(AFSCME) v. Washington Brief Amicus Curiae of LDF; The National Association of Black Women Attorneys, et. al

    /

IN THE
UNITED STATES COURT OP APPEALS 

FOR THE NINTH CIRCUIT

Nos. 84-3569 
84-3590

AMERICAN FEDERATION OP STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO (AFSCME), et al.,

Plaintiffs/Appellees 
v.

STATE OF WASHINGTON, et al.,
Defend ants/Appel1ants

APPEAL PROM THE UNITED STATES DISTRICT COURT, 
WESTERN DISTRICT OF WASHINGTON

Brief Amicus Curiae of the NAACP Legal 
Defense & Educational Fund, Inc.; The 
National Association of Black Women 
Attorneys; The National Bar Association, 
Women's Division; and the National Conference 
of Black Lawyers, Section on Women’s Rights, 
In Support of Appellees AFSCME et al.

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
GAIL J. WRIGHT 
PENDA D. HAIR

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Amici Curiae



TABLE OF CONTENTS Page
TTTable of Authorities ..................................

Interests of Amici Curiae .............................
Summary of Arqument ...................................
ARGUMENT

I. The District Court's Finding of Intentional 
Discrimination Is Supported by the Appli­
cable Legal Principles ......................
A. The District Court's Finding of Inten­

tional Discrimination Is Entitled to 
Deference ..............................

B. The Decision Below Is Consistent with 
Precedents Establishing Methods of 
Proof of Intentional Discrimination ....
1. The federal courts have fre­

quently found intentional race 
discrimination in wages on the 
basis of evidence similar to
that in the record ...............

2. The race-based wage discri­
mination precedents are con­
sistent with the analysis 
applied in hiring and promo­
tion cases ........................

3. Other indicia of discrimina­
tion exist in this case .........

II. The District Court's Finding that Defen­
dant Illegally Perpetuated the Effects of 
Prior Discrimination Is Supported by the 
Applicable Legal Principles ...............

III. The Decision in Pouncv v. Prudential 
Insurance Company Is Incorrect and 
Should Not be Followed .....................

2

6
8

6

10

1 1

1 1

14

22

24

27

CONCLUSION 33

l



TABLE OF AUTHORITIES
Case Page
Alexander v. Louisiana, 405 U.S. 625 (1972).......... . 24
Alston v. School Bd . , 112 F.2d 992 (4th Cir.), cert.

denied, 311 U.S. 693 ( 1 940) ........................ 8

Arkansas Educ. Ass'n v. Bd. of Educ., 446 F.2d 763
(8th Cir. 1971) ....................................  8

Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 (9th 
Cir. 1982), cert, denied, 52 U.S.L.W. 3906 (June 
1 8, 1984) ..........................................  1 1

Briags v. City of Madison, 536 F.Supp. 436 (D. Wise.
1982)   1 7, 1 9

Carpenter v. Stephen F. Austin State Univ., 706
F. 2d 608 ( 5th Cir. 1983) .................. 8,9,1 3,1 6,21,29

Carroll v. Sears, Roebuck & Co., 708 F.2d 183 (5th
Cir. 1983) .........................................  29

Connecticut v. Teal, 457 U.S. 440 (1982)   30
Corning Glass Works v. Brennan, 417 U.S. 188 (1974) ....17,18
County of Washinaton v. Gunther, 452 U.S. 161 (1981) ... 9,16
Crawford v. Western Elec. Co., Inc., 614 F.2d 1300

(5th Cir. 1980) ....................................  28
Davis v. Califano, 613 F.2d 957, 964 (D.C. Cir. 1979) . 15
Eastland v. Tennessee Valley Auth., 704 F.2d 613,

(11th Cir. 1983), cert, denied, 52 U.S.L.W. 3631
(Feb. 28, 1 984)   28

EEOC v. Inland Marine Indust., 729 F.2d 1229 (9th 
Cir.), cert, denied, 53 U.S.L.W. 3239 (Oct. 2,
1984) ..........................................  8,1 4, 1 8,24

- ii -



Case Page

EEOC v. Sandia Savings 4 Loan Ass'n, 24 Empl. Prac.
Dec. (CCH) 1131,200 (D.N.M. 1980) ................. 1 3

Gilbert v. City of Little Rock, 722 F.2d 1390 (8th 
Cir. 1983), cert, denied, 52 U.S.L.W. 3828 (May 
1 5, 1 984) ..........................................  28,32

Griffin v. County School Bd., 377 U.S. 218 (1964) ....  26
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ........  27,28
Hamed v. I.A.B.S.0.I., 637 F.2d 506 (8th Cir. 1980) ... 28
Harrell v. Northern Elec. Co., 672 F.2d 44 (5th 

Cir.), reaffirmed in relevant part, 679 F.2d 
31 (5th Cir.), cert, denied, 459 U.S. 1037 
( 1982) .............................................  29

Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir. 1981).. 28
Hazelwood School District v. United States, 433

U.S. 299 (1 977) ....................................  1 4, 1 5
Heaaney v. Univ. of Washington, 642 F.2d 1157

(9th Cir. 1981) ....................................  16,29
Hishon v. King & Spaulding, 52 U.S.L.W. 4627

(May 22, 1984) .....................................  20
International Union of Electrical Workers v.

Westinghouse Electric Corp., 631 F.2d 1094
(1980), cert, denied, 452 U.S. 967 (1981) .........  25

James v. Stockham Valves & Fittings Co., 559 F.2d 
310 (5th Cir. 1977), cert, denied, 434 U.S.
1 034 ( 1 978) ........................................  8

Johnson v. Uncle Ben's, Inc., 628 F.2d 419 (5th 
Cir. 1980), remanded for further consideration,
451 U.S. 902 (1981), reaffirmed in relevant
Dart, 657 F.2d 750 (1981), cert, denied, 459
U.S. 1 67 ( 1982) .....................................  28

Liberies v. County of Cook, 709 F.2d 1122 (7th Cir.
1983)   25,26

- i i i -



Case

Lynn v. Regents of University of California, 656
F.2d 1337 (9th Cir. 1981), cert, denied, 459 U.S.
823 ( 1 982) ........................................  9

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) .............................................  9,20

Moore v. Hughes Helicopters, Inc., 708 F.2d 475
(9th Cir. 1 983) ....................................  29

Mortensen v. Callaway, 672 F.2d 822 (10th Cir. 1982) .. 28
Morris v. Williams, 149 F.2d 703 (8th Cir. 1945) .....  8

O'Brien v. Sky Chefs Inc., 670 F.2d 864 (1982) .......  23
Pace v. U.S. Indust., Inc., 726 F.2d 1038 (5th Cir.

1984)   29
Payne v. Travenol Laboratories, Inc. 673 F.2d 798

(5th Cir.), cert, denied, 459 U.S. 1038 (1982) ....  23
Peters v. Lieuallen, 693 F.2d 966 (9th Cir. 1982) ....  29
Pittman v. Hattiesburg Municipal Separate School

District, 644 F.2d 1071 (5th Cir. 1981)  11,17,18
Pope v. City of Hickory, 679 F.2d 20 (4th Cir.

1 982)   28
Pouncy v. Prudential Insurance Co., 668 F.2d 795

(5th Cir. 1 982) ................................ 7,27,28,32
Pullman-Standard v. Swint, 456 U.S. 273 (1982) .......  10,31
Quarles v. Phillip Morris, Inc., 279 F.Supp. 505

(E.D. Va. 1968) ....................... 8,11,12,13,16,21,24
Rowe v. Cleveland Pheumatic Co., 690 F.2d 88 (6th

Cir. 1982)   28
Rowe v. General Motors Corp., 457 F.2d 348 (5th

Cir. 1 972) .........................................  23,28

IV



Case Page
R u l e  v .  I . A . B . S . 0 . I . ,  L o c a l  U n ion  No. 3 9 6 ,  568

F.2d 558 (8th Cir. 1977) .......................
Segar v. Civiletti, 508 F.Supp. 690 (D.D.C. 1981), 

aff'd in relevant part, 738 F.2d 1249 (D.C. Cir.
1 984) ........................................ 8,9, 1 3, 16,

Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) .......  28,
Spaulding v. Univ. of Washington, 740 F.2d 686

(9th Cir. 1984) ....................................
Teamsters v. United States, 431 U.S. 324 (1977) ......  14,

23,26,
Thompson v. Gibbes, 60 F.Supp. 872 (E.D.S.C. 1945) ....
United Papermakers v. United States, 416 F.2d 980

(5th Cir. 1969), cert, denied, 397 U.S. 919 (1970)...
Village of Arlinaton Feiqhts v. Metropolitan Housing

Development Corp. , 429 U.S. 252 ( 1977) ............  22,
Vuyanich v. Republic Nat'l Bank, 505 F.Supp. 224 (N.D.

Tex. 1980), vacated on other qrounds, 723 F.2d
1195 (5th Cir. 1984) ....... .............. 8,9, 1 3, 1 9,20,

Wade v. Mississippi Coop. Extension Serv., 528 F.2d
508 (5th Cir. 1 976) .......................... 8,9, 13,21 ,

Wang v. Hoffman, 694 F.2d 1146 (9th Cir. 1982) .......
Wells v. Hutchinson, 499 F.Supp. 174 (E.D. Tex.

1980) ..............................................  8,

28

21

31

29
15
31
8

24

23

21

23
29

1 3

v



REGULATIONS Page
29 CFR $1 607 ..........................................  32

LEGISLATIVE MATERIALS
S. Rep. No. 415, 92d Conq., 1st Sess................... 9,31
H. R. Rep. No. 238, 92d Cong., 1st Sess............... 8,9,31

OTHER AUTHORITIES
Petition for Certiorari, Anderson v. City of 

Bessemer, No. 83-1623, cert, granted, 52
U.S.L.W. 3906 (June 1 8, 1 984) ..................... 1 1

H. Hill, Black Labor and the American Legal System
(1977) .............................................. 8

H. Northrup, R. Rowan, D. Barnum & J. Howard, Negro
Employment in Southern Industry (1970)   8

Wachtel, The Negro and Discrimination in Employment
(1965) .....  8

vi



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

Nos. 84-3569 84-3590

AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO (AFSCME), et al. ,

Plaintiffs/Appellees 
v.

STATE OF WASHINGTON , et al.,
Defendants/Appellants

APPEAL FROM THE UNITED STATES DISTRICT COURT, 
WESTERN DISTRICT OF WASHINGTON

Brief Amicus Curiae of the NAACP Legal 
Defense & Educational Fund, Inc.; The 
National Association of Black Women 
Attorneys; The National Bar Association, 
Women's Division; and the National Conference 
of Black Lawyers, Section on Women's Rights, 
In Support of Appellees AFSCME et al.

The NAACP Legal Defense and Educational Fund, Inc.; The 
National Association of Black Women Attorneys; The National Bar 
Association, Women's Division; and the National Conference of 
Black Lawyers, Section on Women's Rights, submit this brief as 
amicus curiae in support of plaint iffs/appellees with the consent

of all the parties.



INTERESTS OF AMICI CORIAE

1 The NAACP Legal Defense and Educational Fund, Inc. 
("The Legal Defense Fund" or "LDF") is a non-profit corporation, 
which was established for the purpose of assisting black citizens 
in securing their constitutional and civil rights. LDF, which is 
independent of the other orqanizations, is supported by contribu­
tions from the public. For many years its attorneys have 
represented parties and participated as amicus curiae in numerous 
cases before the federal appellate and district courts throughout 
the nation, and the United States Supreme Court. The Legal 
Defense Fund has appeared as amicus curiae in actions challenging 
employment discrimination against blacks and women under the 
Constitution and federal statutes; and has also urged the full 
enforcement of Title VII of the Civil Rights Act of 1964 to 
remedy the causes and effects of such prohibited and invidious 

discrimination.
2. The National Association of Black Women Attorneys 

("ABWA" ) is a non-profit legal corporation organized in 1 972 to 
advance the practice of law for black women, and to improve the 
administration of justice by increasing the opportunities of 
black women in all spectrums of American society. The organiza­
tion is comprised of 550 members from around the country whose 
purpose it is to advance causes of civil and human rights. In

2



furtherance, of this goal, ABWA has participated in lawsuits 
brought to eliminate vestiges of racial and sexual discrimina­

tion .
3. The National Bar Association, Women's Division, is a 

non-profit bar association founded in 1972 as a division within 
the National Bar Association, itself a non-profit corporation 
established in 1925, and currently comprised of 1 1 , 0 0 0  members. 
The organization, which has a membership of 110, aims to promote 
the fair administration of justice to all and improvement in the 
community at-large. The Women's Division focuses on issues and 
concerns that are unique to black women. Hence, it is dedicated 
to promoting and protecting the rights of black women, and 
gaining access to opportunities from which they have so long been 
excluded. The NBA, Women's Division, has particpated in lawsuits 
designed to secure full enforcement of laws prohibiting employ­

ment discrimination.
4. The National Conference of Black Lawyers, Section On 

Women's Rights, (formerly known as the Women's Rights Task 
Force), was established in 1980 as a section of the National 
Conference of Black Lawyers. The National Conference of Black 
Lawyers ("NCBL") is a non-profit corporation comprised of 
lawyers, scholars, judges, legal workers, law students and legal 
activists. NCBL has approximately 1,000 members and the Section 
On Women's Rights has a membership of 100. The organization was 
established to assist the black community in its struggle for

3



full economic, social and political rights. As an organizational 
advocate against racism and sexism, NCBL has filed cases in the 
various courts throughout the country to assist black citizens in 
attaining the goals to which they are rightly entitled by law, 
morality, and -justice. Toward that objective NCBL has partici­
pated in lawsuits challenging unlawful employment practices and 
procedures affecting blacks and women. The Women's Rights 
Division has been particularly concerned with race and gender 
eauality in the labor market since economic equality is of 
paramount importance if women are to achieve equality in other 

aspects of society.
5. All of amici have a particular interest and concern 

with black women whos have suffered a double burden of discrimi­
nation because of their race and sex. Across this nation, women 
of all ages and from all races and ethnic background encounter a 
common problem —  sex discrimination. Women as a group suffer 
from underemployment, or employment in sex segregated jobs which 
offer low wages, few hiring benefits and limited opportunities to 
advance. As severe as these problems are for all women, they are

even more severe for black women.
Black women have traditionally participated in the nation s 

work force. As early as 1 890 forty percent of all black women 
over the age of 10 were employed in non-farm occupations. By 
1950 black female participation in the labor market had increased

4



to 46%, and this figure rose steadily to 49.5% in 1967, and to 
53% in 1978. By 1983 more than seventy percent of black women

between the aoes of 25 and 44 were workers.
Despite the fact that millions of black women do work, they 

continue to endure economic hardship, due to waqe discrimination 
and job segregation. As early as 1919 black women, who were 
compelled to work in inferior positions and perform the least 
desirable tasks, were paid from ten to sixty percent less than 
white women who themselves were poorly compensated. This was 
true although black women wee oft-times more highly qualified 
than whites. While all women experience an earning disadvantage 
when compared to men, black women working full time earn less

then half of white men's earnings.
Much of this dilemma results from the fact that black women 

were and still are concentrated or segregated in "occupational 
shelters." Nearly sixty percent of all black women are employed 
in only two major occupations, clerical and secretarial work. 
Blacks ar over represented in jobs paying below minimum wages and 
which in several instances pay below the poverty level. These 
include jobs as laundry and dry cleaning; sewers/stichers; 
dressmakers; produce handlers; welfare services aids; school 
monitors; child care workers; and food counter workers.

Even in those occupations which hire large numbers of women, 
black women tend to be relegated to the menial and lowest paying 
positions. This phenomenon is not new. In the 1920's in the

5



tobacco industry black women were assigned to strip the tobacco 
and received the lowest wages. This trend continues to persist. 
For instance, the health industry, a primary employer of women, 
employs 15% of white women, who generally work in physician's 
offices and in specialized positions in hospitals, and 2 0% of 
black women. Black women typically are concentrated in positions 
outside of hospitals, such as nursing homes and home-based care

and receive poverty level earnings.
To the extent that black women have obtained an education or 

skill, they are still denied employment opportunities which are 
commensurate with their abilities and qualifications. Approxi- 
matey twenty-five percent of black women are over-educated for

their jobs.
In order to rectify these inequities and to 

equality in our society as required by the laws of 
aimici urges this Court to affirm the opinion of the

STATEMENT OF THE CASE

Amici adopt the Statement of the Case set forth 
of plaintiffs/appellees AFSCME.

achieve full 
this nation, 
court below.

in the brief

6



SUMMARY OF ARGUMENT

The court below made a finding of fact of intentional 
discrimination. This finding must be affirmed unless it is 

clearly erroneous.
The courts dealing with claims of race discrimination in 

wages have concluded that statistical proof of significant 
disparities between salaries of black and white employees, 
similar to that in the record below, establishes a prima facie 
case. Moreover, these courts have rejected the market as a 
defense where it represents the weak bargaining power of black

employees.
The authorities establishing methods of proof of intentional 

discrimination in hiring and promotion also support the decision 
below. Statistical proof of disparities in the treatment of 
similarly situated black and white employees is sufficient to 
shift the burden of proof to the employer to explain the dispari­

ties .
Finally, on 

the decision in 
(5th Cir. 1982),

the issue of disparate impact, amici submit that 
Pouncy v. Prudential Insurance Co., 668 F.2d 795 
is incorrect and should not be followed.

7



ARGUMENT
I. The District Court's Finding of Intentional Discrimination 

Is Supported by the Applicable Legal Principles

Although pay equity has recently become a highly publicized 
sex discrimination issue, it is important to note that invidious 
wage discrimination and job segregation have long been practiced 
against blacks and other disadvantaged racial and ethnic groups. 
This discrimination has been documented in court decisions,

9 • 3Title VII's legislative history and the scholarly literature.

p . a . . EEOC v. Inland Marine Indust., 729 F.2d 1229 (9th 
§rr;>,Hkt. denied, bi U.S.L.M. (bet. 2, 1984), Carpenter
V. SteoFerTF. Austin State Univ., 706 F. 2d 608, 625, $25-26 (5th 
r-ir. 1 9 8 3 1 : James v. Stockhai Valves & F^t^inqs. n - p )3 1 0, 327 (5th Cir. 1 977), cert, denied, 434'U._5. iu34 (19 ),
Wade v. Mississippi Coop. Extension Serv.,528 F.2d 508, 514 16 

Cir. 1976); Arkansas Educ. Ass’n v . of Educ., 446 F.2 
763 (8th Cir. 1971); Morris v. Williams, 149 F.2d 703, 708 (8 
Cir. 1945); Alston v. School Bd. , 1 12 F. 2d 992 (4th Cir.), cert._ 
denied, 9 n  n .q. ft 9 “if 1941)) : Segar v. Civiletti, 508 F. Supp. 
690, ~7l2 (D.D.C. 1981), aff'd in relevant part sub nom. Segar v. 
Smith, 738 F.2d 1249 rn.C. Cir. 19»4); Vuyanich v. Republic N^ .J:

Supp. 224 (N.D. Tex. 1 9 8 0), vacated on othc~Sank, 505 F. Supp. 224 (N.D. Tex. nouj, on ot^ I
grounds, 723 F.2d 1195 (5th Cir. 1984); Wells v. Hutchinson, 499 
F.' Supp. 174, 190-96 (E.D. Tex. 1980); Quarles v. Phillip nori;\sL. 
Inc., 279 F. Supp. 505 (E.D. Va. 1968); Thompson v. Gibbes, 60 F. 
Supp'. 872, 8 78 (E.D.S.C. 194 5).

See, e.g, S. Rep. No. 415, 92d Cong, 1st Sess. 6-7 ("Negroes are 
"concentrated in the lower paying, less prestigous positions in 
industry"); id. at 9-14; H.R. Rep. No. 238, 92d Conn. , 1st Sess. 
4 ; id. at 17-19 (noting perpetuation of segregated 3 0b ladders by 
sta~te and local governments); id̂ . at 23-24.
See, e.g., H. Northrup, R. Rowan, D. Barnum & J. Howard, Negro 
Employment in Southern Industry, Part I at 33 (paper industry), 
Part II at 36, 40, 55 (lumber industry), Part III at 25, 29-33, 
39. 88 (tobacco industry), Part IV at 54-58 (coal mining 
industry), Part Vat 60-68 (textile industry) ( 1970); 1 H. Hill, 
Black Labor and the American Legal System, 98-99, 335-38, 352, 
357-358 ( 1977); wachtel, The Negro and Discrimination in Employ

8



Because race-based and sex-based wage discrimination cases often 
involve similar facts and legal theories, resolution of this case 
will directly affect the effort to eradicate wage discrimination 
against blacks.4 However, the issue raised by this case is not 
whether Title VII requires equal pay for jobs of comparable 
worth; the issue is whether defendants engaged in intentional

. . . .  5 discrimination.
In their effort to paint this case as depending on some 

novel "comparable worth" theory, defendants ignore the crucial 
issue of what types of evidence may be used to prove that a 
defendant acted with intent to discriminate. On this issue, the

ment (1965).
Waae discrimination against blacks has been found in many cases 
on the basis of evidence very similar to that Presentted in the 
court below. See, ê g_., Carpenter, supra, 706 F 2d at 625 26 
(5th Cir. 1983); Wade, supra, 528 F.2d at 514-16 (5th Cir. 1976), 
Segar, supra, at 712, Vuyanich, supra .
The logical result of the arguments advanced by defendants is 
that intentional racial discrimination in wages 
Title VII only when black and white employees are being paid 
differently for doinq exactly the same job. This narrow view of 
intentional discrimination ignores the many complex and subtle 
wavs in which employers can effectuate their invidious intent, 
- m t  is abundantly clear that Title VII tolerates no racial 
discrimination, subtle or otherwise." McDonnell Pouqla|
Green, 411 U.S. 792, 801 (1973).. See“also Lynn v Regents_ot
Un iv. of California, 656 F.2d 1 337, 1 343 n.5 (9th Cir. 1 r 
cert, denied, 459 oT s. 823 (1982); H.R. Rep. No. 238, supra, at 
23-'24 (" [Discrimination of any kind based on factors no re 
to job performance must be eradicated."). The Supreme Court has 
already rejected the argument that Title VII prohibits wage 
discrimination only when employees doing the same 3 0b are paid 
unequally. County of Washington v. Guntner, 452 U.S. 161, 178
( 1981) .

9



race-discrimination jurisprudence provides substantial guidance. 
In the discussion below, amici will focus on three sources of 
such guidance: 1 ) cases considering claims of race-based wage
discrimination; 2 ) cases involving claims of race discrimination 
in hiring and promotion; and 3) cases analyzing proof of inten­
tional discrimination under the Equal Protection Clause of the 

Fourteenth Amendment.

A. The District Court's Finding of Intentional Discrimina- 
tion Is Entitled to Deference_____________________ ______

The court below made a finding of fact that.
"Implementation and perpetuation of the 
present wage system in the State of Washington 
results in intentional, unfavorable treatment 
of employees in predominantly female job 
classifications."

578 F. Supp. at 863. At the outset, we note that a trial court's 
finding of the existence of discriminatory intent is entitled to
considerable deference. In Pullman-Standard v._Swint, 456 U.S.
273, 290-91 1982), the Supreme Court emphasized that "factfind­
ing is the basic responsibility of district courts," in holding 
that "a court of appeals may only reverse a district court's 
finding on discriminatory intent if it concludes that the finding 
is clearly erroneous under Rule 52(a)" of the Federal Rules of 
Civil Procedure. Althouqh Swint involved a district court's 
finding that the employer had not engaged in intentional discri-

10



mination, the clearly erroneous standard of review applies 
equally to findings that the employer has discriminated. Id. at

289-90.6

B. The Decision Below Is Consistent with Precedents 
Establishing Methods of Proof of Intentional 
Discrimination__________ _________ _______________ ______
1 . The federal courts have frequently found inten­

tional race discrimination in wages on the basis 
of evidence similar to that in the record

The federal courts have for many years been adjudicating 
claims of intentional race-based wage discrimination. The courts 
in these cases have not found it necessary to invoke the "compar­
able worth" label or to devise a separate "comparable worth" 
theory. Instead, the courts have applied the same theories and 
methods of proving wage discrimination that are used in cases 
dealing with hiring, promotions, job assignments, discipline and
a host of other employment practices. See, e .g., Bonilla_v_.
Oakland Scavenger Co., 697 F. 2d 1 297, 1 301 (9th Cir. 1982), cert_._ 
denied, 52 U.S.L.W. 3906 (June 1 8 , 1 984) (prima facie case of
race—based wage discrimination can be established oy statistical 

proof).

6 The Supreme Court has granted review in a case where the peti­
tioner challenged "the Fourth Circuit practice in Title VII cases 
of finding 'clear error' in all lower court findings of employ­
ment discrimination." Petition for certiorari at 12, Anderson v. 
City of Bessemer, No. 83-1623, cert. qr anted, 52 U.S.L.W. 3906 
(June 19, 1984).



For example, in Pittman v. Hattiesburg Municipal Separate
School District, 644 F . 2d 1071 (5th Cir. 1981), a black printer 
was paid substantially less than the white he had replaced. The 

Court of Appeals held:

"To establish a prima facie case of racial 
discrimination with respect to compensation, 
the plaintiff must show that he was paid less 
than a member of a different race was paid for 
work requiring substantially the same respon­
sibility."

644 F. 2d at 1 072. The court in Pittman also rejected the 
employer’s argument that it had merely paid the wage set by the 
market, stating "if the difference in labor value of a white 
printer and black printer stems from the market place putting a 
different value on race, Title VII is violated." Id_.

The courts have also found intentional discrimination in 
situations where black employees performed different types of 
work from the white employees to which they were compared. The 
courts have typically based the findings of discrimination in 
this factual situation on a showing that the jobs performed by 
the black employees involved equal skill levels, education, 
experience, responsibility and degree of supervision. For 
example, in Quarles v. Phillip Morris, Inc., 279 F. Supp. 505, 
509 (E.D. Va. 1968), the court compared the training, experience, 
level of supervision and responsibility involved in the job of 
casing attendant, always filled by a black, and the job of basic

12



machine operator, traditionally filled by a white, and concluded 
that the lower salary for the casing attendant position resulted 

from discrimination.
Although Quarles involved an individual determination of 

discrimination, based on a one-on-one comparison between a black 
and a white employee, statistical comparisons are generally used 
to prove classwide disparate treatment in compensation. For 
example, in Segar v. Civiletti, supra note 1, the court concluded 
that plaintiffs established a prima facie case of discrimination 
through the introduction of regression analyses that showed 
"gross disparaties between the salaries of comparably qualified 
black and white agents at DEA." Id . 8 Segar involved the 
compensation of black and white agents of the Drug Enforcement

7 The caselaw includes numerous examples of the use of statistical
evidence to prove intentional classwide wage discrimination. In 
Carpenter, supra, 706 F.2d at 626, the court implicitly recog­
nized that a statistical disparity between the wages of black and 
white employees constitutes proof of discriminatory intent where 
the statistical study controls for the level of skill, education 
and training. In Wade, supra, 528 F.2d at 514, 515-17, the court 
approved of the use of! sophisticated multi—variate regression 
analysis of salaries that showed "race to be a significant factor 
in setting salaries." See also Wells v. Hutchinson, supra  ̂ 499 
F. Supp. at 190-96; EEOC v. Sandia Savings & Loan Ass'n, 24 Empl. 
Prac. Dec. (CCH) H31.200 (D.N.M. 1980); Vuyanich, supra, 505 F.
Supp. at 285-87, 305 (plaintiffs established a prima facie case 
of wage discrimination through introduction of statistical 
studies that controlled for productivity factors, such as 
education and experience, as well as Hay points).

8 Because the defendants did not adequately rebut this^ statistical 
showing, the court concluded that "defendants have discriminated 
against black agents as a class with respect to salary." 508 F. 
Supp. at 712.

13



Agency. A wide variety of jobs are performed by agents, ranqing 
"from administrative and supervisory duties to ... conducting 
surveillance of suspected narcotics dealers and doing related 
undercover work." Id. at 694. The evidence showed that blacks 
were concentrated in undercover work, which involved greater 
exposure to danger and hardship and less use of administrative

and supervisory skills. I<3. 705, 713.
In EEOC v. Inland Marine Industries, supra note 1, the Court 

of Appeals for the Ninth Circuit concluded that plaintiffs had 
established a prima facie case of wage discrimination "based on 
statistical evidence that during the period in question no black 

ever earned more than any white."

2 . The race—based wage discrimination precedents are 
consistent with the analysis applied in hiring and 
promotion cases

In Teamsters v. United States, 431 U.S. 324 ( 1977) and
Hazelwood School District v. United States, 433 U.S. 299 (1977), 
the Supreme Court established a method of proof of classwide 
disparate treatment in hiring or promotion. Although Teamsters 
and Hazelwood have been most frequently applied in the context of 
hiring and promotion decisions, the race-based wage discrimina­
tion cases easily fit into this method of proof. These cases 
recoqnize that direct evidence of discriminatory motive rareiy

14



will be available and that is necessary and appropriate for 
courts to draw inferences of discrimination from circumstantial 

evidence. Teamsters, 431 U.S. at 416-18.
Teamsters held that statistical evidence is highly relevant 

proof of employment discrimination, and in some cases may 
standing alone establish a prima facie case. 431 U.S. at 339-40. 
Once a prima facie case is established through use of statistical 
evidence, "[t]he burden then shifts to the employer to ... 
demonstrat [e] that the [plaintiffs'] proof is either inaccurate 
or insignificant." 431 U.S. at 360. This is because "absent 
explanation" statistical disparities are "a telltale sign of 
purposeful discrimination." 431 U.S. at 339 n.20; see id_. at 

360, n.4 6 .
Under Teamsters and Hazelwood, the plaintiff's initial 

burden is to raise an inference of discrimination by ruling out 
the most common nond i scr iminatory reason for the employer s 
actions. Thus, in a hiring or promotion case, plaintiffs' 
statistical evidence ordinarily must control for minimum objec­
tive qualification. E. g . , Davis v. C3lifano, 613 F.2d 957, 964 

(D.C. Cir. 1979).
The first question in applying Teamsters to wage discrimina­

tion claims is what type of evidence olaintiffs must produce in 
order to establish a prima facie case. Based on the case autho- 

scholarly comment and the record and briefs in this case, 
it appears that the two most commonly discussed explanations for

15



classwide wage differentials are differences in level of train­
ing, education, skills, supervision and responsibility, ordina­
rily measured by a job evaluation, and differences in market 
value, purportedly measured by supply and demand. In appropriate 
cases plaintiffs may establish a prima facie case by eliminating 
differences in levels of training, skills and responsibility, as 
a possible explanation of pay disparities . 9 Plaintiffs may 
address this issue through a relatively simple one-on-one 
comparison, as in Quarles, or through more sophisticated statis­
tical analyses, such as those presented in Segar. This Court in 
Heagney v. University of Washington, 642 P. 2d 1 157, 1 164-65 n . 6  

(9th Cir. 1981), has explicitly concluded that job evaluation 
studies establish "a standardized basis for comparing job content 
with pay even though the job may be unigue" and thus "provide 
some basis for making a meaningful comparison of male and female

jobs."
Where the employer has itself adopted a particular job 

evaluation system, plaintiffs ordinarily should be permitted to 
rely on that system in establishing their prima facie case. See 
Gunther, 452 U.S. at 1 80-8 1 ( 1 98 1); Heagney, 642 F.2d at 1160,
1165-66. It is reasonable to rely on the employer's system in

9 In some situations, plaintiffs may establish a prima facie case 
without controlling for all of these variables. See Segar, 
supra, 508 F.2d Supp. at 696 & n.2; 712; Carpenter, supra, 706 
F .2d at 625-26 (concluding that evidence supported finding of 
discrimination in wages even though statistical study did not 
control for level of skill, education and training) .

16



drawina the initial inference of discrimination. The employer 
will then have the opportunity to explain why use of its system 

is inappropriate.
The possibility of the labor market as an explanation for 

wage disparities raises a more complex question. The labor 
market can be analyzed as consisting of at least two components 
-- the market for skills and the market for race or sex. On the 
one hand, the market for skills reflects the supply and demand 
for individuals qualified to perform the particular jobs to be 
filled.^ On the other hand, courts have recognized that labor 
markets have and continue to put a price on race and sex. As the 
Fifth Circuit has stated, "... paying the going 'open market 
rate can still violate Title VII if the market places different 
values on black and white labor." Pittman, supra, 644 F.2d at

1 075 n.2. 1 1

In cases in which the black and white employees are doing 
the same job, there can be no plausible argument that any market 
rate differential is based on supply and demand of the particular

10 See, e.g., Briags v. City of Madison, 536 F. Supp. 435, 445 (W. 
D. Wise. 1982).

11 See also Corning Glass Works v. Brennan, 417 U.S. 188, 205 ( 1 974) 
TflndTng discriminatory a pay disparity that "arose simply 
because men would not work at the low rates paid women inspec­
tors, and ... reflected a job market in which Corning could pay 
women less than men").

17



skills and courts have had no difficulty in attributing the pay 
disparity to race. E.g. , Pittman, supra, 644 F.2d at 1 075; cf^ 
Cornina Glass, supra note 11, at 203-05 (sex discrimination).

In cases where the claim involves a comparison of employees 
performing different types of jobs, a claim that the market for 
skills explains a pay disparity between jobs using the same level 
of skills, training, etc., has more plausibility. Nonetheless 
amici suggest that the burden should be on the employer to raise 
this explanation in its rebuttal. Placing this limited burden on 
the employer is appropriate for several reasons.

First, none of the race—based wage discrimination cases has 
required plaintiffs to prove that the pay disparity was not the 
result of the market for skills in order to establish a prima 
facie case. See pages 11 to 14 supra. Moreover, this court 
in EEOC v. Inland Marine held that plaintiffs had established a 
prima facie case by introducing statistical evidence of dispari­
ties, without requiring plaintiffs to prove that the disparities 
were not caused by legitimate market factors. 729 F.2d at 1234.

Second, the likelihood that race-based pay disparities are 
caused by bona fide shortages of skills in the particular jobs 
held by whites is not so great that plaintiffs should be required 
to neaate this possible explanation in their prima facie case. 
Pa j» t i c u 1 a r 1 y where plaintiffs have introduced statistical 
evidence of a systemic race—based disparity across joos with the 
same level of skills, education, training and responsibility, it

18



is unlikely that legitimate market shortage will explain the
disparity. There is simply no reason to believe that the bona
fide shortages of skilled individuals will more often occurr in

1 2jobs predominantly held by whites.
Third, the employer is in a better position to produce 

evidence on the particular skills for which shortages exist and 
the particular market it utilized in its search for workers with 
those skills. As stated by the court in Briggs v. City of 
Madison, supra, 536 F. Supp. at 446: "[i]f there is another,
nondiscriminatory reason for the wage disparity, such as the 
employer's need to compete in the marketplace for employees with 
particular qualifications, the employer is in the best position

to produce this information at trial."
Regardless of what the Court decides about which party bears 

the burden of proof, certain types of evidence will be probative 
on the question whether the market for skills explains a pay 
disparity. Obviously, frequent deviations from the market rate

12 as stated by the court in Vuyanich, supra:
"[T]here is no reason to suppose that if an 
employer has 100 jobs, and the same points 
were assigned to 50 pairs of jobs (one job 
predominantly white and the other predomi­
nantly black), that it is always the 'black' 
job of each pair that is valued lower in the 
marketplace."

505 F. Supp. at 284, n.77.

19



or inconsistent application of such rate should be viewed as
strong evidence that the market for skills is not the real

, a. ... 13explanation for the disparity.
Another highly relevant factor is whether actual labor 

shortages existed for hiahly paid positions. The existence of an 
adequate supply of workers to fill highly paid, predominantly 
white, jobs strongly suggests that the market for skills does not 
explain the pay disparities. This is particularly true if blacks 
were being turned down for such positions while incumbent whites

were being paid inflated wages.
Even if there were shortages of skilled individuals in some

predominantly white jobs, the court should still evaluate how 
much of the overall disparity is explained in such shortages. See 
Vuyanich, 505 F. Supp. at 284, 285 n.78, 306 n.96. Moreover, the 
court should look at whether similar skills shortages existed for 
jobs filled predominantly by blacks. A strong inference of 
discrimination should be drawn where an employer pays high wages 
when shortages exist in predominantly white fields but not when 
shortages exist in predominantly black fields. Cf. McDonnell 
Douglas, supra note 6 , 441 U.S. at 804 ; Hishon v. King^jS.
Spaulding, 52 U.S.L.W. 4627, 4629 (May 22, 1984).

13 As discussed in the brief for Plaint iffs/Appellees, it is clear 
that defendants in this case used market data only in a minimal, 
inconsistent, and arbitrary fashion.

20



Past or present workforce segregation or discrimination in 
assignment of employees is a feature of many of the race-based 
wage discrimination cases. The courts have found these practices 
to be relevant even when the discriminatory assignments had 
ceased and complaints based on these actions were time-barred. 
Amici suggest that proof of past or current intentional segrega­
tion or discriminatory assignment of employees tends to disprove 
the skills' market explanation. In the absence of segregation or 
discrimination in assignment, one might assume that employees 
voluntarily chose their positions and that any disparities in the 
compensation of black and white employees is the result either of 
pure coincidence or of intangible features of certain jobs that 
make them more desirable. However, where the employer has 
previously or currently segregated its workforce or engaged in 
intentional discrimination in placement, the individual choice

14 jn Quarles the employer had previously racially segregated its 
workforce into all-white and all-black departments and paid flower 
wages to black employees. 279 F. Supp. at 508-09. In 5e<^ar, 
black agents were concentrated in undercover work. 508 F. Supp. 
at 705, 713. In Vuvanich the court found that the employer has 
engaged in racial discrimination in the placement of employees. 
505 F. Supp. at 344. See also Carpenter, supra, 706 F.2d 608, 
623-25 ( 5th Cir. 1983); Wade, supra, 528 F. 2d at 512-13 (5th Cir. 
1975) .

21



explanation is negated. Moreover, such intentional segregation
itself affects the labor market, particularly when practiced by a

. 15large employer.

3 . Other indicia of discrimination exist in this 
case

Although statistical evidence and the employer's explanation 
of the disparities is usually the primary focus in disparate 
treatment cases under Title VII, other factors may also tend to 
prove the existence of discriminatory motive. In Village^of 
Arlington Heights v. Metropolitan Housing Development Cor^., 429 
U.S. 252 (1977), the Supreme Court outlined "without purporting 
to be exhaustive, subjects of proper inquiry in determining 
whether racially discriminatory intent existed," ^d. at 268. 
Among the factors identified by the Court are the extent of any 
disproportionate adverse impact upon black individuals and the 
historic background of the action. 429 U.S. at 266-68.

15 we note that the evidence clearly shows that defendants in this 
case created and maintained a sex segregated workforce and that 
they relied on sex stereotypes in deciding how to index jobs.

15 Arlington Heights involved a challenge under the Equal Protection 
Clause of: the fourteenth amendment to application of a local 
zoning ordinance. Because a showing of discriminatory intent is 
necessary to establish a violation of the Equal Protection 
Clause, the Arlington Heights analysis is relevant to adjudica­
tion of the issue of motive under Title VII.

22



Other courts have also elaborated upon this list of factors
that serve as indicia of discriminatory intent. Ind ividual
examples of discriminatory decision making serve to "bolster
[the] statistical evidence." Teamsters, supra, 431 U.S. at 338;
Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 817 (5th
Cir), cert, denied, 459 U.S. 1038 (1982); Wade, supra note 1, 528
F . 2d at 516-17.17 Similarly a history of discrimination is
probative of current discriminatory intent. Arlington Heights,

429 U.S. at 267; Payne, 673 F.2d at 817.
Moreover, subjective decisionmaking provides opportunities

to discriminate and therefore must be scrutinized very closely.
The Ninth Circuit has recently ruled that the greater the
subjective and discretionary element in an employer's decision,
the greater the possibility of racial bias, and therefore the
stronger the inference of intent in plaintiffs' prima facie case.
O'Brien v. Sky Chefs Inc., 670 F.2d 864, 867 (1982). Bee alsg

1 8Rowe v. General Motors, 457 F.2d 348 (5th Cir. 1972).

17 The record below includes numerous examples of reliance on 
sex-based stereotypes in setting the compensation for particular 
jobs. For example, defendants chose to index the Campus Police 
Assistant (female job classification) to the predominantly female 
clerical benchmark, rather than to the predominantly male 
security guard benchmark. These examples of discriminatory 
manipulation of the wage scales serve to "[bring] the cold 
numbers convincingly to life," Teamsters, 431 U.S. at 339.

18 Subjective decisionmaking is particularly useful in reinforcing 
statistical evidence. In the jury selection area the Supreme 
Court has concluded that a prima facie case of intentional 
discrimination is established where there is a statistically 
significant disparity and there has been an opportunity to 
discriminate at the point in the process where minorities were

23



A strong inference of intent can also be drawn from an 
employer's failure to take remedial action upon becoming aware of 
the racial impact of its practices. This Court stated in EEOC v^ 
Inland Marine, supra, 729 F. 2d at 1 235: "By refusing to change 
his subjective wage-setting policies or to bring black wages in 
line with those of whites [the foreman] ratified the existing 
disparities. His ratification constituted all the intent the
court needed to find Inland Marine guilty on a disparate treat- 

1 9ment theory."

The District Court's Finding that Defendants Illegally 
Perpetuated the Effects of Prior Discrimination Is Supported 
by the Applicable Legal Principles

The law is clear that a violation of Title VII exists where 
defendant's employment practices perpetuate the effects of the 
defendant's prior discriminatory conduct. In Quarles, supra, the 
court found that the current low wages of certain jobs tradi­
tionally performed by blacks represented an illegal "vestige of 
the old policy under which Negroes were paid less for jobs 
recruiring substantially equal responsibility." 279 F. Supp. at

adversely affected. The mere opportunity is sufficient, even 
though "there is no evience that the commissioners consciously 
selected by race." Alexander v. Louisiana, 405 U.S. 625 (1972).

19 gee also United Papermakers v. United States, 416 F.2d 980, 997 
T5th~~cTF. 1Q69) , cert, denied "397 U.S. 919 ("70) ("The requisite 
intent may be inferred from the fact that the defendants per­
sisted in the conduct after its racial implications had become 
known to them.").

24



509. A violation of Title VII occurred because, even though the 
employer stopped discriminating in assignments, the pay disparity 
between traditionally "black" and "white" jobs had not been cor­

rected. Id.
The Court of Appeals for the Third Circuit applied the 

perpetuation theory in International Union of Electrical Workers 
v. Westinghouse Electric Corp., 631 F. 2d 1 094 (1980), cert^ 
denied, 452 U.S. 967 (1981). In that case plaintiffs alleged 
that Westinghouse's present wage structure was derived from a 
wage structure established in the 1930's, when the workforce was 
segregated on the basis of sex and "female" jobs were paid less 
than "male" jobs. 631 F . 2d at 1 097. The court concluded that 
these facts, if proved, would establish a violation of Title VII. 

Id. at 1098, 1107.
Finally, a recent race-discrimination case applying the 

perpetuation theory is Liberies v. County of Cook, 709 F.2d 1122 
(7th Cir. 1983). The defendant in that case had previously used 
a college degree requirement and performance on a test to assign 
employees to job categories, resulting in a predominantly black, 
low-paid group of case aides and a predominantly white, high-paid 
group of caseworkers. Even though the defendant had discontinued 
use of the examination and degree requirement prior to the 
effective date of Title VII,^ it had failed to equalize the

20 Title VII did not apply to public employers until March, 1972.

25



Id. at 1131. The court foundsalaries of the job categories, 
that the defendants current compensation policy violated Title

VII. Id. at 1132-33.“1
The State of Washington deliberately perpetuated the effects 

of its prior discrimination. Prior to 1972, sex segregation of 
job categories was routine and "female" jobs were assigned less 
pay then "male" jobs. The pre-existing pay disparities were 
maintained after the State discontinued routine sex-based 
segregation. For example, when a conflict existed between the 
so-called market rate and maintaining the historic internal 
relationship among jobs, defendants chose to maintain historic 
relationships. In addition, defendants repeatedly chose to index 
predominantly female jobs to predominantly female benchmarks, 
even though the jobs being indexed were more similar to male 

benchmarks.

21 The Court in Liberies treated plaintiffs' claiin under the 
disparate impact theory. 709 F. 2d at 1 130-32. Amici recognize 
that perpetuation of the effects of prior discrimination may be 
illegal under the disparate impact theory. See Teamsters, supra, 
431 U.S. at 349. ("One kind of practice fairin form, but 
discriminatory in operation, is that which perpetuates the 
effects of prior discrimination."). However, we note that 
intentional perpetuation is also actionable under the disparate 
treatment theory. See. Griffin v. County School Bd., 377 U.S. 
218, 232 (1964).

Moreover, perpetuation of the effects of tne employer s own 
prior discrimination should be actionable under the disparate 
impact theory even if broader aspects of the impact theory do not 
apply to compensation systems.

26



III. The Decision in Pouncy v. Prudential Insurance Company Is
Incorrect and Should Not Be Followed

In the discussion below, amici do not address the ultimate 
Question of whether and how the disparate impact theory of 
liability should apply to a claim that a compensation system 
violates Title VII solely because it has a disparate impact on 
black or female employees. Rather, we suggest that however the 
Court decides this guestion, the Court should reject the narrow 
and unsupported interpretation of the disparate impact rule 
enunciated in Pouncy v. Prudential Insurance Co., 668 F.2d 795 
(5th Cir. 1 982 ). Adoption of Pouncy would affect not only wage 
discrimination claims; it would also severely handicap attempts 
to prove race discrimination in hiring, promotions and other 
areas. Amici urge that Pouncy is wrongly decided and should not 

be followed.
Po un cy involved a claim that an employer's promotion 

practices were discriminatory under the disparate impact model of 
proof.22 The court held that the disparate impact model may not 
be used to challenge the cumulative results of an employer's

22 m  Griggs v. Duke Power Co., 401 U.S. 424 ( 1 971), the Court held 
that Title VII "proscribes not only overt discrimination but also 
practices that are fair in form but discriminatory in operation." 
"What is reguired is the removal of artificial, arbitrary, and 
unnecessary barriers to employment" that "operate as built-in 
headwinds' for minority groups." Id. at 431 , 432. Under Griggs, 
once the plaintiff establishes a disparate impact, the burden 
shifts to the defendant to prove that its practices or procedures 
are job-related. Id. at 431.

27



selection process, where that process includes two or more
components or stages. 668 F. 2d at 800. Second, the disparate
impact model is inapplicable to any subjective component of a

23selection process. Id_. at 801.
Defendants attempt to paint Pouncy as a well-established, 

non-controversial doctrine. This is simply not true. Pouncy 
represented a rejection of a long line of consistent Fifth 
Circuit authority24 and since Pouncy a majority of the courts that 
have considered the issue have rejected Pouncy.25 Moreover,

23 For example, if the results of the subjective interview stage of 
a selection system can be shown to result in the rejection of a 
significantly disproportionate number of black candidates, and 
even if the interview is not job-related, plaintiffs must show 
intent to discriminate in order to prevail.

24 Prior to the decision in Pouncy, the Fifth Circuit had consis­
tently interpreted Griggs to apply to all hiring and promotion 
devices and systems that produced a racially disproportionate 
impact. See Johnson v. Uncle Ben's, Inc_., 528 F.2d 419, 426-27 
(5th Cir. 1980), remanded for further consideration, 451 U.S. 9U2 
(1981), reaffirmed in relevant part, 657 F. 2 cl750 ( 1 981), £e_rt. 
denied, 459 U.S~. 167 (1982); Crawford v. Western Elec. Co., Inc.,
6 14 T. 2d 1 300, 1 3 1 6-1 8 ( 5th Cir. 1 9 80 ); Rowe v. Gen. Motors
Coro., 457 F.2d 348, 354-59 (5th Cir. 1972), and by the Eighth 
Circuit, Rule v. I.A.B.S.O.I., Local Union No. 396, 568 F.2d 558, 
566 (8th Cir. 197 7)“.

v. Cleveland 
Gilbert

25 The Sixth, Rowe
(1982), Eighth, ___
1 395-96; cert, denied , 
Hamed v. I.A.B.S.O.I., 
note TT; but see Harris, but see Harris v 
(1981), Eleventh, Eastland 
6 13, 6 1 9-20 (1 983) , cert 
1984), and District of 
1270-72 (1984), circuits have 
Tenth Circuits have reached 
Pouncy. See Pope v. City of 
1982);

u Pheumatic Co., 690 F.2d 88, 93-95 
v. City of Little Rock, 722 F.2d 1390,

55 U.S.L.W. 3828 (May 15, 1984); accord,
637 F.2d 506, 511-14 (1980); Rule, supra 

Ford Motor Co., 6 51 F. 2<5 6"0 9 ~ 61 1 
Tennessee Valley Auth., 704 F.2d, 

d enied, 5"2 U.S.L.W. 36^1 (Feb. 28, 
Columbia, Segar v. Smith, 738 F.2d 1249,

The Fourth and 
consistent with 

22 (4th Cir.
1982).

rejected ___
results that 

Hickory, 679 F
Pouncy.

Mortensen v. Callaway, 672 F. 2d

are 
2d 20,

822, 824 (10th Cir.

28



Pouncy has had an unstable existence even in the Fifth Circuit.
The disparate impact model of discrimination was articu­

lated in Griggs v. Duke Power Co./ 401 U.S. 424 (1971). The 
overriding concern of the Court in Griggs was the use of barriers 
to employment that were not related to ability to do the job m  
question. The Court did not differentiate between objective and 
subjective barriers, but rather concluded that "Congress has made 
[job] qualifications the controlling factor, so that race, 
religion, nationality and sex become irrelevant." 401 U.S. at
436.^ Nowhere in the Griggs opinion does the Court even suggest

28that the rule is limited to objective practices.

Panels of the Ninth Circuit have reached conflicting 
decisions on the issues raised by Pouncy. Compare Wane? v. 

694 F.2d 1146, 1147-48 (1982) and Peters v. Lieuall 
~F. 2d 966, 968-69 (1 982) with Spaulding v,

Washington, 740 F.2d 686, 707 (1984) and Heagney___________
Washington  ̂ 642 F.2d 1 157,  1 163 (9th C i r . _ ^ 9 8 T T T  ” See also Moore 
v. Hughes Helicopters, Inc., 708  F.2d 4 7 5 ,  481 82 & n.4 ( 1 9 8 3 )

Hoffman,
6TT Un iv .

en,
oF

~v~. Un iv. o?

26 Harrell 
reaffirmed in

Compare 
1982),
cert. denied" 459 U .S 
Roebuck & Co., 708 F. 2d 
Page v . U.S. Indust., 
1984).

Northern Elec 
relevant part,

In Carpenter, supra, 
the court stated its view "that 
apply to subjective practices, 
to follow Pouncy.

1 037 (1 982 ) 
183, 188-89 (5th 
Inc., 726 F.2d 

706

Co., 672 F.2d 444 (5th Cir. 
679 F.2d 31 (5th Cir. 1982), 

with Carroll v. Sears,
Cir. 1983). See also 

1038, 1045-46 (5tE Cir.
F.2d at 620-21 (5th Cir. 1983), 

the disparate impact theory should 
However, the court felt compelled

27 jn fact, the Griggs opinion is replete with references to 
"practices" and "procedures," terms that clearly encompass more 
than isolated, objective components of the overall process. 
E.a., 401 U.S. at 430 ("practices, procedures, or tests"); id. at 
43” ("practice" ) ; id. at 432 ("employment procedures or testing 
mechanisms"); id.T" any given requirement").

28 The Court in Pouncy apparently construed a reference in Griggs^to 
facially neutral practices to exclude subjective practices. The

29



The broad reach of the disparate impact model of proof is 
confirmed by the Court's decision in Connecticut v. Teal, 457 
U.S. 440 (1982). The Court repeatedly emphasized that any
"barrier to employment opportunities," 457 U.S. at 447, 448, 449,
450, 45 1 , 453, can be challenged under the disparate impact

29model.
Subjective practices that are not job-related, such as 

interviews and supervisory recommendations, are as capable as 
written tests of operating as "barriers" or "built-in headwinds" 
to minority advancement.^  Moreover, exclusion of subjective

phrase was used in connection with the Court's rejection of the 
argument that Title VII proscribes only intentional discrimi-
nat ion:

"Under the Act, practices, procedures, or tests neutral 
on their face, and even neutral in terms of intent, 
cannot be maintained if they operate to freeze the 
status guo of prior discriminatory employment prac­
tices ."

401 U.S. at 430. When viewed in context it is clear that the 
Court used the phrase "neutral on their face" to refer to 
policies or practices that are not discriminatory on their face. 
por example, a policy that blacks need not apply is facially 
discriminatory, while a policy of using a review panel to make 
selections is facially neutral.

29 Moreover, the dissenting Justices in Teal agreed that the process 
is subject to the disparate impact model. [0]ur disparate 
impact cases consistently have considered whether the results of 
the employer's total selection process have an adverse impact 
upon the protected groupT" 457 U.S. at 458 (Powell, Burger, 
Rehnquist, O'Connor, J.J., dissenting).

30 ^ supervisor may give a good faith evaluation of an employee s 
performance of a particular task. However, it is possible that 
the ability to perform the task evaluated is not related to 
performance of the job for which the candidate is applying. 
Similarly, an interviewer may attempt to select the best appli-

30



practices from the reach of the disparate impact model of proof 
is likely to encourage employers to use subjective, rather than 

objective, selection criteria.
Limiting the disparate impact rule to isolated components of

a selection process also is inconsistent with Supreme Court
authority. The Court in Griggs and Teal repeatedly described the
disparate impact model as applying to "practices and procedures,"

31which clearly encompass the entire selection process or system. 
Moreover, the legislative history of the 1972 amendments to Title 
VII leaves no doubt as to Congress' intent on his issue. The 

1972 Senate Report noted:

Employment discrimination ... today is a ... 
complex and pervasive phenomenon. Experts 
familiar with the subject now generally 
describe the problem in terms of 1 system' and 
'effects' rather than simply intentional 
wrongs."32

In Segar v. Smith, 738 F.2d 1249, 1270-72 (1984), the Court
of Appeals for the District of Columbia Circuit concluded that it

cant, but because of lack of training and guidance, be incapable 
of making a valid decision. Such practices serve as "artitifi- 
cial, arbitrary, and unnecessary barriers to employment, 
condemned in Gr iggs.

31 Teamsters, supra, 431 U.S. at 349 and Pullman-Standard_Co.^ v_j_
Swint, ~s~upra, 4 56 U.S. at 276-77 (1 982), hold that a seniority 
system would be subject to the disparate impact test but for § 
703(h) of Title VII.

3 2 g. Rep. No. 415, supra note 2, at 5 (1971) 
also H.R. Rep. No. 238, supra note 2, at

(emphasis added); see 
8 (1971).

31



makes sense to apply the disparate impact theory to the bottom-
line results of multi-component selection process, articulating

3 3several reasons for rejecting the Pouncy approach. Other courts 
have also articulated strong reasons for rejection of the 
isolated component approach adopted in Pouncy. The Court of 
Appeals for the Eighth Circuit noted that an arbitrary disparate 
impact might be caused by the interaction of two or more compo­
nents of a selection process. Gilbert v. City of Little Rock, 
supra note 25 , at 1 397-98 (1983). The rulings in Pouncy also
are inconsistent with the Uniform Guidelines on Employee Selec­
tion Procedures, 29 C.F.R. § 1607. The four federal agencies
charged with enforcing Title VII have interpreted the disparate 
impact model to apply to the results of a multi-component
selection process and to all selection procedures, whether

. . .. 34objective or subjective.

33 7 3 8 f . 2d at 1 270-72. The court stated: "The employer will
possess knowledge far superior to that of the plaintiff as to 
orecisely how its employment practices affect employees. This 
fact ... justifies the lesser burden of requiring the employer to 
articulate which of its employment practices adversely affect 
minorities. ... [A] requirement that the plaintiff in every case
pinpoint at the outset the employment practices that cause an 
observed disparity between those who appear to be comparably 
qualified ... in effect permits challenges only to readily 
perceptible barriers; it allows subtle bariers to continue to 
work their discriminatory effects, and thereby thwarts the 
crucial natinal purpose that Congress sought to effectuate in 
Title VII. 738 F.2d at 1271-72.

34 29 C.F.R. § 1607.76.

32



CONCLUSION

Foe the reasons stated, amici respectfully urge that the 

decision below be affirmed.

Respectfully submitted,

JULIOS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
GAIL J. WRIGHT 
PENDA D. HAIR

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Amici Curiae

November 1984

33



Certificate of Service

I, Penda D. Hair, do hereby certify that copies of the fore­
going Brief Amicus Curiae on behalf of the NAACP Legal Defense 
and Educational Fund, Inc.; the National Association of Black 
Women Attorneys; the National Bar Association, Women's Division; 
and the National Conference of Black Lawyers, Section on Women s 
Rights, were, this 16th day of November, 1984, served by first 
class mail, postage prepaid, upon the following persons:

Winn Newman, Esq.
Winn Newman and Associates 
1619 New Hampshire Avenue, N.W.
Washington, D.C. 20009
Christine 0. Gregoire 
Deputy Attorney General 
Temple of Justice, AV-21 
Olympia, Washington 98504

Penda D. Hair



I

1



I