Aikens v. California, Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas Motion for Leave to File a Brief and Brief of American Civil Liberties Union Amicus Curiae

    219

I n the

§>upx*pntc (Emtrt nf Jlj? Ĵ tateB
October T erm, 1977 

No. 77-369

F urnco Construction Corporation,
Petitioner,

W illiam W aters, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT

BRIEF FOR RESPONDENTS * 10

J udson H. Miner 
Charles B arnhill, Jr.
George Galland

Davis, Miner & Barnhill 
14 West Erie Street 
Chicago, Illinois 60610

J ack Greenberg 
J ames M. Nabiht, III 
0 . P eter S herwood 
E ric Sen naffer

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

B arry L. Goldstein
806 15th Street, N.W.
Suite 940 I.
Washington, D.C. 20006

Attorneys for Respondents



TABLE OF CONTENTS

PAGE

Questions Presented .................................................... ' ^

Statement of F ac ts .............................—- .................... ^
The Three Plaintiffs ................................................. 9

Summary of Argument .............................. - ........... ----- 12

A r g u m e n t —

I. Plaintiffs Proved Intentional Racial Discrimina­
tion Under McDonnell Douglas Corp. v. Green .... 15

A'. Plaintiffs’ Prima Facie Case ..........................  1*5
B. Fm-nco Failed To Rebut Plaintiffs’ Prima 

Facie Case ......................................................... ^
1. Dacies’ Hiring Practices............................ I 8

a. Smith and Samuels................................ I 8

b. Nemliard.................................................  29
2. The Statistical Defense................................ 26

If. Furnco’s Failure To Hire Nemliard AY as The 
Result Of Unlawful Perpetuation Of Infonlional 
Discrimination ......................................................... 89
A. The Referral System......................................... 30
B. Prior Intentional Discrimination Against

Nemliard ............................................................  33
III. Furnco’s Employment Practices Had The Effect 

Of Discriminating Against Blacks And AVere Not 
Justified By Business Necessity ............. - ..........  35



11

PAGE

A. Since The Seventh Circuit Did Not Consider 
The Griggs Issues, A Remand Is Appropriate 35

B. Disparate Impact ............................................  37
1. Dacies’ List ................................................ 38
2. Applicants .................................................  45
3. Furnco’s Hiring Prior To October 10, 1971 46

C. Business Necessity ......  48

IV. The “Clearly Erroneous” Rule Docs Not Require 
Or Permit Affirmance Of The District Court’s
Judgment For Petitioner .....................................  53

V. The “Questions Presented” In The Petition Are 
Not Presented By This Case ...............................  61

Co n c lu sio n .............................................................  62

T able of A u t h o h it ie s

Cases:
Albemarle Pager Co. v. Moody, 411 IT.S. 405 (1977)

37, 4a, 48
Alexander v. Louisiana, 405 U.S. 625 (1972) .............  54
A miner man v. Miller, 488 F.2d 1285 (I).C. Cir. 1973) .. a.J 
Arlington Heights v. Metropolitan Housing Corp., 429

U.S. 252 (1977) ................................................... 17,23,27
Asbestos ll'orhers Local 53 v. Voglcr, 407 F.2d 1047 

(5th Cir. 1969) ................................................... 13,30,31

Batiste v. Furnco Corporation, 3a0 F.Supp. 10 (N.D.
Til. 1972) ..............................................................7,8, 9, 29^

Baumgartner v. United States, 322 U.S. 665 (1944) .... 56

m

Brown v. Gaston County Dyeing Machine Company,
457 F.2d 1377 (4th Cir. 1972) ................................. 17> 34

Castcncda v. Partida, 51 I,Ed. 2d 498 (1977) ........ .....  17

Denofre v. Transportation Inc. Bating Bureau, 532
F 2d 43 (7th Cir. 1976) ........................... ..................  ,̂0

Dothard v. Bawliuson, 53 L.Ed. 2d 786 (19.7). 37, 41,48, 54

East v. Bomgue, Inc., 518 F.2d 332 (5th Cir. 1975) ....  56
Eubanlis v. Louisiana, 356 U.S. 5S4 (1958) .................  -U

Flowers v. Crouch-Waller, Inc., 552 F.2d 1277 (7tli
Cir. 1977) ............................................................ "I-"18’ 5(>

Franhs v. Bowman Transportation Company, 424 U.S.
747 (1976) .................................................................  33

Green v. Missouri Pacific Railroad Company, 523 F.2d
1290 (8th Cir. 1975) ...................................................  42

Origasx. Pule Power Co., 401 U.S. 424 (1971) ....14,26,30, 
35, 36, 37, 38, 41,43, 44, 46, 48, 49, 50, 62

Harrison v. Indiana Auto Shredders Co., 528 1‘ .2d 1107 ^
(7th Cir. 1976) ................................................... 33

Hazelwood School District v. United States, 53 L.fcrt
2d 768 (1977) .................................._..... y ..............

Hernandez v. Texas, 347 U.S. 475 (1954) ....................  3

In re Las Gorlinas, Inc., 426 F.2d 1005 (1st Cir.
1972) ..........................................................................  55

Interstate Circuit Inc. v. United States, 306 U.S. 208 ^
(1939) ................................................... ............... • 19

James v. Stochham Valves and Fittings Co., 559 F.2d 
310 (5th Cir. 1977) .................................................

PAGE

55



IV

PAGE

Jenkins v. United Gas Corp., 400 F.2d 28 (5tli Cir.
1968) ..........................................................................  29

Johnson v. Goodyear Tire J  Rubber Co., 491 F.2tl 1364 
(5th Cir. 1974) ....................................................... 41,53

Keyes v. School District No. 1, 413 U.S. 1S9 (1973) ....17, 23 
Kinsey v. First Regional Securities, Inc., 557 F.2d 830

(D.C. Cir. 1977) ........................................................  17
Kirkland v. ATew York Stale Department of Correc­

tional Services, 374 F.Supp. 1361 (S.D.N.Y.) ...........  42

League of United Latin American Citizens v. City of 
Santa Ana, 410 F.Supp. 873 (D.C. Cal. 1976) .......... 42

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
12,14,16,17, 36, 40, 54, 57, 58, 62 

Martinez v. Dixie Carriers, 529 F.2d 457 (5th Cir. 1976) 53

Norris v. Alabama, 394 U.S. 586 (1935) ........................  54

Owen v. Commercial Union Fire Ins. Co. of New York,
211 F.2d 488 (4th Cir. 1954) ..................................... 53

Durham v. Southwestern Bell-Telephone, 433 F.2d 421
(8th Cir. 1970) ...............  ...................................... 31,32

Patterson v. American Tobacco Co., 535 F.2d 257 (4th
Cir. 1976).....................................................................  27

Pierre v. Louisiana, 306 U.S. 354 (1939)........................  19

Recce v. Georgia, 350 U.S. 85 (1955) ............................ 54
Bitter v. Morion, 513 F.2d 942 (9th Cir. 1975) ............ 53
Roberts v. Boss, 344 F.2d 747 (3rd Cir. 1965) .............  55
Rock v. Norfolk and Western B.B., 473 F.2d 1344 (4th 
j Cir. 1973) ................................................................... 31

v

Rogers v. International Paper Co., 510 F.2d 1340 (8th
Cir. 1975) .............................-..................................; - 42

Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.
1972) .........................................................................17,53

Sellers v. Wilson, 123 F.Supp. 917 (M.D. Ala. 1954) .... 24 
Senior v. General Motors, 532 F.2d 511 (6th Cir. 1976)

17, 53
'The Severance, 152 l*1.2d 916 (4th Cir. 1945) ..... ........ 55
Smith v. Texas, 311 U.S. 128 (1940) ..........................•- ^
Smith v. Troyan, 520 F.2d 492 (6th Cir. 1976) ............ 42
Stamps v. Detroit Edison Co., 366 F.Supp. 87 (E.D.

Mich. 1973) .......................................................... 31
Stewart v. General Motors Corp., 542 F.2d 445 (7th

Cir. 1976) .......................................................   17

Teamsters v. United States, 431 U.S. 324 (1977) .... 16.20,
27, 28, 29, 33, 35, 57, 61

Tcrminicllo v. Chicago, 337 U.S. 1 (1949) .................... 36

United Stales v. El Paso Natural Gas, 376 U.S. 651
(1964) .......................................... -.............................  53

United Stales v. Forness, 125 F.2d 928 (2d Cir. 1942) 55
TTnitcd Slates v. Georgia Power Co., 414 F.2d 906 (;>th

Cir. 1973) ....................................................... ---....... 32
United States v. Ironworkers Local No. 8, 315 F.Supp.

1202 (W'.ll.W'ash. 1970) ..............................................  23
United States v. Matlock, 514 U.S. 164 (1974) .............  4
United States v. Sheet Metal Workers, etc., Local ,?f>,

.416 F.2d 123 (8th Cir. 1969) .................... ■■-i:!::.......24,33
United States v. Singer Mfg. Co., 374 U.S. 174 (1973) 53
United States v. United Stales Gypsum Co.K 333 U.S.

364 (1948) .............-........ .....................'■'"7.7,7''’.......53,54

PAGE

M l !  •



VI

Ward v. Apprice, 6 Mod. 2G4, 87 Eng. Rep. 1011 (Q.B.,
1705) ..................................................   19

1 Vhclan v. Penn Central Co., 50.3 F.'2d 88G (2nd Cir.
1974) ..........................................................................  53

Whit us v. Georgia, 385 U.S. 545 (19G7) .................... 41,54

O t h e r  A u t h o r it ie s

Title VII of the Civil Rights Act of 19G4.................passim
Executive Order 11246 .........   41,47
Federal Rules of Civil Procedure, Rule 52(a) ........53,55
Federal Rules of Evidence, Rule 615 .........................  58
Federal Rules of Evidence, Rule 801 .........................  4
Uniform Guidelines on Employee Selection Procedures,

42 F.R. 65512 (Dec. 30, 1977) ...................................  43
J. Wigmore, A Treatise on the Anglo-American System 

of Evidence (3rd Ed. 1940) ........................................  19
Wright and Miller, Federal Practice and Procedure,

§ 2578 (1971) ..............................................................  55
Code of Judicial Conduct, Canon 3(A)(3) ................... 59

PAGE I n t h e

intpnmte (Enurt nf tljc States
OoToiiER T erm, 1977 

No. 77-369

F urnco  C o n stru ctio n  C orporation ,
Petitioner,

v.

W i ix ia m  W aters , et ah,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT

BRIEF FOR RESPONDENTS

Questions Presented

1. a. Does an employer violate Title VI1 of the Civil 
Rights Act of 1964 when its job superintendent fills posi­
tions bv hiring from an all-white list of bricklayers from 
which black plaintiffs have been intentionally excluded 
on account of their race?

b. Was the job superintendent’s claim that he did not 
consider applicants who sought employment by coming to 
the job site—the only method by which blacks bad his­
torically obtained employment with the employer a pre­
text for discrimination?

2. Did plaintiffs’ establish that Furnco’s hiring prac­
tices, including its preference for former employees from



2

a period when it hired only whites, perpetuated the effects 
of past intentional discrimination?

I
3. When qualified black joh applicants are rejected be­

cause of an employer’s hiring practice that excludes blacks 
from most of its jobs and that is not justified as a busi­
ness necessity, can the employer defend against Title VII 
liability to those applicants on the ground that it has 
filled certain jobs with other blacks under an “affirmative 
action program”?

4. Did the Seventh Circuit err in declining to apply 
the “clearly erroneous” standard to the district court’s 
ultimate findings on the discrimination issues when the 
district court misunderstood the hiring practice that plain­
tiffs were challenging, misconceived the controlling legal 
principles in plaintiffs’ lawsuit, and failed to consider 
plaintiffs’ case in a fair and impartial manner?

5. Since the issues upon which certiorari was obtained 
are not presented by this case, was certiorari improvi- 
dcntly granted?

Statement of Facts

The question before this Court is whether three fully 
qualified and experienced black bricklayers, plaintiffs 
Smith, Samuels and Xendiard,1 were discriminatorily de­
nied employment by petitioner Frrnco when it refused

1 Originally there were five additional plaintiffs. Two, Williams 
and Gilmore, were found not to have applied at the Interlake job 
and were denied relief. Onp, William Waters, was found to have 
been denied a job because he had been discharged by the super­
intendent from a job in 4002. Finally, two, Pearson and Hawkins, 
were lured at a later stage of the job and then fired; the trial court 
found that the firing was for cause. These findings were affirmed 
by the Seventh Circuit.

3

to consider them for employment and subsequently filled 
8b percent of its jobs from an all-white list. In its State­
ment of Facts, Furnco described the type and the require­
ments of the work performed, its alleged program to hire 
a certain percentage of minorities, some general facts con­
cerning hiring at the Tnterlakc job and the conclusoiy 
findings of the district court. Consistent with its view 
that it acquired immunity from further scrutiny under 
Title VII by hiring a certain percentage of minorities, 
Furnco’s brief describes neither the details of its hiring 
practices, historically or at the Interlake job, nor the spe­
cific circumstances concerning the refusal to hire the re­
spondents. Notably omitted was any explanation of the 
origin or use of the all-white list from which most of 
Furnco’s bricklayers were selected. Because these facts 
are essential to the resolution of this case, we summarize 
the relevant evidence.

Furnco contracts with companies to do construction 
work, primarily the relining of blast furnaces. These jobs 
may last from several months to over a year. Furnco does 
not maintain a permanent work force of bricklayers. 
Bather, the company hires a superintendent for a specific 
job who is responsible for hiring the employees. Mr. 
Wright, the vice-president and general manager of Furnco, 
agreed that “each superintendent is free to fill the joh 
as he sees fit.” 1 This procedure depends on the practices 
of individual supervisors and results, according to A\ right, 
in bricklayers being selected in many different ways. The 
superintendent may hire bricklayers whom he knows, may 
request referrals from supervisors or from bricklayers, or 
may recruit and screen possible employees in any other 
way he chooses. (Tr. 671).

2 Tr. G8G; see Brief of Petitioner p. 6.



4

All of the superintendents selected by Furnco to oversee 
bricklaying jobs in the Chicago geographical area have 
been white. (Tr. G93). The record indicates that prior to 
1969 Furnco had never hired a black bricklayer.3 In 1969 
one or more superintendents employed by Furnco began to 
hire black bricklayers by accepting applications made by 
black bricklayers at the site of a Furnco joh at the South 
Works plant of United States Steel Corporation.4 Respon­
dent Smith was hired subsequently at another Furnco job 
in 1971 after he had applied at the entrance gate. (Tr. 315). 
Prior to the Interlake job involved in this case, every black 
bricklayer hired by Furnco obtained employment by apply­
ing at the job site. Furnco’s supervisors recommended 
that black bricklayers in search of work apply in this man­
ner for work on the Interlake job. (Tr. 237, 327).

Prior to the Interlake job in 1971 Furnco had operated 
what was, in effect, a dual hiring system. Black brick­

3 Waters, a plaintiff, testified that, lie had personally heard 
Furnco superintendents Urban ski and Larkin testify before the 
Illinois Fair Employment Practices Commission that Furnco to 
their knowledge had not hired a black before 1969. Tr. 513-14. 
This was admissible as an admission by a party opponent. Rule 
801(d)(2), Federal Rules of Evidence; cf. United Stairs v. 
Mattock, 415 U.8. 104, 172. n. S (1074). The black plaintiffs who 
bad been working in the firebrick industry in the Chicago area for 
many years had not been omph yed by Furnco before 1900. Furnco 
offered no proof that it had, hired blacks prior to 1909 or that. 
Waters had not accurately described the testimony of T'rbanski 
and Larkin. Furnco's failure to do so is hardly surprising in view 
of the fact that the company was represented at the F.E .l’.C. 
hearing hv the same counsel who represented it in this case. At 
that hearing Larkin, for example, testified, “I have worked for 

. Furnco since almost they have been Furnco. . . . To tell the truth,
I don’t recall any colored bricklayers on any other jobs (prior to 

. that in 1909].” Transcript of Hearing of August 10, 1970, pp.
! 203-05.

. 4 Four black bricklayers gave uncontroverted testimony that they 
' applied for jobs at the gate at the South Works job and were hired'' 

by Furnco: Samuels. Tr. 234-30; Smith, Tr. 314-15; Waters, Tr. 
509/; Pearson, Tr. 502.

5

layers were hired by Furnco only after they applied for 
work at the* job site.I 5 6 White bricklayers were hired by be­
ing personally contacted by the job superintendent or by 
being referred by foremen or other Furnco bricklayers.6 
The critical obstacle to minority employment was the fact 
that Furnco never advertised, posted notices of, or other­
wise made generally known the existence of vacancies at a 
given site. Black bricklayers had to learn of these secret 
vacancies through rumor and surmise, while white biick- 
layers were individually recruited and told of the job op­
portunities. For the Interlake job this dual hiring practice 
was affected by two factors: pending litigation and the 
particular superintendent, Joe Dacics, hired by Furnco.

Facies had worked in the firebrick industry since 1939. 
(Tr. 767). Facies was first employed by Furnco in 1964 
as a bricklayer and in 1965 as a superintendent. Facies 
hired 85 percent of the bricklayers for the Interlake job by 
referring to a list which he maintains. (Tr. 769) :7 *

5 The black workers who had previously worked for Furnco had 
never prior to the Interlake job been called by a Furnco superin­
tendent and requested to report for work without having fust 
presented themselves at the particular job site and requested work.

6'Furnco in its statement of facts states that it was not the 
“practice” of Furnco or the industry to accept applications. The 
district court so found, A14-15. As to Furnco this is true only 
for white employees.

The Court’s findiugs and Furnco’s statement as to the industry 
are inconsistent with their opposition at trial to' the consideration 
of evidence as to the industry practice. Counsel for Furnco 
argued strenuously in objecting to the plaintiffs attempt to intro­
duce evidence, as to industry practice that the evidence was 
irrelevant. Tr. 59, 241-44. The Court at one point simply 
stated, “I’m not interested in what the practice is in the industry. 
Tr. 561. See infra at n.34. The Court rejected plaintiffs’ proffered 
evidence on the ground that the issue was irrelevant, but subse­
quently resolved the issue in defendant’s favor.

7 Dacies routinely filled the job with employee? on his list. Tr.
769-70. In fact, 30 of the 37 whites who were hired by Furnco



6

"Well, I have a list of bricklayers. There are various 
notes, I don’t have a direct file system, but it is people, 
prior to even working with Fnrnco, I had worked with 
bricklayers all over the country, and in this area. I 
have kept their telephone numbers, because they were 
good mechanics. So when I have a job, 1 try to con­
tact them.

1 hides’ list did not contain a single black bricklayer,8 even 
though Dacies had worked with black bricklayers since 
1958, had supervised five to eight black bricklayers in 
1962 for another contractor (Tr. 873), and had supervised 
jobs for Fnrnco in 1969 and in 1971 on which blacks were 
employed. (Tr. 777; 873-75).9 Respondent Smith had 
worked for Dacies on four separate occasions (Tr. 343-45) 
and respondent Samuels on one occasion.10 11 Neither Dacies

between August 2G and the end of September were called by 
Dacies from bis list; the 37th was recommended by one of the 
white bricklayers whom Dacies had hired from the list. Tr. 780-86; 
Joint Exhibit 1.

8 Dacies testified.
“Q. Now, did you know the names of any black bricklayers?

A. 1 knew a couple that was at South Works, but T didn’t 
have their addresses or telephone numbers. . . ..”

Tr. 778.
9 The record is vague ns to h w many jobs and how many black 

bricklayers Dacies supervised, because the district court ruled 
that “It does not make any difference how many jobs he super­
vised” and sustained an objection by Furnco’s counsel to questions 
concerning Dacies’ work history. Tr. 874-75.

10 Although Samuels did not recall working with Dacies, it is 
clear from Dacies’ testimony that they worked together on the 
D.S. Steel South Works job in 1969. Dacies worked as a super­
visor on the job (Tr. 806. 874-75), while Samuels was the third 
black hired and worked at least five months as a bricklayer on the 
job. Tr. 234, 249. Although Samuels was hired (Tr. 235-36) and 
directed (Tr. 266) by another supervisor, Dacies had an oppor- ^ 
tunity on this job to become familiar with Samuels’ work.

7

nor Furnco offered any explanation why Smith, Samuels 
or other qualified and experienced black bricklayers known 
to Dacis were excluded from the list.

Dacies’ customary hiring practice was modified on the 
Interlake job by Furnco’s response to prior charges of 
discrimination and to the pendency of a related Title VI1 
case.11 Wright, a company general manager, testified that 
he called Dacies prior to the commencement of the job and 
said that Furnco wanted him to hire “a minimum of 10 per­
cent black bricklayers on the job if at all possible”. (Tr. 
075). Work began on the Interlake job on August 20, 1971, 
and continued through November. Between August 20 
and September 30, Dacies employed 41 bricklayers, of 
whom 37 were white. (Joint Exhibit 1). Thirty-six of the 
37 whites were hired by Dacies from his all white list;12 the 
4 blacks were employed after Dacies contacted another 
Furnco superintendent, Mr. Urbanski.13 Two of the blacks

The district court erroneously prevented plaintiffs’ counsel from 
inquiring as to the extent of this opportunity. Tr. 875:

“Q. [By plaintiffs’ counsel] Could you [Dacies] tell me who 
these black bricklayers were [with whom he recalled work­
ing on the South Works job] ?

Tiie Court : The objection is sustained [there was no objec­
tion]. It doesn’t make any difference who they were. The 
thing involved here is Furnco’s policy about hiring brick­
layers and not what some other policy was on some other 
years before."

Plaintiffs’ counsel argued that the question was proper and 
relevant. But the district court ruled, “You may think it [the 
question] is [relevant], but I am not concerned about review of 
»ai/ objections either”, (emphasis added) Tr. 876.

11 Batiste v. Furnco Corporation, 350 F.Supp. 10 (N.D. 111. 
1972), rrv’d 503 F.2d 447 (7th Cir. 1973), ccri. denied 420 U.S. 
928 (1975).

12 See supra at n.8.
13 One of the four blacks was actually hired upon the recom­

mendation of his brother whom Urbanski had referred to Dacies. 
Tr. 781.



8

employed in this period were not in fact hired at all, but 
were merely transferred from another Furnco job to the 
one at Interlake.14

The focus of this case is on the hiring by Furnco in Au­
gust and September. Settlement negotiations in a related 
Title VII case between Furnco and several black brick­
layers, including the, plaintiffs in this case, began in the 
summer but broke down towards the end of September. 
After the termination of the settlement talks and after 
several of the plaint ill’s in this action had filed charges with 
the E.E.O.C.,15 16 Wright telephoned Dacies and instructed 
him to consider hiring several black bricklayers involved 
in those negotiations. (Tr. 678, 77S-79). Between October 
12 and 18 Dacies hired six workers, all black bricklayers 
who were among those mentioned by \\ right to Dacies, 
whom Wright and Dacies knew were threatening legal 
action against Furnco, and who were the ‘ focus of the 
settlement negotiations.” (Tr. G77).1G Thereafter Dacies

14 One black, 1LD. Jones, testified that Larkin, a Furnco foreman 
approached him on the Bethlehem job and told him to report for 
work at Interlake. Tr. 913-14. Plaintiffs offered into evidence, as 
their exhibit 10, a list of employees on the Bethlehem job 
which Furnco was operating contemporaneously with the Interlake 
job. This list was supplied as part of Furnco s Answers to Imei- 
romitories Tr. 331. Ii indicates that Joseph Alston, a black brick­
layer, was employed on the Bethlehem job until September 7, 
1971; the following week he was employed on the Interlake job. 
Joint Exhibit 1. Clearly, Alston like Jones was transferred to the 
Interlake job. The district court erroneously denied the plaintiffs 
offer of the exhibit because ‘i t  does not prove a thing.” Tr. 383. 
However, counsel for Furnco subsequently asked B.D. Jones a 
question concerning the list. Tr. 920, and the district court stated 
to Furnco's counsel “1 don't care whose exhibit it is. As lie [plain­
tiff's’ counsel] said, you made it up and you have got it here . 
Tr. 922.

15 See Pre-trial Order, p. 5; Tr. 139, 201, 494, 608.
16 The six men hired were William Smith and Willie Pearson

(plaintiff’s in this ease). Sylvester Williams and Vainly Hawkins
(plaintiffs in both this case and the Dative case), and Charles

9

resumed hiring from bis usual list, employing seven addi­
tional workers, all white, until the completion of the job.

The Three  Plaintiffs

The three plaintiffs for purposes of this appeal are A1) il- 
liam Smith, Donald Samuels and Robert Nemhard. All 
three are competent bricklayers who had between 18 and 30 
years experience in their craft at the time of the trial,17 
and had firebrick experience.18 All three sought employ­
ment on the Interlake job by going to the job and.attempt­
ing to leave their telephone numbers with the superinten­
dent.19

AVilliam Smith has worked continuously as a bricklayer 
since 1944 (Tr. 311), and first worked on a firebrick job m 
19A0 (Tr 311). Furnco stipulated at trial that Smith was 
both experienced and qualified. (Tr. 313-14). Smith first 
worked on jobs with Dacies in 195S and again in 1962. (Tr. 
343-5). In 1969, Smith first secured employment on a 
Furnco job at the U.S. Steel South AVorks plant by going 
to the joli site, where he was hired by a Furnco foreman. 
(Tr 314-15). Dacies was Furnco’s assistant superintendent 
on that job. After the South AVorks job, Smith applied for 
employment on a Furnco job at the Bethlehem Steel Mill 

Indiana bv going to the gate and leaving his name and 
telephone number. AYhile he was not hired on that particu­
lar job, he reapplied in 1971 for another. Furnco job at 
the Bethlehem Mill bv going to the Arid on a number of 
occasions and was ultimately hired by Furnco’s bricklayer

Temple and Raymond Pendarvis (plaintiffs in the Batiste case 
only). All six were among the alleged victims df discrimination 
being discussed in the Batiste negotiations.

17 Tr. 66, 227, 310. J,'
18 Tr. 66, 229-35, 310-15.
15 Tr. 74-8, 327-30, 519-24.



10

superintendent on that job, Albert Urbanski. Dacies was 
also employed on this job as the Assistant Superintendent 
and thus the two men worked together for the fourth time. 
(Tr. 315, 32(5-7). At the time he was laid off the Bethlehem 
job, Smith was told by Urbanski that there would be a 
Furnco job at Interlake and according to Smith, Urbanski 
said, “I don’t know who is going to run the job but . . .  if 
you go there you might got on.” (Tr. 327). As suggested by 
Urbanski, and consistent with the way he had secured 
every other job he had ever worked in the firebrick in­
dustry—including all Furnco jobs—Smith began going to 
the Interlake job site to seek employment. Smith testified 
that he went to the site on numerous occasions and had 
seven or eight conversations with Dacies between the time 
Dacies first appeared in August and the date Smith was 
eventually hired, October 12, 1971. (Tr. 327-30). Dacies 
could specifically recall only one conversation with Smith 
and Dacies testified that he had said “You can go—you 
might as well go home, Smitty. I will call you when the job 
is ready, when I am ready to hire people.” (Tr. 871). How­
ever, Smith was not called when Dacies was hiring in 
August and September, 1971, and was not hired until 
October 12, 1971.

Donald Samuels lias been a bricklayer since approximately 
1957. (Tv. 227). Beginning around 1957 Samuels worked 
for six or eight different firebrick contractors prior to the 
Interlake job. (Tr. 229-34). Samuels first worked for 
Furnco, Dacies and Urbanski on the U.S. Steel South Works 
job in 1909, after having gone to the job site and applied 
to Larkin, a bricklayer foreman. (Tr. 235-7). lie worked 
for Furnco on the South Works job for approximately five 
months. Samuels next sought employment with Furnco 
at the Interlake job in August, 1971. According to Samuels, 
he went to the job site on three or four occasions. (Tr."

11

249-59). On one occasion he and another of the plaintiffs 
stopped Dacies’ car as Dacis was leaving the job site, told 
him they were bricklayers looking for work and slipped a 
piece of paper with their names and telephone numbers, as 
well as the names and phono number of two other black 
bricklayers, into the side vent window ot the car. Howcvci, 
Dacies merely “balled it up and threw i t . . . on the ground.” 
(Tr. 521-2; Plfs. Ex. 7). Samuels also recalled a second 
conversation with Furnco’s general superintendent in which 
the superintendent was asked to tell Dacies that thoie wcic 
bricklayers at the gate looking for work. The superinten­
dent returned to tell them that Dacies was not hiring. (Tr. 
25S-9, 524). Samuels was never hired on the Interlake job.

Robert Nemhard has worked as a bricklayer since 1945 
and, before Interlake, had worked two firebrick jobs. (Tr. 
G6, 68, 72). Nemhard began going to the Interlake job in 
August and continued to visit the site through mid-Septem­
ber. (Tr. 74-6). Nemhard testified that on a number of 
occasions he sought to speak to Dacies, but that Dacies 
had avoided him. (Tr. 74). On one occasion, while trying to 
speak to Dacies, he was almost run over by Dacies’ car. 
As a result of that incident, Nemhard wrote a letter to 
Furnco expressing his outrage at its superintendent’s 
conduct and asking the company for a job. (Tr. 76-79). 
Nemhard never succeeded in talking with Dacies. Like 
Samuels, Nemhard was never employed on the Int'-rlake
j°b.20

20 Dacies testified that lie did not know that there were any black 
bricklayers seeking work at the gate. (Tr. 8C8). '(he trial court 
made no finding as to this matter and Dacies’ testimony is difficult 
to reconcile with the facts that: (a) Dacies recalled at least one 
conversation with Smith at the job; (b) Dacies recalled that Ins 
ear Was stopped by Samuels and that he was slipped a piece of 
paper; (e) Dacies’acknowledged that on a couple of occasions a 
"Hard'called him to tell him that there were bricklayers looking 
for work (Tr. 869-70) ; and (d) Smith testified to a subsequent

*£? ■
V



12

Respondents sued Furnco because they were not hired 
when they sought to apply in August, 1971, although 4421 
white bricklayers who had never sought jobs, and whose 
qualifications were not better Ilian those of respondents, 
were hired after respondents were rejected.22

■
Summary of the Argument

Furnco’s argument fails to address the specific details 
of its hiring practices—particularly the use of Dacies’ all- 
white list—which led to the refusal to hire plaintiffs.

I. Plaintiffs unquestionably proved that they were black, 
were qualified bricklayers, had sought work at Furnco, and 
had been rejected, and that Furnco subsequently recruited 
and hired at least 37 white bricklayers. This evidence was 
sufficient to establish a prima facie, case under McDonnell 
Douglas Corp. v. Green, 411 U.S. 792 (1973), and shifted the 
burden to Furnco to prove a legitimate, nondiscriminatory 
business reason why plaintiffs were rejected. Furnco failed 
to carry that burden.

Furnco attempted to justify the rejection of plaintiffs 
by asserting that their supervisor, Dacies, followed a policy 
of not accepting applications at the job site and of hiring 
instead off a list of bricklayers known to him personally. 
This was inadequate to explain why plaintiffs Smith and

conversation with Dacies in'which Dacies said that lie was not 
hired earlier because lie was with ‘‘those other fellows’’ (Tr. 334), 
a conversation Dacies never denied.

21 Of the 44 whites hired by Dacies, 42 were hired in September 
and October. Respondents had sought work at the Interlake site 
in August.

1 22 Samuels and Nemhard were never employed at the Interlake
job. Between Smith’s initial rejection and Dacies’ decision to hirtT 
him in October, 37 white bricklayers were hired.

13

Samuels were not hired, since both Smith and Samuels 
were known to Dacies and had worked with him on Fuinco 
jobs in tbe past. Furnco gave no explanation why Dacies 
had neither put Smith or Samuels (or any other black 
bricklayer) on his list nor called thorn when he knew they 
were looking for work. More broadly, the evidence over­
whelmingly showed that Dacies’ refusal to accept applica­
tion at the job site was a pretext for discrimination.

Furnco also attempted to rebut plaintiffs prima facie 
case by showing that Dacies had, at the insistence of a 
higher company official, hired a percentage of blacks al­
leged to be comparable to tbe minority percentage of the 
area work force. This action was irrelevant to Dacies’ 
motivation, since it occurred at tbe direction of a different 
Furnco employee. “Affirmative action” which benefits one 
group of blacks cannot constitute a defense to claims of 
other blacks who were the victims of intentional discrimina­
tion.

II. Dacies’ practices limited hiring to persons known 
to him or referred by another Furnco employee. These 
practices perpetuated tbe effect of past discrimination by 
Furnco and Dacies in two ways.

First, special treatment for persons referred by Furnco 
employees necessarily perpetuated any past discrimination 
in the selection of Furnco employees. Asbestos II orlcers 
Local 53 v. Vogler, -i07 F.2d 1047 (5th Cir. 1969). By in­
tentionally discriminating against Smith, Dacies foreclosed 
the one remaining avenue to employment for blacks not 
known to Dacies or Furnco but only known to Smith. Re­
spondent Nemhard was injured in this manner since be 
was an acquaintance of Smith and had applied to Furnco 
with Smith.

Second, the record demonstrated that Dacies and Furnco 
had a history of racial discrimination prior to tbe Inter­



14

lake job. Furnco bad not hired any blacks prior to 19G9, 
and thereafter operated separate hiring systems for blacks 
and whites. Dacies had never hired a black prior to the 
Interlake job. These discriminatory practices prevented 
plaintiff Nemhard from acquiring experience with Dacies 
or Furnco, and Dacies’ prior experience requirement oper­
ated “to freeze the status quo of prior discriminatory em­
ployment practices.” Griggs v. Duke Power Co., 401 U.S. 
424, 430 (1971).

III. This case presents a variety of important legal 
issues as to (he meaning of disparate impact and business 
necessity under Griggs. The court of appeals, however, 
never considered these issues, since it concluded that plain­
tiffs had established intentional discrimination under 
McDonnell Douglas. Although the district court rejected 
plaintiffs’ Griggs argument in a conelusory manner, its 
opinion contains no consideration of the legal theories 
pressed by petitioner and respondents. Accordingly, re­
spondents urge that this Court not address these issues, but 
remand them instead to provide the court of appeals with 
an opportunity to do so.

Should this Court not do so, respondents offer three bases 
for finding a disparate impact under Griggs. First, Dacies’ 
practice of filling the bulk of the jobs with an all-white list 
violated Griggs because it excluded blacks from all jobs 
filled off that list. Second, only blacks sought to apply for 
work at the gate, so only blacks were adversely affected by 
Dacies refusal to consider such applications. Third, during 
the relevant time frame, Furnco’s practices resulted in the 

{hiring of a minority work force of only 5 percent, compared 
■ with a relevant labor market that was actually at least 13.7 
'percent black. Furnco failed to establish that the disputed 
practices were required by business necessity.

15

IV. The Seventh Circuit properly declined to apply the 
“clearly erroneous” standard to the findings of the district 
court. The findings themselves are conelusory and fail to 
address most of the contested factual issues. I he findings 
provide no indication as to the District Judge’s view of 
the legal significance of the evidence adduced by plaintiffs. 
The District Judge totally misconceived the controlling 
legal principles of Title VII and erroneously excluded 
much of the evidence afforded by plaintiffs. Having re­
jected some of this evidence on the ground that it related 
to irrelevant issues, the judge then ruled for the defendants 
on those issues and relied on those findings in rendering 
decision for defendants. The findings of the District Judge 
were apparently written by counsel for defendant after the 
case was decided, and thus provided no guide as to the 
reasoning that led the judge to rule in favor of defendants. 
Finally, the trial of this action was punctuated by intemper­
ate and unwarranted remarks by the District Judge directed 
at the court of appeals, Title VII, plaintiffs and plaintiffs’ 
counsel.

V. The “Questions Presented” asserted in the Petition 
for Writ of Certiorari are not in fact presented by this case 
at all. The court of appeals did not hold that evidence ot 
substantial minority employment is “irrelevant,” or that 
“discriminatory effect” can lie found in the absence of 
“disparate impact.” Petitioner’s brief does not focus on 
these issues, but deals largely with arguments not fairly 
comprised within the questions presented. Under these 
circumstances, certiorari was impro\idently gianted.

\*t' ■



16

A R G U M E N T

I.
Plaintiffs Proved Intentional Racial Discrimination 

Under McDonnell Douglas Corp. v. Green.

A. Plaintiffs’ P rim e Facie Case

In McDonnell Douglas Corp. v. Green,* 23 * 411 U.S. 792, 
800 (1973), this Court considered “the order and allocation 
of proof in a private, non-class action”. The plaintiff 
meets his burden by showing that be is qualified, a member 
of a racial minority group, and “bad unsuccessfully sought 
a job for which there was a vacancy and for which the 
employer continued thereafter to seek applicants with sim­
ilar qualification”, Teamsters v. United States, 431 U.S. 324, 
358 (1977). There is no question that the plaintiffs in the 
instant case belong to a racial minority, that “they did 
what they could to apply”,54 that they were qualified, that 
they were rejected and that Furneo thereafter hired more 
than 37 white bricklayers who, unlike plaintiffs, had not 
even sought employment at Interlake, and whose qualifica­
tions were not demonstrably better than plaintiffs’.

That was all plaintiffs were required to show to estab­
lish a prima facie case under McDonnell Douglas and 
Teamsters.25 * In addition, plaintiffs demonstrated that

23 The court of appeals carefully followed the McDonnell Douglas 
standards in analyzing the evidence. AG, A9. The district court 
did not consider those standards at all.

24 Both the district court (A17) and the court of appeals (AG) 
found that, the respondents sought employment. The white brick­
layers. on the other hand, never had to seek work at Furneo or 
express any interest in being hired.

25 Furneo does not deny that plaintiffs proved the four elements 
of a prima facie case identified in McDonnell Douglas, but ap-

17

Furneo had established no objective standard to he applied 
in selecting bricklayers, but had left Daeics “free to fill the 
job as he [saw] fit”. (Tr. G86). The standardless discretion 
thus afforded to Dacies by Furneo was the type of system 
which this Court has repeatedly warned “is susceptible of 
abuse” and thus buttresses plaintiffs’ prima facie case. 
See Castcncda v. Partida, 51 L.Ed. 2d 498, 512 (1977).

B. Furneo Failed To Rebut P laintiffs’ Prim a Facie Case

Once plaintiffs established this prima facie case, the 
burden27 shifted to Furneo to rebut it by establishing “some 
legitimate, nondiscriminatory reason” for the refusal to 
hire, McDonnell Douglas Corp. v. Green, supra, 411 U.S. 
at 802. Furnco’s burden was to present sufficient proof to 
demonstrate that discriminatory “intent was not among 
the factors that motivated” the failure to hire the plain­
tiffs, Kegcs v. School District No. 1, 413 U.S. 1S9, 210 
(1973) ; cf. Arlington Heights v. Metropolitan Development 
Corp., 429 U.S. 252, 266 (1977).

nnrentlv urges that plaintiffs were also required to prove a fifth 
element, “discriminatory motive or intent”. Brief of Petitioner, 
pp 45-50. Evidence establishing those four elements is a pnam 
facie ease of such motive or intent. Teamsters v. I mted States, 4 41 
U.S. at 335, n .l5, 358, n.44.

23 Six Circuits have held that employment decisions which 
depend upon the subjective evaluation of an immediate forum 
and which are not reviewed are “a ready mechanism forOisrmnnina­
tion". Rowe v. Genual Motors Corp.. 457 F.2d 348 3o9 (ot i Fir. 
1972); Kinsey v. First Regional Securities Inc., o.u h -d  8-iJ, 
838 (D C  Cir 1977); Brown v. Gaston County Dyeing Machine 
Company, 457 F.2d 1377, 1383 (4th Cir. 1972) errf denied 409 
IT 8 86° (197°) ; Senior v. General Motors, o32 F.2d o il,  o_8 (6th
Cir' 1976) cert, denied 429 U.S. 870 (1976); Stewart v General 
Motors Corp., 542 F.2d 445, 450-51 (7th Cir. 1976) cert  denied
54 L.Ed 2d 1105 (1977) ; Muller v. United States Steel Coip.. oO.)
F.2d 923 (10th Cir.), cert, denied 423 U.S. 825 (lO/'o).

27 Both the burden of proof and the burden of going forward 
with the evidence shifted to Furneo. It was the former which it 
did not meet.



18

Although Furnco argues at length, and on this record 
without foundation,28 * that laying firebricks is an extremely 
difficult and specialized job, Furnco does not contend that 
it rejected respondents because it believed them unqual­
ified. Furnco stipulated that Smith was fully qualified. 
Tr. 313-14. Samuels had extensive firebrick experience, 
and had done such work for Furnco itself.20 Nemhard too 
had firebrick experience, and Furnco concedes that in his 
as in the other cases the “rejection for employment was 
not the product of any determination as to their individual 
qualifications”.30
Furnco sought to rebut plaintiffs’ prima facie case in two 

ways. First, Furnco attempted to prove that plaintiffs 
were rejected because Dacies had a practice of only hiring 
bricklayers known to him and of refusing to accept or 
consider applications. Second, Furnco urges that the pro­
portion of blacks on the Interlake job was comparable to 
that in the area work force, and contends that such evidence 
is conclusive proof that it did not engage in racial discrim­
ination.

I. Dacies Hiring Practices

a. Smith and Samuels: Furnco’s general rebuttal is 
that the Company does not “hire at the gate”, that Facies

28 The president of the local bricklayers union testified that any 
experienced bricklayer could do firebrick work if he were willing 
to work hard. Tr. S29. Consequently, the union provides no train­
ing or apprenticeship in firebrick work, and bricklayers who do 
this work acquire the necessary skill through on the job training. 
Tr. 58-59. Although a witness recalled a single instance in winch 
a blast furnace exploded, no testimony was offered that this was 
in any way connected to the brickwork involved Tr. 660.

29“ [T]he employer’s acceptance of his work with.out express 
reservation is sufficient to show that the plaintiff was performing 
satisfactorily. . . .” Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 
1283 (7th Cir. 1077).

30 Brief of Petitioners, p. 16.

19

only hired bricklayers known to him or who were referred 
by an insider, a foreman or another bricklayer. Whether 
this is true and, if true, whether motivated by racial con­
siderations, are in dispute. But the dispute does not need 
to he resolved as to Smith and Samuels. Smith had worked 
with Dacies on four separate occasions; Samuels had 
worked for five months on a job at the South Works of 
U.S. Steel Corporation where Dacies was a supervisor. 
Both were qualified bricklayers who had performed satis­
factorily on Furnco jobs under the supervision of Dacies. 
Furnco offered no justification of Dacies’ refusal to recruit 
Smith and Samuels for the job as he recruited forty-two 
white bricklayers with whom he had also previously 
worked.31

The record reveals that Smith and Samuels were not 
offered jobs merely because they, as all the other blacks 
with whom Dacies had ever worked, were omitted from his 
list. Dacies sought to justify this omission by asserting 
that he did not have the telephone number of any black 
bricklayers. (Tr. 778.) But he did not explain why he 
had only recorded the telephone numbers of white brick­
layers32 or why lie did not obtain the telephone numbers

31 The failure of Furnco to present evidence explaining why 
Dacies did not recruit any of the black bricklayers who bad 
formerly worked with him supports the inference that Dacies was 
motivated by racial considerations. This evidentiary principle is 
well-established. The Court of Queen’s Bench articulated the rule 
over two hundred and seventy years ago:

[B]ut if very slender evidence be given against him, then, if 
lie will not produce his books, it brings a great slur upon his 
cause.

Ward v. Apprice, 6 Mod. 264, 87 Eng. Kep. 1011 (Q.B., 1705); see 
also Pierre v. Louisiana, 306 U.S. 354, 361-62 fj'939); Interstate 
Circui* Inc. v. United States, 306 U.S. 208, 221 (1939) ; 2 J. Wig- 
more, A Treatise on the Anglo-American System of Evidence 
§291 at 187 (3rd. Ed. 1940). ‘• ‘ i ,

32 There is no question that Dacies had worked with a number 
of black bricklayers at many different jobs. The district court



20

of known black bricklayers from the company’s own rec­
ords or the telephone directory. Despite Dacies’ knowledge 
of Smith, Samuels and other qualified blacks, the number 
of blacks on bis list remained the “inexorable zero”. Team­
sters v. United States, supra, 431 U.S. at 342, n.23.

Dacies, moreover, did not need telephone numbers for 
Smith and Samuels, since be met them personally at the 
gate when they sought to apply for work at the Interlake 
site. Most importantly, Dacies approached Smith at the 
job site in August and stated “ [y]ou can go—you might 
as well go home, Smittv, J will call you when the job is 
ready, when I am ready to hire people” (Tr. 871). Despite 
this representation Dacies did not call or hire Smith until 
two months later, after he had recruited and hired thirty- 
seven whites who bad not sought work on the Interlake 
job, and only after be had been directed by Wright to 
consider employing Smith because of the threat of litiga­
tion.33

b. Nemharrh Since Nemhard was not known to Dacies 
prior to the Interlake job, it is necessary in resolving his 
claim to consider in detail whether Furnco’s asserted de­

c-iToneously sustained Furncos objection to the plaintiffs question 
directed to Dacies concerning the number of times he worked with 
blacks and the number of blacks with whom he had worked. See 
supra at n.lU.

In its brief petitioner suggests Dacies lacked these telephone 
numbers because he had been working outside of Chicago prior to 
the Interlake job. Brief for Petitioner, p. 8, n.8. Dacies himself 
adduced no such explanation at trial. Nothing in the record sug­
gests that Dacies had ever had a black on his list. The record shows 
that prior to the Interlake job Dacies was employed by Furnco 

■ at another job in the Chicago area. Tr. 343-44.
33 There is substantial evidence that Dacies did not hire Smith 

because this might have led to hiring other black bricklayers as 
well. See infra at p. 32.

21

fenses—that Furnco and Dacies do not “hire at tlie gate”,34 
that they do not accept applications and that Dacies only 
hires persons known to him or “referred” by another ap­
propriate person35 * * *—are true and, if true, whether they were 
neutrally motivated and applied. The record demonstrates 
not only that Furnco failed to meet its burden of demon­
strating such neutral motivation and application, but also 
that these policies were a pretext adopted and manipulated 
by Dacies in order lo minimize the number of black brick­
layers at the Intcrlake job.

Insofar as petitioner suggests that Furnco had a prac­
tice of not accepting applications at the gate, the record 
in the case conclusively demonstrates that that was not the 
case. No witness ever testified that Furnco in fact forbade 
accepting such applications. Furnco’s general manager 
Wright testified that the company imposed no rules what­
ever on superintendents, but permitted them to hire as they

34 The difference between Furneo’s and Dacies’ practices is 
obscured by the use of the phrase “hire at the gate.”

At times the phrase is used fairly literally to denote hiring as 
bricklayers men standing at the gate of a job site without inquiring 
into their skills and experience. Thus IVright testified Furnco had 
a “policy”, admittedly not enforced, of not hiring at the gate 
because there was no assurance of a man’s ability. Tr. 671. Sim­
ilarly Larkin testified at the FEPC hearing that, although he did 
take names of men at the gate and consider them for future vacan­
cies, he did not “hire at the gate.” Transcript of hearing of August 
10, 1670, pp. 200-207.

Petitioner uses the phrase to refer to “the accepting of applica­
tions at the job site gate." Brief of Petitioner, p. 6, n.6. Thus 
when petitioner asserts Furnco “never hired at the gate”, the 
assertion is true literally but false in the sense intended by peti­
tioner. See Appendix pp. 18, 19.

35 Petitioner in its brief variously describes the persons from 
whom Dacies would accept a referral as another supervisor, a
Furnco bricklayer and any other reliable source. Brief of Peti­
tioner, pp. 6, n.4, 8, 18, n.14, 21, 25, 26. The district court opinion 
states somewhat ambiguously that Dacies hired those “who were
recommended as being skilled in such work.” A. 13.



22

saw fit. Wright suggested that he or the company had 
“guidelines”, embodying possibly preferable practices, but 
conceded that these were neither binding nor enforced and 
offered no claim that they were adhered to by most or any 
supervisors.36 The record makes clear that prior to the 
Tnterlakc job blacks had in fact obtained employment with 
Furnco by applying at the job site, and that this was the 
only way blacks had been able to work for Furnco.37 Two 
Furnco supervisors, Larkin and Urbanski, advised plain­
tiffs that the way to get hired by Furnco was to apply at 
the job site.3S The critical fact about the practices used 
to exclude Nemhard is that thejr were fashioned and 
adopted by Daeies, not imposed by higher management.

The issue is thus whether Daeies’ policies of hiring only 
bricklayers whom he knew and of refusing to consider 
blacks who applied at the gate—policies at variance with 
those of other Furnco supervisors—were adopted and ap­
plied in a nondiscriminatory manner. The evidence clearly 
demonstrates that they Avere not.

First, Daeies’ policies were, as we have shown, inten­
tionally manipulated to exclude Smith and Samuels on the 
basis of race. Daeies’ creation and use of an all-white list, 
excluding all blacks with whom he had ever worked, was an 
act of intentional discrimination. If, as petitioner asserts, 
Daeies had always applied the same practices and hired 
from his list, that compels the conclusion that Davies had 
never hired a black before the Interlake job, and demon­
strates that the practices were part of a consistent policy 
of racial discrimination. At the least these other acts of 
discrimination by Daeies were “highly relevant to the issue

36 Tr. 68G.
37 See supra at nn.4-5. 
3S Tr. 237, 327.

23

of [his] intent” in refusing to accept or consider applica­
tions at the Interlake job. Keyes v. School District No. 1, 
413 U.S. at 207.

Second, Daeies’ decision to refuse to accept applications 
at the gate abruptly sealed off the only avenue previously 
open to blacks to get jobs with Furnco. Such departures 
from past practice are inherently suspect. Arlington 
Heights v. Metropolitan Housing Corp., 4'2'J U.S. at 2G7. 
Daeies apparently did not disclose this change in practice 
to other Furnco supervisors, who continued to advise black 
bricklayers to apply for work at the Interlake site. Al­
though petitioner contends that this change in practice 
would also have foreclosed whites from so applying, there 
is no evidence in the record that whites had ever sought 
employment in that manner.

Third, Daeies’ behavior toward the blacks who applied 
at the gate was deceitful, hostile, and evasive. He lied to 
Smith and others39 telling them he was not yet hiring,40 and 
falsely told Smith he would call him when the job Avas 
ready41 but did not do so. lie took the name and address 
of another black bricklayer, Pearson, in August, but never 
called him.42 On another occasion lie threw aAvay a list of 
four qualified black bricklayers given him by Samuels and

32 Tr. 163-61, 251-52, 255, 457, 525, 556, S71.
40 The record makes clear that Davies commenced work as a 

supervisor oil August 14, began recruiting whites within 10 days 
and thereafter hired continuously until the end of September. 
Although the exact dates of Daeies’ statements to the black 
applicants are not clear, there Avas no time after he began work 
Avlien it would have been accurate to assert that lie was not hiring. 
Tr. 805. A similar false assertion that no work was availab'e was 
condemned in United States v. Ironworkers Local No. 8, 315 F 
Supp. 1202, 120G. 1207, 1208 (W.D. Wash. 1970), aff’d 443 F.2d 
544 (9th Cir. 1971).

41 Tr. 871.
42 Tr. 5GG-67.



24

Waters.43 He purposefully avoided Nemhard and other 
blacks by leaving the job from different gates and by re­
fusing to stop to talk to them, and on one occasion almost 
ran Nemhard down while trying to avoid him.44 Such be­
havior cannot be reconciled with the good faith policy peti­
tioner alleges Dacies was following. Cf. United States v. 
Sheet Metal Workers, etc., Local 36, 41G F.2d 123, 128, n.8 
(8th Cir. 1969).

Fourth, and most importantly, Dacies never advised any 
of the black job seekers of the hiring policies which peti­
tioner asserts Dacies was following throughout this period 
—that Dacies would not hire bricklayers applying at the 
job site, that Dacies would not accept applications, or that 
Dacies would consider those black applicants it, but only 
if, a Furnco employee would “refer” their names to him. 
The existence of these alleged policies was first disclosed 
to plaintiffs in Furnco’s Answer and subsequent deposi­
tions. The very secrecy of this ostensible policy is ciitical, 
not merely because it calls into question Dacies’ good faith, 
but because the information would have greatly assisted 
the black jobseekers to obtain work. If plaintiffs had known 
in 1971 that Dacies would have considered them had they 
been “referred” to him by another Furnco employee, plain­
tiffs could readily have contacted Furnco employees whom 
they knew, or sought to meet one and requested such a 
referral. Instead, Dacies compounded the discriminatory 
practice of keeping secret, the existence of vacancies by also 
keeping secret the procedure to be followed in obtaining 
consideration for such a position.

Dacies’ conduct is particularly difficult to reconcile with 
petitioner’s claim of non-discrimination when that conduct

13 Tr. 251-52, 521-22.
z44 Tr. 74, 7G. A similar attempt to evade black applicants was 

condemned in Sellers v. 11 ilson, 123 F.Supp. 917 (M.D. Ala. 1954).

25

is compared with the instructions Dacies received from 
Wright. Although Wright imposed no constraints on 
Dacies method of hiring, he did direct him to hire if pos­
sible enough black bricklayers to constitute “at least” 16% 
of the work force. Although Dacies told Wright that he 
would implement Wright’s professed desire for substan­
tial minority employment by getting the names of qualified 
blacks from Urbanski,13 45 * Dacies actually hired only a single 
black in this manner.40 Despite the fact that Dacies’ prac­
tices resulted prior to October 10 in the employment of 
only 4 blacks of 41 bricklayers, less than 10%,47 compared to 
Wright’s minimum goal of 16%, and despite Wright’s in­
struction that the goal be reached “if possible”, Dacies 
continued to refuse to consider or hire blacks whom he 
knew were seeking work and whose qualifications he either 
knew personally or could readily have confirmed. The stark 
contrast between Wright’s goals and Dacies’ actions not 
only fails to establish that Dacies was implementing a non- 
discriminatory policy selected for non-discriminatory rea­
sons, but compels the opposite conclusion.

There is, moreover, no claim advanced in this case that 
Dacies rejected Nemhard because Nemhard was, or Dapies 
believed him to be, unqualified.48 Dacies simply refused to 
consider the qualifications of the blacks at the job site, or 
to consider their proffered verbal or written49 applications.

45 Tr. 777.
40 See supra at p. 8, n.l l.
47 J. Alston and lt.D .Jones were merely transferred from other

Furnco job. A third black, Theodore Alston, was hired upon the 
referral of bis brother. See supra at n.13. If the transferees are 
disregarded, blacks constituted less only 5% of those actually hired 
by Dacies prior to October 10. ' • n -

.  • ‘ 1 ! )  ! I ;  * i

48 Indeed, Wright admitted it was possible thfjt, t^e. bricklayers 
who unsuccessfully sought work at the gate were more competent 
than the bricklayer.; actually hired for the Interlake job. Tr. GS9-90.

49 See supra at p. 11.



26

While such a practice, like secret vacancies and secret hir­
ing procedures, is not per se unlawful, it is necessarily sus­
pect. Ordinarily the primary legitimate interest of an 
employer is in hiring the host qualified workers, an interest 
that is frustrated, not served, by refusing to consider the 
comparative qualifications of interested job seekers. In 
adopting Title VII, “ [f]ar from disparaging job qualifica­
tions as such, Congress has made such qualifications the 
controlling factor, so that race, religion, nationality, and 
sex become irrelevant”. Griggs v. Duke Power Co., 401 
U.S. 424, 436 (1971). Where, as here, an employer seeks 
to justify the rejection of black applicants by resort to a 
criterion which was not and did not purport to be a mea­
sure of their actual qualifications, the burden which the 
employer must bear in proving the criterion was not 
adopted or applied in a discriminatory manner is par­
ticularly heavy.

The record in this case compels the conclusion that 
Dacics’ refusal to hire at the gate was not a neutral, noil- 
discriminatory policy common to all Furnco supervisors, 
but his own improvised means of sealing off a flow of blacks 
lie did not want to hire. Xot only did Furnco fail to estab­
lish that the exclusion of Xemliard was the result of legiti­
mate practices, fairly adopted and applied, but the uncon­
tradicted evidence also demonstrated that those policies 
were a mere pretext for discrimination.

2. The Statistical Defense

Furnco urges in the alternative that it adopted in 1971 
a voluntary “affirmative action” plan that resulted m a 
work force on the Interlake job that was approximately 
13% black, and that this exceeded the proportion of blacks

27

in the area work force.2 60 61 Proceeding from this Court’s re­
cent decisions on statistical evidence in Title VII cases, 
Furnco contends that these statistics are conclusive proof 
that there was no racial discrimination.

Although statistics may be adduced by either party in 
a Title VII action, such evidence does not preclude further 
factual inquiry. This Court has repeatedly held that a 
disparity between an employer’s work force and that of 
the labor market is evidence of intentional discrimination, 
but that it is not conclusive. Even where an employer has 
no minority employees, it is entitled to attempt to rebut 
that weighty evidence of discrimination by proving that 
the absence of minority employees was the result of noil- 
discriminatory business practices adopted and applied in 
a non-discriminatory manner. Hazelwood School District 
v. United States, 53 L.Ed.2d 768, 77S-79 (1977); Teamsters 
v. United States, 431 U.S. 324, 339 (1977). Conversely, 
where the proportion of blacks hired by an employer is 
comparable to the area work force, that fact is evidence 
of non-discrimination, but it is not conclusive of that issue; 
a plaintiff is still entitled to an opportunity to show that 
there were individual or systematic acts of discrimination. 
Cf. Arlington Heights v. Metropolitan Housing Develop­
ment Corp., 429 U.S. at 266, n.14 (1977).51

If an employer refuses on the basis of race to hire 
blacks, it cannot subsequently cure that act of discrimina­
tion by merely adopting a program which might be denoted

60 Respondents maintain that the proportion of blacks in the 
area work force exceeded 13%. See infra at p. 47.

61 “If the company discriminates against a black or a woman, it 
can be called to account for violating Title VII, regardless of the 
percentage of blacks and women among its [employees].” Patter­
son v. American Tobacco Co., 535 F.2d 257, 275, n.18 (4th Cir. 
1976), ccrt. denied 429 U.S. 920 (1976).



28

“affirmative action”. “The company’s later changes in its 
hiring . . . could be of little comfort to the victim of the 
earlier post-Act discrimination, and could not erase its 
previous illegal conduct or its obligation to afford relief 
to those who suffered because of it”. Teamsters v. United 
States, 431 U.S. at 341-42. Such a violation gives rise to 
an obligation to provide the victims with back pay and 
offers of the unlawfully withheld employment. To the ex­
tent that voluntary action provides to the victims the relief 
that a court would order, it reduces the employer’s liability 
to suit, and such action is of course encouraged by Title 
VII. But voluntary action, however denoted, which bene­
fits other blacks does not place the victims in the position 
which they would have occupied but for the act of dis­
crimination. Similarly, an employer could not by hiring 
a large number of blacks at the outset of a job acquire a 
license to discriminate thereafter against other blacks.

Although statistics showing a substantial minority work 
force might in some cases help to rebut a prima facie. 
case, such evidence was largely irrelevant here. In light 
of the detailed evidence as to the hiring practices at the 
Interlake site, Furnco was called upon to adduce evidence 
as to why Dacies had refused to put Smith, Samuels, or 
any other black bricklayer on his list, and, more broadly, 
why Dacies had refused to consider black applicants at all. 
Although Furnco did employ ten black bricklayers at the 
Interlake job, none of these were hired by Dacies on his 
own initiative. On the contrary, Dacies only hired these, 
or indeed any blacks at all, under orders from Wright. 
The fact that Wright’s orders resulted in a significant 
number of blacks being hired may be evidence as to 
Wright’s motivation, but it tells us nothing about why 
Dacies acted as he did when not carrying out those orders. 
Both the four blacks employed in September and the six-'

29

blacks employed in October were hired at the insistence 
of Wright. The only statistic that matters in evaluating 
Dacies’ motive is the percentage of blacks he hired for 
the positions which he had untrammeled freedom to fill 
as he wished. That percentage is an “inexorable zero.” 
Teamsters v. United States, 431 U.S. at 342, n.23 (1977).

Even if Dacies had not been acting at the direction of 
Wright, the manner in which the blacks were employed 
vitiated any evidentiary value of Furnco’s statistics. Of 
the ten black employees, six were referred to and hired by 
Dacies because of threatened litigation.62 “Such actions 
in the face of litigation are equivocal in purpose, motive, 
and performance.” Jenleins v. United Gas Corp., 400 F.2d 
28, 33 (5th Cir. 1908). Of the other four blacks, two were 
not hired at all, but were merely transferred from other 
Furnco jobs.63 Of the remaining two blacks, one was a 
brother of a transferee who was hired after being “re­
ferred” by his brother.64 Although Furnco asserts that it 
“went out and actively recruited and hired qualified black 
bricklayers”,66 at most only a single black was ever hired 
in this manner.66 Such a statistic is clearly of no eviden­
tiary significance in rebutting plaintiffs’ prima facie case.

3- Petitioner insists that Wrigiit acted in good faith in asking 
that Daeies hire the blacks involved in the Batiste case. Brief of 
Petitioner, p. 7. But petitioner does not and could not plausibly 
claim that Wright would have referred these blacks, or even known 
them, had it not been for the threatened action in Batiste.

62 R.D. Jones and Joseph Alston.
64 Theodore Alston. \
65 Brief of Petitioner, p. 38.
66 Cannon. Tr. 781.



30

II.
Furnco’s Failure To Hire Nemhard Was Tlic Result 

Of Unlawful Perpetuation Of Intentional Discrimina­
tion.

In addition to direct acts of intentional discrimination, 
Title VII prohibits the implementation of employment 
policies which perpetuate the effect of prior discrimination. 
“Under the Act, practices, procedures, or tests neutral on 
their face, and even neutral in terms of intent, cannot be 
maintained if they operate to ‘freeze’ the status quo of 
prior discriminatory employment practices”. Griggs v. 
Duke Power Company, 401 U.S. at 430. The record in this 
case demonstrates that Daeies* policies had just such an 
effect on blacks, such as Nemhard, seeking employment on 
the Interlake job.

A. T he Referral System

Daeies testified that, in addition to hiring bricklayers 
known to him personally, he would hire qualified brick­
layers who were “referred” or nominated by a bricklayer 
already employed by Furneo. (Tr. 770). This required not 
that a bricklayer apply for a job and list a Furneo employee 
as a reference, but that the existing employee volunteer the 
applicant’s name to Daeies without waiting for an inquiry 
from Daeies himself. Several bricklayers were in fact hired 
in this manner for the Interlake job. (Tr. 781, 784). The 
key to entry into the job via this route was personal ac­
quaintance with a Furneo employee.

This system was similar to that which was held unlawful 
Asbestos Workers Local 53 v. Vogler, 407 F.2d 1047 (5th 
Cir. 1909), and which this Court condemned in Teamsters, 
431 U.S. at 349, n.32. In Asbestos Workers the union only"

31

considered for membership persons related to present 
members by blood or marriage. Since, as a result of prior 
pre-Act discrimination, all those members were white, the 
exclusionary rule precluded minorities from “any real op­
portunity for membership”. 407 F.2d at 1054. In Asbestos 
Workers the minorities intentionally excluded in the past 
and those who were the victims of the perpetuation were 
necessarily different ; the latter were the relatives of the 
former. The case illustrates how a practice can perpetuate 
ami extend to one minority worker the effect of past dis­
crimination against another.57 58

Daeies’ internal referral system worked in a manner 
similar to that in Asbestos Workers. Hiring through this 
system required that prospective employees have some 
friendship or acquaintance with present Furneo employees 
who would be willing to take the initiative and refer them.55 
In the instant case, however, the overwhelming majority 
of the workers on the Interlake job were hired off Daeies’ 
list and were white. Since white employees were more 
likely to know and refer white friends, it is not surprising 
that the whites hired by Daeies in this manner had been 
proposed by whites, and that the only black thus hired 
had been referred by a black. The existence and dis-

57 See also Hock v. Norfolk and Western It.It., -173 F.2d 1344, 
1347 (4th Cir. 1973); Parham v. Southwestern Dcll-Tclephonc, 
433 F.2d 421, 427 (8th Cir. 1970); Stamps v. Detroit Edison Co.. 
3ti(i F.Supp. 87, 103 (F T). Mich. 1973). tiff’d sub nom. E.E.O.C. 
v. Detroit Edison, 51.7 F.2d 301, 313 (0th Cir. 1975), vac. and 
remanded on other grounds 53 Tj.Fcl.2d 207 (1977).

58 This is not a situation in which the employer accepted applica­
tions and required applicants to demonstrate their skill by means 
of a recommendation from a company employee or other reliable 
source. In such a case any applicant would have ,'at least some 
opportunity to establish his qualifications. Here, even though 
respondents could doubtless have established their skills in this 
manner, they were not afforded a chance to do so amless a present 
employee nominated them for consideration. -V • '



32

criminatory impact of intra-race referral patterns have 
been recognized in a variety of other Title \  II cases. See, 
e.g., United Slates v. Georgia Power Co., 474 F.2d 906, 925- 
26 (5th Cir. 1973); Parham v. Southwestern Bell Telephone 
Co., 433 F.2d 421, 427 (8th Cir. 1979).

The application of this discriminatory system to Nem- 
hard is readily apparent. Smith, as we demonstrated 
earlier, was intentionally excluded by Dacies on the basis 
of race from Dacies’ list and from employment at Interlake 
in August of 1971. Had Smith been hired at that time, ho 
would have been in a position to refer other bricklayers 
whom he knew. Nemhard was just such a bricklayer. Not 
only was Smith acquainted with Nemhard, it was Smith 
who had told Nemhard about the Interlake job. (Tr. 74). 
On several occasions Smith and Nemhard went together to 
Interlake to seek work as bricklayers. (Tr. 76, 104, 330). 
Instead of hiring Smith in August, nvlien the period of 
substantial hiring lay ahead, Dacies did not hire Smith 
until mid-October, when the job was nearing completion 
and layoffs were imminent. By then it was too late for 
Smith to refer anyone. There is, moreover, no indication 
that Dacies, who never told the black applicants about the 
insider referral rule, ever revealed it to the black brick­
layers he employed either.

The record strongly suggests that Smith was rejected 
in August precisely because he might have referred other 
blacks. Smith testified, and Dacies did not deny, that when 
Smith asked Dacies why he had been hired only toward 
the end of the job, Dacies replied “if you [had gotten] 
off to yourself away from the other fellows, I would have 
hired you”. (Tr. 334). Nemhard, of course, was one of “the 
other fellows”.

33

B. Prior Intentional D iscrim ination  
Against Nem hard58

As has been discussed, Dacies primarily selected em­
ployees from a list of bricklayers who had previously 
worked with or for him.59 60 This list was tainted by dis­
crimination not only because of Dacies’ actions in selecting 
only whites from the pool of employees with whom he had 
worked, but also because black bricklayers in the area, such 
as Nemhard, were denied an opportunity to enter that 
pool because of Furnco’s and Dacies’ earlier practice of 
discriminating against black bricklayers.61

The evidence in the record, uncontradicted by Furnco, 
is that Furnco employed only white superintendents in the 
Chicago area62 and that until 1969, the company employed 
only white bricklayers.63 Dacies’ practice of discrimina­
tion64 also limited the opportunity of blacks to work on

59 This appears to have been an alternative ground on which 
the court of appeals based its decision. AT.

60 See supra at pp. 5-6.
61 The legislative history of the Civil Rights Act of 19G4 stresses 

that waiting lists or referral systems such as this are suspect, and 
that they are distinguishable from seniority systems. See the 
Clark-Case Memorandum, 110 Cong.Rec. 7213 (1964), quoted in 
full in Franks v. IJuwman Transportation Company, 424 U.S. 
747, 759, n.lo (197G) ; see also United States v. Sheet Metal Work­
ers, supra, 41G F.2d at 133-34 n.20.

6- See supra at p. 4.
65 See supra at p. 4. The fact that Furnco did not controvert the 

testimony that it had never hired a black bricklayer prior to 19G9 
is highly relevant. See supra at p. 4, n.3. Moreover, even after 
19G9 Furnco used a dual hiring system, one for black bricklayers 
and one for white bricklayers. See supra at p. 5. “Proof of dis­
criminator}' motive . . . can in some situations be inferred from 
the mere fact of differences in treatment”. Teamsters v. United 
States, 431 U.S. at 335-6, n.15.

nob* ■
64 There is no evidence that Dacies ever selected , a black brick­

layer to work on a job for which he had hiring responsibility prior 
to the Tnterlake job. On the contrary, the all-white list, and the



34

jobs supervised by Dacies, whether for Furnco or anjr 
other construction company, and to demonstrate their 
qualifications and entitlement to be placed on Dacies’ re­
ferral list for future employment. Furnco’s dual hiring 
system, notifying and recruiting whites whenever there 
was work hut only considering blacks who learned of the 
hiring without such help, was clearly discriminatory; even 
in the absence of such disparate treatment a secret vacancy 
rule is inherently suspect.65 In addition, the district court 
erroneously excluded other relevant evidence offered by 
plaintiffs to show that both Dacies and Furnco had dis­
criminated against blacks prior to the Interlake job.66

From 1965 through the time of the Interlake job Ncm- 
liard regularly looked for work in his trade, bricklaying,67 68 
by reviewing the help-wanted advertisements and by in­
quiring at job sites. (Tr. 71).65 Because of Furnco’s and

testimony by the black bricklayers that they were hired by Furnco 
superintendents other than Dacies when they finally obtained 
Furnco work, lead inevitably to the conclusion that Dacies had 
never employed a black bricklayer prior to the Interlake job. 
Dacies admitted that he had not recruited a black bricklayer 
between 19(i'2 and ]069 (Tr. 874). Finally, Dacies’ oilier actions 
plainly indicate bis racial motivation. See supra at pp. 22-23.

65 See brown v. Gaston Count a Dyeing Machine Co., 457 F.2d 
1377, 13S3 (4th Cir. 1072).

66 See infra at p. 58.

6| Mr. Nemhard bad been a bricklayer since ]!)4(i (Tr. (JG) ; how­
ever, in the years prior to 13G5 he had been in business for himself 
in New York. Tr. 09-70.

68 Nemhard bad worked at two firebrick jobs prior to applying 
for work at Interlake. Tr. OS, 72. He had not applied for other 
firebrick jobs. Tr. 73. This is not surprising because Furnco had 
a “secret” hiring process, and neither advertised for nor accepted 
applications. The plaintitfs’ offer of proof as to the general prac­
tice in the firebrick industry was rejected by the district court who 
flatly announced. “I’m not interested in what the practice is in the^ 
industry”. Tr. 501.

35

Dacies’ secret vacancy policy, Nemhard had no way of 
ever knowing whether, when or where Furnco was hiring. 
It is clear that at least until 1969 Nemhard could not have 
obtained a job at Furnco even if he had known of a va­
cancy; whether thereafter he would have been able to 
enter through Furnco’s discriminatory dual hiring system 
is at best problematic. Since Dacies and Furnco had thus 
unlawfully denied Nemhard any opportunity to work for 
either and thus to demonstrate his skills prior to the Inter­
lake job, the use at that job of a preference for prior 
employees worked a “disproportionate distribution of ad­
vantages” in favor of white former employees and thus 
perpetuated the effect of Dacies’ and Furnco’s past dis­
crimination against Nemhard. Teamsters v. United States, 
431 U.S. at 350.

Plaintiffs contend that the evidence in the record is 
thus sufficient to affirm the Seventh Circuit’s ruling in 
favor of Nemhard on this ground. If the Court concludes, 
however, that the record on this issue is inadequate, a 
remand is required in light of the district court’s erroneous 
exclusion of evidence of prior discrimination by Furnco 
and Dacies.

III.
Fu rneo’s Employment Practices Had The Effect Of 

Discriminating Against Blacks And Were Not Justified 
By II. 'siness Necessity.

A. Since The Seventh Circuit Did Not Consider The 
Griggs Issues, A Rem and Is Appropriate (|l

. Petitioner presents a variety of issues regarding ,the 
meaning of Griggs and its progeny. We note at the out­
set, however, that the resolution in this case of these issues, 
some of great importance, appears premature.



36

The findings of the district court relating to the Griggs 
issues are so conclusory and inconsistent as to make mean­
ingful appellate review impossible. The question of 
whether one or more of Fnrnco’s policies had a dispropor­
tionate impact on blacks raises a variety of factual and 
legal issues. The district court’s opinion merely asserts 
that there was no such impact, with no explanation of the 
evidence or legal principles on which it was based. A18, 
A20; see Terminiello v. Chicago, 337 TJ.S. 1 (1949). The 
district court found that business necessity required Furneo 
to hire only bricklayers known to Facies personally (A20- 
21), but it also found that Furnco’s actual practices were 
not limited to hiring such bricklayers, but also included 
hiring those “recommended” as being skilled in blast fur­
nace relining. (A. 15). No significance can be attached to a 
district court finding that business necessity required an 
employer to use an employment practice which the court 
also found that the employer in fact did not actually use. 
Even consistent findings on this issue could not be upheld 
in the face of the district court’s refusal to permit counsel 
for plaintiffs to ask Dacies whether “there are more efficient 
ways or more effective ways of hiring your crew” than that 
which Facie had used. (Tr. 873).

The issues of disparate impact and business necessity 
were both briefed in the Seventh Circuit, but the court of 
appeals reached neither issue. Instead, the court of ap­
peals applied the four parr McDonnell Douglas standard 
(A6), rejected Furnco’s explanation for the rejection of 
Smith, Samuels and Nemhard and concluded that “racial 
discrimination is established under the principle of McDon­
nell Douglas”. (A8-A9). Having found for plaintiffs on 
the issue of discriminatory intent, the court of appeals 
had no occasion to and did not in fact reach the questions 
raised by the application of Griggs to this case.

37

If the Court does not affirm the finding of liability based 
on discriminatory intent, it should remand the Griggs is­
sues for consideration in the first instance by the Seventh 
Circuit.

However, should this Court decide to consider the Griggs 
disparate impact issues, plaintiffs contend that the record 
demonstrates in two distinct ways that Furnco’s practices 
had the requisite disparate impact. A third method of 
proving adverse impact was in part limited by the district 
court’s erroneous evidentiary rulings. AYc further urge 
that Furneo failed as a matter of law to establish that the 
disputed practices were required by business necessity.

IJ. Disparate Impact

In Griggs v. Duke Power Company, supra 401 U.S. at 
429-30, this Court recognized that in enacting Title VII 
Congress sought “to achieve equality of employment op­
portunities and remove barriers that have operated in the 
past to favor an identifiable group of white employees over 
other employees. Under the Act, practices . . . neutral on 
their face, and even neutral in terms of intent, cannot be 
maintained if they operate to freeze Ihc status quo of prior 
discriminatory employment practices.” Under the Griggs 
analysis, plaintiff need only prove that the practice in 
question “selcct[s] applicants for hire in a significantly 
discriminatory pattern.” Dothard v. Rawlinsou, 53 I..Ed. 2d 
786, 797 (1977). Once this discriminatory'effect is shown, 
the burden shifts to defendant to demonstrate that its prac­
tice is necessary. Griggs v. Duke Power Co., supra, 401 
U.S. at 431. If the employer demonstrates business neces­
sity, plaintiff can then show the availability of procedures 
that have a lesser racial impact. Albemarle Paper Co. v. 
Moody, 411 U.S. 405, 425 (1977).



38

1. Dacies List

The first disparate impact claim of plaintiffs Smith, 
Samuels and Nemhard rests on the argument that Dacies’ 
use of an all-white list had the effect of excluding oil black 
bricklayers from each job filled off the list. Furnco offers 
three arguments against this analysis. First, Furnco chal­
lenges the existence of the list. Second, it suggests, that 
the Dacies’ list was in fact integrated from the outset of 
the Interlake job. Third, Furnco contends that it was free 
to use a hiring criterion with a disparate impact in select­
ing most of its work force so long as its other hiring proce­
dures yielded a total minority work force comparable to 
the area work force. All of these arguments are without 
factual or legal support.

(a) The Existence of the List. There is no need to re­
state Dacies’ testimony on the existence of the list except 
to reiterate that it was Dacies who characterized his prac­
tice as hiring off a “list”. (Tr. 769-70). The Seventh Cir­
cuit properly concluded that Dacies hired off a list. (A. 2). 
In fact, Furnco admits that Dacies had a list (which it pre­
fers to call “various notes”) and that Dacies’ list was 
limited to white bricklayers. (Brief of Petitioner p. 8, n. 8, 
p. 34, n. 29).

(b) The Alleged Jute,/rated List—Furnco suggests that, 
prior to the commencement of the Tnterlake job, Dacies 
ceased using an all-white list and assembled an integrated 
list. If the list was in fact integrated, and contained a 
proportion of blacks comparable to the area work force, 
that might be of relevance under Griggs.™

This factual assertion is presented for the first time in 
this litigation in the Brief of Petitioner, p. 34. Counsel 
for Furnco never advanced any such assertion in the lower 60 * *

60 It would not, however, rebut respondents showing that
Dacies’ practice had an adverse racial impact as applied to the

.•'actual applicants.

39

courts. No witness at trial ever claimed or suggested that 
there was such an integrated list. Consequently, the trial 
court made no finding on this issue and the court of ap­
peals found on the undisputed evidence in the record that 
during the Interlake job Dacies’ list contained only the 
names of whites. (A. 8).

It is certainly clear that Dacies had no black names at 
all when the job started. When Wright telephoned Dacies 
and asked him to hire at least 16% blacks, Dacies indicated 
that he had no names of blacks, but would have to get 
them from others. (Tr. 777). At some later time Dacies 
did call Urbanski for names, but did not then get any. Only 
“subsequently” to this second call did Dacies get any names 
and telephone numbers of blacks, and there is no clear 
evidence that Dacies ever used that information. (Tr. 778). 
Dacies testified on cross-examination that he could not 
recall whether he had ever telephoned a single black dur­
ing the Interlake job. (Tr. 877). Of the four blacks hired 
prior to October 12, 1975, the two transferees were con­
tacted by supervisors Larkin and Urbanski, and Theodore 
Alston was contacted by his brother Joseph Alston. No 
more than one black hired, Cannon, could have been called 
by Dacies, and neither he nor Dacies testified that any 
such call had ever occurred.

The record thus proves that the list from which Dacies 
recruited most Interlake employees included no blacks at 
the outset of the job, when plaintiffs first applied, and 
contains no evidence that there were ever any blacks on 
that list. There were, of course, blacks hired for the Inter­
lake job, but, unlike the whites, they were not hired by 
being recruited by Dacies from his lisUof known brick­
layers. The blacks, rather, were hired through an entirek 
different procedure—most notably by bcino- offered jobs 
in October through the intervention of Wright and after 
threatening to sue.



40

(c) Furnco’s “Whole Hiring Process” Argument—Furn- 
co does not deny that the exclusive use of Dacies’ all-white 
list would have had the requisite disparate impact. But 
the company argues that any violation from the use of the 
list was cured by its alleged “affirmative action” program, 
which resulted in a work force at the Interlake job com­
parable to the area work force. Thus, the real issue is 
what constitutes the proper focus for determining the effect 
of Furnco’s hiring practice on blacks: is it Dacies’ practice 
of hiring from his all-white list, or is it the combined 
Dacies-AVright practice of hiring off Dacies’ list plus sup­
plementing the work force with blacks? Only one answer 
to this question is consistent with the purposes of Title 
VII and the decisions of the courts, including this Court. 
Where an employer fdls a significant portion of his jobs 
with a hiring practice that excludes identifiable blacks, that 
practice cannot be immunized by “affirmative action pro­
grams” that benefit other blacks for a limited number of 
jobs.

The purpose of Title VII is “to assure equality of em­
ployment opportunities and to eliminate those discrimina­
tory practices and devices which have fostered racially 
stratified job environments to the disadvantage of minority 
citizens”. McDonnell Dougins, supra, 411 U.S. at SOI. That 
purpose requires employers to eliminate all hiring mech­
anisms that exclude blacks, with the end of fostering equal 
opportunity regardless of race for every job the employer 
offers. It is not enough merely to use the discriminatory 
practice to fill less than all of the jobs. That does not 
eliminate the practice. As to all jobs filled by the discrim­
inatory practice, blacks continue to be denied an equal 
opportunity for employment. The alternative proposed by 
Furnco—to maintain a discriminatory hiring system, then 
to “compensate” for its effects by earmarking a certain 
number of jobs for blacks—is a grotesque parody of this

41

goal of equal opportunity as to all jobs. Title VII places 
on an employer whose practices are unlawful two distinct 
obligations—to abandon those practices, and to take such 
affirmative action as may be necessary to undo any con­
tinuing effect of those practices and to place the victims 
of discrimination in the position they would have occupied 
but for that discrimination.70 Affirmative action, by itself, 
is no substitute for the required cessation of unlawful 
employment practices.

Griggs held that, in enacting Title ADI, Congress man­
dated “the removal of artificial, arbitrary, and unnecessary 
barriers to employment when the barriers operate in­
vidiously to discriminate on the basis of race or other im­
permissible classification.” 401 U.S. at 431 (Emphasis 
added). Dotliard emphasized that Title ADI “prohibits the 
application” of such standards. 53 L.Ed.2d at 790 (Empha­
sis added). An employer cannot retain such discriminatory 
requirements by the simple expedient of specially recruit­
ing more of the handful of blacks who may he able to meet 
it, or of waiving that requirement, not for all blacks, but 
only for enough blacks to raise the minority work force to 
some given level.71

The lower courts have rejected Furnco’s contention that 
a substantial level of overall minority employment can 
render lawful specific practices which would otherwise vio 
late Griggs. For example, in Johnson v. Goodgear Tire iC

70 “If the court finds tlmt the respondent lias intentionally en­
gaged in or is intentionally engaging in an unlawful employment 
practice charged in the complaint, the court may enjoin the respon­
dent from engaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate. . . .” 42 U.S.C. 
2000e-5(g). A similar dual obligation is imposed on government 
contractors by Executive Order 11246.

71 In Whitus v. Georgia, 385 TJ.R. 545 (19671, this Court held 
that where a jury list was tainted by racial discrimination, a state 
could not continue to use the list merely by supplementing it with 
the names of additional blacks.



42

Rubber Co., 491 F.2d 1364 (5th Cir. 1974), plaintiffs chal­
lenged the discriminatory effect of certain tests on black 
applicants. Defendant attempted to refute this argument 
by directing the Court’s attention “to many statistics which 
it asserts establish that it has transferred black employees 
from the labor department and hired blacks from the 
Houston area in a ratio equivalent to the total black pop­
ulation in the area.” The Fifth Circuit rejected that argu­
ment :

Such evidence does not disprove the essential finding 
that the tests have a detrimental impact on black ap­
plicants. It merely disclosed that Goodyear has at­
tempted by other practices to remove the taint of the 
tests’ consequences. The fact still remains that for 
those potential black hirees and black labor depart­
ment transferors, these unvalidated testing devices 
have a substantial invidious effect. 491 F.2d at 1372-73.

See also, Green v. Missouri Pacific Railroad Company, 523 
F.2d 1290 (8th Cir. 1975); League of United Latin Amer­
ican Citizens v. City of Santa Ana, 410 F.Supp. 873, 893-94 
(D.C. Cal. 1976); c.f. Rogers v. International Paper Co., 
510 F.2d 1340, 134S-49 (8th Cir. 1975), vacated and re­
manded on other grounds, 423 U.S. 809 (1975).

No different rule is adopted by the cases relied on by 
Petitioner, Smith v. Troyan. 520 F.2d 492 (6th Cir.), cert, 
denied 426 U.S. 934 (1976), or Kirkland v. New York State 
Depart meat of Correctional Services, 374 F.Supp. 1361 
(S.D.N.Y.) aff’d in relevant part, 520 F.2d 420, cert, de­
nied 429 U.S. 823 (1976). Both assert that an employer 
does not have to demonstrate the “job relationship” 
of a “subtest” within a battery of tests, if the overall 
battery does not have an adverse effect. Smith v. Troyan, 
520 F.2d at 49S-99; Kirkland v. New York State Depart> 
ment of Correctional Service, 374 F.Supp. at 1370. In 
Smith and Kirkland no single “subtest” determined who

43

was hired. An applicant took all of the subtests and the 
decision to hire was based on the results obtained by each 
applicant on the entire battery. Here the use of the all- 
white referral list was a separate, distinct part of the em­
ployment process which acted as an “artificial, arbitrary, 
and unnecessary barrier[s] to employment” of black brick­
layers, Griggs v. Duke Power Co., 401 U.S. at 431. Unlike 
an employee who could overcome a poor showing on one 
subtest by a better showing on another, an employee who 
was not on Dacies’ list was absolutely precluded from con­
sideration for the 42 jobs filled from that list.

Petitioner’s position is not supported by the proposed 
governmental “Uniform Guidelines on Employee Selection 
Procedures”, 42 F.B. 65542 (Dec. 30, 1977). The govern­
mental agencies expressly recognize that a component part 
of a selection process which has an adverse impact may be 
unlawful even if the overall selection process has no ad­
verse impact. Section 4C states that where there is no ad­
verse impact in the overall process “the federal enforce­
ment agencies . .. generally will not take enforcement action 
based upon adverse impact of any component of that pro­
cess . . . .” (emphasis added). “Enforcement action” is de­
fined in §16(i) as a “lawsuit, or a formal administrative 
proceeding . . . hut not a finding of reasonable cause [to 
believe that the allegations of a charge of discrimination 
are. valid]”. These sections make clear that the federal en­
forcement agencies agree that a part of a selection process 
is unlawful if it has an adverse effect, regardless of the 
overall impact of the process, and that upon such a showing 
an aggrieved individual is entitled to a “reasonable cause” 
decision. The guidelines state only that as an exercise of 
administrative discretion in allocating enforcement priori­
ties, the agencies “generally” will not institute an enforce­
ment action concerning a part of a selection process if the 
overall process does not have an adverse impact.



44

If Furnco’s contentions were accepted, an employer conld 
fill 90% of its positions by administering a non job-related 
test which only whites conld pass, and then extinguish the 
rights of the rejected black applicants by filling the re­
maining positions with other blacks who had never applied 
for the job or taken the test. Similarly, if an employer 
used a test on which blacks scored better than whites to 
(ill half its positions, it might in that manner acquire a 
license to use for the rest of its vacancies a selection cri­
terion which violated Griggs. In either circumstance 
Furnco’s approach would convert Griggs into a legal sanc­
tion for deliberately adopting a set of hiring criteria which 
would prevent minority employment from rising above its 
proportion in the area work force.

Furnco’s self-styled “affirmative action” plan did not 
meet its legal obligations. The use of Dacies’ all-white 
list had, by itself, a clear adverse impact on all qualified 
black bricklayers who actually sought work at Interlake. 
Furnco’s policy of keeping its vacancies secret extended 
that impact to all qualified black bricklayers who would 
have applied had they known there were jobs. Faced with 
(his situation Furnco chose, not to replace the list with 
some other criterion with no racial impact, but to keep 
the list in use and to make an exception to this requirement 
for ten, and only ten, black bricklayers. As the Seventh 
Circuit found, “Most of the jobs (approximately 8t-S7%) 
were foreordained to be filled by white bricklayers. At 
all times, these were to be filled from Dacies’ list, naming 
only white bricklayers.” (A8).

In sum, the facts and the law fully support plaintiffs’ 
claim that Dacies used an all-white list to fill most of the 
jobs at Interlake and that the use of that list had the 
requisite impact to shift the burden to Furnco to justify 
its practice by a “business necessity”. Before considering

45

whether Furnco met its burden, plaintiffs examine two 
additional ways in which Furnco’s practices had an adverse 
impact.

2. Applicants

Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975), 
provides that a plaintiff may demonstrate the dispropor­
tionate impact of a hiring practice by measuring its effect 
on persons seeking employment. The use of such data, 
rather than merely analyzing the effect of a practice on 
(lie area work force, is particularly appropriate in a case 
such as this where black unemployment was lb0% higher 
than white, and blacks were thus likely to constitute a 
disproportionately large portion of those seeking work.72 
In the instant case plaintiffs proved that at least eight 
black73 bricklayers sought work at Interlake; because of 
Dacies’ practices none of these applications were ever con­
sidered. The record contains no evidence that any whites 
ever sought work at the Interlake site or were in any way 
affected by Dacies’ refusal to consider such applicants.74 * 
In view of the fact that whites had traditionally been 
recruited individually, while only blacks were required to 
apply at the job site, it is hardly surprising that whites 
did not seek employment through the route traditionally 
used only by blacks. An exclusionary hiring practice which

72 Def. X21, p. 10.
73 A17; Tr. 74, 77 (Nemhard), 158-50 (Gilman), 248, 249, 251-53, 

250 (Samuels), 327-29 (Smith), 397 (Williams), 454, 450-60 
(Ilawkins), 519, 522-23, 525 (Waters), 505-67 (Pearson).

74 A7. Petitioner’s brief asserts that whites “appeared" at the 
gate. Brief for Petitioner, p. 16, n .ll . The recoiyl however, indi­
cates that the whites seen near the gate were not seeking work, but 
were on their way onto the site where they were already employed.
Furnco offered no evidence that whites had applied for work at 
the job site



4G

in fact excludes only blacks clearly lias a disparate impact 
■within the meaning of Griggs and its progeny.

3. Furnco's Hiring P rior  To O ctober 10, 1971

Dacies’ hiring practices changed substantially after Oc­
tober 10, 1971. Prior to that date 37 of those hired were 
whites from Dacies’ list and 4 were blacks known to other 
Furnco employees. These 41 employees worked over 94% 
of the man days on the job. After October 10 Dacies 
departed from the exclusive use of his list and inside 
referral, and hired six black bricklayers under threat of 
litigation. Respondents maintain that the effect of Dacies’ 
practices must be analyzed separately for the period to 
October 10, and that the combined practices in effect dur­
ing that period clearly had a disparate impact.

We urge that in assessing the impact of Dacies’ hiring 
practices it is necessary to disregard the two blacks who 
were merely transferred from other Furnco jobs. If that 
is correct, blacks constituted only 2 of the 39 hires, or 
about 5% of the hires. The courts below, however, did not 
discuss the difference between persons hired for the Inter­
lake job and those transferred to it.

Plaintiffs sought to introduce at trial evidence as to the 
number of blacks and whites hired at other Furnco jobs. 
This would have corroborated our claim that the disputed 
practices generally resulted in the hiring of only a handful 
of blacks. The district court, however, erroneously con­
cluded this evidence.76 * *

76 Tr. 377-83. The profiled  evidence was that there were only 7 
blacks out of 195 bricklayers hired at the two Furnco job immedi­
ately prior to Interlake. This 3.5% figure was consistent with the,, 
data for Interlake. PX !), 10; Tr. 377-79, 382-85.

47

The parties are in disagreement as to the proportion 
of blacks in the relevant labor market. Respondents sought 
to introduce evidence that as of 1973 some 13.7% of the 
members of the Bricklayers Union in the Chicago area 
were black. Although the district judge rejected this evi­
dence, the court of appeals found that exclusion an abuse 
of discretion, a finding of which petitioner has not sought 
review in this Court.76 (A. 9)

The question of whether the hiring practices in operation 
prior to October 10, 1971, had a discriminatory impact 
should be remanded for consideration in the first instance 
by the lower courts. Although the evidence indicates that 
Furnco hired only about 5% black bricklayers, compared 
to an area minority work force of 13.7%, the district court, 
because of its erroneous evidentiary ruling, never under­
stood the relevant facts. The court of appeals, as we noted, 
never reached the Griggs issues at all.

76 The 5.7% figure relied on by petitioner and the district court 
was taken from the 1969 Chicago plan prepared by the federal
government under Executive Order 11246. 30 Fed. Reg. 1231!); 
Def. X21, Tr. 618-20. This figure was based on a six county area, 
only a fraction of which was within Cook County. The manner in 
which the 5.7% figure was arrived at by the authors of the plan 
is not disclosed. Plaintiffs’ objected to ihe introduction of this 
figure without such a foundation; the district court erroneously 
overruled that objection. Tr. 619-20. Most importantly, the magni­
tude of the figure was asserted by the author of the.plan to be so
low as to constitute evidence of racial discrimination “ fT]he most 
skilled and most remunerative trades have a level, of minority 
representation far below that.which should have resulted from 
meaningful past participation in the industry without regard to 
race, color, or national origin.” Def. X21, p. 17.



48

C. B usiness Necessity11 * * * * * 17

Griggs permits an employer to use an employment prac­
tice which has a disproportionately adverse impact on 
minorities only if that practice is required hy “business 
necessity”. In Griggs, Albemarle and Dothard the practice 
was a test or job requirement that ostensibly measured the 
ability of applicants to perform the work in question; in 
that context the business necessity rule was held to require 
the employer to demonstrate that its test or standard ac­
tually “measure[s] the person for the job and not the per­
son in the abstract”. Griggs v. Dube Power Co., 401 U.S. at 
436. This case presents a wholly different type of employ­
ment practice. Furnco does not claim that it rejected plain­
tiffs because they were, or because it believed them to he, 
unqualified. On the contrary, Furnco never considered the 
actual qualifications of Smith, Samuels or Nemliard.

Furnco failed to offer any direct testimony to meet its 
burden of proving that Daoies’ practices were necessary. 
Neither Dacies nor Wright testified that the practices were 
essential to the operation of the company. Wright con­
ceded that Furnco did not require Dacies to adhere to the 
disputed practices,18 a permissiyeness entirely inconsistent 
with any claim that those particular practices were neces­

11 The decision of the district court contains a statement that 
“Furnco’s hiring policies were justified as a business necessity”. 
A20-A21. This statement is devoid of significance. It is at best
unclear whether this refers to Furnco’s past practice or Dacies' 
practice at the Interlake job; the district judge does not appear
to have understood that these practices were not the same. The
court’s earlier justification of Furnco’s practices refers only to
“not hiring at the gate’ in the literal sense. See A17-A18; n.34
supra. Respondents contend that, as a matter of law, a practice of
not accepting applications cannot be employed where it has a dis;
proportionate impact on blacks.

Tr. 686.

49

sary to protect Furnco’s interests. Dacies agreed that he 
had made no effort to ascertain how other supervisors 
hired and such an inquiry would have revealed that other 
supervisors did accept applications.19 * The undisputed ev­
idence shows, that other Furnco superintendents accepted 
applications from blacks who came to the job site, which 
clearly demonstrated that Dacies’ refusal to do so could not 
have been required by business necessity. Not only did 
counsel for Furnco not ask Dacies if there were other ef­
ficient and effective means of hiring bricklayers, but they 
objected when counsel for plaintiffs sought to do so.80

Although Furnco’s witnesses did not claim at trial that 
Dacies practices were required by business necessity, 
Furnco’s counsel does advance such an argument in this 
Court. The interest asserted by the employer in rejecting 
plaintiffs was not that their qualifications were assessed 
and found wanting, but that the very process of accepting 
applications and assessing those qualifications would have 
been an administrative inconvenience. Whether, and if so 
under what circumstances, snch administrative considera­
tions can constitute business necessity, and thus permit an 
employer to refuse to consider at all the skills of a dispro­
portionately minority group of potential employees, is a 
novel question not heretofore considered by this Court or 
any lower federal court.81

73 Tr. 872-73.
80 Tr. 872-73.
81 The opinion of the court of appeals notes that such considera­

tions fall outside what Griggs had recognized as relevant to business 
necessity. A7-A8. Although the Seventh Circuit ^pinion could be 
read to hold that only merit considerations can ever constitute 
business necessity, we do not advocate such a rule, and such a rule 
is not necessary to sustain our position that, as a matter of law, 
business necessity was not shown in this case.



50

The legislative history of Title ATI does not address this 
issue directly. Several aspects of that history, however, 
throw considerable light on this matter. First, the basic 
policy of Title VII is to require that employment decisions 
be made on the basis of merit, and that applicants for em­
ployment be afforded an equal opportunity to compete for 
a job on that basis 82 Griggs v. Duke Power Co., supra. 
That policy is clearly frustrated where an applicant is for­
bidden to enter the competition at all. Second, while Con­
gress was concerned to eliminate practices which gave 
whites a marginal competitive advantage, the most egre­
gious form of discrimination, and that most responsible 
for the adoption of Title ATT, was the absolute refusal of 
employers even to consider minorities for certain positions. 
Third, in view of its awareness of the wholesale exclusion 
of blacks by certain employers, it is difficult to believe that 
Congress intended to permit an employer to refuse to even 
consider the qualifications of a black applicant merely be­
cause the black had not worked for the employer in the past.

The refusal to even consider an applicant has, moreover, a 
far more drastic effect than a test or other standard. Fre­
quently a job requirement, if upheld as job related, will 
be one which the employee can try to meet by education or 
study. Often, where a variety of considerations bear on 
an employer’s decision, an employee’s weakness in one area, 
such as a low test score, can be overcome by strength in 
another, such as practical experience. The practice in the 
instant case, however, was an absolute and, for all practical 
purposes permanent, bar to employment.

8: Petitioner would have this Court disapprove as abberntional 
such merit based competition. Brief for Petitioners, pp. 26-28. 
Regardless of whether a large number of blacks may have superior., 
qualifications, petitioner suggests that it met its Title VII obliga­
tion in the ideal manner by adhering to the hiring quota equal to 
the'proportion of blacks in the work force.

51

The employer’s interest which may at times support the 
use of a job requirement with an adverse impact—finding 
the best qualified employee—militates against any practice 
limiting who will be considered for a job. The “adminis­
trative convenience” adduced here is a wholly different sort 
of employer interest. It does not aid, and may well in­
hibit, the hiring of the employees who can best perform 
the work, and serves, at most, to reduce the responsibilities 
of personnel officials.

In light of these complementary considerations, the 
“business necessity” required to justify a practice of ex­
cluding from consideration a group of qualified and dis­
proportionately black job seekers should be limited to only 
two circumstances. First, an employer may establish rea­
sonable rules as to the time, place, and manner in which a 
job seeker may apply, and may exclude from consideration 
those who do not comply with those rules. These rules must 
in fact serve important administrative needs, must be fully 
and fairly disclosed to actual and potential job seekers, 
and must be applied in a non-discriminatory manner. Sec­
ond, an employer may place on the applicants the burden 
of establishing their competence or level of skill. Thus if 
prior satisfactory work experience is a job-related require­
ment, the employer could demand that the employee pro­
vide information demonstrating such experience and the 
name of a supervisor or other person who could attest to 
the level of his past performance.

Enforcement of such rules is, we believe, all that is en­
compassed within the “business necessity” ■ which may be 
asserted to justify refusing to consider qualified black ap­
plicants. It could be urged that providing any opportunity 
for qualified job seekers to apply poses tv minor incon­
venience to the employer, that administering a fair com­
petition for jobs, even on a first come first served basis, is



52

a marginal burden compared with a policy of favoritism 
for friends, acquaintances, or former employees, whether 
such a policy is administered through a no-application, 
selective recruiting, or secret vacancies rule. In enacting 
the Equal Employment Opportunity Act, however, Con­
gress cannot have intended to credit such arguments, or 
have contemplated that an employer could defend on such 
a basis a practice that might result in the total exclusion of 
blacks from its work force.

In the instant case, Furnco did not reject respondents 
because they had applied too late, or in the wrong manner, 
or because they bad failed to adduce evidence of their 
qualifications. Petitioner suggests that it might have been 
difficult to confirm whether respondents or other possible 
applicants were qualified, but Furnco neither attempted to 
do so itself nor permitted or asked those applicants to do 
so. In fact, the qualifications and experience of Smith and 
Samuels could immediately have been confirmed by Dacies’ 
personal knowledge or Furneo’s own records, and Xemhard 
could have established bis abilities through bis prior ex­
perience and appropriate references known to Dacies or 
Furnco. Furnco does not, and could not, claim it was more 
convenient for Dacies to search for out-of-work whites 
whom he had worked with in the past than to hire the black 
bricklayers, Smith and Samuels, whose skills and avail­
ability were already known to him. Petitioner does appear 
to assert that it would have been more burdensome for 
Dacies to call a reference provided by a black job seeker of 
unknown skill than to search for a white former Furnco 

( employee to work on the Interlake job. As a factual propo­
sition this borders on the frivolous;83 as a matter of law it

t ------------  _ ;
n 83 Furnco erroneously asserts that it is “undisputed" that Dacies 
/ would not have had time to cheek references. Brief for Petitioner^ 
1 ]>. 24, n.19. Dacies never so testified. The testimony relied on by 

petitioner is a statement by "Wright that a supervisor would not

53

is simply not the typo of consideration which amounts to 
business necessity under Title VII.

IV.
The “Clearly Erroneous” Rule Does Not Require Or 

Permit Affirmance Of The District Court’s Judgment 
For Petitioner.

Furnco maintains that the findings of the district court 
were not clearly erroneous, and that the court of appeals 
therefore erred when it reversed those findings and “sub­
stituted its own judgment” for that of the trial judge.

Although a district court’s findings of fact must be up­
held unless “clearly erroneous”, no such deference is ac­
corded a lower court’s conclusions of law. Rule 52(a), 
Federal Rules of Civil Procedure. Rule 52(a) also has 
no application to findings of fact induced by an erroneous 
view of the law84 or to findings that combine issues of law

have “a lot of time” to do so. Tr. 707. Petitioner does not claim 
that it would not have been possible for other Furnco employees 
to check references on Dacies’ behalf.

** Hazelwood School District v. Tlnitcd States, 53 Tj.Ed.2d 
768 (1977) (district court in finding no discriminatory intent 
“misconceived the role of statistics in employment discrimination 
eases"’) ; United States v. United States Gypsum Go., 333 U.S. 364. 
394 (1948); United States v. Singer Mfg. Co., 374 U.S. 174, 175 
n.9, 83 S.Ct. 1773, 1 784 n.9 (1973); Sentcr v. General Motors 
Corp., 532 F.2d 511, 625 (6th Cir. 1976), cert, denied, 97 S.Ct. 
1897 (1977); Martinez v. Dixie Carriers, 529 F.2d 457, 469 (5th 
Cir. 1976); Harrison v. Indiana Auto Shredders Co., 528 F.2d 
1107, 1120 (7th Cir. 1976); Ritter v. Morton, 513 F.2d 942, 949 
(9th Cir. 1975); 'Whelan v. Penn Central Co., 503 F.2d 886, 892 
(2nd Cir. 1974); Am merman v. Miller, 488 F.2n 1285, 1300 (DC. 
Cir. 1973); Owen v. Commercial Union Fire Ins. Co. of New 
York, 211 F.2ii 488, 489 (4th Cir. 1954); R o w e \ .  General Motors 
Corp., 457 F.2d 34S, 356 n.15 (5th Cir. 1972); Johnson v. Good­
year Tire cf- Rubber Co., 491 F.2d 1364, 1372 n.20 (5th Cir. 1974).



54

and fact.85 86 The district court opinion provides little indica­
tion as to the judge’s view of the contested legal issues, and 
there are no findings on many of the critical issues of 
fact. The court of appeals acted properly in holding that 
plaintiffs had proven a violation of Title VII, since here, 
as in many Title VIT cases,50 such a finding was required 
by application of established legal principles to largely 
undisputed evidence as to what had actually occurred,87 and 
the inferences mandated by McDonnell Douglas could not be 
overcome by generalized denials of an intent to discrim­
inate.88

Ordinarily the legal principles applied by a trial judge 
in reaching his ultimate conclusion can be ascertained from 
his opinion. In this case, however, the findings of the dis­
trict judge, heavily relied on by defendant in this Court, 
were apparently written by counsel for the defendant. On 
January 31, 1975, at the end of the trial, the judge ruled 
for defendant from the bench, and asked defense counsel 
to prepare “a short finding of facts in regard to witnesses 
who testified and a judgment order” by Friday, February 
7. The findings signed by the District Judge were filed by 
the court on Monday, February 10. It is not possible to 
directly compare the findings signed by the judge with 
those drafted by defense counsel, for the latter were never

85 United Slutes v. United States Gypsum, 333 U.S. at 393.
86 In Dothard v. Rairhnson, 53 L.Ed.2d 78G (1977), for example, 

this Court upheld the district court’s finding of disparate impact, 
not by reference to Hide 52(a), but by considering the relevant 
evidence in light of the applicable legal" principles.

87 See Norris v. Alabama, 394 U.S. 586, 590 (1935); Whit us v.
Georgia, 385 U.S. 545, 550 (1967). '• • -  v

88 Alexander v. Louisiana. 405 U.S. 625, 632 (1972); Whit us v.
Georgia, 385 U.S. 545, 551 (1937) ; Eubanks v. Louisiana, 356 U.S.
584, 587 (1958); Recce v. Georgia, 350 U.S. 85, 88 (1955); „ 
Hernandez v. Texas, 347 U.S. 475. 481 (1954) ; Smith v. Texas, 311 
U.S. 128, 132 (1940); Norris v. Alabama, 294 U.S. 580, 589 (1935).

55

served on counsel for plaintiffs and are not in the record. 
When counsel for plaintiffs subsequently sought a copy 
of the defendant’s proposed findings in order to make such 
a comparison, defense counsel was unable to locate a copy. 
In the court of appeals plaintiffs repeatedly asserted,89 
and counsel for defendant never denied, that the defen­
dant’s proposed findings and the district judge’s opinion 
were identical. Findings drafted by counsel after the dis­
trict judge has already reached a decision in a case are 
not, and could not be, a meaningful indication of the legal 
and factual reasoning leading to that decision.90

The findings signed by the District Judge, however pre­
pared, is insufficient to permit the meaningful appellate 
review contemplated by Rule 52(a) of the Federal Rules

89 Brief for Appellants, pp. 3, 14.
90 “Findings and Conclusions prepared ex post facto by coun­

sel, even though signed by the judge, do not serve adequately 
the function contemplated bj' the rule [Rule 52(a), Federal Rules 
of Civil Procedure]”, Roberts v. Ross, 344 F.2d 747, 751-52 (3rd 
Cir. 1965); see United States v. El Paso Natural Gas Co., 376 U.S. 
651, 657 (1964).

The mechanical adoption by the court of proposed findings and 
conclusions prepared by counsel creates considerable doubt that 
the court reviewed the facts with the care necessary to insure that 
they support the decision, United States v. Forness, 125 F.2d 928. 
942 (2nd Cir.) cert, denied 316 U.S. 694 (1942). Where, as in 
this case, the court adopts findings and conclusions prepared 
by counsel after the court announced its decision, those findings 
and conclusions cannot adequately reflect the reasoning process 
used by the court in reaching its decision; moreover, these findings 
and conclusions, prepared by zealous counsel, may be one-sided 
or even unsupported by the record, Roberts v". Ross, supra at 751-52. 
The appellate courts have condemned this “unfortunate practice” 
and they carefully scrutinize such mechanically adopted findings 
and conclusions. In re Las Cortinas, Inc., 426 F.2d 1005. 1008-09 
(1st Oil.) cert, denied 405 U.S. 1067 (1972);' United States v. 
Forness, supra at 942-43; Roberts v. Ross, suprh at 751-52; The 
Severance, 152 F.2d 916, 918 (4th Cir. 1945); Janus v. Stockham 
Valves and Fittings Co., 559 F.2d 310, 314 n.l ('5th Cir.), cert, 
denied 98 S.Ct. 767 (1978) ; see also "Wright and Miller, Federal 
Practice and Procedure, §2578 at 705-08 (1971).



56

of Civil Procedure. It is not possible to discern from that 
order what legal principles were being applied, and the 
order simply fails to address the key legal issues, such as 
the legality under Title VII of the use of Daeies’ all-white 
list. Many portions of the opinion relied on by petitioner, 
such as the conclusion that the challenged practices had no 
adverse impact on blacks,91 are so conclusory as to provide 
no guidance as to the evidence and legal principles on which 
they were based. In reviewing such district court conclu­
sions as to the ultimate legal issues in a Title VII case, 
the appellate courts are not bound by the “clearly errone­
ous” standard.92

In view of the origin of the findings signed by the Dis­
trict Judge, the more reliable indication of the Judge’s 
view of the legal issues is the statements made from the 
bench during the trial itself. Those remarks demonstrate 
a fundamental misunderstanding of Title VII law. The 
Judge apparently believed that intentional discrimination 
could only be established by a confession from Furnco’s 
employees of racial malice. During the testimony of the 
second witness for plaintiffs, the Judge interjected:

T he Court: Y ou have been calling employees of the 
defendant [the plaintiffs]. Call somebody and ask 
them if they have a quota system or they are against 
hiring blacks or that sort of thing, if that is what you 
want to prove. Tr. 246.

When plaintiffs sought to prove a past policy of discrimi­
nation by establishing that all the bricklayers whom Daeies 
had ever hired before the Interlake job were white, the 
Judge asserted:

91 A21.

92 See, Baumgartner v. United States, 322 U.S. 6C5, G71 (1944) ;
Fast v. Romgue, Inc., 518 F.2d 332, 339 (5th Cir. 1975); Flowers
v. Crouch-Walker, Inc., 552 F.2d 1277, 1284 (7th Cir. 1977).

57

T h e  Co u r t : . . .  It doesn’t make any difference who 
they were. The thing involved hero is Furnco’s policy 
about hiring bricklayers and not what some other 
policy was on some other job some years before. Tr. 
875.

These remarks were clearly inconsistent with the decisions 
of this Court in McDonnell Douglas Corp. v. Green, 411 
U.S. 792 (1973) and Teamsters v. United States, 431 
U.S. 324 (1977). Throughout the trial, despite repeated 
and unequivocal statements by counsel to the contrary, 
the District Judge inexplicably maintained a belief that 
plaintiffs’ case was grounded on a legal theory that 
Furnco had an obligation to hire a quota of incompetent 
minority bricklayers.93 *

The findings are silent on a number of factual issues 
which both parties recognize as central to the case— 
whether Daeies had an all-white list, why Daeies deviated 
from the practice of other Furnco supervisors of hiring 
blacks who applied at the gate, whether Furnco or Daeies 
had engaged in discrimination in the past, and why Daeies

93 At tlie beginning of the trial, before plaintiffs’ counsel bad 
said a word about bis theory of llie case, the judge asked

“The Court: Well, do you think there is a quota that 
should have been followed, or what?

Mr. Miner: No.” Tr. 7.
Despite this statement, the judge continued to assert that plain­
tiffs were urging that Furnco must hire a quota of unskilled 
minorities. Tr. 244-45, 317-20, 375-76, 561. Moments prior to 
ruling from the bench, the judge once again voiced this misunder­
standing :

i • “The Court: But I mean, it is your position that an 
employer must give work to possible incompetent employees 
just to enteiid the work among women, Latiqos and blacks, 
is lhat it?. . u '

Mr. Miner: No, my position is that life/employer must 
have a policy that makes it possible for minority people 
to establish that they are in fact competent to do the work.” 
Tr. 93S.



58

did not call Smith or Samuels although he knew them from 
past jobs. Consequently, the facts upon which both plain­
tiffs and the Seventh Circuit relied are not at odds with 
findings of the trial court, but rather are undisputed 
facts ignored by the district court. The district court’s 
findings are also inconsistent. For example, the court 
found that it was essential to Funico’s business that it 
hire only bricklayers known to Dacies personally,94 but con­
cluded as well that Furneo and Dacies had a policy of also 
hiring bricklayers who were not known to Dacies but were 
merely “recommended as being skilled in such work”.95

In the course of the trial, moreover, the District Judge 
made a number of erroneous evidentiary decisions. The 
judge excluded evidence regarding Furnco’s and Dacies’ 
past hiring record which would have shown a general pat­
tern of discrimination against blacks,96 despite this Court’s 
decision in McDonnell Douglas Corp. v. Green, 411 U.S. 
792, 801-05 (1973), that such evidence is of relevance in a 
case such as this. The judge excluded as irrelevant ev­
idence offered by plaintiffs regarding hiring practices in 
the industry,97 and then based his opinion in part on a 
finding in favor of the defendant as to the nature of those 
practices. In assessing the proportion of black bricklayers 
in the area work force of 1971 the judge accepted 1969 
figures offered by defendant, despite the fact that the 
manner in which they were calculated was never revealed/'8 
but excluded 1973 figures offered by plaintiff whose basis 
was fully explained.99 The judge also refused without

04 A 15, A20.
95 A13. ' -
96 Tr. 244, 322-23, 371, 377-70, 383, S75. :
97 Alf), 17, Tr. 59, 244, 322-23, 5G1, 872-5:'
98 A1G.
"  A1G; Tr. 41-44, G19; see also supia at 76.

59

explanation to issue the customary order excluding from 
the courtroom during the testimony of defense witnesses 
the remaining defense witnesses who had yet to testify.100

The entire trial of this action was punctuated by intem- 
perate and unwarranted remai’ks by the District Judge. 
Tiiese injudicious statements were directed at the court of 
appeals,101 the policies underlying Title VII,102 plaintiffs,103 
and plaintiffs’ counsel.104 In another Title VII case during

io° qq. 43-45, 710-11. Hee Rule 615, Federal Rules of. Evidence.
101 After inquiring whether Title VII had been construed to bar 

hiring the most competent employees, the district judge commented, 
“The Seventh Circuit could do anything, you know”. Tr. 12.

102 In referring to the practice of hiring only those who had 
previously worked for an employer, which plaintiffs claimed kept 
most minority bricklayers from working, the following colloquy 
occurred:

“Mr. Miner: I think that one of our positions is that this is an 
absolute obstacle to people who have not been in the industry.

“The Court: Well, that is too bad”.
Tr. 59; see also Tr. 10-11.

103 When plaintiff Hawkins, while testifying at trial, objected 
that defendant’s counsel was asking him about an interrogatory 
without letting him read it, the Court remarked,

“Well, you look like you can understand a four letter question 
and answer. Mark it for him if he can’t understand more 
than four words at once”.

Tr. 475. When plaintiff Williams asked defense counsel to clarify 
a question, the judge commented. “If you would listen, you would 
not have to do it again. Do it again. Clean your ears and listen. . .  .” 
Id. 413. In response to a defense objection to a question to plaintiff 
Waters, the judge remarked to defense counsel, “I will let him 
answer and then I will let you destroy him”. Id., 512; see also 555.

Canon 3 (A )(3 ) of the Code of Judicial Conduct provides: “A 
judge should be patient, dignified, and courteous to litigants, 
jurors, witnesses, lawyers, and others with whom lie deals in his 
official capacity. . . . ” p' .

104 Early on the first day of trial the judge stated to plaintiffs’ 
counsel, “I think it is about time that you offer some proof”. Id. 42. 
A few minutes later, when counsel asked to make an offer of proof 
regarding evidence which had been excluded, the judge responded, 
“Go ahead. Then when you get it all in, then I will know better



60

the same period the District Judge had acted in similar 
manner.105 This injudicious conduct necessarily raised 
serious doubts as to the reliability and objectivity of the 
District Judge’s findings.

The findings in this case are thus not of the sort to which 
Rule 52(a) applies. The defects in those findings, together 
with the actions and evidentiary rulings of the District 
Judge, are clearly sufficient to require a reversal of the 
district court’s decision. The court of appeals correctly 
perceived that a remand for further proceedings on the 
issue of liability would be inappropriate if the uncontested 
evidence would, as a matter of law, compel a finding in

cl r  y" c srier&l
? “ “• '  y "" *>"‘ '?>■>"."'tot the rules ot evidence

7*  ™ -f“ 2 r .L ; « ,Y367r8!"88T w

s f 6 ‘ defcnse obJe«tion when none had been made. Tr. 873, 875,

On the first day of trial the iud^e remarked “T i ,
much more of this I can take J 1 1 know ]>owmi , 1,5 x ( an lake, rifleen davs mv find” rn.. io -Tlie next day he commented “Tf T . ■ ’ iV 0U • J *• l"a.
seeking tr. a,. cc ■ , " ds i mining the Chicago officeseekin<, to do so efficiently with the best help available isrsrsw
s s h s £s s s s s « k ssiiississssE

country anct this ie ’a ne.v^vnv'of ' * • « * » •  .« *
regardless of why they are released.” J ° 1 y ° Ur i ob-

61

favor of plaintiffs. For the reasons set out supra, we be­
lieve that such a finding was indeed required on the recor 
in this case. The action of the court of appeals in seeking 
to avoid a possibly unnecessary remand on the issue ot 
liability was particularly sensible in view of the fact that 
the District Judge had died while the case was pending on 
appeal, and that such a remand would thus in all likelihood 
have required a retrial of the entire case.

V.
The “Questions Presented” In The Petition Are Not 

Presented By This Case.

Notwithstanding the narrow scope of the questions pre­
sented by the petition for writ of certiorari, petitioner has 
briefed a wide variety of legal and factual issues, some not 
previously raised in the proceedings below. Our brief has 
addressed these issues, although they appear in many in­
stances not to be fairly comprised within the scope of the 
questions presented.

The briefs of both parties amply demonstrate that the 
Questions Presented as described in the petition are not in 
fact presented by this case at all. Question 1, whether the 
court of appeals erred in finding “irrelevant” evidence as 
to the total number of blacks hired by Furnco, is a simple 
misreading of the Seventh Circuit’s opinion. The court of 
appeals did not hold that such evidence was irrelevant, but 
only that it was not conclusive. (A8). Question 2, whether 
a court may find discrimination due to “disparate treat­
ment” without finding “discriminatory intent”, represents, 
in light of Teamsters v. United States, little more than a 
semantic quibble; Teamsters treats these phrases as syn­
onymous. 431 U.S. at 335, n.15. The third question, whether 
discriminatory effect can be found in the absence of dis-



62

parate impact on minorities, is not in dispute, although the 
parties are in disagreement as to whether the record in 
this case demonstrates such disparate impact. The court of 
appeals, moreover, grounded its decision on the fact that 
plaintiffs established a prima facie, case of intentional dis­
crimination under McDonnell Douglas, and never reached 
the issues of discriminatory effect under Griggs and its 
progeny.

Under these circumstances respondents respectfully sug­
gest that the grant of certiorari in this case appears to 
have been improvident.

CONCLUSION

For the foregoing reasons the decision of the Court of 
Appeals should be affirmed.

Respectfully submitted,

Jmsox H. Miner 
Charles B arnhill, J r.
George Galland

Davis, Miner & Barnhill 
1J West Erie Street 
Chicago, Illinois 60610

J ack Greenberg 
J ames M. N ahuit, ITT 
E ric S chnapper 
0 . P eter S herwood 

10 Columbus Circle 
Suite 2030
New York, New York 10019

B arry L. Goldstein 
: 806 15th Street, N.W. : :

Suite 910 i5 ~
Washington, D.C. 20006

Attorneys for Respondents