 
his own choice and at his own expense.

(4) To make explicit that the calculation of the back 
pay amount was by a formula which did not give spe­
cial attention to the earnings or situation of the indi­
vidual employee, but rather utilized plant continuous 
service dates.

(5) To provide, and give notice, that employees may 
be able to obtain upon timely request an extension of 
time for deciding whether to accept the back pay 
tender.

The court will, without further hearing, review with repre­
sentatives or counsel from the Audit and Review Com­
mittee revisions of the notice and release to effect the 
foregoing and to make minor modifications of form.

The authorization from this court to tender back pay 
and releases to affected employees, and to communicate 
with them about such matters, is limited to employees who 
are neither parties, class members, or potential class mem­
bers in pending litigation involving alleged employment 
discrimination. As to employees who are parties, class 
members or potential class members in pending litigation, 
tender of back pay and releases may be made only after 
obtaining permission of the court having jurisdiction over 
such litigation, and subject to such terms and conditions 
as may be imposed by such courts. The function of this 
court has been to review the proposed tender for compli­
ance with the provisions of Consent Decree I, and this 
court does not purport to speak for other courts in deter­
mining whether tender of back pay and release should be 
permitted in connection with litigation there pending. If

O p in io n  o f th e  D is tr ic t C o u rt, J a n u a r y  6, 1976



124a

such other courts should permit tender to he made, it is 
anticipated—though this would he a decision for such other 
courts—that appropriate modifications would he made in 
the notices, such as, for example, identifying counsel for 
the class and describing the status of the litigation.

The proposed intervenors, with the exception of one 
group, are involved in pending litigation and will, as indi­
cated in the preceding paragraph, have the opportunity 
to he heard in the court where such litigation is pending 
on the question of whether—or in what form—tender of 
back pay and release should be permitted as to such em­
ployees and their class. Accordingly, they need not he 
permitted as intervenors here. However, one of the pro­
posed intervenor groups—K. D. Pender, Charles R. Brown, 
Sr., Robert L. Hill, and William R. Tilghman—is not so 
situated and, under F.R.Civ.P. Rule 24(h), such persons 
are allowed to intervene to oppose the proposed tender of 
hack pay and releases. Such opposition is, however, denied 
subject to the changes previously indicated.

3. Motion on behalf of EEOC for approval of proposed 
letters. The proposed letters to be sent by the EEOC to 
affected employees with pending EEOC charges are, with 
minor modifications indicated at the time of the hearing, 
approved. As these letters are not to be sent prior to tender 
of back pay and releases, the mailing of these letters to 
employees at plants involved in pending litigation is indi­
rectly subject to the control of the courts having jurisdic­
tion over such litigation. This court reserves ruling on 
whether changes in these letters or other communications 
should be directed to correct misinformation which may 
possibly have been given by some EEOC offices respecting 
the Consent Decree and pending charges.

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125a

4. Motion on behalf of certain employees of Republic 
Steel having pending cases. A motion filed on behalf of 
employees of Republic Steel having cases pending in the 
Northern District of Alabama is rescheduled for hearing, 
at a date to be determined, in connection with those respec­
tive cases, rather than in CA 74-P-339. The private em­
ployment discrimination cases involving the defendants 
which are pending before this the United States District 
Court for the Northern District of Alabama will, on appro­
priate request, be scheduled for hearing on motions to 
make tenders of back pay and releases in such cases.

This the 5th day of January, 1976.

/ s /  Sam C. P ointer, J r.
United States District Judge

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126a

UNITED STATES DISTRICT COURT 
N orthern D istrict oe A labama 

S outhern D ivision 

No. CA 74-P-339-S

O rd er o f th e  D istric t C ourt, Jan u ary  6 , 1976

U nited S tates, et al.,
Plaintiffs,

—vs.—

A llegheny-Ludlum I ndustries, I nc., et al.,
Defendants.

O R D E R
It is hereby  Ordered, A djudged, and D ecreed as fo llow s:

1. The third sentence of paragraph 18(g) of Consent 
Decree I is hereby amended to read as follows:

“Such release will also bar claims for additional relief 
of any kind, including injunctive relief and damages, 
based on alleged injury suffered at any time after 
April 12, 1974, by reason of continued effects of any 
such discriminatory acts which occurred on or before 
April 12, 1974.”

2. Those persons who have heretofore applied to inter­
vene to oppose the foregoing amendment are hereby, under 
Federal Rules of Civil Procedure Rule 24(b), permitted to 
intervene for the purpose of filing a Motion to Reconsider 
the foregoing amendment and, upon filing such Motion



127a

to Reconsider, they are granted leave to conduct discovery 
of evidence, if any, which would support a conclusion that 
the parties to the Consent Decree did not agree that the 
release would bar the claims described above. The oral 
motion of such persons for a stay of the effective date of 
the amendment is hereby denied.

3. The motion of the Audit and Review Committee for 
Approval of Back Pay Release and Notice Form is, with 
certain modifications made known in open court and in­
dicated in the Memorandum of Opinion filed this date, 
granted.

4. The motion of the Equal Employment Opportunity 
Commission for Approval of EEOC Letters to Affected 
Employees with Pending EEOC Charges is, with certain 
modifications made known in open court, granted. ,

5. The motion of K. D. Pender, Charles R. Brown, Sr., 
Robert L. Hill and William R. Tilghman to intervene to 
oppose the Motions of the Audit and Review Committee 
and the Equal Employment Opportunity Commission, as 
described in paragraphs 3 and 4 of this order, is granted, 
under Federal Rules of Civil Procedure Rule 24(b), but 
their objections and opposition to such Motions are denied.

6. Except to the extent specified in paragraphs 2 and 5 
of this order, the applications for intervention are denied.

This the 5th day of January, 1976.

/s /  Sam C. P ointer, J r.
United States District Judge

O rder of the D is tr ic t Court., J a n u a r y  6, 1976



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