United States v. Friday Petition for a Writ of Certiorari

    No.

In %  OInurt nf %  MnxUh
October Term , 1985

U nited States of A merica, et al ., petitioners

V.

William C. F riday, et al.

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

FOR THE FOURTH CIRCUIT

Charles F ried 
Acting Solicitor General

Wm . Bradford Reynolds 
Assistant Attorney General

Charles J. Cooper 
Deputy Assistant Attorney General

Walter W. Barnett 
Michael A. Garvin 

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTION PRESENTED

Whether black state employees establish a claim 
under Section 703(a) of the Civil Rights Act of 1964, 
42 U.S.C. 2000e-2(a), by identifying current salary 
disparities between themselves and white employees 
holding the same jobs, when such disparities result 
from a state policy before 1965 of paying blacks 
lower salaries than whites.

(I)



II

PARTIES TO THE PROCEEDING

The parties to this prooeeding are identified in the 
petition filed by the private plaintiffs in this case, 
No. 85-93, at pages iii-vi.



TABLE OF CONTENTS
Page

Opinions below___ _____ ________________________ _ 1

Jurisdiction .......................... .............................................. 2

Statute involved _______ __—____ ________________ 2

Statement ..............- ............—.................... -................... - 2

Reasons for granting the petition ................... .............15

Conclusion ___________________ _______________ ___22

Appendix ................ ............ ..................................... ........... la

TABLE OF AUTHORITIES
Cases:

Acha V. Beame, 570 F.2d 57 ........ ................. -----..... 17
American Tobacco Co. v. Patterson, 456 U.S. 63.. 16,18 
Arizona Governing Committee v. Norris, 463 U.S.

1073 ______ _______________ _____ -..................  21
Bartelt V. Berlitz School of Languages, 698 F.2d

1003 ........ ............ ............................... ......................  16
Cates V. Trans World Airlines, Inc., 561 F.2d

1054 ______ _____ ___ - .............................. ...........  11
Clark V. Olinkraft, Inc., 556 F.2d 1219 __ _______ 15-16
Corning Glass Works v. Brennan, 417 U.S. 188.... 18
Cox v. Stanton, 529 F.2d 47 ....................................  13
Dumas v. Mount Vernon, 612 F.2d 974 ____ ____  17
Eisen v. Carlisle & Jacquelin, 417 U.S. 1 5 6 ...........  22
Fowler v. Birmingham Neivs Co., 608 F.2d 1055.. 11
Furnco Construction Corp. v. Waters, 438 U.S.

567 ---------------------------- ----------:......................... 19,21
General Building Contractors Ass’n v. Pennsyl­

vania, 458 U.S. 375 __ ____ _____________ ____ 21
Green v. School Board, 391 U.S. 430 .......... .............  21
Hazelwood School District v. United States, 433

U.S. 299 __________ __:............... ......... ...........11,14, 16
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 ......... .................... ................. 18, 19

(III)



IV
Cases—Continued: Page

International Union of Electrical Workers v.
Westinghouse, 631 F.2d 1094 ___     16

Jenkins v. Home Insurance Co., 635 F.2d 310___  16
Laffey v. Northwest Airlines, Inc., 567 F.2d 429.... 16
Lamphere v. Brown University, 685 F.2d 743.......  15
Norman V. Missouri Pac. R.R., 414 F.2d 7 3 _____  16
Patterson v. American Tobacco Co., 586 F.2d

300 ....... ........................................,.......................... 17
Pullman-Standard v. Swint, 456 U.S. 273 .............  16,18
Smith V. Segar, cert, denied, No. 84-1200 (May 20,

1985) ..........      19
Trabucco V. Delta Airlines, 560 F.2d 3 1 5 ................ 11
United Airlines, Inc. v. Evans, 431 U.S. 553...... 11,14,15,

16,17

Constitution, statutes and rule:
U.S. Const. Amend. XIV .......................................... 5
Civil Rights Act of 1964:

Tit. VI, 42 U.S.C. 2000d et seq.:
§ 601, 42 U.S.C. 2000d ...................... ............ 5

Tit. VII, 42 U.S.C. 2000e et seq. :
§ 703, 42 U.S.C. 2000e-2 ..................................... 5
§ 703(a), 42 U.S.C. 2000e-2(a) ........................ 2
§ 703 (h ), 42 U.S.C. 2000e-2 (h)  __ _______  16

Equal Pay Act, 29 U.S.C. 206 ______________ __  18
42 U.S.C. 1981 ___ _______ ___________________  5
Fed. R. Civ. P. 23 _____________________ _______ 6

Miscellaneous:
M. Finkelstein, The Judicial Reception of Multiple 

Regression Studies in Race and Sex Discrimina­
tion Cases, 80 Colum. L. Rev. 737 (1980) ...........  6



3n % Bnprmt (Hmrt ct % '̂ nxUh BUitB
October Term , 1985

No.

U nited States of A merica, et al., petitioners

V.

W illiam C. F riday, et al.

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

FOR THE FOURTH CIRCUIT

The Acting Solicitor General, on behalf of the 
United States, the Secretary of Agriculture, and the 
Deputy Director of the Science and Education Ad­
ministration Extension, petitions for a writ of cer­
tiorari to review the judgment of the United States 
Court of Appeals for the Fourth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 
346a-481a)^ is reported at 751 F.2d 662. The opin­
ions of the district court (Pet. App. 3a-207a, 216a- 
345a) are unreported.

1 “Pet. App.” refers to the appendix in No. 85-93, filed 
by the private plaintiffs below.

( 1 )



JURISDICTION

The judgment of the court of appeals (App., 
infra, la-3a) was entered on December 10, 1984. Re­
hearing was denied on April 15, 1985 (Pet. App. 
482a). On July 5, 1985, the Chief Justice extended 
the time for filing a petition for a writ of certiorari 
to and including September 12, 1985. The jurisdic­
tion of this Court is invoked under 28 U.S.C. 1254(1).

STATUTE INVOLVED

Section 703(a) of Title VII of the Civil Eights Act 
of 1964, 42 U.S.C. 2000e-2(a), provides in pertinent 
part:

It shall be an unlawful employment practice 
for an employer * * * to discriminate against 
any individual with respect to his compensation, 
terms, conditions or privileges of employment, 
because of such individual’s race * * *.

STATEMENT

1. The North Carolina Agricultural Extension 
Service provides services to state residents involving 
the dissemination of useful information relating to 
agriculture and home economics, e.g., through educa­
tional programs for farmers and sponsoring 4-H and 
extension homemaker clubs (Pet. App. 7a, 12a-20a). 
It is funded jointly by the United States Department 
of Agriculture, the State of North Carolina, and the 
various counties in the State (Pet. App. 7a-8a). 
Agricultural extension agents, professional employees 
at the county level, are in three ranks: agent, asso­
ciate agent and assistant agent (Pet. App. 17a). 
The three ranks perform “essentially the same types 
of tasks”, although the agents have more responsi­
bility and are expected to maintain higher perform­



ance levels than associate agents, the intermediate 
position, or assistant agents, the entry level position 
(Pet. App. 17a).

Until August 1965, the Service was divided into 
“a white branch * * * and a Negro branch * * * 
composed entirely of black personnel [serving] only 
black farmers, homemakers and youth” (Pet. App. 
27a). Although black and white county agents had 
identical responsibilities and job descriptions (Pet. 
App. 29a), “ [t]he salaries of black agents * * * were 
lower than the salaries of their white counterparts” 
(Pet. App. 30a).

The two branches of the Service were merged on 
August 1, 1965; the disparities between the salaries 
of equivalent black and white agents who were already 
employed remained, although no racial distinction 
was made in the initial salaries of agents hired after 
the merger (Pet. App. 31a, 359a). In 1972, when the 
Service and other public employers became subject to 
Title VII, “ [sjome pre-existing salary disparities 
continued to linger on” (Pet. App. 360a).^ The court 
of appeals noted in December 1984 that “the Exten­
sion Service admits that, while it had made some 
adjustments to try to get rid of the salary disparity 
resulting on account of pre-Act discrimination, it 
has not made all the adjustments necessary to get rid 
of all such disparity” (Pet. App. 389a-390a).

Since the merger, the Service has established a 
minimum salary level for all new county agent posi-

2 A memorandum prepared by Dr. Blalock, an Assistant 
Director of the Service in early 1971, stated that black pro­
fessionals earned $800-$l,100 less annually than comparable 
whites because of “the competitive market,” “tradition” and 
“less county support for non-white positions” (C.A. App. 1606, 
1608; Pet. App. 439a-440a).



tions. Newly hired agents with advanced degrees, 
prior relevant experience or particularly needed skills 
are paid more than the minimum. Moreover, each 
agent’s salary reflects a contribution by the county in 
which he is employed, the amount varying from 
county to county. Pay increases awarded by the 
county or the state may be in the form of an equal 
sum to each employee, or as a percentage of the 
salary. Finally, the state and some counties provide 
for merit pay increases and increases to otfset in­
flation. Pet. App. 360a-362a.

The position of county extension chairman was 
created shortly before the merger, by making the 
white county agents responsible for coordinating the 
entire extension program in their respective counties 
(C.A. App. 1001-1002, 1783). Although there were 
black county agents in 51 of North Carolina’s 100 
counties, each of the initial chairmen selected was a 
white (C.A. App. 1745; GX 75).® In November 
1972, the Service introduced a system of announcing 
job vacancies and accepting applications for county 
chairman positions (Pet. App. 24a-25a, 75a).^ Appli­
cants who possess the minimum qualiflcations for 
county chairman are interviewed by Service officials, 
who then make a recommendation to the board of 
county commissioners (Pet. App. 25a-26a, 76a-77a). 
The county generally accepts the recommendation 
(C.A. App. 171), but “all appointments are worked

8 No black was appointed to a county chairman position 
until March 1971, after 151 whites had been appointed (C.A. 
App. 1745 ;GX 75).

* Before that time, county chairmen had been selected from 
a list of possible candidates prepared by the Assistant Director 
for County Operations and the district chairman of the per­
tinent district (C.A. App. 165).



out jointly between the Extension Service and the 
commissioners and no official action can be taken uni­
laterally by either party with respect to filling a 
vacancy” (Pet. App. 77a). In some instances, the 
Service recommends more than one candidate to the 
county (ibid.). Few black applicants have been 
selected as county chairmen, and none has been 
selected in preference to a white male applicant.®

Prior to 1965, the Service had established separate 
all-white and all-black 4-H and extension homemaker 
clubs. After 1965, the Service requested a formal 
assurance from each such club that it would not dis­
criminate on the basis of race, color, or national origin 
(GX 115, at 3). However, most of the clubs have 
continued to operate on a single-race basis.

2. This suit was started in November 1971 by 
more than 50 black employees of the Service, alleging, 
inter alia, intentional racial discrimination in employ­
ment in violation of the Fourteenth Amendment of 
the Constitution, 42 U.S.C. 1981.* The United States 
intervened in the action on April 7, 1972; its com­
plaint in intervention, as amended, alleged racial dis­
crimination against black employees in violation of 
the Fourteenth Amendment, Section 601 of Title VI 
of the Civil Rights Act of 1964, 42 U.S.C. 2000d and 
Section 703 of Title VII of the Civil Rights Act of 
1964, 42 U.S.C. 2000e-2 (Pet. App. 4a-5a, 35a). 
Plaintiffs asserted intentional racial discrimination 
in various incidents of employment, such as salaries, 
job assignments and promotions, and in the selection

® See page 7, infra.

® The complaint was subsequently amended to include claims 
under Title VII (Pet. App. 35a).



of county chairmen, as well as in the continued sup­
port of single-race 4-H and extension homemaker 
clubs (Pet. App. 49a-51a). The employment-related 
claims included individual claims of discriminatory 
treatment as well as allegations of intentional pat­
terns and practices of discrimination (Pet. App. 49a- 
52a, 227a-339a). The private plaintiffs also sought 
class certification of the case under Fed. R. Civ. P. 23 
(Pet. App. 33a-34a).

The case was tried to the court for 10 weeks start­
ing in December 1981. The evidence introduced by 
the United States included multiple regression analy­
ses  ̂comparing the salaries of black and white agents 
in 1974, 1975 and 1981.® These regressions used four 
independent variables—race, education, tenure and 
job titlê —and showed a statistically significant racial 
effect for 1974 (C.A. App. 1601, 402-403) and 1975 
(C.A. App. 1589, 416). Defendants also presented 
multiple regression analyses for 1975 and 1981, show­
ing similar results. In addition, defendants presented 
regressions that added quartile rank, a measure of 
job performance, as an independent variable.” Doing 
so for 1975 increased the race effect (C.A. App. 1716

multiple regression analysis is a statistical method of 
determining the effect of several variables upon a particular 
dependent variable, such as salary. See M. Finkelstein, The 
Judicial Reception of Multiple Regression Studies in Race and 
Sex Discrimination Cases, 80 Colum. L. Rev. 737 (1980). A 
regression permits simultaneous consideration of a number 
of independent variables.

« These analyses compared the salaries of county agents 
hired after the Service was consolidated, as well as those hired 
before that date.

® Quartile rank is used in determining merit salary in­
creases (Pet. App. 113a-115a, 363a, 384a-385a).



(analysis 6)). This result was statistically signifi­
cant/®

In addition to the statistical evidence of salary 
disparities, the government introduced statistical and 
other evidence relating to the selection of county 
chairmen. The evidence established that between No­
vember 1972, when the first vacancy announcement 
appeared, and October 1981, 77 county chairmen were 
selected, of whom 72 were white and 5 were black 
(C.A. App. 1736-1740, 919-920). “ No blacks were 
selected before July 1, 1976, and only 2 of the 5 
blacks selected between November 1972 and that 
date competed with a white applicant, in each case 
a white female; no black has ever been selected when 
there was a white male applicant (C.A. App. 1736- 
1740, 1003, 1006; GX 172, at 94-95; see C.A. Br., 
Table 7, at lO a-lla).

Plaintiffs also introduced evidence showing that al­
though the size of the 4-H club system has varied con­
siderably over the years, there have been more than 
1,000 all-white clubs each year since 1972 (C.A. App. 
2237; GX 11), and more than 850 single-race clubs 
in communities identified by defendants as “ethically 
mixed” (C.A. 1807). The extension homemaker clubs 
also remain largely single-race clubs (C.A. App. 1797- 
1807; Tr. 941-942, 1524-1525, 2390, 2449-2450).

The level of significance was .0003, i.e., there was less 
than one chance in 3,000 that the race effect was due to chance 
(C.A. App. 1713-1714).

“ Several blacks testified that they had not sought chairman­
ships because they believed that it would be futile to do so 
(Pet. App. 93a). Each of the blacks who did apply met the 
objective qualifications for county chairman. Several whites 
who did not meet those qualifications have been made chair­
men (C.A. App. 170).



8

3. The district court denied class certification (Pet. 
App. 38a-46a), asserting that “for all intents and 
purposes the suit became a class action” when the 
United States intervened (Pet. App. 45a). The court 
ruled that class action certification “is inappropriate 
and unnecessary in pattern and practice suits” 
brought by the government under Title VII (Pet. 
App. 45a-46a), noting that “[i]f the government pre­
vails herein the relief granted can be as broad as any 
that could be granted in any private class action 
suit” (Pet. App. 46a (footnote omitted)).

The district court, however, ultimately rejected all 
claims of the private plaintiffs and the United States. 
It held that no pattern or practice of racially dis­
criminatory treatment in the salaries of county-level 
employees had been shown. Noting that “ [i]t is un­
disputed that” before the merger of the black and 
white branches, the Service paid black agents less 
than white ones, and although “steps were taken to 
begin [the] elimination” of this disparity before the 
Service was covered by Title VII in 1972, the court 
recognized that “the government has offered evidence 
tending to show that as of January, 1973, the salaries 
of numerous black agents throughout the system were 
less than those of white agents in the same counties 
who were in comparable or lower positions and who 
had comparable or less tenure * * * [and] defend­
ants’ own exhibit [showed] some salary disparities 
between blacks and whites as late as October, 1974” 
(Pet. App. 120a-121a). The district court neverthe­
less found that “while on its face [the] evidence un­
questionably establishes salary disparities, when 
viewed in the light of defendants’ explanatory evi­
dence it fails to prove discrimination” {id. at 122a-



9

1 2 3 a ) T h e  court described plaintiffs’ regression 
analyses showing a continuing racial disparity in 
salary levels as flawed primarily because they failed 
to account for job performance (Pet. App. ISda).’'’ 
In sum, the court “conclude[d] that the plaintiffs had 
probably made out a prima facie case with respect to 
defendants’ promotions and salary practices * * * 
[but] the defendant * * * articulat[ed] plausible 
reasons for its actions * * * which the court found 
convincing” (Pet. App. 190a).

The district court also held that the plaintiffs failed 
to establish a prima facie case of racial discrimina­
tion in the selection of county chairmen, and that “in 
any event the defendants have effectively rebutted 
plaintiffs’ case by showing the inaccuracy and insig­
nificance of plaintiffs’ proof” (Pet. App. 100a). The 
court found that although 77 county chairman posi-

Before analyzing the statistical data, the court explained 
its approach to the interpretation of the requirements of the 
Civil Rights Act of 1964 (Pet. App. 121a-122a) :

Just as it had been found in the area of education that 
there is no such thing as instant integration, it was soon 
found in the field of business and industry that there is no 
such thing as instant [e] quality in employment. Without 
risking serious disruption of a business by prohibitively 
costly budgetary alterations and a possible practice of 
wholesale reverse discrimination it was soon recognized 
(though not always by the courts) that the adjustments 
mandated by the law simply could not be made overnight.

Thus, the defendants’ “explanatory evidence” as to blacks 
hired under the dual system apparently included the historical 
fact of discrimination.

The court was also troubled by what it perceived as the 
erroneous failure of the analyses to account for nine other, 
somewhat overlapping variables, relating to merit and cost of 
living raises that varied between counties, prior experience, 
and market demands for particular kinds of experience.



10

tions had been filled since the institution of statewide 
vacancy announcements in 1972, blacks had applied 
for only 18 of those positions (Pet. App. 78a); finding 
the selection rate for blacks to those 18 positions ac­
ceptable (Pet. App. 86a), the court held that the 
Service’s selection procedures for county chairman 
have, since 1972, been applied in a nondiscriminatory 
manner (Pet. App. 101a). The court rejected plain­
tiffs’ claim that blacks had been deterred from apply­
ing for chairmanships (Pet. App. 99a), and also 
rejected all individual claims of discrimination in 
promotions to county chairman (Pet. App. 227a- 
317a).

As to the claim that the Service permitted segre­
gated 4-H clubs and extension homemaker clubs to 
be maintained in North Carolina, recognizing and 
providing services to such clubs, the district court 
found that there are many clubs to which members 
of both races belong” (Pet. App. 165a) and that 
“ [i]f any individual has become a member of a club 
composed only of members of his or her own race, it 
has been an entirely voluntary act” (Pet. App. 172a). 
The court found no evidence of any denial of member­
ship or discrimination in services on the basis of race, 
and concluded that the law does not require that these 
clubs be integrated (Pet. App. 165a-185a). The court 
ruled that the evidence did not demonstrate any dis­
criminatory intent on the Service’s part in tolerating 
the single-race clubs (Pet. App. 179a-182a), and that 
the Service did not violate the law in opting to “con­
tinue to provide its much needed services to [all] club 
members while striving to achieve full integration of 
the clubs [rather than to] withdraw such services 
altogether” (Pet. App. 184a-185a).

_ 4. The court of appeals affirmed, Judge Phillips 
dissenting in part. The panel majority agreed with



11
the district court’s conclusion that before the Civil 
Rights Act became applicable to the Service, blacks 
were paid less than whites performing the same jobs, 
and that even after the Service became subject to the 
Act “ [sjome pre-existing salary disparities continued 
to linger on” (Pet. App. 360a). It stated succinctly 
that (Pet. App. 380a):

The plaintiffs claim that the pre-Act discrimi­
natory difference in salaries should have been 
affirmatively eliminated but has not. We do not 
think this is the law.

The panel majority relied for its view on Hazelwood 
School District v. United States, 433 U.S. 299 (1977), 
and United Air Lines, Inc. v. Evans, 431 U.S. 553 
(1977), as well as a number of court of appeals deci­
sions following Evans in rejecting time-barred claims 
with continuing effects on seniority rights (Pet. App. 
381a-382a).'^

This view of the Act’s requirements led the panel 
to fault all of the regression analyses of the county- 
level salaries of all current black employees—recent 
hires as well as pre-act hireŝ —because the figures 
analyzed “reflect the effect of pre-Act discrimination” 
(Pet. App. 389a (footnote omitted)). For this rea­
son, as well as because “both experts omitted from 
their respective analysis variables which ought to be 
reasonably viewed as determinants of salary”, the 
analyses were “unacceptable as evidence of discrim­
ination” (Pet. App. 391a).

The panel majority also ruled that “the employ­
ment decisions made by the Extension Service with 
respect to the selection of County Chairmen were

Fowler V. Birmingham News Co., 608 F.2d 1055 (5th 
Cir. 1979) ; Trabucco v. Delta Airlines, 590 F.2d 315 (6th Cir. 
1979) ; Cates v. Trans World Airlines, Inc., 561 F.2d 1054 
(2d Cir. 1977).



12

made when the Service either recommended or did 
not recommend an applicant for an existing vacancy 
to the County Commissioners” (Pet. App. 405a- 
406a). It therefore examined the data as to the Serv­
ice’s recommendations, rather than the selection stat­
istics relied on by plaintiffs or the district court (Pet. 
App. 412a-415a).“ The majority determined, with 
respect to those positions for which there were black 
applicants, that “the Extension Service recommended 
essentially the same percentage of black applicants 
as it did white applicants” (Pet. App. 415a). It also 
examined the data as to all applications for all va­
cancies—“the proper way to consider the applicant 
flow data” (Pet. App. 418a)—and drew a similar 
conclusion (Pet. App. 421a). The court therefore 
held that the Service’s decisions as to county chair­
men selections were made “in as evenhanded a way 
as could be imagined” (Pet. App. 423a).

Finally, the panel majority held that the district 
court “correctly denied the plaintiffs’ claim with re­
spect to the alleged affirmative duty to require inte­
grated membership” in 4-H clubs and extension home­
maker clubs because, absent proof of intentional dis­
crimination, “the mere existence of all white and all 
black * * * [c] lubs in some racially mixed communi­
ties” does not violate the law (Pet. App. 424a n.l28). 
The panel majority also affirmed the denial of class 
certification, stating inter alia (Pet. App. 366a- 
367a) :

the intervention of the government in the case,
asserting its broad pattern or practice claims

On appeal, we challenged the district court’s analysis, 
arguing that the court erred in excluding vacancies for which 
only whites applied while including vacancies for which only 
blacks applied. The court of appeals majority declined to re­
solve our objections (Pet. App. 412a) in view of its alterna­
tive approach.



13
which would have required relief as broadly 
based as the claimed plaintiffs’ classes would 
have received, made it possible for the plaintiffs 
to introduce all evidence they would have been 
able to introduce had the classes been certified. 
All the questions on the merits were also pre­
sented to the court which would have been pre­
sented had the classes been certified. Thus, in a 
practical sense at least, even if not in a techni­
cal one, the complaint on appeal on account of 
failure of class certification may seem to be of 
little moment or was made moot by the interven­
tion of the government.

5. Judge Phillips dissented from the majority’s 
dismissal of the salary claims (Pet. App. 425a, 433a- 
469a). He also dissented from the dismissal of the 
4-H club claims (Pet. App. 469a-481a), and the re­
fusal to certify a class (Pet. App. 426a-433a). With 
regard to the salary claims, he pointed out that “un­
disputed evidence”—including a memorandum by 
then Assistant Director Blalock (see note 2, supra) — 
showed that the salary differentials continued “well 
past 1968 (the earliest limitation date applicable to 
the salary claim).” Pet. App. 438-439a.̂ ® The regres­
sion analyses of both plaintiffs’ and defendants’ ex­
perts were, moreover, “wholly consistent” in showing 
a substantial, across the board race-based disparity 
(Pet. App. 449a-450a), which was not rebutted by 
any “evidence that the inclusion of other relevant 
variables would in fact reduce the race-effect coeffi­
cient to a statistically insignificant level” (Pet. App. 
450a-451a (emphasis in original)). Defendants’ hy-

As Judge Phillips recognized, the complaint, filed in No­
vember 1971, included claims based on the Constitution and 
Title VI, applicable to the states since 1964. A three-year 
limitation period applies to those claims. Cox V. Stanton, 529 
F.2d 47, 49-50 (4th Cir. 1975).



14
potheses about possible explanations should not have 
sufficed to overturn this clear showing. In sum, Judge 
Phillips concluded that “the only rational assess­
ment to be made of the evidence in this record” (Pet. 
App. 456a) is that “of course the general pattern of 
pre-1965 overt discrimination in salary continued in 
substantial, if gradually diminishing, degree until at 
least 1976 and perhaps beyond”, and that responsible 
Service officials knew that such a race-based pattern 
continued and failed to correct it {id. at 455a-456a). 
The majority’s failure to award relief on such a rec­
ord must, then, result from “misapprehensions of 
controlling legal principle” {ibid.), including the 
identification of the “relevant time frame within 
which the existence of a pattern or practice of salary 
discrimination was to be assessed” (Pet. App. 457a). 
Thus, although the district court focused on whether 
a discriminatory pattern or practice continued to ex­
ist at the time of trial in 1981, the real issue was 
whether there was such a pattern at any time after 
1972, or even 1968 (see note 16, supra). In addition. 
Judge Phillips disagreed with the panel majority’s 
reading of Hazelwood and United Airlines, Inc. v. 
Evans, supra, as applicable to plaintiffs’ salary claims 
(Pet. App. 462a-467a). Those cases. Judge Phillips 
explained, do not permit an employer to “continue 
practices now violative simply because at one time 
they were not. * * * * *  Indeed, with respect to pay 
and other ‘condition of employment’ claims, as op­
posed to hiring and other work-force composition 
claims, it may well be argued that the [Hazelwood- 
Evam] principle simply has no logical application” 
(Pet. App. 465a-466a).

6. Rehearing en banc was denied by an equally 
divided court. The private plaintiffs filed a petition 
for certiorari on July 15, 1985 (No. 85-93), seeking 
review of the judgment of the court of appeals.



15

REASONS FOR GRANTING THE PETITION

1. We agree with the private petitioners that the 
court of appeals incorrectly decided that Title VII 
provides no remedy to black employees hired before 
the effective date of the Act, when the Service main­
tained two separate, racially segregated branches and 
paid blacks less on account of their race, and who as 
a result have received, and today receive, lower sal­
aries than white employees performing the same jobs 
with the same amount of experience. The decision of 
the court of appeals creates a conflict in the circuits 
and denies the private petitioners protection to which 
they are entitled under Title VII. Accordingly, we 
believe this Court should grant certiorari to review 
this issue.

The courts of appeals have consistently recognized 
that pre-Act, intentional discrimination cannot be 
used to justify the post-Act payment of lower salaries 
to blacks than to similarly situated white employees. 
See, e.g., Laviphere v. Brown University, 685 F.2d 
743, 747 (1st Cir. 1982); Clark v. Olinkraft, Inc., 556

17 We recognize that this issue is a rather narrow one, and 
that this Court’s resolution of that issue will not obviate the 
need for further proceedings. In the first place, the question 
involves the effect on current employees of employment prac­
tices to which they were subjected before they became entitled 
to the Act’s protections. The issue is thus of diminishing im­
portance except insofar as its resolution may serve as an 
analogy in addressing similar questions that arise with respect 
to time-barred post-Act claims. Cf. United Air Lines, Inc. v. 
Evans, 431 U.S. 553, 558 (1977). Secondly, as both courts 
below concluded, the “lingering effects” of pre-Act discrimi­
nation here are buried in a complex matrix of post-Act salary 
decisions, such as merit raises, cost of living increases, and 
county-to-county variations in salary increases (Pet. App. 
109a-116a; 360a-362a). The extent of the actual discrimina­
tory effect on any employee is thus presently unclear.



16
F.2d 1219, 1222 (5th Cir. 1977); International Union 
of Electrical Workers v. Westinghouse, 631 F.2d 1094 
(3d Cir. 1980); Laffey v. Northwest Airlines, Inc., 
567 F.2d 429, 437-438 (D.C. Cir. 1976); Norman v. 
Missouri Pac. R.R., 414 F.2d 73, 84-85 (8th Cir. 
1969); cf. Bartelt v. Berlitz School of Languages, 
698 F.2d 1003, 1004 (9th Cir. 1983) (time^barred 
establishment of discriminatory salary); Jenkins v. 
Home Insurance Co., 635 F.2d 310, 312 (4th Cir. 
1980) (same).

This Court’s decisions in Hazelwood School District 
V. United States, 433 U.S. 299 (1977), and United 
Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), upon 
which the court below relied, should properly be dis­
tinguished from the pay issue in this case. Those 
cases establish that pre-Act or time-barred hiring 
decisions cannot form the basis for a claim under 
Title VII, even when those decisions have continuing 
current effects due to the operation of a bona fide 
seniority system.^* Similarly, pre-Act promotion deci­
sions cannot be challenged under Title VII on the 
theory that the claimant who should have received 
the promotion now continues in a lesser job at a sal­
ary level below that that he would have obtained had he 
not been the victim of pre-Act discrim ination.H ir-

Section 703(h) of Title VII, 42 U.S.C. 2000e-2(h) vali­
dates only “bona fide seniority systems.” If the employee can 
show that the seniority system was adopted with a discrimina­
tory intent, Section 703(h) affords the employer no protec­
tion. Pullman-Standard v. Swint, 456 U.S. 273, 276-277 
(1982). This Court has emphasized that Section 703(h) 
“makes no distinction between seniority systems adopted be­
fore its effective date and those adopted after its effective 
date” American Tobacco Co. v. Patterson, 456 U.S. 63, 76 
(1982).

As the private petitioners note (85-93 Pet. 23-24), 
there appears to be a conflict in the circuits over whether the



17
ing and promotion decisions are discrete acts, taken 
once and for all at a single moment in time. If the 
discriminatory hiring or promotion decision occurred 
prior to the passage of the statute or beyond the 
horizon of the statute of limitations, it can not be 
the subject of suit, even though the consequences of 
that decision may well continue to the present. In­
deed it could scarcely be otherwise, unless the Act is, 
as a practical matter, to have retroactive application 
and relief for past illegalities is to be available into 
the indefinite future. For better or worse unlawful 
discriminatory hiring and promotion decisions must 
either be timely complained of or be taken to have 
fixed a person’s situation once and for ail—unless, of 
course, fresh illegalities are subsequently committed.

discriminatory denial of promotion constitutes a continuing 
offense. That dispute is only over whether the employee can 
rely on a continuing practice of discriminatory denials of 
promotion to avoid a statute of limitations defense, or whether 
he must file within the statutory period after he is himself 
denied promotion. Compare, e.g., Acka v. Beame, 570 F.2d 57, 
65 (2d Cir. 1978) (continuously maintained illegal employ­
ment policy may be subject of complaint until statutory time 
“after the last occurrence of an instance of that policy”, citing 
cases) and Patterson v. American Tobacco Co., 586 F.2d 300, 
304 (4th Cir. 1978) (same), with, e.g., Dumas v. Mount 
Vernon, 612 F.2d 974 (5th Cir. 1980) (suit must be filed 
within statutory time after employee should have perceived 
discrimination was occurring). We are unaware of any case 
in which a court has permitted an employee to rely on the 
current effect of a promotion policy which, although allegedly 
discriminatory, was terminated in a time-barred period. Such 
a complaint, we submit, would clearly be untenable under 
Evans. Moreover, we have serious doubts about the validity 
of any theory that would permit an employee, who does not sue 
in a representative capacity, to recover when the denial of 
promotion that affected him is wholly pre-Act or time barred, 
even if the discriminatory policy continues so as to affect other 
employees.



18
No such practical and conceptual difficulties attend 

the correction of unequal salaries which are the con­
tinuation of pre-Act, admittedly racially based pay 
differentials. Thus, just as an intentionally discrimi­
natory seniority system, even one that was adopted 
before the Act became effective, is unlawful (PullmaTi^ 
Standard v. Swint, 456 U.S. 273, 276-277 (1982); 
American-Tobacco Co. v. Patterson, 456 U.S. 63, 76 
(1982)), so that it affords no justification for cur­
rent employment practices that have a race-based ef­
fect, so the courts of appeals have correctly recog­
nized that an intentionally discriminatory pre-Act 
salary system affords no justification for current sal­
ary practices that have a race-based effect. See pages 
15-16, supra. To the extent that the court of appeals’ 
justification of pay disparities as merely the “linger­
ing effects” of pre-Act overt discrimination repre­
sents a willingness to tolerate such a practice, it can­
not be allowed to stand.^“

^  This Court’s decision in Corning Glass Works v. Brennan, 
417 U.S. 188 (1974), on which petitioners in No. 85-93 rely 
(Pet. 27-28), is not strictly in point. That case arose 
under the Equal Pay Act, 29 U.S.C. 206, which specifically 
forbids the payment of lower wages to women than to men 
performing the same work. A violation of the Equal Pay Act 
is thus established simply by such a showing: the date 
when the disparity originated, and the reasons underly­
ing the disparity, are largely irrelevant. In contrast, the 
plaintiff in this discriminatory treatment case under Title VII 
must establish not only the disparity in wages, but also the 
employer’s intent to discriminate. See International Brother­
hood of Teamsters v. United States, 431 U.S. 324, 335 n.l5 
(1977). Thus we submit that a current disparity in salaries, 
without more, cannot be the basis for this Title VII claim of 
discriminatory treatment. Instead, it is necessary to examine 
the basis for that disparity to determine whether there has 
been actionable intentional discrimination subject to a timely 
challenge. Here, although the Service’s decision to pay black



19
2. We do not believe the other questions presented 

by the private petitioners merit review by this Court.
a. Private petitioners assert that the court of ap­

peals required that a plaintiff’s statistical evidence 
“consideh[] every conceivable non-racial variable” 
(85-93 Pet. i, 35-44). We disagree with that read­
ing of the opinion below. Instead, we believe that 
the court of appeals adopted the correct rule; any 
error in application of that rule to the facts of this 
case does not warrant review by this Court.

In our petition last Term in Smith v. Segar, cert, 
denied, No. 84-1200 (May 20, 1985), we argued that 
a rule of reasonableness must apply: To establish a 
prima facie case, plaintiff’s statistics must take ac­
count of the neutral factors that normally would be 
expected to account for salary differentials. Once 
those variables have been included, if plaintiff’s sta­
tistics still show a race-based disparity, the defen­
dant must proffer an explanation in order to avoid 
the inference that the disparity results from illegal 
discrimination. Cf. International Brotherhood of 
Teamsters v. United States, 431 U.S. 324, 368 
(1977); Furnco Construction Corp. v. Waters, 438 
U.S. 567, 580 (1978).

In essence, that is the rule the court of appeals 
adopted here. It faulted the Government’s statistical 
analyses for omitting “variables which ought to be 
reasonably viewed as determinants of salary” (Pet. 
App. 391a). While the parties may disagree (as 
indeed we disagreed with the district court and court 
of appeals in seeking rehearing in this case) over 
how the variables should be treated in a particular

employees less than whites for the same work was taken before 
Title VII became applicable to public employers, there is no 
dispute that the Service’s compensation scheme was inten­
tionally discriminatory.



20
case, the variables on which the court below focused 
—job performance, prehire experience, and differ­
ences between the counties in salary levels—are, at 
least as a general matter, reasonable ones for consid­
eration in an analysis of salary rates.®̂  Moreover, 
the district court concluded that defendants had, by 
“evidence, which the court found convincing” estab­
lished a neutral explanation sufficient to rebut plain­
tiffs’ statistics (Pet. App. 190a-191a). Thus we be­
lieve the court of appeals’ general approach on this 
matter was correct and any disagreement we have 
is at a level of detail not meriting review by this 
Court.

b. The private petitioners contend that the court 
of appeals erred in finding the Service had not dis­
criminated in its employment decisions relating to 
county chairmen (85-93 Pet. 49-55). The court of 
appeals concluded that the relevant “employment 
decisions” were completed when the Service made its 
recommendations for the county chairman position 
to the responsible county officials. It therefore ana­
lyzed those recommendations and concluded that they 
had not been discriminatory. In our petition for re­
hearing en banc we noted that the panel failed to 
recognize that the Service shared the responsibility 
for the selection of county chairman. This factual 
error does not warrant review by this Court. Peti­
tioners, on the other hand, assert that the Service 
should nevertheless have been held vicariously liable 
for discriminatory actions by county officials. This is 
incorrect. Title VII requires that covered employers

Although we pointed out in our petition for rehearing 
en banc (at 5 n.4) that the court of appeals erred in con­
cluding that those variables were not adequately accounted 
for in the statistical analyses, that error in analyzing the par­
ticular evidence in this case does not warrant review by this 
Court.



21

not discriminate in their own employment practices; 
it does not make them “the guarantors of the work­
ers’ rights as against third parties who would in­
fringe them.” General Building Contractors Ass’n 
V. Pennsylvania, 458 U.S. 375, 396 (1982) (citing 
Furnco Construction Cory. v. Waters, 438 U.S. 567 
(1978), a Title VII case).""

c. Private petitioners also ask this Court to review 
the conclusion of the court of appeals (Pet. App. 
424a n.l28) that “the mere existence of all white 
and all black 4-H and Extension Homemaker Clubs 
in some racially mixed communities violates neither 
Title VI nor the equal protection clause of the four­
teenth amendment * * * [when] the record is totally 
devoid of any proof of discrimination with respect 
to services provided by any 4-H or Extension Home- 
maker Club.” Petitioners assert (85-93 Pet. 44-49) 
that this conclusion is inconsistent with this Court’s 
rejection of “freedom of choice” plans adopted by a 
school board in Green v. School Board, 391 U.S. 430 
(1968). We do not believe that the principles appli­
cable to compulsory public education are directly 
relevant to the voluntary organizations involved here, 
nor do we believe that the standards to be applied 
to such state-sponsored voluntary organizations 
merit review by this Court in a case in which the

22 Contrary to the private petitioners’ assertion (85-93 Pet. 
53-54), Arizona Governing Committee v. Norris, 463 U.S. 
1073 (1983), does not require a contrary result. The employer 
was liable in Norris because the challenged compensation 
benefits were only available to employees if they chose a bene­
fit plan with an insurer selected by the state employer. Since 
the state only offered sexually discriminatory benefit plans, it 
had made the “employment decision” that was discriminatory 
in the provision of benefits. Here, if, as the court of appeals 
concluded, the county made the “employment decision” on 
selection, Norris is inapplicable.



22

court of appeals has found that the organizations 
have been conducted in an entirely race-neutral man­
ner since Title VI was adopted, and that finding is 
not alleged to be clearly erroneous.

d. Finally, private petitioners allege (85-93 Pet. 
55-58) that the denial of class certification here is 
inconsistent with Eisen v. Carlisle cf Jacquelin, 417 
U.S. 156 (1974). This issue does not affect the gov­
ernment’s interests, and we accordingly express no 
view on whether petitioners’ allegation is correct. We 
note, however, that private petitioners do not dispute 
the conclusion of the court of appeals that the govern­
ment’s intervention placed petitioners in the same po­
sition they would have been in had the class been 
certified (Pet. App. 366a-367a). Accordingly, the 
court of appeals correctly concluded that “in a prac­
tical sense at least, even if not in a technical one, 
the complaint on appeal on account of failure of class 
certification may seem to be of little moment or was 
made moot by the intervention of the government” 
(ibid.). A fortiori, that complaint does not warrant 
review by this Court.

CONCLUSION
This petition for a writ of certiorari should be 

granted.
Respectfully submitted.

Charles F ried 
Acting Solicitor General 

Wm . Bradford Reynolds 
Assistant Attorney General 

Charles J. Cooper 
Deputy Assistant Attorney General 

Walter W. Barnett 
Michael A. Carvin 

Attorneys
September 1985



APPENDIX

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

December 10, 1984

TO: Cressie H. Thigpen, Jr., Esq.
Edward D. Reibman, Esq.
Millard R. Rich, Jr., Esq.
Howard E. Manning, Sr., Esq.
Howard E. Manning, Jr., Esq.
David Marblestone, Esq.
Eric Schnapper, Esq.
0. Peter Sherwood, Esq.

NOTICE OF JUDGMENT
Judgment was entered in Case No. 82-1873, 82- 

1881, 82-1927, 82-2065 this date.
The Court’s opinion is enclosed.

Petition for Rehearing (FRAP 40)
Filing Time
A petition may be filed within 14 days after judg­
ment. No extension will he granted save for the most 
compelling reasons. Requests based on grounds such 
as miscalculation of time or a need to consult with 
others will be peremptorily denied.

Purpose
A petition should only be made to direct the Court’s 
attention to one or more of the following situations :
1. A material fact or law overlooked in the decision.

( la )



2a

2. A change in the law which occurred after the case 
was submitted and which was overlooked by the 
panel.

3. An apparent conflict with another decision of the 
Court which is not addressed in the opinion.

The flling of a petition in order merely to reargue 
the case is an abuse of the privilege.

Statenient of Counsel
A petition shall contain an introduction that, in coun­
sel’s judgment, one or more of the situations exist as 
described in the above “Purpose Section”. The points 
to be raised shall be succinctly listed in the state­
ment. Lacking such a statement, the petition will be 
returned to counsel without filing.

Form
The page 15 limit allowed by the Rule shall be ob­
served. The Court requires 15 copies of the petition; 
however, a pro se party who is indigent may file the 
original copy.

Bill of Costs (FRAP 39)
Filing Time
A party to whom costs are allowed, who desires taxa­
tion of costs, shall file a bill of costs within 14 days 
after judgment.

Mandate (FRAP 41)
Issuance Time
The mandate is issued 21 days after judgment. A 
timely petition for rehearing will stay the issuance. 
If the petition is denied, the mandate will issue 7



3a

days later. If a stay of mandate is sought, only the 
original of a motion need be filed.

Stay
A motion for stay of the issuance of the mandate 
shall not be granted simply upon request. Ordinarily 
the motion will be denied unless it would not be frivo­
lous or filed merely for delay and would present a 
substantial question or otherwise set forth good or 
probable cause for a stay.

John M. Greacen 
Clerk

i t  U .  S .  GOVERNMENT PRINTING OFFICE;  1 9 8 S



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