Bazemore v. Friday Brief for Petitioners

    No. 85-93

In t h e

Qkmrt ni %  Intfrd States
October Term, 1985

P. E. B azemobe, et al.,

v.
W illiam C. F riday, et al.

Petitioners,

Respondents.

on  w r it  op certiorari to t h e  u n ited  states court op appeals

EOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONERS

E dward D. Reibman
108 North Eighth Street 
Allentown, Pa. 18101

Cressie H. Thigpen, J r.
Thigpen, Blue & Stephen's 
Suite 214
Hallmark Building 
Raleigh, North Carolina 27601

J ulius LeVonne Chambers 
R onald L. E llis 
E ric S chnapper*

NAACP Legal Defense & 
Educational Fund, Ine.

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

Counsel for Petitioners

*Counsel of Record



QUESTIONS PRESENTED
(1) Do Title VII and the Fourteenth 

Amendment permit a state to intentionally 
pay black employees less than white 
employees in the same job, so long as the 
original decision establishing that 
discriminatory wage differential was not 
itself the subject of a separate charge or 
action?

(2) Did the court of appeals err in 
holding that statistics may not be treated 
as probative evidence of discrimination 
unless the statistical analysis considers 
every conceivable non-racial variable?

(3) May a state satisfy its obli­
gation to desegregate a de jure system by

i



adopting a freedom of choice plan that 
fails?

(4) May an employer immunize itself 
from liability for employment discrimi­
nation by delegating its employment 
decisions to a discriminatory third party?

(5) Did the court of appeals err in 
holding that this case should not be 
certified as a claim action?*

* The parties to this litigation are set 
forth at pp. iii-vi of the petition.



TABLE OF CONTENTS

Pa9e
Questions Presented .............   i
Table of Authorities ............. v
Opinions Below »....-...............  2
Jurisdiction .......    2
Statement of the Case ........... 6

Statement of the Facts ...........  18
Summary of Argument .......    23
ARGUMENT

I. Title VII and the Four­
teenth Amendment Prohibit 
A Public Employer From 
Applying, As Well as 
Establishing, a Racially 
Based Salary System .....  23
(1) Salary Discrimination 

Is A Continuing Vio­
lation of the Equal
Pay Act ............. 25

(2) Neither Teamsters 
nor Evans Supports
the Decision Below .. 32

(3) Salary Discrimination 
Is A Continuing vio­
lation of the Four­
teenth Amendment ....

- iii -

40



Page
Petitioners Established 
the Existence of Post- 
1965 Intentional Salary 
Discrimination ........... 45
(1) Petitioners® Statis­

tics Established a 
Prima Facie Case of 
Discrimination ...... 47

(2) Respondents Failed 
to Rebut That Prima 
Facie Case .......... 60

Title VII and the Four­
teenth Amendment Place 
on Public Agencies a Non- 
Delegable Duty to Act in 
a Non-Discriminatory 
Manner .................... 71
The Courts Below Erred in 
holding NCAES Had No Obli­
gation to Disestablish a 
State Created System of 
Government Sponsored Single 
Race 4-H and Extension 
Homemaker Clubs .......... 87
(1) The History of the

Clubs ............... 87
(2) The Applicable Legal 

Requirments ........ 94

IV



Page
V. The Courts Below Erred in 

Refusing to Certify this 
Case as a Class Action .... 99

CONCLUSION .........     1 1 Q
APPENDIX: Statutes, Regulations, and 

Constitutional Provisions 
Involved .....  1 a

v



TABLE OF AUTHORITIES
Cases Page
Aooad v. Detroit Board of Educa­

tion, 431 U.S. 209 (1977) ... 88
Adickes v. S . H. Kress Co., 398

U.S, 144 ( 1970) ... .........  79
Alston v. School Board of Norfolk,

112 F .2d 992 (4th Cir.
1940) ........ ............ ... 41

Arizona Governing Board v.
Norris, 403 U.S. 1073
(1983) ..... ......... . ..... 21 ,76,79

Bell v. Georgia Dental Ass'n, 231 
F.Supp. 299 (N.D. Ga.
1964) ...... ................. 82

Burton v. Wilmington Parking 
Authority, 365 U.S. 715 
(1961 ) ..............    79

Connecticut v. Teal, 457 U.S.
440 ( 1982) ......    56

Corning Glass Works v. Brennan,
417 U.S. 188 (1974).. 18,19,25,26,28

30-31
County of Washington v. Gunther,

452 U.S. 161 ( 1981 ) .......  19,26,27
Craig v. Boren, 429 U.S. 190

(1 976) ..............     41,51
Craik v . Minnesota State Univer­

sity Bd., 731 F.2d 465 (8th 
Cir. 1984)   67,72

vi



Page
Dothard v. Rawlinson, 433 U.S.

321 ( 1977) ............. 20,49,62,64
Eisen v. Carlisle & Jacquelin,

417 U.S. 156 { 1974) ..........  22,107
Falcon v. General Telephone Co.,

628 F.2d 369 (5th Cir.
1980) ...........   70

General Building Contractors v. 
Pennsylvania, 458 U.S. 375 
( 1982).......................  82-85

General Telephone Co. v . EEOC,
446 U.S. 318 (1980) ....... 23,100-02

Green v. County School Bd., 391
U.S. 430 (1968) .......... 42,97,98

Griffin v. County School Bd.,
377 U.S. 218 ( 1964) ........  42

Griggs v. Duke Power Co., 401
U.S. 424 (1971) ..............  68,83

Guardians Association v. Civil
Service Commission, 630 F .2d
79 (2d Cir. 1980) ..... ..... 64

Guinn v. United States, 238
U.S. 347 (1915) ..............  43

Hazelwood School District v .
United States, 433 U.S.
299 (1977) . ....... ...... 16,56,58,60

vii



Page
Laffey v. Northwest Airlines, Inc.,

567 F .2d 429 (D.C. Cir„
1978)       37

Lee v. Macon County, 267 F.Supp.
458 (M.D. Ala. 1966) ........ 86

Lee v. Washington, 390 U.S. 333
(1968) .........    109

Mayor v . Educational Equality 
League, 415 U.S. 605
( 1974) ............. ........ 56,58,60

Meredith v. Fair, 298 F.2d
696 (5th Cir. 1962) ............  82

Movement for Opportunity v.
General Motors, 622 F .2d
1235 (7th Cir. 1980) ........  70

Neal v. Delaware, 103 U.S. 370
(1890) ....................  50,58,59

Norman v. Missouri Pacific 
Railroad, 414 F .2d 73 
(8th Cir. 1969) ............. 37

Patton v. Mississippi, 332 U.S.
463 ( 1947).................. . 20,62

Paxton v. Union National Bank,
688 F .2d 552 (8th Cir.
1982) ..............    55

Plessy v. Ferguson, 163 U.S.
537 (1895) ................... 41

- viii -



s-efeaver- v . Rhodes , 416 0. S . 232
(1974) ....... ....... .......  88

Smith v. Allwright, 321 u.S.
649 ( 1944) ..................  80

Strauder v. West Virginia, 100
U.S. 303 (1880) ............. 42

Swann v. Charlotte-Mecklenburg 
Bd. of Ed., 402 U.S.
1 (1971) ..........   42

Teamsters v. United States, 431
U.S. 324 (1977) --- 24,32-34,50,52,

55,60,75
Terry v. Adams, 345 U.S. 457

(1953) ......    81
Texas Department of Community 

Affairs v. Burdine, 450 
U.S. 248 (1981) .......... 54,67

Thorpe v. Housing Authority 
of Durham, 393 U.S.
268 (1969)   95

Trout v. Lehman, 702 F.2d 1044
(D.C. Cir. 1983) .....   65,70

Turner v, Fouche, 396 U.S. 346
(1970 )..........   68

United Airlines v. Evans, 431
U.S. 533 ( 1 977) ............ 24,32-34

ix



Page

United States v. SCRAP, 412 U.S.
669 (1973) ..... . 63

Vulcan Society v . Civil Service 
Comm'n , 490 F.2d 387
(2d Cir. 1973) .............. 54

Wallace v. United States, 389
U.S. 215 (1967) ............. 85

Washington v. Davis, 426 U.S.
229 (1976) .................. 43

Williams v. New Orleans
Steamship Ass'n, 673 F .2d
742 (5th Cir. 1982) ......... 72

Statutes and Constitutional Provisions

Fourteenth Amendment, U.S.
Constitution ....... i,3,5,40-45,84

Fifteenth Amendment, U.S.
Constitution .....     80

Civil Rights Act of 1964,
Title VI ............   3,5,95,96

Civil Rights Act of 1964,
Title VII ............   passim

Equal Pay Act, 28 U.S.C.
§206(d )(1) ....... 18,19,25-30,51

28 U.S.C. § 1 254( 1 )......      2
42 U.S.C. § 1981     82-84

x



Page
42 U.S.C. § 2000e-2 (a) ....... . 32
42 U.S.C. § 2000e-2(h) ........... 27
Section 703(h), Title VII,

Civil Rights Act of 1964 ... 33-34,39
Ore. Rev. Stat. § 137.350 ........ 37
Other Authorities
7 C.F.R. § 15.3(b)(6)(i) .......  22,95-96
Rule 23, Federal Rules of

Civil Procedure ....... 22,102-03,
106-07

Rule 401, Federal Rules of
Evidence .....................  53

110 Cong. Rec. (1964) ...........  28,30
H.R. Rep. 914, 8 8th Cong.,

1st Sess. ( 1964) ...........  36,53
"Perpetuation of Past Dis­

crimination", 96 Harv. L.
Rev. 828 ( 1983) ........ :... 42,82

xi



BRIEF FOR PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals 
is reported at 751 F.2d 662, and is set 
out at pp. 346a-481a of the Appendix to
the Petition for Writ of Certiorari. The 
order denying rehearing, which is not 
reported, is set out at pp. 482a of that 
Appendix. The district court's memorandum 
of decision regarding class claims, dated 
October 9, 1979, which is not reported, is 
set out at J. App. 73-87. The district 
court's memorandum of decision of August 
20, 1982, regarding class claims, which is 
not reported, is set out at pp. 3a-207a of 
the Petition Appendix. The district 
court's memorandum of decision regarding



2

individual claims, dated September 17, 
1982, is set out at pp. 216a-345a of the 
Petition Appendix.

JURISDICTION
The judgment of the court of appeals 

was entered on December 10, 1984. A
timely petition for rehearing and sugges­
tion for rehearing en banc was denied by 
an evenly divided court on April 15, 1985. 
July 14, 1985, was a Sunday. The petition 
for writ of certiorari was filed on July 
15, 1985, and was granted on November 12, 
1 985 . Jurisdiction of this Court is 
invoked under 28 U.S.C. § 1254(1).

STATEMENT OP THE CASE 
This is an action seeking to redress 

racial discrimination in the operation of
the North Carolina Argicultural Extension

1
Service (NCAES). NCAES is a federally

The complaint named as defendants a number 
of specific NCAES officials as well as the 
counties which jointly operated the NCAES



3 -

funded state agency which provides 
assistance to farmers and others through­
out North Carolina, and which organizes 
and assists the system of 4-H and exten­
sion homemaker clubs in the state. 
Petitioners filed this action in November 
1971, alleging that NCAES had engaged in a 
variety of practices violating, inter 
alia, Title VI of the 1964 Civil Rights 
Act and the Fourteenth Amendment. Peti­
tioners subsequently amended their 
complaint to include an allegation that 
NCAES had violated Title VII of the 1964 
Civil Rights Act, as amended in 1972, by 
engaging in employment discrimination. 
Several federal officials were initially

program. For simplicity this brief refers 
to actions of all of these defendants as 
actions of NCAES; this use of terminology 
should not be understood to suggest that 
only the defendant agency, as such, was 
responsible for or involved in the 
disputed activities.



4

named as defendants in this action. in 
April, 1972, the United States intervened 
as a party-plaintiff, and the district 
court subsequently realigned the federal 
defendants as plaintiffs-intervenors.

The private plaintiffs filed several 
motions seeking certification of this case 
as a class action, and seeking to certify 
all the counties in North Carolina as a 
defendant class. Each of these motions 
was denied. The trial of this action 
focused on four distinct claims which 
remain in dispute. First, petitioners 
alleged that different base salaries 
established prior to 1965 for black and 
white workers in the same job had remained 
in effect, and that blacks hired before 
1965 thus continued to be paid less than 
their white colleagues. Second, peti­
tioners alleged that for more than a 
decade after 1965 respondents continued to



5

engage in intentional racial discrimi­
nation in compensation. Third, peti­
tioners alleged that respondents had 
engaged in intentional racial discrimi­
nation in selecting the paid county 
chairman responsible for supervising the 
NCAES office in each county. Fourth, 
petitioners asserted that continued state 
assistance to several thousand single race 
4—H and extension homemaker clubs violated
both Title VI and the Fourteenth Amend- 

2
ment.

The district court 
the court of appeals 
petitioners' claims.

and a majority of 
rejected all of 
Judge Phillips

In addition to these claims of systematic 
class wide discrimination, petitioners 
sought to prove the existence of discrimi­
nation against a number of specific 
individuals. The courts below, in re­
jecting those individuals claims, ex­
pressly premised those decisions on their 
view that there had been no systematic 
discrimination. Pet. App. 380a, 218a n.70 (sic) .



6

dissented from the panel opinion, insist­
ing that the denial of relief was error as 
a matter of law. A timely petition for 
rehearing and suggestion for rehearing en 
banc was denied by an equally divided 
court.

STATEMENT OF THE FACTS 
Prior to 1965 NCAES was avowedly 

organized along strictly racial lines. 
There were separate black and white 
offices in every county, servicing 
exclusively black and white citizens 
respectively. NACES maintained separate 
wage systems for black and white employ­
ees, deliberately paying black workers
less than similarly situated whites doing 

3
the same job. Both courts below found 
that these racially based salary differen­
tials continued well past 1971, the year

3 Pet. App. 30a, 120a, 359a, 380a, 384a, 
389a, 399a.



7
4

in which this action was filed, and the
court of appeals concluded that those

5
disparities persist to this day. NCAES'
Director testified that the dual salary
system had originally been established
because there was less of a demand for
black workers than for comparable whites:

[Black home economics agents could be 
hired at a lower salary than white 
agents could. [B]lack agricultural 
agents could be hired and retained at 
a lower salary than white agricul­
tural agents.

Pet. App. 30a-31a, 122a-23a, 201a, 359a, 
360 .
The fourth circuit noted, "the Extension 
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 of such disparity." Pet. App. 
389a-90a.
C.A. App. 999. "C . A. App." refers to the 
court of appeals appendix. Because the 
underlying record is particularly volumin­
ous and unwieldly, ten copies of the court 
of appeals appendix have been lodged with 
the clerk.



NCAES provided substantial material 
and other assistance to several thousand 
NCAES sponsored 4-H and extension home­
maker clubs across the state? these clubs 
were organized along strictly racial 
lines, and NCAES employees who worked with 
these clubs were assigned on a racial 
basis. The NCAES operation in each county 
was overseen by a paid employee known as 
the county chairman. When this position 
was first created in 1962, NCAES expressly 
directed that it be given to the highest 
ranking white employee in each county. 
Every new chairman appointed between 1962 
and 1965 was white.

The practice of fixing salaries or 
raises on the basis of race did not end in 
1965. In 1971 the Director of NCAES wrote



9

a memorandum describing the specific 
reasons why race still affected salary 
decisions:

Obviously one of the areas where we'd 
be checked on is salary...,, Our 
salaries for women and non-white men 
on average are lower. Our figures 
verify. Due to several factors -

The competitive market — This 
is not acceptable as a reason 
though.

Tradition - not just in 
Ext[ension Service].

Less county support for 
non-white positions.

Petitioners demonstrated that NCAES 
consistently paid blacks lower salaries 
than were paid to whites holding the same 
positions. A direct comparison of the 
average salaries of blacks and whites 
working as associate agricultural agents, 
the single largest job title, revealed a 
persistent and substantial disparity:

7 J. App. 129; C.A. App. 1606-07; see also 
J. App. 90-92.



10

Associate Agricultural 
1970-81 8

Agents

Year Average Average Difference
White Black in Average
Salary Salary Salary

1970 $ 9,876 $ 8,956 $ 920
1971 10,240 9,558 682
1973 10,292 9,797 495
1 974 10,244 9,840 404
1976 12,711 1 1 ,885 826
1 979 14,754 13,518 1,236
1980 15,253 14,485 768
1981 17,035 15,849 1,186

These d i spar i ties were particularly sig-
nificant for two reasons. First, since 
associate agent is a lower level job, 
virtually all of the employees whose wages 
are reflected in this table were hired 
after 1 965. Second, in every year the 
average tenure of black workers was 
greater than that of white workers holding

8 Average salaries for individual years are 
set forth in C.A. App. 1 562; GX 95; PX 50; 
PX 100; and GX 98.



Petitioners offered
9

the same position.
data showing similar disparities in the
average salaries paid to blacks and whites

1 0
in other positions. The accuracy of these 
calculations was not questioned by 
respondents or by either court below.

Both parties also offered evidence in 
the form of regression analyses, which 
calculated differences in the average 
salaries of blacks and whites who were not 
only in the same job, but also had the 
same education, tenure, and sex. Experts 
for both the government and NCAES utilized 
essentially identical statistical methods, 
and arrived at essentially similar 
results.

See sources cited n. 8 , supra.
See sources cited n .8 , supra; J. App. 128. 
In the case of associate home economics 
agents, the disparity rose from $358 in 
1970 to $411 in 1981 .



Salary Disparities:
Average Amount by which Salaries of 

Whites Exceeded Salaries of Blacks with 
Same Position/ Education, Tenure and Sex
Year Government Defense

Regression.. 
Analysis

Regression._ 
Analysis

1 974 $257-337 $364-381
1975 312-395 384-391
1981 158-248 310-415

Experts for both sides agreed that these
salary disparities were statistically
s ign i f icant at least as late as 1975.
(Pet . App. 117-119). In an effort to
ascertain whether these disparities were

Pet. App. 117a-119a, 444a; C.A. App. 
399-418, 1568, 1601; GX 123 at 289, 297, 
310 (for 1974); GX 124 at 33, 39, 48, 60 
(for 1975); GX 122 at 37, 46, 55 (for 
1981).
Pet. App. 140a, 444-45a; C.A. App. 1681, 
1693-1715; see also J. App. 159. For both 
analyses differences in each year depend 
on the order in which the variables were 
considered. These figures do not include 
adjustments for quartile ratings, which 
petitioners contended was a major method 
used by NCAES to discriminate in salaries



13

due to performance ratings, the defense 
expert modified his analyses to compare 
black and white employees with the same 
ratings. That adjustment actually in­
creased the demonstrated disparity in 

13
wages for 1975, indicating that on average 
blacks were being paid less than whites 
even though NCAES believed the blacks were 
doing better work than whites.

The record also showed that the 
pre-1965 practice of naming only whites as 
county chairman continued with little 
change. Because of state requirements 
that county chairmen have extensive 
experience within NCAES, virtually the 
only individuals considered for or 
promoted to the position of county

13 J . App. 445a; C .A . App. 1716.



- 14
14

chairman are full agents. During the last
two decades blacks have constituted

1 5
approximately 25% of full agents. Since
1 963 the numbers of blacks and whites
promoted to the position of county

16
chairman were as follows:

PercentPeriod White Black Black
1962-1967 11 5 0 0%1968-1975 51 1 1 .7%1976-1981 46 5 9.8%1962-1981 2 1 2 6 2 .6%

A number of facts regarding how this 
disparity came about are not in dispute. 
NCAES has never promoted a black to a

Since 1972 all new county chairmen have 
previously served as full agents. C.A. 
App. 1755.

1 5 GX 100; C.A. App. 1562.
16 J. App. 127; GX 74; C.A.App. 1745. The 

names and race of each applicant and 
appointee from 1 968 through May 1981 are 
set out in J. App. 114-26 and C.A. App. 
1736-1742. The applicants are also listed 
in the chart following Pet. App. 419a in 
the court of appeals® opinion.



15

county chairmanship for which a white male
also applied. In every instance in which
a black and a white male applied for the
position of county chairman, the white

17
male was chosen. There were only six
blacks appointed county chairman during
this 19 year period; in four instances
only blacks had applied for the posi- 

18
tion, and in the other two cases the only

19
white applicants were women. In the case 
of vacancies for which both black and 
white males applied, the number of black 
appointees, 0, is 4.5 standard deviations

There were such 20 such vacancies . ( C . A.
App. 1736-40; chart following p. 419a of 
the Petition Appendix.)
Carl Hodges (1971 ) , B. T. McNeill ( 1976 ); 
Leroy James (1978) and Hoven Royals 
( 1980). See C . A. App. 1736-40; chart 
following page 419a of the Petition 
Appendix.
In 1979 L.C. Cooper was selected over 
Emily Ballinger. C .A. App. 1 737 . In 1 981 
Willie Featherstone was chosen over Ellen 
Willis. 751 F .2d 652, 678.



16

below the statistically expected number.
In the case of vacancies applied for by
blacks and either white males or white
females, the number of standard deviations 

20
is 3.8.

As a general rule NCAES selects a
single applicant for promotion to county
chairman; that name is then sent for
approval to county officials, and almost
invariably the counties accept NCAES'
choice. (Pet. App. 78a). Prior to 1975,
however, NCAES followed a different
procedure when both blacks and whites
applied for a vacancy; in such cases NCAES
ordinarily approved two applicants, a
black and a white, and sent both names to

21
the county officials. Where the final 

on The standard deviations are calculated 
using the chi-square methodology of 
Hazelwood School District v. United 
States, 433 U.S. 299, 311 n.17 (1977).

21 This occurred in over three-fourths of all 
such pre-1975 vacancies. See sources



17

decision was thus delegated to a county, 
the county always chose the white appli­
cant. Beginning in 1975, NCAES followed a 
different practice, in all but one
instance referring only a single name to

22
the county involved. In every case in 
which a black and a white male applied for 
a vacancy, and NCAES decided to select 
only a single applicant, NCAES chose the 
white applicant.

The only action taken by NCAES to 
modify the de jure systems of 4-H and 
extension homemaker clubs was to adopt a 
freedom of choice plan. That plan had, as 
Judge Philips noted in his dissenting 
opinion below, only a "minimal" effect. 
(Pet. App. 471a). On two occasions NCAES 
briefly adopted proposals for affirmative

cited, n. 1 7, supra. In every instance it 
selected the white. Id.

22 Id.



18

steps to disestablish this dual system; in 
both instances the proposal was rescinded 
at the request of NCAES' trial counsel, 
who warned that such efforts to integrate 
the 4-H extension clubs would "lower the 
standards for our program inasmuch as we 
will be forced to accept 4-H club members 
. . who may not have the . . . talent to 
participate in club activities." (J. App.
157; C.A . App. 1904} .

SUMMARY OF ARGUMENT 
I. Title VII forbids an employer to 

base an employee's compensation on a 
racially motivated base wage or wage 
scale, regardless of whether that base 
wage or scale was established prior to 
1965 . Salary discrimination is a con­
tinuing violation of the Equal Pay Act, 
and pre-Act discriminatory salary differ­
entials became illegal on the effective 
date of that Act. Corning Glass Works v.



19

Brennan, 417 U.S. 188 (1974). The
standards of the Equal Pay Act are
appl icable to an equal-pay-for-equal-work 
claim under Title VII. County of Wash­
ington v. Gunther, 452 U.S. 161 (1981). 
In the instant case both courts below 
found that prior to 1965 NCAES set 
different base salaries for blacks and 
whites doing the same job, and that those 
salary differentials remained in effect 
until at least the mid-1970's.

II. Evidence of a disparity in the 
average salary of blacks and whites in the 
same job is sufficient to establish a 
prima facie case of salary discrimination. 
Such evidence establishes a prima facie 
case of salary discrimination under the 
Equal Pay Act, Corning Glass Works, 417 
U.S. at 197, and the same standard applies 
under Title VII. Experts for both
petitioners and respondents agreed there



20

were statistically significant disparities 
in the average salaries of blacks and 
whites with the same job, education and 
tenure. Petitioners were not obligated to 
demonstrate that no possible additional 
variable might have explained away those 
disparities. Dothard v. Rawlinson, 433 
U.S. 321 (1977).

defendant cannot rebut proof of
statist ical disparities merely by

hypothesizing that some non-racial factor 
might have explained these differences. A 
defendant must prove that the non-racial 
factor on which it relies would in fact 
account for the proven disparities. Patton 
v. Mississippi, 332 U.S. 463 (1947). 
Respondents made no effort to meet that 
burden, but merely offered speculation 
that the salary disparities might have had 
a legitimate non-racial cause.



21

H I .  An employer cannot escape its 
responsibilities under Title VII by 
delegating employment decisions to a third 
party. Arizona Governing Board v. Norris, 
403 U.S. 1073 (1983). In this case NCAES 
has never promoted a black to the position 
of a county chairman if a white male also 
applied for the vacancy. The court of 
appeals erred in holding that this 
practice could be defended by evidence 
that NCAES frequently permitted county 
officials to decide whom NCAES would 
promote.

IV. Prior to 1965 NCAES established 
a de jure system of separate black and 
white 4-H and extension homemaker clubs. 
In 1 965 NCAES adopted a freedom of choice 
plan that failed; the number of single 
race clubs today is virtually the same as 
it was 20 years ago. Respondents' failure 
to disestablish this dual system violates



22

the applicable federal regulations. 7 
C.F.R. § 15.3 (b)(6)(i). Petitioners also 
offered substantial evidence indicating 
that members of these clubs continue to be 
recruited on a racial basis. The lower 
courts erred in failing to resolve the 
latter claim.

V. The fourth circuit held that 
class certification was inappropriate 
because petitioners had not demonstrated 
that the proposed class was injured by any 
"legally cognizable wrong." There were of 
course statewide NCAES practices of which 
petitioners complained; the fourth 
circuit, holding that those practices were 
lawful, concluded that the case thus 
presented no "legally cognizable wrongs." 
The court of appeals erred in basing 
certification on its view of the merits 
of the claims involved. Eisen v. Carlisle
& Jacquelin, 417 U.S. 156 (1974).



23

The district court believed that 
class certification was impermissible 
because the United States had filed a 
pattern and practice action raising 
similar issues. That decision was
inconsistent with the intent of Congress 
to provide overlapping private and 
governmental remedies for violations of 
Title VII. General Telephone Co, v. EEOC, 
446 U.S. 318 (1980).

ARGUMENT
I. TITLE VII AND THE FOURTEENTH 

AMENDMENT PROHIBIT A PUBLIC 
EMPLOYER FROM APPLYING, AS WELL 
AS ESTABLISHING, A RACIALLY 
BASED SALARY SYSTEM

Both courts below found that the wage 
rates of blacks hired prior to 1965 had 
for racial reasons been set at levels 
lower than the salaries of comparable 
whites, and that these racially based wage 
disparities continued until at least the



24

mid- 1 970's. (See pp. 6-7, supra) . The 
court of appeals, however, held that only 
the establishment of such a racially 
tainted wage system, but not the actual 
utilization of that system, constituted 
discrimination. (Pet. App. 380a-82a) 
Because the base wages of petitioners such 
as Bazemore were established prior to 
1 965, while the instant action was only 
commenced in 1971, the fourth circuit 
reasoned that NCAES was entitled to 
continue indefinitely paying petitioners 
lower salaries than the wages paid to 
their comparable white colleagues. The 
court of appeals believed that this result 
was compelled by this Court's decisions in 
Teamsters v. United States, 431 U.S. 324 
(1977) and United Airlines v. Evans, 431 
U.S. 533 (1977). The fourth circuit's
decision conflicted with the opinions of 
seven other circuits, which have held that



25

salary d iscrimination is a continuing 
violation of Title VII. See cases cited, 
Petition, pp. 17-22.

(1) Salary Discrimination Is A 
Contming Violation of the 
Equal Pay Act

The question of whether salary 
discrimination constitutes a continuing 
violation of Title VII is, we urge, 
controlled by this Court's construction of 
the related provisions of the Equal Pay 
Act of 1963. In Corning Glass Works v. 
Brennan, 417 U.S. 188 (1974) this Court
held that salary discrimination is a 
continuing violation of the Equal Pay Act, 
and that that Act thus forbids an employer 
to continue to use discriminatory pre-Act 
salary scales. In Corning Glass male 
workers hired prior to 1964 had been given 
higher base salaries than women doing the 
same work. The Court explained:



26

The differential -- reflected a job
market in which Corning could pay 
women less than men for the same work. 
That the company took advantage of 
such a situation may be understandable 
as a matter of economics, but its 
differential nevertheless became 
illegal once Congress enacted into law 
the principle of equal pay for equal 
work.

23417 U.S. at 205. (Emphasis added). The 
decision in Corning Glass is, for several 
reasons dispositive of the same issue 
under Title VII.

First, in County of Washington v. 
Gunther, 452 U.S. 161 (1981), every member 
of this Court agreed that the substantive 
standards of the Equal Pay Act should 
apply to an action under Title VII 
alleging a denial of equal compensation

See also id. at 208 ("If ... the work 
performed by women on the day shift was 
equal to that performed by men on the 
night shift, the company became obligated 
to pay the women the same base wage as 
their male counterparts on the effective 
date of the Act.")(Emphasis added)



27

for equal work. The Equal Pay Act, 
adopted in 1963, requires covered em­
ployers to give women the same salaries 
paid to men doing the same work. 29 U.S.C. 
§206 (d ) ( 1 ) . The Equal Pay Act authorizes 
an employer to utilize certain salary 
differentials, and the Bennett Amendment 
to Title VII, 42 U.S.C. §2000e-2(h), 
extends that authorization to Title VII 
claims of salary discrimination against 
women. Although the Court in Gunther was 
sharply divided as to the meaning of the
Bennett Amendment, both the majority 

24 25
opinion and the dissenters agreed that the 
substantive standards of the Equal Pay Act 
would be applied to an equal-pay-for- 
equal-work claim under Title VII. Both

452 U.S. at 175 ("The Bennett Amendment 
clarified that the standards of the Equal 
Pay Act would govern ... Title VII ....").

25 452 U.S. at 190, 191-2, 200-01.



28

opinions emphasized that Senator Clark,
the floor manager of Title VII, had
explained to his colleagues that "[t]he
standards in the Equal Pay Act for
determining discrimination as to wages, of
course, are applicable to the comparable

26
situation under Title VII" If, as this 
Court has already held in Corning Glass, 
the use of discriminatory pre-Act base 
wages violates the Equal Pay Act, the 
continued use of such base wages is also 
a violation of Title VII.

Second, if salary discrimination were 
treated as a continuing violation of the 
Equal Pay Act, but not of Title VII, a 
number of anomalies would result. if, 
prior to 1963, a white woman and a black 
man were both being paid less than a white

452 U.S. at 172 n.12 (majority opinion), 
192 (dissenting opinion). The quoted 
statement appears at 110 Cong. Rec. 7217 
( 1 964) .

26



29

man doing the same work, Corning Glass 
gives the woman a right to have her salary 
raised to the level of the white man, 
whereas under the fourth circuit decision 
the black man could be paid an inferior 
salary for the rest of his life. Simi­
larly, although under the Equal Pay Act a 
female worker can challenge at any time 
a discriminatory pay differential estab­
lished after 1965, a black worker, under 
the fourth circuit decision, must file an 
EEOC charge within 180 days of the 
creation of that differential, or be 
forever barred from redressing that 
discrimination. Nothing in the legislative 
history of Title VII suggests that 
Congress could have intended to thus 
provide blacks with more limited protec­
tions against salary discrimination than 
was already enjoyed by women under the 
Equal Pay Act. Those members of Congress



30

who successfully urged that Title VII
extend to sex discrimination expressly
disavowed any intention to confer upon
women any greater rights or remedies than

27would be enjoyed by blacks.
Third, the decision in Corning Glass 

accurately reflects the ongoing nature of 
salary determinations, and thus of salary 
discrimination. Hiring and promotion 
decisions may often be discreet, isolated 
and generally final actions, but the 
salaries paid to particular individuals, 
and for specific jobs, are ordinarily 
under continuous, or at least repeated, 
review. The legislative history of the 
Equal Pay Act highlighted the systematic 
manner in which American industry fixes

27 '110 Cong. Rec. 2581 (Rep. St. George) 
(Women "do not want special privileges); 
2583 (Rep. Kelly) (urging that "all 
persons, men and women, possess the same 
rights"); 2584 (Rep. Watson) ("equal 
rights for all people").



31

the salaries for positions and individ­
uals, generally focusing on four specific 
factors, skill, effort, responsibility 
and working conditions. Corning Glass 
Works v. Brennan, 417 U.S. at 199-202. 
Where an employer had for racial or sexist 
reasons set an inappropriately low salary 
for an individual or position, application 
of these "well defined and well-accepted" 
industry principles should ordinarily lead 
to a correction of that discrimination. 
417 U.S. at 201. Congress understandably 
regarded as culpable an employer that, 
ignoring the generally accepted practice 
of job evaluation, persisted in applying 
pre-Act salary differentials rooted in 
discrimination. That culpability is the 
same whether the discrimination at issue 
was on the basis of sex or of race.



32

(2) Neither Teamsters nor Evans 
Support the Decision Below

Teamsters and Evans provide no basis 
for the decision of the fourth circuit. 
Both courts below found that NCAES was 
knowingly paying black workers less than 
white workers doing precisely the same 
job, relying on racially discriminatory 
base wage rates established prior to the 
effective date of Title VII. Such a 
practice clearly falls within the literal 
language of Title VII, which forbids an 
employer "to discriminate against an 
individual with respect to his compensa­
tion ... because of such individual's 
race." 42 U.S.C. § 2000e-2(a). Teamsters 
v. United States expressly held that as a 
general matter Title VII forbids the 
utilization of practices which operate to 
perpetuate the effects of pre-Act dis­
crimination:



- 33

Congress "procsribe[d] .. practices 
that are fair in form, but discrimi­
natory in operation" ... One kind of 
practice "fair in form, but discrimi­
natory in operation" is that which 
perpetuates the effects of prior 
discrimination. As the Court held in 
Griggs [v. Duke Power Co]: "Under the 
Act, practices ... neutral on their 
face, and even neutral in terms of 
intent, cannot be maintained if they 
operate to 'freeze' the status quo of 
prior discriminatory practices." 431 
U.S. at 349.

The continued use of a racially explicit 
base wage has precisely such a forbidden 
consequence.

In Teamsters this Court held that the 
use of a seniority system that perpetuated 
the effects of past discrimination would 
have violated Title VII "[w]ere it not for 
§ 703(h)." 431 U.S. at 350. Both Team­
sters and Evans relied on the terms of 
section 7 0 3 (h) , which expressly permits 
the utilization of a bona fide seniority 
system " [n]otwithstanding any other
provision of [Title VII]. It was because



34

of just such a bona fide seniority system 
that blacks had been denied the promotions 
sought in Teamsters, and that the plain­
tiff had been denied the additional wages 
sought in Evans. In rejecting the 
seniority-related claims in those cases, 
the Court described section 703(h) as 
conferring "immunity" on bona fide 
seniority systems, 431 U.S. at 350, a term 
which made clear that section 703(h) 
created an exception to the general Title 
VII prohibition against practices perpet­
uating the effects of earlier discrimi­
nation. The result in Teamsters and Evans 
thus turned on the particular favored 
treatment for seniority systems that was 
demanded during the debates on Title VII 
and that was embodied in the language of 
section 703(h) .



35

Nothing in the terms or legislative 
history of Title VII reflects any compar­
able desire to immunize racially motivated 
pre-Act salary systems or base wages, 
should those systems or wages continued to 
be utilized after the effective date of
Title VII. If an employer, prior to 

28
1965, had been paying blacks less than 
whites for doing identical work, the 
literal language of the statute required 
that those salaries be adjusted to the 
same level when Title VII became effective 
on July 1, 1965. The proponents of Title 
VII noted with grave concern the different

Since this is an action against a state 
agency, the relevant effective date of 
Title VII is March 24 , 1972 , the effective 
date of the1972 amendments extending the 
coverage of that statute to state and 
local governments. The fourth circuit 
assumed, as do we, that the issue in this 
case, whether pre-1972 state salary 
systems are actionable under Title VII, 
turns on whether Title VII, as originally 
enacted, required alteration of pre-Act 
private employer salary differentials.



36

median salaries of blacks and whites,
emphasizing that this disparity placed "an
entire segment of our society ... into a

29
condition of marginal existence." Aware, 
as they were, that blacks were being paid 
less than whites for performing the same 
jobs, it is inconceivable that the 
Congress which adopted Title VII intended 
to freeze an entire generation of blacks 
into that position of inequality, or to 
provide equal pay for equal work only for 
blacks whose base salaries were estab­
lished after July 1, 1965.

The decision of the fourth circuit 
entails consequences inconsistent in a 
variety of ways with other aspects of 
Title VII. Title VII forbids an employer 
to intentionally assign a lower wage to a

H.R. Rep. No. 914, 88th Cong., 1st Sess., 
pt . 2, 28 (additional views of Reps.
McCulloch, et al.)(1964)

29



- 37

particular position because most or all of
the employees in that position are black
or female. See County of Washington v.
Gunther, 452 U.S. 161 (1981). But such
discriminatory wage systems ordinarily
were established, as was the case in 

30
Gunther, long prior to the adoption of 
Title VII or the beginning of the limita­
tions period that would be relevant to a

31
const itut ional claim. If , as the fourth 
circuit has held, only the creation of 
such discriminatory wage scales, but not 
their application, is unlawful, then

30 The existence of separate position for 
female prison guards dated from prior to 
1955. See note at Ore. Rev. Stat. § 
137.350.

31 .See, e.g. Norman v . Missouri Pacific
Railroad, 414 F.2d 73, 84-85 (8th Cir. 
1969) (system established in 1930’s);
Laffey v . Northwest Airlines, Inc., 567 
F.2d 429, 437-38 (D.C.~Cir. 1978) (system 
established in 1947) .



38

Gunther and the principle it establishes 
would be a dead letter.

The decision below would also 
emasculate the statutory and constitu­
tional prohibitions against racial 
discrimination in the fixing of salaries 
for particular employees. Unlike discrim­
ination in promotions or assignments, the 
effects of which are often obvious to all 
involved, the existence of discrimination 
in compensation is only rarely apparent, 
since the victims of that practice 
usually do not know the salaries of their 
white colleagues, and ordinarily have no 
method of comparing their wages with those 
of others doing the same work. in a
substantial proportion of all reported

32
Title VII wage compensation cases, the 
plaintiffs were not able to detect that

32 See cases cited, Petition, pp. 17-22.



39

statutory violation until long after the 
deadline for filing a charge with regard 
to the intial act establishing their 
salaries„

The decision of the fourth circuit 
affords to salary scales a degree of 
protection far greater than that which 
Title VII provides even for seniority 
systems. To justify salary disparities 
under section 703(h), a defendant must 
prove both that those disparities were the 
result of seniority system, and that the 
system itself was bona fide; if defendant 
failed to establish that both the creation 
and maintenance of a seniority system were 
untainted by a discriminatory purpose, the 
affirmative defense authorized by section 
703(h) would be unavailable. The fourth 
circuit decision regarding salaries would 
create a far more sweeping defense, 
holding that wage disparities caused by



40

pre-Act salary scales are unlawful regard­
less of whether those scales were in fact 
racially motivated. Thus pre-Act salary 
scales would enjoy a far greater degree of 
protection than pre-Act seniority systems, 
even though only seniority systems are 
afforded any degree of immunity under the 
actual language of Title VII. There is no 
reason to believe that the framers of 
Title VII intended any such incongruous 
result.

(3) Salary Discrimination Is a 
Continuing Violation of the 
Fourteenth Amendment

The fourth circuit rejected without 
explanation petitioners' claim that the 
utilization of racially tainted base wages 
violated the Fourteenth Amendment. 
Although those wage scales pre-dated Title 
VII and thus were not when established 
violative of that statute, those scales



41

were at all times unconstitutional under 
the Fourteenth Amendment. Even Plessy v. 
Ferguson, 163 U .S . 53 7 (1895), condemned 
such unequal treatment, and the fourth 
circuit itself expressly forbade salary 
discrimination by state agencies as early 
as 1940. Alston v. School Board of 
Norfolk, 112 F . 2d 992 (4th Cir. 1940), 
cert, denied 311 U.S. 693 ( 1940). The 
disposition of petitioners' constitutional 
claim is necessary since, if sustained, 
that claim would entitle them to back pay 
for a period commencing in 1968, whereas 
the back pay period for their Title VII 
claim begins March 14, 1972, the effec­
tive date of the 1972 amendments.

Corning Glass recognized that the use 
of discriminatory base wages constituted a 
present violation of the Equal Pay Act 
because it "operated to perpetuate the
effects of the company's prior illegal



42

practice of paying women less than men for
equal work." 417 U.S. at 209-10 . For
over a century, and in a variety of
circumstances, this Court has condemned as
unconstitutional actions which perpetuate
the effect of prior intentional racial 

33
discrimination. See "Perpetuation of Past 
Discrimination", 96 Harv, h. Rev. 828 
(1983). Although an equal protection claim 
requires proof of a discriminatory motive, 
it is not necessary that that motive and 
the injury complained of be contemporane­
ous, so long as the injury can be 
"ultimately ... traced to a racially 
discriminatory purpose." Washington v. 
Davis, 426 U.S. 229, 240 ( 1976). The most 
egregious devices that perpetuated past 
_

Swann v. Charlotte-Mecklenburg Bd. of 
Educ., 402 U.S. 1, 21 (1971); Green v. 
County School Bd. , 391 U.S. 430 , 438
(1968); Griffin v. County School Bd., 377 
U.S. 218, 232 (196471 STrauder v. West 
Virginia, 100 U.S. 303, 306 (1880).



43

discrimination were the infamous grand­
father clauses, which based a citizen's 
right to vote on whether his or her 
ancestors had been eligible to vote prior 
to the adoption of the Fifteenth Amend­
ment. This Court struck down those 
clauses because they made racial criteria 
in effect before the Civil War "the 
controlling and dominant test of the right 
of suffrage" more than half a century 
later. Guinn v. United States, 238 U.S. 
347, 364-65 (1915).

In the instant case NCAES' racially 
explicit pre-1965 salary decisions were 
literally "the controlling and dominant 
test" for ascertaining what salary 
pe-titioners would be paid in the years 
that followed. If the North Carolina 
legislature had in 1964 fixed petitioner 
Bazemore's salary by statute, intention­
ally setting it at a lower level because



44

of his race, this Court would not hesitate 
to declare unconstitutional the continued 
enforcement of such a law. Surely the 
result is no different where, as here, the 
racially motivated state practice com­
plained of was taken pursuant to an 
administrative decision rather than a 
state statute. Similarly, if a state 
agency in 1900 had established salary 
scales for specific jobs based on the race 
of the employees holding those positions, 
the fourth circuit would hold that that 
decision was only actionable at the 
beginning of the century; the applicable 
limitations period, on this view, would 
expire decades before present black 
employees were hired or even born. Such a 
construction of the Fourteenth Amendment 
would read into the Constitution itself 
the very evil condemned in the grandfather 
clause cases.



45

The factual findings of the courts 
below that racially motivated pre-1965 
salary disparities continued until at 
least the mid 1970 ' s thus compels the 
conclusion that respondents violated both 
Title VII and the Fourteenth Amendment,, 
The burden is on the respondents to 
establish the date on which the continuing 
effects of those salary disparities 
finally ended. This claim should be 
remanded to the trial court for appro­
priate proceedings to determine the amount 
of back pay awarded, and to fashion any 
necessary injunctive relief.

II. PETITIONERS ESTABLISHED THE
EXISTENCE OF POST-1965 INTEN- 
TIONAL SALARY DISCRIMINATION

Petitioners claimed and sought to 
prove at trial that the practice of 
intentional salary discrimination did not 
end in 1965, but continued for more than a



46

decade thereafter. Petitioners offered 
undisputed evidence that, even among 
individuals hired after 1965, the average 
salary of black workers was consistently 
lower than the average salary of whites 
holdng the same position and with the same 
education and tenure. (See pp.9-13, 
supra).

Both courts below, however, regarded 
this evidence as fatally defective. (Pet. 
App. 141a, 389a-91 a) Neither the district 
judge nor a majority of the fourth 
circuit panel thought it particularly 
surprising or significant that for years 
blacks had been paid less than whites for 
doing the same job. Even though peti­
tioners had shown a substantial and 
persistent disparity in the wages paid to 
blacks and whites in the same job, the 
courts below held that petitioners were 
legally obligated to demonstrate that



47

there was no possible legitimate explana­
tion for those disparities. Respondents 
never offered any evidence demonstrating 
that consideration of additional variables 
would in fact have eliminated the apparent 
salary d isparities, and both courts below 
held that such evidence was entirely 
unnecessary. The court of appeals and 
district court relied on somewhat differ­
ent lines of reasoning in reaching this 
conclusion.

( 1 ) Petitioners' Statistics Estab- 
lished A Prima Facie Case of 
Discrimination

The fourth circuit concluded that the 
statistical analyses offered by peti­
tioners were entirely "unacceptable as 
evidence of discrimination" (Pet. App. 
391). Evidence that whites make more than 
blacks for doing the same job, the 
appellate court insisted, is entitled to



48

no weight whatsoever as proof of salary 
discrimination. On the court of appeals' 
view, the statistics in this case did not 
even meet the minimal standard necessary 
to establish a prima facie case, and the 
defendants were thus under no obligation 
to offer any defense at all to that 
evidence. Unless a plaintiff demonstrated 
that no conceivable additional factor 
could explain away a statistical dispar-
ity, the court of appeals held that
evidence that blacks are paid, hired , or
promoted or given raises less often than
whites would be devoid of weight or

34
significance.

34 The majority opinion rejected the individ­
ual claims of salary discrimination on a 
similar theory. Petitioners offered 
statistical comparisons of their wages 
with the wages of white agents with the 
same education tenure, job title and 
county. The majority dismissed that 
evidence on the ground that such compari­
sons did not also consider possible 
additional job qualifications or differ­
ences in job performance. (Pet. App.



49

The Court has repeatedly rejected 
similar arguments that statistical 
evidence must be absolutely conclusive in 
order to be probative. In Dothard v. 
Rawlinson, 433 U.S. 321 ( 1977), the 
plaintiffs relied on population statistics 
to show that an employer's hiring criteria 
had an adverse impact on women. The 
defendant argued that the plaintiffs 
should have been required to demonstrate 
the impact of those criteria on actual 
applicants. This Court disagreed, 
explaining, "The plaintiffs in a case such 
as this are not required to exhaust every

378a, 379a). Both the majority and Judge 
Phillips agreed that the district court's 
decision rejecting the individual claims 
would have to be reversed if there was 
proof of a pattern and practice of salary 
discrimination. (Pet. App. 380a, 467a). 
The district court acknowledged that its 
disposition of the individual claims 
turned on its view that there was no 
systematic salary discrimination. Pet. 
App. 218a n.70 [sic.]



50

possible source of evidence." 431 U.S. at
331. In Teamsters v. United States, 431
U.S. 321 (1977), the employers objected in
a similar way to evidence that it employed
a far smaller proportion of minorities
than were present in the population. The
employer insisted that half a dozen
factors not considered in the plaintiff's
analysis might have explained away that
disparity, and presented an expert on
statistics to criticize the plaintiff's 

35
methodology. But this Court held that the 
plaintiff itself was under no obligation 
to "fine tun[e]" its statistics. 431 U.S. 
at 342 n. 23. See also Neal v. Delaware, 
103 U.S. 370, 395 (1890).

In a case such as this in which 
petitioners allege they are not being 
given equal pay for equal work, the

See Brief for Petitioner T .I.M .E.-D.C., 
Inc., pp. 18-20 .



51

allocation of the burden of proof should 
be the same as is applied under the Equal 
Pay Act. In an Equal Pay Act case, once a 
plaintiff has met her burden of "showing 
that the employer pays workers of one sex 
more than workers of the opposite sex for 
equal work, the burden shifts to the 
employer to show that the differential is 
justified". Corning Glass Works v, 
Brennan, 417 U.S. 188, 197 ( 1974). A 
demonstrable disparity in the average 
salary paid women and men in the same job 
would be sufficient to satisfy a plain­
tiff's burden under Corning Glass. Since 
the substantive standard of the Equal Pay 
Act and Title VII are the same in an 
equal-pay-for-equal-work case, that same 
evidence, adduced here to demonstrate the 
existence of racial discrimination, was 
also sufficient to meet plaintiffs'
burden.



52

The same standard is entirely
appropriate in a Title VII case. Here, as 
in Teamsters "it is ordinarily to be 
expected that nond iscriminatory" salary 
policies will result in comparable
salaries for blacks and whites whom an 
employer itself has classified in the same 
position. 431 U.S. at 339 n. 20. The 
legislative history of Title VII, more­
over, demonstrates, that the Congress 
adopted that measure because it believed 
the existence of nationwide racial
discrimination was established by statis­
tics demonstrating substantial differences
in the median salaries of black and white 

36
workers.

The court of appeals apparently
believed that statistics could be treated

H.R. Rep. No. 914, 88th Cong., 1st Sess., 
pt. 2, 28 (additional views of Reps.
McCulloch, et al.) (1964).



53

as reliable evidence only if the analysis 
was so refined as to rule out any plaus­
ible non-racial explanation for a demon­
strated disparity. But statistical
evidence need not be conclusive in order 
to be admissible or relevant,* rather, 
statistical evidence, like other types of 
proof, need only have a "tendency to make 
the existence of [discrimination] ... more 
likely...." Fed. Rules of Ev., Rule 401. 
Statistical evidence which meets that 
standard is not, unless unrebutted, 
dispositive by itself of the litigation; 
such evidence merely shifts to the 
defendant the burden of adducing evidence 
that the disparity was caused by the 
application of a legitimate non-discrimi- 
natory criterion. Cf. Texas Department of



54

community Affairs v. Burdine, 450 U.S. 
248, 254 (1981); Vulcan Society v. Civil 
Service Comm'n , 490 F .2d 387, 392 (2d Cir. 
1973).

In order to provide probative 
statistical evidence that a challenged 
selection procedure is being applied in a 
discriminatory manner, a plaintiff must 
(a) identify the procedure in dispute, (b)
identify the group of applicants or
employees to whom that procedure is

37
applied, and (c) demonstrate a disparity

In a case where a plaintiff challenges 
only a selection procedure for hiring or 
promotions, the appropriate universe for 
comparison purposes is the group of 
applicants. Because applicant flow data 
is often unavailable or unreliable, the 
courts have properly accepted workforce 
statistics as evidence of the composition 
of the applicant group. See, e.g., 
Teamsters, 431 U.S. at 337 n.7. In an 
action regarding internal promotions, the 
relevant workforce, of course, is the 
group of employees eligible for promotion. 
Paxton v. Union National Bank, 688 F.2d 
552, 564 (8th Cir” 1982) Where a plain­
tiff alleges that applicant flow is 
tainted by racial discrimination, the



55

between the racial composition of that 
initial group and the group ultimately 
selected, e . g . , for hiring, promotions, 
cases, or jury service. The appropriate 
degree of statistical refinement will thus 
turn on the specific nature of a plain­
tiff's claims. Where a defendant's 
selection process involves a number of 
different factors or procedures, a 
plaintiff may either challenge the process 
as a whole, as occurred in this case, or 
focus his or her objection on only a 
specific aspect of that process. Connec­
ticut v. Teal, 457 U.S. 440 (1982).

I n Hazelwood School District v. 
United States, 433 U.S. 299 (1977), the
government alleged there was intentional 
discrimination in the manner in which

composition of the applicant group should 
be compared with that of the relevant 
workforce.



56

Hazelwood selected new teachers from the 
area pool of teachers. Because the United 
States did not attack Hazelwood's practice 
of considering only trained educators, it 
was that pool of trained educators, rather 
than the entire population, whose composi­
tion was compared with Hazelwood's hiring 
rate. 433 U.S. at 308-312. In Mayor v. 
Educational Equality League, 415 U.S. 605 
(1974), where the plaintiffs alleged 
intentional discrimination in the selec­
tion of members of an Educational Nominat­
ing Panel, the city charter required the 
mayor to chose most of those members from 
among individuals who headed certain 
public and civic organizations. The 
plaintiffs did not attack the legality or 
legitimacy of this city charter require­
ment 415 U.S. at 620. Under those 
circumstances the Court held that "the 
relevant universe for comparison purposes



57

consists of the highest ranking officers 
of organizations and institutions speci­
fied in the city charter,, not the popula­
tion at large," 415 CJ.S. at 620-21 . An 
asserted qualification requirement may be 
used to narrow the universe for comparison 
only if a plaintiff challenges neither the 
legitimacy of that requirement nor the 
manner in which it was applied. As a 
practical matter it will at times be 
difficult to calculate a universe of 
comparison which matches exactly the group 
to which a challenged procedure applies. 
Evidence regarding the composition of that 
group need not be conclusive; a defendant 
is free to offer more refined data which 
it believes better approximates the 
composition at that group.

Neither Hazelwood nor Educational 
Equality League, however, suggested that 
the plaintiffs in such cases were obli-



58

gated to buttress such statistics with 
evidence foreclosing the possibility that 
potential black appointees were less 
qualified than the whites selected. In 
Neal v. Delaware the lower court had 
assumed, in the absence of evidence to the 
contrary, that "the great body of black 
men residing in th[e] state are utterly 
unqualified by want of intelligence, ex­
perience or moral integrity, to sit on 
juries" 103 U.S. at 394. This Court 
refused to indulge in any such "violent 
assumption." 103 U.S. at 397. Neal 
forbade federal as well as state courts 
from requiring a plaintiff, as part of his 
or her statistical analysis, to overcome 
any presumption that blacks are ordinarily 
less skilled and capable than whites. Both 
Title VII and the Fourteenth Amendment 
forbid a public agency to rely on any such 
assumption in making employment decisions;



59

surely it is equally improper for a
federal court, in resolving an employment
discrimination claim, to rely on that very
impermissible assumption of racial 

38
differences.

In the instant case the challenged 
practice was the fixing of initial 
salaries and raises for employees holding 
the same position. Accordingly, the 
"relevant universe for comparison pur­
poses" was all employees in the same job. 
The average salaries of black and white 
workers represented the cumulative effect 
of such disputed salary decisions regard­
ing each of those employees. The result­
ing statistical analyses were as complete 
as those deemed acceptable in Teamsters,

— — ____ — ------- ----------38 The district judge’s decision in the 
instant case relies in part on precisely 
such an assumption, arguing at length it 
was "common knowledge" that black college 
graduates were in general less educated 
than whites. (Pet. App. 196a-98a).



60

Hazelwood and Educational Equality League, 
and were clearly sufficient to establish a 
prixna facie case of salary discrimination.

(2) Respondents Failed to Rebut That 
Prima Facie Case~

The district court acknowledged that 
petitioners' statistical evidence was both 
probative and sufficient to create a prima 
facie case, but held that that evidence 
had been rebutted by respondents. (Pet. 
App. 130a-31a, 149a-50a) Respondents, 
however, did not offer statistical 
evidence demonstrating that the proven 
disparities were the result of racially 
neutral job related criteria for fixing or 
raising salaries. On the contrary, the 
statistics offered by respondents revealed 
essentially the same disparities proven by 
petitioners. The "defense" accepted by 
the trial court consisted merely of 
testimony that there were 9 nonracial



61

factors which had not been included in the 
statistical analyses offered by either 
party. (Pet. App. 133a-36a) Respondents 
did not offer, and the trial court 
regarded as entirely unnecessary, evidence 
that inclusion of these additional 
variables would _in fact have eliminated 
the apparent disparities. On the trial 
court's view a defendant could conclu­
sively rebut significant statistical 
evidence of racial disparities simply by 
offering speculation that the inclusion of 
other variables might have yielded a 
different result.

This Court has repeatedly held that 
such unsubstantiated speculation is 
entitled to no weight in rebutting a prima 
facie case of discrimination. in Patton 
v. Mississippi, 332 U.S. 463 (1947), the 
state suggested that the paucity of black 
jurors might have been due to a lack of



62

qualifications among black citizens. This 
Court observed " [ I j f it can possibly be 
conceived that all of them were disquali­
fied for jury service we do not doubt 
that the State could have proved it." 332 
U.S. at 469. (Emphasis added) The 
state's mere speculation that blacks were 
unqualified "wholly failed to meet" the 
statistical evidence offered by Patton. 
Id. In pothard v. Rawlinson this Court 
again held that a defendant had to do more 
in response to such statistical evidence 
than merely hypothesize the existence of 
possible explanations. "If the employer 
discerns fallacies or deficiencies in the 
data offered by the plaintiff, he is free 
to adduce countervailing evidence of his 
own. In this case no such effort was 
made." 433 U.S. at 331. These decisions 
make clear that a defendant who wishes to 
rebut a prima facie case must offer



63

substantial evidence, not merely "an 
ingenious academic exercise in the 
conceivable." United States v. SCRAP,412 
U.S. 669, 688 (1973).

As Judge Phillips emphasized in his 
dissenting opinion in this case, the 
effective use of statistical evidence in a 
discrimination case would be impossible if 
such evidence could be rebutted merely by 
testimony that the statistical analysis 
did not

include a number of other independent 
variables merely hypothesized by 
defendants .... [T]o apply such a 
rule generally would effectively 
destroy the ability to establish any 
Title VII pattern or practice claim 
by this means of proof. [I]t will 
always be possible for Title VII 
defendants to hypothesize yet another 
variable that might theoretically 
reduce a race-effect coefficient 
demonstrated by any multiple re­
gression analysis that could-be con­
ceived. (Pet. App. 448a-49a). 9

Other lower courts have recognized that 
plaintiffs could never meet the onerous 
burden established by the opinion below. 
See, e.g., Guardians Association v. Civil 
Service Commission, 630 F.2d 79, 88 n .7



64

Judge Phillips stressed, as did this Court 
in Dothard, that there was no "evidence 
that the inclusion of other variables 
would in fact reduce" the disparities in 
the wages of blacks and whites in the 
same. (Pet. App. 450a) (Emphasis in
original).

Lower courts, all too familiar with
the speculative ingenuity of Title VII
defendants, have consistently and properly
refused to accept such speculation as an
adequate response to statistical evidence.

[U] nquantified, speculative and 
theoretical objections to the prof­
fered statistics are properly given 
little weight by the trial court: 
"When a plaintiff submits accurate 
statistical data, and a defendant 
alleges that relevant variables are 
excluded, defendants may not rely on 
hypothesis to lessen the probative 
value of plaintiff's statistical 
proof. Rather, defendant . . . must
either rework plaintiff's statistics
(2d Cir. 1980).



65

incorporating the omitted factors or 
present other proof undermining plaintiff s claims."

Trout v. Lehman, 702 F.2d 1044, 1102 (D.C. 
Cir. 1 983 ), vacated on other grounds sub 
nom. Lehman v. Trout, 79 L.Ed.2d 732 
(1984). These decisions reflect the fact 
that ordinarily only an employer knows 
what non-racial factors, if any, might 
have been the reasons for its actions, and 
only that employer has control of the 
evidence which would tend to substantiate 
or undermine that defense.

The danger of accepting such a 
speculation defense is well illustrated by 
the facts of this case. The fourth 
Circuit concluded there was no salary 
discrimination primarily because that 
court thought that black employees might 
have been earning less simply because they 
were concentrated in the counties in



66

western North Carolina that paid all their 
employees below average salaries. (Pet. 
App. 388a) But the district court found
that blacks were in fact concentrated in 
the higher salaried counties in the 
eastern portion of the state. (J. App. 
77; Pet. App. 48a, 110a; see C.A. 1612—
15). Similarly, although the district 
court thought it possible that the salary 
disparities might have been caused by 
differences in performance ratings, the 
defendants own analysis showed that in 
1975 the lower paid blacks had actually 
received higher ratings than their better 
paid white colleagues. (See n.12, supra).

To overcome the presumption created 
by a prima facie case, a defendant "must 
clearly set forth, through the introduc­
tion of admissible evidence, the reasons

40
for" the disputed action. Texas Dept, of

40 A defendant may also attack the accuracy



67

Community Affairs v. Burdine, 450 U.S. 
248, 255 (1981). Where that explanation 
is based on the utilization by the 
employer of one or more selection cri­
teria, the criteria must, of course, be 
job-related. Griggs v, Duke Power Co., 
401 U.S. 424 (1971). Evidence that a 
defendant utilizes one or more legitimate 
non-discriminatory criteria is not by 
itself sufficient; those asserted criteria 
could not be the "reasons for" a disputed 
action unless the application of those 
criteria would in fact have produced the

of the raw data utilized by plaintiffs, or 
object on technical statistical grounds to 
the method by which plaintiffs analysed 
that data. But the mere existence of 
minor inaccuracies or technical flaws will 
not dispel the evidentiary value of 
statistics unless there is substantial 
reason to believe that the elimination of 
those alleged errors would have fundament­
ally altered the outcome of the analysis. 
Craik v. Minnesota State University 
Bd. ,731 F ̂ 2d 465, ~477 n.5 (8th Cir7 
T984) .



68

result of wh ich a plaintiff complains. 
Thus, although an employer does not bear 
the burden of proving what its actual 
motive was, the employer's proposed 
explanation simply is not an explanation 
of all unless the employer demonstrates 
that its asserted motive, if present, 
would have led to the employment action at 
issue. Turner v. Fouche, 396 U.S. 346, 
361 (1 9 7 0).

In an individual action, for example, 
a salary disparity could not be rebutted 
merely by evidence that an employer had a 
job-related policy of paying higher
salaries to workers with Ph.D.'s; the
employer would also have to show, of
course, that the black complainant
actually lacked a Ph.D. , and that applica-
tion of the Ph.D. rule could thus explain



69

his particular salary level. Similarly,
in response to evidence of systematic
salary discrimination, an employer does
not offer evidence of the "reason for" a
disparity merely by proving it uses some
non-racial criteria to fix salaries; the

41
employer must also show, by statistical or 
other methods, that application of those 
racially neutral criteria to the work­
force in question would yield, and thus 
tend to explain, the salary patterns of 
which a plaintiff complains.

In the instance case the respondents 
did not meet, or even attempt to meet, 
this standard. A defense witness did

41 The lower courts have generally regarded 
such more refined statistics as the most 
appropriate and reliable form of rebuttal 
evidence. Movement for Opportunity v. 
General Motors , Inc . , 622 F.2d 1235, 1245 
(7th Cir.~i9"80) 7 Trout v. Lehman, 702 
F.2d at 1102; Falcon v. General Telephone 
Co., 628 F.2d 369, 381 (5th Cir. 1980), 
rev'd on other grounds, 457 U.S. 147 
(1982)



70

identify several non-racial criteria which 
respondents asserted affected salaries, 
but respondents made no effort to satisfy 
its burden of showing that these criteria 
were "the reasons for" the apparent salary 
disparity, since there was simply no 
evidence that an analysis including those 
criteria would have explained away the 
obvious disparities. The strong prima 
facie case of salary discrimination thus 
stood essentially unrebutted.

III. TITLE VII AND THE FOURTEENTH 
AMENDMENT PLACE ON PUBLIC 
AGENCIES A NON-DELEGABLE DUTY TO 
PROMOTE EMPLOYEES IN A NONDIS- 
CRIMINATORY MANNER

The evidence of discrimination in 
promotion showed, inter alia, that NCAES 
never promoted a black into a committee 
chairmanship for which a white male had 
applied. (See pp.13-17, supra) . The



71

district court concluded that that
evidence "certainly create[d] a prima
facie case of discrimination". (Pet. App.
83a). The district court,, relying on a
somewhat unorthodox form of statistical 

42
analysis, held that petitioners had failed 
to prove the existence of racial discrimi­
nation. The court of appeals disagreed

Both the district court and the court of 
appeals insisted in including in their 
analyses promotion vacancies for which 
only blacks had applied. (Pet. App. 
78a-81a, 417a). Most of the black 
chairman included in these analyses had 
won their position by default when no 
white applied. The selection of a black 
applicant in such a case is clearly of no 
evidentiary significance to a claim that 
an employer discriminates in favor of 
whites when both blacks and white apply. 
Except in cases where applicant flow is 
tainted by discrimination, the proper 
focus of an analysis of a discrimination 
should be on vacancies for which both 
races applied. Craik v. Minnesota State 
Univ, Bd., 731 F.2d 465, 474 (8th Cir. 
1984) (women only selected when no men 
applied); Williams v . New Orleans Steam- 
ship Ass1n , 673 F.2d 742, 753 ( 5th Cir. 
1982) (blacks given desirable assignments 
only when no whites available.)



72

with the methodology used by the district 
court. (Pet. App. 412a-416a) Rather than 
remand the case for the application of 
what it believed was the correct standard, 
however, the court of appeals conducted 
its own analysis of the record. The 
fourth circuit concluded that the statis­
tical evidence "completely refuted" the 
claims of racial discrimination in the 
promotion of county chairmen. (Pet. App. 
423a).

The linchpin of the fourth circuit's 
43

decision was its view that both Title VII 
and the Fourteenth Amendment permit a 
public employer to delegate away its 
responsibility to promote its employees in a 
non-discriminatory manner. The county

_
The fourth circuit's analysis was also 
flawed by its refusal to focus its 
analysis on vacancies for which both 
blacks and whites had applied. See n . 42 , 
supra.



73

chairmen at issue in this case were 
undeniably NCAES employees. But the court 
of appeals believed NCAES had immunized 
itself from any liability for the selec­
tion of those employees by choosing, in 
many cases where blacks and whites both 
applied, to "recommend” applicants of both 
races, and to permit the county involved 
to make the final decision. in every case 
in which a county was permitted to choose
between a black and a white applicant, the

44
county chose the white, a fact of which 
NCAES could not have been unaware. The 
fourth circuit held nonetheless that NCAES 
was "not separately responsible" for the 
final decisions as to who would be 
selected as the NCAES county chairman. 
(Pet. App. 412a). The only action for 
which NCAES was legally accountable, the

Compare chart at Pet. App. 419a et seg. 
with C. A. App. 1737-42.

44



- 74

appellate court believed, was the recom­
mendations which it made for the vacan­
cies. If, as actually occurred, the 
counties invariably preferred that NCAES 
hire only white chairmen, the fourth 
circuit held that NCAES still had no legal 
responsibility for that result. Thus the 
fourth circuit focused its own statistical 
analysis solely on the number of blacks 
and whites NCAES recommended for chair­
manships, and deliberately disregarded the
evidence regarding the identities of the

45
employees who were actually promoted.

Petitioners alleged that a variety of 
discriminatory practices had artificially 
reduced the number of blacks who applied 
for promotion to county chairman. The 
district court found that, prior to 1972, 
applicants had been individually recruited 
on a word-of-mouth basis, and that no 
notice of the existence of vacancies was 
given to other potentially interested 
employees. (Pet. App. 24a, 75a, 271a, 
294a) Between 1968 and 1971 there were 23 
vacancies for which only one applicant, a 
white, ever applied; this represented 68% 
of the 34 vacancies filled in those years. 
See Pet. App. 419a et seq. A number of



75

The decision below is squarely 
inconsistent with this Court's decision in 
Arizona Governing Committee v. Norris, 403 

U.S. 1 0 7 3 ( 1 9 8 3) . In Norris the plain­
tiff, a state employee, complained that 
the retirement plans available to her all 
discriminated on the basis of sex against 
female retirees. Arizona denied any legal 
responsibility for that discrimination, 
arguing that the state itself had never

black employees testified that they were 
deterred from applying for a county 
chairmanship because they knew that NCAES 
had never promoted a black over a white 
male. C.A. App. 67, 68, 135, 146, 149. 
See Teamsters v. United States, 431 U.S. 
324,365 (1977). Of the 289 applications 
for promotion filed from 1968 to 1981, 
only 31 , or 10.7%, were from blacks, 
although blacks comprised over 25% of the 
employees eligible for promotion. Even if, 
as the fourth circuit believed, there was 
no discrimination in recommendations, the 
court of appeals erred in failing to 
address these substantial claims that 
other discriminatory practices had reduced 
the number of blacks applying for, and 
thus receiving appointments as, county 
chairman.



76

discriminated, but had merely delegated to 
a number of private annuity companies the 
responsibility for developing and offering 
retirement plans to state employees. Since 
no state official had engaged in discrimi­
nation, Arizona argued, the state had no 
legal responsibility for discrimination by 
those third party firms. This Court 
rejected that contention, holding, in 
Justice O'Connor's apt phrase, that an 
employer could not "escape Title VII's 
mandate by using a third-party" to make 
its employment decisions. 463 U.S. at 1109 
(concurring opinion).

The majority emphasized in Norris 
that state employees in Arizona were not 
free to deal with any annuity company of 
their choice. 463 U.S. at 1086-87. 
Rather, Arizona itself had specifically 
selected the firms from which retirement 
plans could be obtained, and all of those



77
46

plans discriminated against women. Here, 
as in Norris, NCAES specifically selected 
the officials who were to have a role in 
filling each particular vacancy. NCAES, 
not black applicants, decided to refer the 
disputed promotion decisions to county 
officials, and NCAES cannot disclaim 
responsibility for the discriminatory 
action invariably taken by those offi­
cials. Norris reasoned, more broadly, 
that under Title VII "employers are 
ultimately responsible for the compen­
sation, terms, conditions, [and] privi­
leges of employment." 463 U.S. at 1089. 
(Emphasis added). "We do not think it

4 6 "Having created a plan whereby employees 
can obtain the advantages of using 
deferred compensation to purchase an 
annuity only if they invest in one of the 
companies specifically selected by the 
State, the State cannot disclaim responsi­
bility for the discriminatory features 
of the insurers' options." 463 U.S. at 
1089. (Emphasis added).



78

makes any ... difference ... that the 
employer engaged third parties to provide 
a particular benefit rather than directly 
providing the benefit itself." 463 U.S. 
at 1089 n .21. The selection of particular 
individuals for promotion is an even more 
important "aspect of the relationship 
between the employer and employees" than 
the fringe benefits at issue in Norris, 
463 U.S. at 1089 n.21.

The purported delegation of promotion 
decisions provides also no defense to 
petitioners* constitutional claims, al­
though for somewhat different reasons. A 
state’s responsibility to refrain from 
involvement in intentional racial discrim­
ination is not limited to cases in which a 
state officially personally engages in 
racially motivated conduct; in some 
instances interrelated activity of a state 
and third parties constitutes state action



79

and is thus subject to the requirements of 
the Fourteenth Amendment. See, e,g. , 
Adickes v. S. H. Kress Co., 398 U.S.144 
(1970); Burton v. Wilmington Parking 
Authority, 365 U.S. 715 (1961).

This Court has repeatedly held that 
the constitutional prohibition against 
discrimination extends to all individuals 
carrying out state functions, regardless 
of whether those individuals are techni­
cally employees of the state. Thus the 
Fifteenth Amendment, which prohibits a 
state from denying the right to vote on 
account of race, also prohibits a state 
from delegating control of the franchise 
to discriminatory third parties. In Smith 
v. Allwright, 321 U.S. 649 ( 1944), for 
example, the state of Texas had no statute 
forbidding blacks from voting, but 
delegated to each political party author­
ity to decide the qualifications of



- 80

participants in party primaries. The 
Democratic party adopted a rule permitting 
only whites to vote in party primaries, 
and the state disavowed any responsibility 
for that discrimination. This Court 
disagreed, holding the state electoral 
system gave to those discriminatory 
primaries a decisive role in the selection 
of state officials, and thus "endorse[d], 
adopt[ed] and enforce[d] the discrimina­
tion against Negroes. This is state 
action." 321 U.S. at 664. The Court 
reached a similar conclusion when Texas 
permitted a private all-white organization 
known as the Jaybirds to conduct primary 
elections, the victors in which invariably 
won the succeeding Democratic primary and 
general election. Terry v. Adams, 345 
U.S. 457 (1953).



81

Just as Texas could not with impunity
delegate to third parties effective
control over who could vote in state
elections, so too North Carolina cannot
with impunity delegate to third parties
effective control over the selection of
state employees. The selection of NCAES
county chairmen is inherently a state
function, and those selections remain
state action, and actions for which NCAES
is accountable, regardless of whether the
individual clothed with the state power to
make that decision is an employee of North
Carolina, of a county,or of the infamous 

47
Jaybird Party.

See Meredith v. Fair, 298 F.2d 696, 701-02 
( 5tE Cir. 1962”) ; Bell v. Georgia Dental 
Ass'n, 231 F. Supp. 299 (N.D. Ga. 1964) ; 
“Perpetuation of Past Discrimination", 96 
Harv. L. Rev., 828, 848-53 (1983).



82

Neither the Title VII nor constitu­
tional claims in this case are controlled 
by General Building Contractors v. 
Pennsylvania, 458 U.S. 375 (1982). That 
decision held that section 1981, which 
forbids only intentional racial discrimi­
nation in employment, does not create a 
non-delegable duty, and that the con­
tractors in that case could not be held 
liable merely because they utilized the 
services of a racially discriminatory 
union hiring hall. 458 U.S. at 391-97. An 
essential premise of General Building 
Contractors was that section 1981 applied
only to instances of intentional dis- 

48
crimination. Title VII, on the other 
hand, forbids as well practices which have 
a racially discriminatory effect. Griggs

"Our earlier holding that § 1981 reaches 
only intentional discrimination virtually 
compels this conclusion." 458 U.S. at 
396.



83

v. Duke Power Co., 401 U.S. 424 (1971). 
The delegation of employment decisions to 
a discriminatory third party has just such 
a discriminatory impact. Here counties 
given a choice between black and white 
applicants always chose the white; thus 
NCAES' practice of giving counties a role 
in that decision had the effect of 
excluding 100% of all blacks seeking 
positions for which whites had also 
applied.

The Fourteenth Amendment, like sec­
tion 1981, reaches only intentional racial 
discrimination by a state. But the 
standards governing what constitutes state 
action under that Fourteenth Amendment are 
clearly different than the principles that 
were applied to a private employer in 
General Building Contractors. This Court's 
decisions regarding the scope of state 
action have consistently and correctly



84

turned on the unique role of government in 
American society, and on the peculiar 
historical interactions of public and 
private institutions. General Building 
Contractors, on the other hand, relied on 
the standards traditionally utilized in 
ordinary private commercial litigation: 
respondent superior, the law of agency, 
and the principles of the National Labor 
Relations Act. 458 U.S. at 392-94. 
General Building Contractors did not 
purport to apply any of this Court's 
constitutional decisions regarding the 
scope of state action, and did not 
intimate any intent to displace those 
decisions with the quite different rules 
appropriate in a commercial setting.

For constitutional purposes, more­
over, counties are subdivisions of a 
state, and the conduct of a county 
official is as much state action as the



85

activities of the governor. The fourth 
circuit's apparent assumption that a state 
could evade its constitutional obligation 
by balkanizing among a variety of state 
and local officials responsibility for a 
particular program was rejected by this 
Court in Wallace v. United States, 389 
U.S. 21 5 (1967), aff8 g Lee v. Macon 
County, 267 F. Supp. 458 (M.D. Ala. 1966) 
(joint state and local operation of 
schools).

NCAES was thus legally responsible 
for discrimination in the selection of 
county chairmen, regardless of the extent 
to which the personnel officials involved 
were paid by the state or by a county. The 
fact that NCAES never promoted a black to 
a position for which a white had applied 
was clearly sufficient to create a prima 
facie case of discrimination. The trial 
court repeatedly noted that many among the



86

named plaintiffs were well qualified to 
serve as county chairmen. (Pet. App. 
231a, 236a n .76 [sic], 242a, 245a). One 
unsuccessful black applicant had previ­
ously served as an acting county chairman, 
and several of the rejected black appli- 
cants were ultimately named county 
chairman, although not until they sought a 
vacancy for which no white male had 
applied. (Pet. App.243a, 258a, 273a,
275a, 281a, 308a). Under these circum­
stances petitioners' prima facie case of
intentional discrimination stood essen—

49tially unrebutted.

The trial court recognized that, had it 
sustained the claim of classwide discrimi­
nation, even blacks who were not named 
plaintiffs "would have been entitled to 
relief as members of the class." (Pet. 
App. 218a n.70 [sic]). Similarly, in 
addressing claims that blacks were 
deterred from applying, the trial court 
attached decisive importance to its views 
that any fears of discrimination were 
simply groundless. (Pet. App. 99a).



87

IV. THE COURTS BELOW ERRED IN HOLDING 
RESPONDENTS HAD NO OBLIGATION TO 
DISESTABLISH A STATE CREATED 
SYSTEM OF GOVERNMENT SPONSORED 
SINGLE RACE 4-H AND EXTENSION 
HOMEMAKER CLUBS

(1) The History of the Clubs
The essential facts with regard to

50
this issue are not in dispute. Prior to

Petitioners included actual and potential 
members of 4-H and extension homemaker 
clubs, who contended that NCAES’s prac­
tices violated their statutory and 
constitutional rights. Petitioners also 
included NCAES employees who are required 
by NCAES to service those single race 
clubs. If, as petitioners contend, NCAES 
has unfulfilled legal obligations related 
to the racial composition of these clubs, 
then NCAES is requiring petitioners to 
violate federal law. Continued violation 
of federal law might conceivably subject 
petitioners to civil liability. Scheuer 
v. Rhodes, 416 U.S.232 ( 1 974) . That black 
employees should be required to partici­
pate in unlawful discriminatory practices 
to which they understandably object 
violates their own rights as well as those 
of other victims. Abood v. Detroit Board 
of Education, 43 1 U . S. 209,232-37 ( 1977 ) . 
Under these circumstances the fourth 
circuit's concerns regarding petitioners' 
standing were clearly unfounded. See also 
Craig v. Boren, 429 U.S. 190, 194-96 
TT976T7



88

1 965 both the 4-H and extension homemaker
clubs were operated on a strictly de jure

51
segregated basis. NCAES deliberately
organized the clubs on racial lines, and
NCAES personnel were assigned to clubs on
a strictly racial basis. in 1965 NCAES
announced that existing clubs could no
longer reject an applicant on the basis of
race. But where single-race clubs existed
side by side in the same racially mixed
community, NCAES took no steps to require
or encourage the merger of those clubs.
Single race clubs have continued to this
day to exist in racially mixed communities
throughout the state, and until at least
1974 NCAES continued to assign personnel

52
to those clubs on a racial basis.

See Tr. 4201-04; GX 115, p. 4; Pet. App. 
37a.

52 GX 21, 23, 35; C.A. App. 1834.



89

The only policy adopted by NCAES for
dealing with the large number of single
race clubs it had created was the freedom
of choice plan established in 1965- In
March, 1977, NCAES did briefly adopt a
directive requiring that a "reasonable
effort" be made to integrate new single 

53
race clubs; that directive was rescinded a
month later, however, because state
officials believed NCAES was "essentially
'sheltered' from discrimination issues
until the pending litigation is settled"
and because "counsel advised that a court
order resulting from the civil rights suit
would likely require steps in addition to
any affirmative action measures then being 

54
implemented." In 1979 NCAES acknowledged

C .A. App. 18 3 9; see also J. App. 135-36 
(rescinded 1974 initiative)-
J. App. 142; C .A . App. 1845-46; see also 
J. App. 97-98.



- 90

that its past approach had been unsuccess­
ful, and once more adopted a proposal to
require "all reasonable efforts" to

55
integrate the clubs. Again, however, that
measure was rescinded at the request of
the attorney representing NCAES in the

55
instant litigation, who explained that any
such steps would undermine his contention
at trial that no affirmative measures

57could successfully integrate the clubs.
In sum, NCAES has refused to take any 
steps beyond freedom of choice, not 
because it believed freedom of choice had 
been successful or because NCAES concluded 
there were no workable alternatives, but 
solely because NCAES1 attorney repeatedly 
advised the agency that any successful

55 J. App. 147-50; C.A. App. 1850, 1855,
1959-62.

56 Tr. 4284.
57 J. App. 157-58; C.A. App. 1904.



91 -

efforts to integrate the clubs would 
undermine its position in the instant 
1 itigation.

The impact of the freedom of choice
plan was accurately described by Judge
Phillips as "minimal." (Pet. App. 471a).
In 1 965 , prior to the adoption of the
freedom of choice plan, there were 1,474
all-white 4-H clubs; in 1980, after 15
years of freedom of choice, there were

58
1,348 all-white clubs. Between 1972 and
1980 the number of single race clubs in
racially mixed communities declined by 

59
less than 2%. In the last year for which
NCAES kept statistics, 98.8% of all the
extension homemaker clubs were either

60
all-white or all-black. The NCAES

58 C .A. App. 1806; GX 11; Pet. App. 472a.
59 C.A. App. 1807, 1813; Pet. App. 472.
60 C.A. App. 1797-1805; J. App. 103. NCAES 

did not contend below that the degree of 
integration of these clubs has increased



92

director testified that under that
agency's present policies it would take
"forever" to eliminate all the single race 

51
clubs.

The number of single race clubs is
not solely the result of the pre-1965 de
jure system. Since 1965 a substantial
number of new single race clubs have been
organized in racially mixed communities.
As Judge Phillips observed, "[t]hat chance
alone could account for their single race
composition is not suggested by anyone."
(Pet. App. 476a). NCAES acknowledged that
the racial makeup "is determined by the

62local volunteer" who organizes the club. 
NCAES officials declined to interfere with 
organizing along racial lines because they

since it stopped collecting detailed 
statistics.

61 Tr. 1165-66.
6 2 Deposition of January 30, 1973, p. 74.



93

believed such recruiting increased total
membership. The director of the 4-H
program asserted that if the single-race
clubs were merged, and individuals were
thus denied the opportunity to join an
all-white or all-black club, many members
of the public would refuse to join the

63
clubs or serve as volunteer leaders. If, 
as the director testified, many volunteer 
organizers simply would have refused to 
participate in integrated clubs, it is of 
course inconceivable that those white 
organizers would have actually recruited 
black members.

(2) The Applicable Legal Require­
ments

Both courts below believed that 
NCAES had no legal and constitutional 
obligation other than to assure that no

63 Tr. 4997-99, 5121-22; see also J. App. 99.



94

applicant was rejected for membership in a 
club because of his or her race. (Pet. 
App. 1 58 a- 6 3a , 165a-85a, 424a n.128). 
Petitioners do not contend that applicants 
have been rejected on a racial basis since 
1965. Because of their view of the law, 
neither the district court nor the court 
of appeals found it necessary to decide 
whether, as petitioner claimed, there had 
been intentional racial discrimination in 
recruiting, or to consider whether NCAE3 
had actually made any progress in dises­
tablishing the de jure system it created 
prior to 1965.

This case can readily be resolved on 
a non-constitutional basis. See Thorpe v. 
Housing Authority of Durham, 393 U.S. 268 
(1969). The applicable Agriculture 
Department Title VI regulations clearly 
require NCAES to take effective measures



95

to disestablish the pre-1965 de jure 
system. 7 C.F.R. § 1 5.3 { b) ( 6 ) ( i) pro­
vides:

In administering a program regarding 
which the recipient has previously 
discriminated against persons on the 
ground of race ... the recipient must 
take affirmative action to overcome 
the effects of prior discrimination.

Section 1 5.3(b )(6 )(i) clearly obligates 
NCAES to do more than adopt a freedom of 
choice plan that fails. Although peti­
tioners expressly relied on section 
15.3(b)(6)(i) in the proceedings below, as 
did Judge Phillips (Pet. App. 474a), the 
fourth circuit majority inexplicably 
failed to address the issues raised by 
this regulation. (See Pet. App.424a 
n.128) .

In addition, intentional racial 
discrimination in the recruiting of 
participants in a federally assisted 
program violates the express commands of



96

Title VI itself. Where organizers recruit 
only whites to join a state supported 4-H 
or extension homemaker club, while 
deliberately refusing to recruit blacks, 
blacks are clearly not afforded the same 
opportunity as whites to join those clubs 
or to benefit from the federally assisted 
programs those clubs provide. As Judge 
Phillips noted, the district court failed 
to address the issues raised by the 
evidence of discriminatory recruitment. 
(Pet. App. 475a-79a)

Were this Court to reach the consti­
tutional issues presented by this case, 
the result would be controlled by Green v. 
School Board of New Kent County, 391 U .S . 
430 (1968). Green held that freedom of 
choice plans were only acceptable if they 
in fact disestablished the de jure system 
that the state had created: "The burden on 
a school board today is to come forward



97

with a plan ... which promise[s] realisti­
cally to convert promptly to a system 
without a 'white' school and a 'Negro1 

school, but just schools". 391 D.S. at 
437. Since NCAES itself created the 
original de jure segregated club system, 
NCAES was under the same affirmative 
obligation as the school board in Green to 
adopt a remedy that would effectively 
disestablish that system. During the last 
two decades NCAES1 freedom of choice plan 
has proved as unsuccessful as the freedom 
of choice plan in Green itself. The 
number of all-black and all-white clubs 
supported by NCAES today is virtually 
identical to the number that existed in 
the heyday of de jure segregation. Under 
these circumstances Green clearly requires
that NCAES do more.



98

A finding of liability by this Court 
will not, as the district court seems to 
have feared, require precipitous or 
destructive judicial action. The fashion­
ing of a remedy for this problem will 
require considerable care and cooperation 
among all parties. It may be necessary to 
explore a variety of remedial devices 
before the best approach can be found. But 
surely, a third of a century after Brown, 
and 22 years after the adoption of Title 
VI, the time has come to at least begin 
the process of changing "black" and 
"white" state supported clubs into just 
clubs.

V. THE LOWER COURTS ERRED IN REFUSING 
TO CERTIFY THIS CASE AS A CLASS 
ACTION____________________ _

Petitioners moved prior to trial for 
an order certifying this case as a class 
action. Petitioners requested that the



99

district court certify three distinct 
classes: (1 ) a plaintiff class of all
black NCAES employees, (2) a plaintiff 
class of all black members and potential 
members of 4-H and extension homemaker 
clubs, and (3) a defendant class consist­
ing of the 1 00 counties that jointly 
operated the extension service programs 
with NCAES. The district court concluded
that certification was improper as a 

64
matter of law; in the fourth circuit the 
majority opinion declined to uphold the 
district judge's reasoning (Pet. App. 
372a-73a), and Judge Phillips urged at 
length that the lower court opinion was 
incorrect. (Pet. App. 426a-433a). A 
majority of the fourth circuit also 
concluded, however, for reasons somewhat

64 Pet. App. 33a-48a; J. App. 78.



TOO

different than those of the district 
court, that certification was improper. 
(Pet. App. 365a-78a).

The trial court held that class 
certification was never permissible in a 
Title VII action if the EEOC or United 
States had also filed a pattern and 
practice suit; the trial judge believed 
this prohibition was established by 
General Telephone Co. v. EEOC, 446 U.S. 
318 (1980). (Pet. App. 45a-46a). As
Judge Phillips correctly noted, the trial 
court's decision literally stood General 
Telephone on its head. (Pet. App. 432- 
33a). General Telephone refused to 
require in pattern and practice actions 
that the government be certified as a 
representative of class of alleged 
victims. This Court reasoned that, if that 
were done, the result of the government 
litigation would be binding on all



101

affected d iscriminatees, and would thus 
preclude them from bringing on their own 
an individual or class action. Such a 
result would be inconsistent with the 
intent of Congress to create parallel and 
overlapping remedies against discrimina­
tion. 446 U.S. at 333. The effect of the 
district court decision here led to 
precisely the result condemned in General 
Telephone, converting the mere existence 
of a government pattern and practice suit 
into a bar to any private class action, 
and requiring potential class members to 
look only to the government, not to any 
private action, for relief.

The trial judge also believed that 
controlling fourth circuit precedent 
absolutely precluded certificaton of a 
class that included employees who worked 
at different locations. (Pet. App.
43a-44a) As Judge Phillips explained at



102

length, neither previous fourth circuit 
decisions nor Rule 23 establish any per se 
rule precluding certification of a class 
merely because employees may work at 
different facilities. (Pet. App. 427a- 
432a). The fact that potential class 
members are employed at different plants 
is no more decisive than the fact that 
they work on different floors in the same 
building, or that they were subjected to 
discrimination on different dates. The 
same Rule 23 requirements apply, and could 
in fact be satisfied, regardless of 
whether the alleged discrimination may 
have occurred at a variety of locations or 
on a variety of dates. Of course, to be 
encompassed in a single class action two 
workers must have more in common than 
employment by the same institution; but 
where common questions of law or fact 
exist, and the other Rule 23 requirements



103

are met, it is of no independent signifi­
cance whether those employees work at 
opposite sides of a room or at opposite 
ends of a state.

Although the district court did not 
clearly explain its refusal to certify the 
class of actual and potential club 
members, that decision appears rooted in 
the trial court's views of the merits of 
the clubs issue. The district court 
asserted that the club plaintiffs "presum­
ably” sought to lead "a class of black[s] 
allegedly denied membership in all white 
... clubs" {Pet. App. 40a). Finding no 
evidence that club applicants had actually 
been rejected on the basis of race, the 
trial court concluded that neither the 
plaintiffs nor anyone else was a member of 
the proposed class. But the legal claim 
adduced by the club plaintiffs was that, 
as a result of allegedly unlawful prac-



104

tices by NCAES, those plaintiffs and the 
proposed club-related class had as a 
practical matter been denied any oppor­
tunity to join multiracial 4-H and 
extension homemaker clubs. Certification 
was obviously appropriate to decide the 
common legal questions presented with 
regard to the legality of those disputed 
practices.

The fourth circuit majority believed 
that a party seeking certification was 
obligated to demonstrate the existence of 
a "legally cognizable wrong" affecting the 
class. (Pet. App. 372a). This case, of 
course, presents a variety of disputed 
class-wide practices, but the court of 
appeals, after considering the legality 
of each of those practices, concluded on 
the merits that the disputed practices 
were lawful, and thus involved no "legally 
cognizable wrong. Petitioners alleged a



105

class-wide practice of perpetuating 
pre-1965 intentional wage discrimination; 
the fourth circuit denied certification as 
to that issue because it believed the 
practice to be lawful. (Pet. App. 369a, 
380a-82a). Petitioners alleged that the 
state had a nondelegable duty to select 
County Chairmen on a racially neutral 
basis; the fourth circuit denied certifi­
cations as to that issue because it 
believed there was no such duty. (Pet. 
App. 369a-70a) . Petitioners alleged that 
the continued operation of several 
thousand single-race 4-H and extension 
homemaker clubs violated both the Consti­
tution and federal law; certification was 
denied on the ground that the fourth 
circuit believed the operation of those 
clubs to be entirely legal. (Pet. App.
370a-71 a).



106

The fourth circuit inexplicably 
assumed that class certification was not 
proper until and unless a court had held 
that the proposed class claims were 
meritorious. But the language of Rule 23 

establishes no such requirement. On the 
contrary, certification is appropriate 
when there is a dispute regarding whether 
a defendant has engaged in a legally 
cognizable class-wide wrong. The resolu­
tion of that dispute should precede, not 
follow, class certification. Eisen v . 
Carlisle & Jacquelin, 417 U.S. 156, 178 
( 1 974 ). Rule 23 is available for the 
litigation of common issues of law as well 
as common issues of fact. The decision 
below that there were no "legally cogniz­
able wrongs" constitutes, not a finding 
that there were no common issues of fact 
and law, but an adverse resolution of



107

those very common issues. Eisen forbids 
denial of class certification on such a 
basis.

The issues of law addressed by the 
fourth circuit, and presented in this 
Court, were common as well to the proposed 
defendant class of counties. The practices 
described in parts I-IV of this brief were 
carried on statewide; there is no sugges­
tion, for example, that the effects of 
pre-1965 salary discrimination were 
eliminated in that year in some counties 
although not others. The counties were 
jointly and severally liable for these 
statewide practices. The district court 
found that the operation of each extension 
service office was a "partnership" between 
NCAES and the county (J. App. 77, 161), 
that the workers in each office were 
"joint employees" of NCAES and the county 
(J. App. 77, 161), and that NCAES and each



108

county" jointly" determined the promotions 
and salaries in each office as well as the 
county's contribution to those salaries. 
(J. App. 77, 162, 163; Pet. App. 21a, 24a, 
77a, 122a). The officials who engaged in 
discrimination in the conduct of that 
joint enterprise within a given county 
acted with the authority of both NCAES and 
the county, and both entities are legally 
accountable for that unlawful conduct. 
The circumstances of this case are 
substantially the same as those in the 
defendant class action upheld by this 
Court in Lee v. Washington, 390 U.S. 333 
( 1 9 68 ) , af f ' g Washington v. Lee, 263 F. 
Supp. 327 (M.D. Ala. 1966).

This certification issue remains of 
continuing importance. The United States 
no longer presses all of the issues which 
all plaintiffs raised at trial and which 
petitioners still pursue in this Court.



109

The Department of Justice has an avowed 
policy of declining to seek certain forms 
of affirmative injunctive relief fre­
quently sought by private plaintiffs. The 
limitations period applicable to the 
governments claim in this case may be 
different than that which applies to the 
private class action. Thus a denial of 
certification would, as a practical 
matter, prevent at least some class 
members from receiving relief to which 
they would otherwise be legally entitled.



110

CONCLUSION
For the above reasons the decision of 

the court of appeals should be reversed.

Respectfully submitted,

J. LeVONNE CHAMBERS 
RONALD L. ELLIS 
ERIC SCHNAPPER*

NAACP Legal Defense & 
Educational Fund, Inc. 
16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Petitioners
*Counsel of Record



APPENDIX



1 a

STATUTES, REGULATIONS, AND CONSTITUTIONAL 
PROVISION INVOLVED

Section 1 of the Fourteenth Amendment 
provides, in pertinent part, "No state 
shall ... deny to any person within its 
jurisdiction the equal protection of the 
laws."

Section 601 of Title VI of the 1964 
Civil Rights Act, 42 U.S.C. § 2000d, 
provides:

No person in the United States 
shall, on the ground of race, 
color, or national origin, be 
excluded from participation in, 
be denied the benefits of, or be 
subjected to discrimination 
under any program or activity 
receiving Federal financial 
assistance.

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

It shall be an unlawful employment 
practice for an employer —



2 a

(1 ) to fail or refuse to hire ...
any individual or otherwise to 
discriminate against any 
individual with respect to his 
compensation, terms, condi­
tions, or privileges of employ­
ment, because of such individ­
ual's race, color, religion, 
sex,, or national origin....

Section 706(e) of Title VII of the 1964 
Civil Rights Act, 42 U.S.C. § 2000e-5(e) , 
provides in pertinent part:

(e ) A charge under this section
shall be filed within one 
hundred and eighty days after 
the alleged unlawful employment 
practice occurred....

The Equal Pay Act of 1963, 29 U.S.C.
§ 206(d)(1), provides:

No employer having employees 
subject to any provisions of 
this section shall discriminate, 
within any establishment in 
which such employees are 
employed, between employees on 
the basis of sex by paying wages 
to employees in such establish­
ment at a rate less than the 
rate at which he pays wages to 
employees of the opposite sex in 
such establishment for equal 
work on jobs the performance of 
which requires equal skill,



3a

effort, and responsibility, and 
which are performed under 
similar working conditions, 
except where such payment is 
made pursuant to { i) a senior­
ity system; (ii) a merit system; 
(iii) a system which measures 
earnings by quantity or quality 
of production; or (iv) a 
differential based on any other 
factor other than sex; pro­
vided , That an employer who is 
paying a wage rate differential 
in violation of this subsection 
shall not, in order to comply 
with the provisions of this 
subsection, reduce the wage rate 
of an employee.

Section 15.3(b)(6)(1), 7 C.F.R.,
provides in pertinent part:

In administering a program 
regarding which the recipient 
has previously discriminated 
against persons on the ground of 
race ... the recipient must take 
affirmative action to overcome 
the effects of prior discrimi­
nation .



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