Bazemore v. Friday Brief for Petitioners

    .............. ■■■•*»■ - .cs

No. 85-93

In  the

(Hour! ui tip United States
October Term, 1985

P. E. B azemore, et al.,
Petitioners,

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

Respondents.

ON WRIT OP CERTIORARI TO THE UNITED STATES COURT OP APPEALS 

FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONERS

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

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

J ulius LeVonne Chambers 
Ronald L. E llis 
E ric 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

/



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

l



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

Page

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 .... 40

- iii -



Page
II. 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

III. Title VII and the Four­
teenth Amendment Place 
on Public Agencies a Non- 
Delegable Duty to Act in 
a Non-Discriminatory 
Manner ....................  71

IV. 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 ........................  110

APPENDIX: Statutes, Regulations, and 
Constitutional Provisions 
Involved ...............  1a

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.
1 940)   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 ( 1 982)   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. 1 61 ( 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. 1 56 ( 1 974) ......... 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 3d., 391
U.S. 430 (1 968) ..............42,97,98

Griffin v. County School Bd.,
377 U.S. 21 8 (1 964) .........  42

Griggs v. Duke Power Co., 401
U.S. 424 ( 1 971 ) .............  68,83

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

Guinn v. United States, 238
U.S. 347 (1 91 5) .............  43

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

VI 1



Page
Laffey v. Northwest Airlines, Inc.,

567 F .2d 429 (D.C. Cir.
1 978)   37

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

Lee v. Washington, 390 U.S. 333
( 1 968) ........................ 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 
1 235 (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. 1 969)   37

Patton v. Mississippi, 332 U.S.
463 (1 947 )....................  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 -



Page
schaver v. Rhodes, 416 U.S. 232

( 1974 ) .....................  88
Smith v. Allwright, 321 U.S.

649 (1 944)   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
( 1 953 ) .....................  81

Texas Department of Community 
Affairs v. Burdine, 450 
U.S. 248 (1 981 ) ..........  54,67

Thorpe v. Housing Authority 
of Durham, 393 U.S.
263 (1 969) ................  95

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

Turner v. Fouche, 396 U.S. 346
(1 970 ).......................  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. 1 973) ..............  54

Wallace v. United States, 389
U.S. 21 5 ( 1967 ) .............  85

Washington v. Davis, 426 U.S.
229 ( 1 976) ...................  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. § 1 981 ................ 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. § 1 37.350 ........ 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. (1 964)   28,30

H.R. Rep. 914, 88th Cong.,
1st Sess. ( 1964)   36,53

"Perpetuation of Past Dis­
crimination", 96 Harv. L.
Rev. 828 (1 983)   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 p p . 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 OF 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

1 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 and a majority of 

the court of appeals rejected all of 

petitioners' claims. 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.



8

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 a

Agents

Year Average Average Difference
White Black in Average

Salary Salary Salary
1970 $ 9,876 $ 8,956 $ 920
1 971 10,240 9,558 682
1973 10,292 9,797 495
1 974 10,244 9,840 404
1976 12,711 11 ,885 826
1 979 14,754 13,518 1 , 236
1 980 15,253 14,485 768
1931 17,035 15,849 1,186

These disparit ies 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 offered9the same position.
data showing similar disparities in the

average salaries paid to blacks and whites
10

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 
1 970 to $411 in 1981 .



12

Salary Disparities:

Average Amount by which Salaries of 
Whites Exceeded Salaries of Blacks with 
Same Position, Education, Tenure and Sex

Year Government 
Regression.. 
Analysis

Defense 
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
signific ant at least as late as 1 975.
(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,
1 693-171 5; 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 
1 3

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

approx imately 25% of full agents. Since
1963 the numbers of blacks and whites
promoted to the position of county

1 6
chairman were as follows:

Percent
Period White Black Black

1962-1967 1 1 5 0 0%
1968-1975 51 1 1 .7%
1976-1981 46 5 9.8%
1962-1981 21 2 6 2.6%

A number of facts regard ing 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.

15 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

1 7 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 1981 
Willie Featherstone was chosen over Ellen 
Willis. 751 F .2d 652, 678.

19



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. 73a). 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 
—

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. 47 1a). On two occasions NCAES 

briefly adopted proposals for affirmative

cited, n.17, 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 

1 965 . 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

applicable 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).

A defendant cannot rebut proof of 

such statistical 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. 453 (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

III. 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 

oE 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 petitioner's 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

& Jacguelin, 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. EEOCf 

446 U.S. 313 (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 discrimination is a continuing

violation of Title VII. See cases cited, 

Petition, pp. 17-22.
(1) Salary Discrimination Is A 

Confining 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 coaid 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 
i11eg a1 once Congress enacted into law 
the principle of equal pay for equal 
work.

23
417 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

25
452 U.S. at 172 n.12 (majority opinion), 
192 (dissenting opinion). The quoted 
statement appears at 110 Cong. Rec. 7217 
( 1964).



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 130 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
27

would 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 1 99-202. 

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

As the Court held in 
Power Co]: "Under the 
.. . neutral on their 
neutral in terms of 
be maintained if they 

operate to 'freeze' the status quo of 
prior discriminatory practices." 431 
U.S. at 349.

discrimination. 
Griggs [v. Duke 
Act, practices 
face, and even 
intent, cannot

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 703(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

1 965 , 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 , 1 972, 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

constitutional claim. If, as the fourth 

circuit has held, only the creation of 

such discriminatory wage scales, but not 

their application, is unlawful, then

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

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."l 978) (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)r 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 oelieve 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. 537 (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 ( 1 940). 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. L. 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

3~3 Swann v. Charlotte-Mecklenburq 3d. 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 (1964); 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.3. 

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-91a) 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 obiigated 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 disparities, 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 

conclus ion.

( 1 ) Petitioners' Statistics Estab­
lished A P n m a  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.

3 4 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 it 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 be ing
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. 183 , 1 97 ( 1 974). 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 nondiscriminatory" 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. , 
p t . 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 U.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-
per ience 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 

prima 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]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 Dothard 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).

39 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. 1983), 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 

1 975 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-d i scr iminatory 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, 4“7"7 "n75 (8th Cir.
1984).



68

result of which 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 (1970).

In an individual action, tor 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

4 1 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 1 235, 1245 
(7th Cir. 1980) ; 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 LJ.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-31a, 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 Ass'n, 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

43 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

44 Compare chart at Pet. App. 419a et seq, 
with C. A. App. 1737-42.



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. 1 073 (1983). 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 11 employers are 

ultimately responsible for the compen­

sation, terms, conditions, [and] privi­

leges of employment." 463 U.3. at 1089. 

(Emphasis added). "We do not think it

46 "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 1 089 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 (1 944), 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 "endorsefd], 

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 
(5th Cir. 1962); 3ell v. Georgia Dental 
Ass’n, 231 F. Supp. 299 (N.D. Ga. 1 964); 
'*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 .

48



83

v. Duke Power Co., 401 U.S. 424 ( 1 971).

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. 215 (1967), aff1g Lee v. Macon 
County, 267 F. Supp. 458 (M.D. Ala. 1 966) 
(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, 303a). Under these circum­

stances petitioners' prima facie case of

intentional discrimination stood essen-
49

tially 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, 416U.S.232 (1974). ThaTfblack 
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, 431 U.S'. 209,23 2-3 7 ( 1977) . 
Under these circumstances the fourth 
circuit's concerns regarding petitioners' 
standing were clearly unfounded. See also 
Craig v. Boren, 429 U.S. 190 , 1 94-96 
(1976).



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 39; 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
56

instant litigation, who explained that any

such steps would undermine his contention

at trial that no affirmative measures
57

could successfully integrate the clubs.

In sum, ft CAES 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 NCAES' attorney repeatedly 

advised the agency that any successful

J. App. 1 47-50; C.A. App. 1850 , 1 855,
1959-62.

Tr. 4284.

J. App. 157-58; C.A. App. 1904.



91

efforts to integrate the clubs would

undermine its position in the instant 

1itigation.

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 
61

clubs.
The number of single race clubs is

not solely the result of the pre-1 965 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
62

local volunteer" who organizes the club. 

NCAES officials declined to interfere with 

organizing along racial lines because they

since it stopped collecting detailed 
statistics.

Tr. 1165-66.

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. 158a-63a, 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 NCAE5 

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 y. 

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-1 965 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 j ure 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 'Negro' 

school, but just schools". 391 U.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 NCAES' 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 B rown, 

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 100 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.



-  100  -

different than those of the district
court, that certification was improper. 

(Pet. App. 365a-73a).

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 ,* 4 4 6 U . S . 

318 (1980). (Pet. App. 45a-4Sa). 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 discriminatees, 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-1955 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

(1974). Rule 23 is available for the

i it igation 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 1 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



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 —



2a

(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,
t 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 .

p

A