ALBEMARLE PAPER CO. v. MOODY

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Argument of Francis V. Lowden, Jr.

Chief Justice Warren E. Burger: We'll hear arguments next in 74-389, Albemarle Paper Company against Moody in 74-428, Halifax Local against Moody.

Mr. Lowden, you may proceed whenever you're ready.

Mr. Francis V. Lowden, Jr.: Sir.

There are two broad issues for the Court testing and backpay.

Case 74-389 involves the employer petitioners who I refer to throughout my argument is Albemarle, that case raises all of the issues.

Case 74-228 involves the union petitioner and the issue there is primarily backpay.

Therefore, we have divided the argument and it is our intention if it pleases the Court to -- for me to argue for 15 minutes on the back payee one of the testing issues and then rely on Mr. Woods' represents the union to make our argument in backpay and we would hope to save 10 minutes for a rebuttal, particularly because we receive the brief on Thursday from Solicitor General and we understand he is going to argue and we like to have a little time to rebut after he gets through.

The one thing that it seems to be agreed by everyone is that personnel tests are useful and valuable and pre-selection to vice.

The Congress has said so I believe this Court has even the guidelines of the ELC it make that.

After that one thing we depart company.

I think the real question before the Court on the benefit of testing is whether as a practical matter or the way the law has developed of these tests can be used at all.

Before getting to the heart of that however, let me say about the -- a word about the theory of how test discriminate.

There is some evidence that disadvantaged people do last well on test then to educated people, so the theory is that if a test screens out proportionately more of a particular ethnic group then this case we're dealing with blacks and they're otherwise qualified, it is an unfair test.

The key I think is the proviso if they are otherwise qualified.

So really when you talk about statistics in these cases, you're talking about a universe of people who are otherwise qualified to do the job you have.

Furthermore, at our mill in Roanoke Rapids, we're going to pull a normally employed people from the Roanoke Rapids area.

In the paper industry, workers do not go from mill to mill quite far apart and there is no interchange.

So, if you limit the universe to those people and the Roanoke Rapids area who are otherwise qualified, that is the significance statistics in our judging, and things like national statistics we think are irrelevant.

Now, as we read the Griggs case, it holds that on issue to have discriminatory testing and the burden is on the plaintiffs to show that the test they're talking about has a disparate effect on their particular group.

No such showing was ever made in this case.

In fact, I would go so far, I think I can fairly say “no effort was made to show that before the District Judge.”

Now, on appeal in the Fourth Circuit the issue came up for the first time in appellant's brief, I really believe it was in the amicus brief, where they try to show to do some statistics they came up for the first time and our test did excluded more blacks proportionately than it did whites.

From a -- an exhibit in the case which was merely introduced and which we always contended that is not entirely revocable, they extracted the following statistics that the blacks who took Albemarle's test.

The revised data test average to 104.20 and we required for certain employment and certain lines of aggression not to get a 100.

On the two Wonderlic Tests, Wonderlic A was required and Wonderlic B, you could take if you didn't pass, Wonderlic A, our cut off score was 18, the blacks average 17 on that test.

At the recommendation of our expert who tested at five in this case recommended that that be reduced to 17 so, since 1971, 17 has been the cut off on the Wonderlic A.

We say that these statistics do not deal with a proper statistical universe, they are subject to some doubt as to their accuracy and they are introduce in the Fourth Circuit for the first time and we believe that there was no substantial shelling in this case that our test screen the hell a disproportionate number of black people and furthermore, if the universe were limited to qualified employees there is no evidence in this record that any black employee was never ever denied a job for which he was qualified, not a single mistake.

And gentlemen if you would look at page 9 of our blue brief and notice the little diagram in their brief, paper mill department, then on the left that a line of progression for paper machine, I think I can explain to you why this issue was so important to my client and we think to many other employers throughout the country.

We have in our mail --

Justice William O. Douglas: Do you have the brief of the petitioner?

Mr. Francis V. Lowden, Jr.: This blue brief sir.

Justice William O. Douglas: The brief or the petition for cert?

Mr. Francis V. Lowden, Jr.: It is the brief of the employer petitioner.

Justice William O. Douglas: Thank you.

Mr. Francis V. Lowden, Jr.: These two paper machines, modern machine in our mill or about nearly twice as long as a football field --

Justice Byron R. White: Now, we're looking at the one at the top, are we Mr. Lowden?

Mr. Francis V. Lowden, Jr.: Paper machine.

Justice Byron R. White: Yes, yes, thank you.

Mr. Francis V. Lowden, Jr.: Paper machine.

Justice Byron R. White: Yes.

Mr. Francis V. Lowden, Jr.: These machines run it about 2,000 feet per minute, that's how fast the paper is coming through.

We turn that a thousand tons a day and these machines would cost today $30 or more millions of dollars to replace just the machine.

I think the briefs now admit that the paper machine line up aggression is what is called a functionally related line of aggression and that means that as you learn the bottom jobs bear hand number four.

You learn at the same time the skills, and gain the knowledge and experience necessary for seventh hand, and then you progress up that ladder by seniority and in each case when your seventh hand, you learn out to be a sixth and so forth, until you finally get to the top job and on the hill which is the machine tender.

Justice Potter Stewart: Are their fewer in number in each classification as you go up with?

Mr. Francis V. Lowden, Jr.: No, sir.

Their the mill works 24 hours a day, seven days a week, 362 days a year, the shift rotate so you have four shifts, so you have four men in each one of those jobs on each of the paper machines.

Justice Potter Stewart: So, there's many machine tenders on each shift as there are spare hands number four.

Mr. Francis V. Lowden, Jr.: Yes, sir.

There's one machine tender on each shift, on each machine.

Justice Potter Stewart: And one spare hand number four?

Mr. Francis V. Lowden, Jr.: Yes, sir.

One the seventh hand, spare hands is only used on one of the machines.

Justice Potter Stewart: So, each one of these jobs is a -- as a single-person fills it and the whole ladder makes up the team on each machine?

Mr. Francis V. Lowden, Jr.: Yes, sir.

For instance, one is running smoothly, the machine tenders up what they call a “wet hand of the machine” and he controls the speed of the machine, what kind of paper you're -- what's the strength of the papers going to be and so forth.

The back tender works at the back of the machine, he has electronic controls that he can adjust if increase in it and so forth.

Then the other parts of the crew run the winders, sweep the floors and so forth, but the critical thing is that if something goes wrong with the paper and you have a break and all of this wet stuff is -- gets falling around then they work like a team, everybody cooperates, they run down the machine and do various tests and get that machine back running.

We figured out and this is not in the record but it's mathematically, if you figure out at a ton of papers worth $360.00 and you have a bunch of paper breaks on your machine, and you don't repair them quickly, you're going to lose millions of dollars over course of a the year just simple arithmetic.

So, the great emphasis here is our knowledge, its on intelligence, what to do and learn how to make this tremendous high speed operation really perform efficiently, productivity and you must be on the ball so you don't get hurt.

It's so just a quick look at it I think would convince anyone that the people on it have to be intelligent people.

Now here's our problem, you can't go into the labor market in Roanoke Rapids and import a machine tender.

Really I don't want to have and so forth down the line it's possible to go a 100 miles away perhaps and hire one from some other mill but the people in this been is -- do not interchange between mills they loose their benefits and so forth.

And it's very difficult and it doesn't happen at all achieved, employ experienced people.

So our problem is, when we hire a new employee he's going to start to act at the bottom which he learn and probably what he'll do when he first comes out the very meaning of tax but when they hire these people we got to have people who going up that line eventually when we need him are going to be trained and now have run a paper machine and so we think the rocket here it says fully.

When these big machines were put in the 1950s, we found it though that people that we're employing just couldn't do the job that we go half way up along and we'll reach their level of confidence I believe that word toward in.

So, they tried to divide some kind of way to predict that a man they hire is seventh hand when we have to learn those jobs and the personnel men that we have it at the time was professional almost a PhD and then tough in Psychology and he studied the manner came up with a revised data tasked and got a correlation and they put that in but we think that it's an absolute necessary to our operation not only in that line but in the others that the people who get employed at the bottom have the ability or apparently have the ability to go to that tough job because that's the only place were going to get people to take that job and run on mill efficient.

I saw that red light come on and it's suppose to be off.

Chief Justice Warren E. Burger: Have you given the signal?

Yes.

Mr. Francis V. Lowden, Jr.: Well, I really haven't gotten then to the argument?

Whereas our best, (Inaudible) Mr. Woods take up the other sub.

Chief Justice Warren E. Burger: Mr. Woods.

Argument of Warren Woods

Mr. Warren Woods: Mr. Chief Justice, may it please the Court.

As counsel for the union petitioner in this case, in our view the question presented is a very narrow one.

It is paraphrasing somewhat the question presented in our petition for certiorari, whether a Court of Appeals has the power in a Title VII private action, to order the trial judge to award backpay as a matter of course, whenever unlawful employment practices are enjoined absent rarely encountered special circumstances despite the congressional intendment in Section 706 (g) of the Act, that the District Court in its discretion may order, may order such affirmative action as maybe appropriate which may include reinstatement or hiring of employees with or without backpay.

At the outset, we remind the Court that the AFL-CIO with which this local union is affiliated actively supported and lobbied for the Civil Rights Act of 1964 and its later Amendment in 1972.

Indeed, the AFL-CIO has been in the forefront of the right to bring equal employment opportunities to all workers regardless of race, color, sex, religion or national origin or for that matter age.

We do not under this statement of the question in this case, the question the propriety of backpay relief in an appropriate case, indeed, in many cases where unions have been plaintiffs in Title VII actions.

We have aggressively sought such relief at the trial Court level and it often succeeded in obtaining it.

But, despite our approval of the philosophy, the policy and the general structure of the Act, we believe as this Court has often recognized in decisions relating to controversial new legislation.

That type of legislation is the product of give and take between opposing groups in Congress and compromise produces particular forms of language including 706 (g), the language represents the political judgment of people in Congress.

And we believe under the separation of powers doctrine, this Court where that judgment is expressed clearly must give effect to it.

In the mandatory version, the original version of 706 (g) as it developed in the house would have made the granting of affirmative relief upon a finding of a violation of the Act mandatory.

The actual version which came from the Senate side which was adopted as the present 706 (g) and that uses the permissive and discretionary language which are mentioned in my statement of the issue.

Now, it is our position in this case that a Court of Appeals may not substitute a mandatory back rule -- backpay rule whenever injunctive relief is granted for the discretionary rule embodying traditional equity principles which 706 (g) state -- sets forth.

In short, it may not intrude on the legislation's sphere by divesting the District Court to the traditional equity jurisdiction vested in it by Congress and in effect rewrite the legislation.

Now, I think it would be helpful here if we review precisely what the District Court did in this case.

At trial, it had four issues before you as Mr. -- before it as Mr. Lowden stated only two little issues where three of them really need concerns as here now.

The first issue was whether the seniority system then in effect has result of collective bargaining between the union and the company operated to continue into the present the effects of past discrimination.

The second issue was whether the testing under a system was unfair to blacks.

The third issue was whether backpay was inappropriate remedy under all circumstances of the case.

Now looking first at the seniority system, the Court noted that prior to the effective date of the Act, there have been a segregation of jobs as between blacks and whites and that blacks had been relegated largely to the lower paying jobs.

It then noted however that in 1964, the employer and the union had established a maintenance apprenticeship program which concentrated on the recruitment and training Negro applicants for that program and that the maintenance jobs were high paid jobs.

And that blacks have moved into that program and some had succeeded in reaching apprenticeship jobs and higher jobs.

It noted also, that the parties to the collective bargaining agreement, the employer and the union had earlier on open up all lines of progression to transfers from other lines of progression.

And it noted specifically that in 1968 and this came after the first quarrel versus Philip Morris decree in the local 189 crimes at the back decree in the Fifth Circuit.

In 68', they had merged separate extra boards into one which fed all lines of progression.

They had agreed to permit transfers between line of progressions on the basis of mills seniority instead of jobs seniority or instead of on an arbitrary acceptance of transfers as the company might deem proper.

They also agreed to allow a transferee from one line of progression into another to carry within and to his new line of progression, his previously acquired departmental and jobs seniority which was testified at the hearing was usually tantamount to plant seniority.

And they'd also granted in order to encourage blacks to transfer from lower paying lines of aggression into higher paying lines of progression, they granted a red circle rate protection arrangement so that the black transferring into a new line of progression at an entry level job would continue to receive the higher rate that he had in a preceding line of progression until he reach that level of pay in his new line.

This was all done in 1968.

Nevertheless, the Court completed -- concluded that there was still left some vestige of the job's seniority system in this picture and that there was not sufficient posting of jobs to make people aware of when they were available.

And it concluded therefore that there should be an injunction decree issued directing certain affirmative action, similar to that which had been issued in the quarrels under the Crown Zellerbach cases and he did so.

The second issue dealing with the testing procedures we pause on briefly to say Mr. Lowden has argued it, the union has taken no part in the litigation of that issue or in its briefing.

We acknowledge however that in complex operation such as paper mills and I have represented the international union in this field for some 25 or 30 years.

There is some in our view business necessity for a form of testing as long as it meets the guidelines and accurately predicts ability to perform the job.

On the crucial issue of backpay in this case however, the judge refuse to award it.

He noted first that under 706 (g), he had a broad discretion to order affirmative action with or without backpay.

He refused to order backpay because of the good faith corrective steps which the parties had taken without delay to keep up with the expanding state of a law and because plaintiffs had earlier in the case disavowed any backpay they claims on a class basis and had changed their minds nearly five years after the institution of this action.

This is one of the first cases brought under Title VII of the Civil Rights Act of 1964, charges were filed with the EEOC in May of 1966 and this action was brought without benefit of any determination from the EEOC in August of 1966.

He also mentioned and explaining his refusal to grant backpay, the business necessity in this industry for demanding a high degree of training and skills in the operation of complex machinery and the payment of wages generally higher than other industries in the area.

And he then left the Attorney's fees issue to later determination if the parties could agree on the amount.

Now, there had been an opportunity at trial to present specific evidence on qualifications and individual claims, the judge had said that he would try this as a matter of fact, however only 11 members of a class of about a 100 people were called as witnesses in person in five testified through deposition.

The record shows, the appendix shows here that many of these people were illiterate, had never applied for higher paying jobs and had not even attempted to go to a school which the company in the union jointly set up and operated to try and relieve literacy problems of both white and black employees of the mill.

Thus, plaintiffs had an opportunity to try to back issue -- backpay issue on an individual basis and rejection.

Justice Potter Stewart: These mills in the Roanoke area.

Mr. Warren Woods: Roanoke Rapids, North Carolina.

Justice Potter Stewart: Now, that's -- so it's not anywhere to Virginia?

Mr. Warren Woods: Not Roanoke, Virginia, Your Honor.

Justice Potter Stewart: Right.

Where's -- what part of the State of North Carolina?

Mr. Warren Woods: That is the North Central part of North Carolina.

It's up near the Virginia border.

The Court of Appeals reviewed the actions, it panel majority of Judge Craven wrote opinion and Judge Bryan reviewed the record and finally said that in their opinion, backpay should be payable in the same manner as Attorney's fees were payable under Title II in the test that Your Honors set forth in the Piggie Park Enterprises, Newman versus Piggie Park Enterprises case.

In short, Piggie Park said, where there is violation of Title II, public accommodation's provision of the statute.

My time is concluded.

Chief Justice Warren E. Burger: Very well, Mr. Woods.

Mr. Chambers.

Argument of J. Levonne Chambers

Mr. J. Levonne Chambers: Mr. Chief Justice and may it please the Court.

As has been indicated, this case involves a present for review basically two issues;

one involving the company's attempt to validate a test that has been using since around 1955; and the other the standard for review by a District Court in determining whether to award backpay in a Title VII class action proceeding where the plaintiffs have established a clear violation of the Act.

I will address briefly the testing issue and then move into the matter of backpay.

Mr. Lowden has suggested that this company requires some training and preparation for a party to work.

We suggest that the test that was established by this Court in Griggs v. Duke Power require that whatever standard or criteria are adopted if those standards or criteria adversely affect black employees that those standards and criteria cannot be used unless they have been properly validated.

In Griggs, this Court correctly we submit adopted a harsh standard of proof for companies to demonstrate the test or criteria which adversely affect black employees.

Properly measure a man before the job rather than a man in the abstract.

Only by following guidelines such as those this Court endorsed in Griggs like the EEOC guidelines, can a Court on review properly determine whether efforts by a company to validate test are proper and properly measure a man before the job.

If these standards are not adhered to, we submit to the Court that Griggs v. Duke Power will in effect be overruled.

One of the first requirements then a proceeding involving testing is that the plaintiff showed an adverse impact.

We respectfully submit that that is more than abundantly clear in the record as we have pointed out in our brief.

We show statistically an adverse impacts on black employees by the tests are used by the company.

The District Court made specific findings that the test adversely affected black employees.

The District Court specifically found that blacks were not in the skill lines of progression, the lines by which the test were required because they could not meet the educational and testing requirements.

We respectfully submit that we have more than shown and adverse impact of the testing battery.

On that showing, the burden shift it to the company to establish that the test an informant criteria properly measured the applicants for the job or the employees for the jobs.

We submit that the proof is presented by the company clearly failed to establish any job relatedness.

The company hired a testing expert to validate the tests after this Court's decision in Griggs.

This expert selected not all of the jobs who which the test were required but as the Fourth Circuit indicated six of the lines of progression were excluded.

Of those jobs that we're testing, 80% proved not validated or not correlated to the test and the evaluation by the supervisors.

The 20% of those groups that were tested in which the company claims show some validation.

We submit that the criteria or procedure followed by the company was clearly inadequate to establish any kind of job relatedness.

As the Fourth Circuit pointed out the company fail to do any kind of job analysis and that was essential in order for the company to establish any correlation between the test score and the supervisor's rating to show that the test was proper -- were properly measuring the employee for the job.

As the guidelines require and we submit it essential, there must be some kind of job analysis and selection by the company of criteria to be measured in order that we don't have as this Court suggested or prohibited in Griggs, a test of a person in the abstract.

The Fourth Circuit pointed out that the company had failed to comply with the guidelines to establish a properly validated test.

We respectfully submit that the -- that decision is correct and should be affirmed here, since the company has not validated these tests, and since those tests do have adversely effect black applicants and employees.

We submit that the test and program should be enjoined until the company has established that their test probably -- properly measure the applicants for the job and that they are job relating.

Justice Potter Stewart: Mr. Chambers why are these papers if you can tell me we are not taking any of inconvenience are the commission's guidelines?

Mr. J. Levonne Chambers: They are in the appendix, in volume 2 of the appendix, I think beginning on page 305.

Justice Potter Stewart: And these were promulgated before or after this Court's decision in the Griggs case?

Mr. J. Levonne Chambers: Before this Court's decision in Griggs case.

Justice Potter Stewart: Before?

Mr. J. Levonne Chambers: Yes.

They were adopted in 1970.

This Court's decision was in 1971.

Justice Potter Stewart: '71.

Thank you.

Mr. J. Levonne Chambers: Moving then to the question of backpay.

We submit that in considering the matter of backpay that the Court should keep in mind that we are not dealing with the company and union here which simply used an excluded black, simply used a test battery which excluded blacks from better paying job positions.

Mr. Woods suggests that the AFL-CIO support the Civil Rights Act of 1964 then might well be but there were many locals like Halifax local which did not.

This company and union are some black employees to lower paying job positions and then constructed a seniority system which prohibited them from transferring to better paying positions.

Despite the changes that were made in 1964 and the changes that were made in 1968, the District Court found correctly that those changes did not permit black employees to escape the past discriminatory practices of the union and the company.

The Court further found that because of these practices, black employees were assigned to lower paying job positions and sustain substantial economic losses.

These are precisely the types of practices that Congress sought to reach in the enactment of Title VII in 1964.

We Submit that the clear purpose of Congress was to ensure at least an employment opportunities that employees could advance as far as their talents and skills would permit, and that they would not have to bear the financial losses which might be occasioned by discriminatory employment practices.

Congress initially placed the primary responsibility for challenging employment discrimination with private litigants.

These responsibilities were continued with the 1972 amendments even though EEOC was then given enforcement authority.

The significance of private litigation cannot be ignored as this Court noted in Newman versus Piggie Park that Title II proceeding involving the standards that should be followed in determining whether to award backpay.

Private litigants in these proceedings are not simply seeking to enforce the private right.

These are proceedings public in nature and in which the private litigants are seeking to enforce rights, Congress has considered to the prior -- highest priority.

In this sense, the private litigants become a private Attorney General, necessarily the proceedings affect more than the private litigants for that plaintiffs were challenging an employment practice applicable to or directed against unidentifiable class as here black employees.

Class actions are not only appropriate but are clearly warranted and in order to ensure the implementation of congressional purposes of the Act including particularly encouraged involuntary compliance or private litigation for voluntary efforts unsuccessful and making hold the victims of the discrimination.

This Court should as Congress as clearly indicated grant broad equitable relief.

This can be done only by fashioning an objective standard as in Newman and as the Fourth Circuit has done in this case which would provide for injunctive relief and backpay unless there are special circumstances which would render such an award unjust.

This is all that the Fourth Circuit has done below and we submit that it should be affirmed here.

In looking at the standard that the Fourth Circuit has adopted and which has been adopted now in the several Circuits that are cited in the brief.

We call the Court's attention to decisions in other areas, in one of the leading cases in the fairly would stand the fact by involving the fairly would stand the fact.

Mr. Justice Harlan set forth the correct principle, we submit, which should govern the District Court in exercising its equitable discretion in a Title VII proceeding.

That case was Mitchell versus Robert DeMario Jewelry which is cited in the brief.

There, Justice Harlan stated that the standard which should govern the District Court in exercising its discretion is one which requires that the District Court exercise the discretion in order to enforce the purposes of Congress and act in the statute.

And there Justice Harlan noted that because of what the Court had found as the statutory purpose by Congress.

There was little room for deny there recovery under the Act.

Here, in order to in carry out the congressional purpose in Title VII, there's very little discretion to deny recovery for losses by victims of discrimination.

There -- here, only by providing for relief unless there are special circumstances will the Court be able to carry out the clear purpose of Congress in the enactment of Title VII.

Congress has shown or the legislative history further shows that this was a clear purpose of Congress, not only to provide for injunctive relief but to provide for backpay where the victims have shown loss as a result of discrimination.

In the 1972 Amendments, the legislative history there clearly shows that Congress intended to provide backpay and to provide class action and class action backpay.

The Section by Section analysis of the -- that Act in 1972 are clearly shows that Congress intended to provide for class action proceedings and to provide backpay relief.

The several circuits which have considered the Act have held that Congress intended not only injunctive relief but backpay as well.

A similar purpose in the construction of a statute such as the Court has done it below are -- is also been sustained in other proceedings.

We have referred the Court in the brief to NLRB proceedings where the Court has found a similar necessity for providing backpay as the Fourth Circuit has noted in this proceeding below.

Justice Potter Stewart: What do -- most characterizes the labor board decisions is the difference of the Courts will get to the board itself and in working out what might be an adequate remedy in a particular case, wouldn't that be fair to say?

Mr. J. Levonne Chambers: I would -- that's correct Your Honor but still the Court are requires that that the discretion be exercised with the view toward there enforcing the Act.

Justice Potter Stewart: Here the -- if the same attitude that the -- that seems to pretty much provide the decisions in the Labor Act cases where to be reflected in this case, wouldn't their be there more deference given to the -- what the District Court did in this case?

Mr. J. Levonne Chambers: Not unless -- no, I don't think so.

I think here that in constructing on -- the statute and given it meaning that the Court should look at the purpose of Congress in the enactment of the statute.

That purpose being as the several courts have indicated to provide injunctive relief and to make the victim whole.

We think that the exercise of discretion by the District Court should be limited in the sense of requiring that the District Court exercise that discretion for the purpose of carrying out the intent of Congress.

Here that intent being to make the victim whole in addition to provide an injunctive relief.

Justice Potter Stewart: Are there any labor board decisions that say that the board must as a general rule were backpay and not this only under special circumstances?

Mr. J. Levonne Chambers: We think that the decision we cite in Phelps Dodge Corporation which has been cited interestingly by all parties clearly holds that the quality of board has discretion it must exercise that discretion with the view toward the purpose of the Congress in the Act.

Justice William H. Rehnquist: But Congress didn't say in the Act, you will award backpay period.

It certainly for the language it used appeared to a law considerable discretion to the District Courts.

Mr. J. Levonne Chambers: Congress did not say that you must award backpay in language in the Act but we think that in the legislative history in 1972, the intent of Congress to make the victim hold is clear.

The Section by Section analysis from the committee which we refer to in the brief, clearly points out that Congress intended class action proceedings and intended to make the victim hold.

And we think here that in reading the statute that the Court will -- should find that the purpose was to make the victim hold and this can be done only by awarding her backpay.

We think that the standard adopted by the Fourth Circuit is necessary for policy reasons without a provision for black backpay.

There's no incentive to a company or union to review there -- review as practices and to make changes were appropriate rather like the petitioners in this proceeding, an employer or -- and union would simply sit back or make superficial changes until compelled to do so by the Act.

Similar examples of recounts as this found not only employment discrimination cases but in school desegregation cases as well and another civil rights cases which this Court has had the many occasions to consider.

Uniformity and enforcement is promoted by the standard adopted by the Fourth Circuit.

Indeed, the standard adopted by this Court in Newman which is basically the standard -- that was adopted by the Fourth Circuit below has and should was with compliance with Title II and virtually no need for further litigation in Title II -- in the Title II area.

Contrary to the petitioner's contention, the standard does not deprive the District Courts of all discretion.

Examples of the discretion which remains are cited by the Fourth Circuit below.

Nor are their any special circumstances in this case which would render an award of backpay unjust.

The defendants assert that they have not acted in bad faith but have sought correct their practices as the law evolved.

Good faith however, is not an issue in this proceeding.

The black employees who have suffered from the discriminatory practices of the company have nevertheless been victimized even if petitioner's good faith in doing so were in issue.

Title VII was designed to make the victim's whole for is the result of the practice rather than the motif or purpose that Congress sought to remedy.

As the Courts have noted on many occasions backpay is not a penalty imposed as a sanction for more interpretive it is -- but is compensation for tangible economic loss resulting from an unlawful employment practice.

More with the good faith proposed by the petitioners here would introduce additional means for limiting the effectiveness of Title VII and defeating the purposes of Congress in its enactment.

Although the petitioners made some changes in 1964 and 1968, the District Court has indicated previously noted that these changes did not relieve blacks from the prior discriminatory practices of the past.

Nothing prevented the petitioners in this proceeding from doing more prior to trial to bring their practices into compliances with Title VII, and eliminating all restitutes of past discrimination, and clearly the victims of the discrimination, the class members here cannot be charged with bad faith and their equities for out way the equities of the petitioners, particularly considering the limited resources of the victims involved in this proceedings.

The fact that the company paid higher wages than some other employees in the area does not provide an adequate basis for denying backpay.

Black employees in the area still were deprived of earnings solely because of their race and are entitle to relief under Title VII, nor does the delay in a specifically preempt for backpay by the class from obtaining relief.

Although, the plaintiffs did not specifically pray for backpay in the complaint and at an early stage in the proceeding indicated that, they were not seeking backpay for the class, the plaintiffs made their intention to seek backpay for the class clear more than a year before trial.

The District Court by order more than a year before trial indicated that backpay was still an issue, in addition, to setting forth long before trial comparative earnings of black and white employees.

The plaintiffs before trial submitted answers to interrogatories and supplemented these answers before trial to show the claims for backpay of each individual member of a class.

We submit that there is neither a basis here for latches or waiver.

There's been no purpose for a delay and no prejudice to the defendants and the request for class backpay.

Rule 54 (c) of the federal rules of civil procedure provide that where a party has establish a right to relief -- he -- the Court should award such relief even if not specifically prayed in the complaint unless there is some showing of prejudice to the defendant.

Here, we submit that there has been no prejudice to the defendant and relief should be awarded as provided under the Fourth Circuit decision.

I yield the rest of my time for the Government.

Chief Justice Warren E. Burger: Very well Mr. Chambers.

Mr. Turner.

Mr. Turner.

Argument of James P. Turner

Mr. James P. Turner: Mr. Chief Justice and may it please the Court.

United States appears these amicus curiae to urge the Court to affirm the decision of the Court of Appeals.

We believe the Court of Appeals correctly interpreted the law and its decision is consistent with this Court's opinion in Griggs and is otherwise a proper application of the will of Congress.

Turning first to the testing issue in Griggs which is a strikingly parallel case in many respects in response to Mr. Justice Stewart's question, I believe the location of this plant is maybe within a 100 miles of the Griggs' plant in North Carolina, the plant involved in Griggs in North Carolina same part of the state.

And this Court set forth in Griggs the rule of job relatedness for test which disproportionately disqualify black workers.

The -- such test should be enjoined unless the employer demonstrates them to be a proper and valid measure of the employee successful performance of the job.

The Court of Appeals held that the petitioners had failed to offer convincing proof on this issue although a validation study was done, we believe it did not meet most -- the most basic professional standards of validation and even if it was accepted, it did not demonstrate that the test were related to the jobs for which the test were given.

In short, it's just not the kind of assurance in our view that this Court was seeking in Griggs to justify the use of test which have a disparate effect on the basis of race.

There is no question in our view that there was a disproportionate impact, the record seems to justify that plaintiff's exhibit 10, when analyzed indicates that blacks disproportionately were effective by the testing program.

The tests that were given the Beta Test and the Wonderlic A and B were given to all applicants in the affected lines and the rule was that you had to pass the Beta and one of the other two tests.

So the expert was hired within a month or two after this Court's opinion Griggs, indicating incidentally that the company must have felt there was some disproportionate impact or some need under Griggs to validate these jobs.

He came there, he spent a half day, he directed the test be given to some incumbents and went back to the university and analyze the results with some job ratings by supervisors that were also provided.

The EEOC guidelines which this Court indicated should have great deference in Griggs as the administrative interpretation by the agency responsible for enforcement of the law and which other courts have said as a useful framework and a good beginning point an analysis of a test validation study simply were not properly followed in this validation study.

Essentially there was no job analysis as all of the guidelines and all the professional materials seems to require the EEOC guidelines, the Civil Service Commission, the EEOC, the American Psychological Associations Standards, I'll say you start by looking at what your -- what the job is that you're going to validate and deciding what the job consist of.

The criterion that was used here was simply how well is the guide do?

When he is feeling right, so it was a very subjective criterion, even the way the expert testified, we believe that the testing program could not continue and was properly enjoined because he had studied only eight lines in five departments and with other job analysis, it's impossible to verify the inference that he made that this made it properly use all three test in 13 lines in 18 departments.

I think on this record the Court should decline and I would so recommend the invitation of the petitioners and amici to evaluate the testing guidelines of the EEOC in as on the question of whether they're so stringent that they could never be followed this is just not the case or the record in which that issue should be raised.

On backpay, turning to that, we start with the proposition that the congressional scheme in Title VII was to look to the federal courts for the ultimate enforcement of the Act and in so doing Congress vested the courts with the necessary discretion to carry out the purposes of the Act.

Thus, the statute says the courts may grant injunctions, says they may award backpay.

The standard for the exercise of the Court's discretion in such situations in our view is to effectuate the purposes of the Act.

What the Court of Appeals said in this regard is not that backpay is mechanically compel but that where there is a class of identified victims may have suffered economic loss because of the defendants unlawful employment practices unless there some reason not to, the Court of Equity should proceed to design and issue that kind of an order which will make those victims whole as nearly as maybe.

We find this to be a reasonable formulation consistent with this Court's decisions and with other decisions under Title VII.

Chief Justice Warren E. Burger: In making its exercising, its discretion in the District Court, was it -- whether it had been appropriate for the District Court to take into account the efforts of the employer to provide training courses and to take new steps after 1964 and again after 1968, try to meet these problems?

Mr. James P. Turner: I think that would be a proper subject for the District Court to address as you indicated in the Griggs opinion Your Honor.

It's certainly can never be error for a Court of Equity to address the question of good faith but as the Court there said, “Good intent does not redeem the employer's conduct that since Congress directed the thrust of the Act to the consequences of employment practice not simply their motivation.”

So, while we think it's perfectly proper for a District Court to look at that good faith of a party.

Chief Justice Warren E. Burger: Well, in Griggs the employer had not abandoned the high school diploma requirement as they had here, is that not correct?

Mr. James P. Turner: I believe the high school diploma requirement was still in this case at the time of trial too, Your Honor.

That was one of the decisions of the District Court.

Chief Justice Warren E. Burger: When was the high school diploma requirement abandoned in this case?

Mr. James P. Turner: In this case, the District Court's order said that since the Wonderlic test were substantially an equivalent of high school measure that he did not reach the question of the validation effort that had been made as to high school examination or high school diplomas and he was enjoining their continued views.

Chief Justice Warren E. Burger: Do you have any comment to make about the general statement which I do not associate with any particular figures that there was very little response by employees to the training program developed by the union and the company jointly?

Mr. James P. Turner: Studied the record only and that's the limit of my experience in this case Your Honor and I've -- I don't recall any statistics in the record as to the participation.

I know there were some.

I know it was minimal but the explanation for the time, I'm sorry I can't give you.

Chief Justice Warren E. Burger: Would that be an appropriate factor for the district judge to take into account in exercising his discretion about backpay?

Mr. James P. Turner: I should think so, yes, Your Honor but the -- we also think that a Court faced with such a question.

To start with the purpose of the statute and that the general principle that we would urge is that as between an innocent victim of discrimination and the perpetrator or the employer or union violating the law, the economic laws presumptively or initially at least ought to fall on the people it violated the law and not the innocent victims.

Chief Justice Warren E. Burger: And you concede I take it that this is not quite a simple matter in determining a violation of laws as it is in some other areas as?

Mr. James P. Turner: Oh, I think that's right Your Honor, the record here is quite lengthy and quite detailed as to the way Title VII was applied and how effective be the seniority system and how the lines of progression had to be merged because there were segregated.

All those things a Court has to go into a great detail.

When it concludes that there has been a violation of pattern and practice if you will of violating Title VII, then we think that any identifiable victims who can prove that they've suffered economic loss because of that pattern in practice ought normally to receive backpay.

Chief Justice Warren E. Burger: We resume there after lunch Mr. Turner.

Mr. James P. Turner: Thank you.

Chief Justice Warren E. Burger: Mr. Turner, you may continue.

Mr. James P. Turner: Thank you, Your Honor.

When we adjourned we were -- I was discussing the good faith requirement in response to the question of the Chief Justice.

Certainly, we believe it's relevant as I indicated whether a defendant in this Title VII action conduct themselves for good faith as the Court indicated in Griggs.

But that cannot serve as a justification in our view for blanket rule that no one gets backpay.

The problem identified by the Court of Appeals here was the District Court apparently without consideration of the make whole philosophy of the Act had declined to consider backpay for any member of the victims class regardless of the individual merits of their claims.

Justice William H. Rehnquist: But the Court of Appeals didn't just remanded the District Court for perhaps additional consideration in itself directed the award of backpay, didn't it?

Mr. James P. Turner: Well, that Mr. Justice could not happen as a practical matter unless there were some additional proceedings in the District Court that backpay amounts had not been determined and the identities of who would be entitled to it, had not been determined yet.

Justice William H. Rehnquist: But the District Court's discretion is to whether or not there was to be backpay if the loss were made out has been taken away by the Court of Appeals.

Mr. James P. Turner: I think the standard that the Court of Appeals used in the correct one is to look to the purposes of the law that make whole purposes.

As I say the Court of Appeals decided and I think correctly that the District Court had not used that correct standard that it had used better and abstract equity standard and had not referred to the purposes of the Act and the purposes of the make whole a provision of restitution.

Chief Justice Warren E. Burger: Did the Court of Appeals in terms before that the district judge had abused his discretion?

Mr. James P. Turner: Not in so many terms -- in so many words Your Honor, no.

Chief Justice Warren E. Burger: Isn't that the way it's ordinarily done when there's --

Mr. James P. Turner: Well, if --

Chief Justice Warren E. Burger: -- discretion involved in?

Mr. James P. Turner: If you want it to phrased it that way.

If you want it to ask me, was there an abused of discretion, I'd have to say yes but I'd hasten to add that the such abuses there was, was a failure to consider the remedial purposes of the Act to make whole provisions which Congress in 72 had virtually ratified as the purpose of the Act it ratified Court decisions to that effect.

Justice William J. Brennan: Well, rather of you say that the Court of Appeals really held the District Court heard cannot exercise in its discretion accordingly to the make whole standard, when you say that.

Mr. James P. Turner: That -- that would be our formulation as this --

Justice William J. Brennan: If that so, I gather the remand would be an exercise his discretion accordingly to make whole standard, wouldn't you?

Mr. James P. Turner: That's correct.

Justice William J. Brennan: Well, Isn't that what the remand is?

Mr. James P. Turner: There is no remand stated in the Court of Appeals opinion of as I indicated an answer to Justice Rehnquist to -- there has to be additional proceedings before any of backpay can be awarded.

There are 80 claimants for backpay.

Now the question before the Court is which one those, is entitled to it?

Justice William J. Brennan: But doesn't the Court of Appeals foreclose an independent determination by the District Court according to the correct standard might whole.

Mr. James P. Turner: Oh, I think not, the -- now, as we read the Court of Appeals' opinion what they were saying was that normally unless there's some reason not to, a class of victims of racial discrimination will be entitled to be made whole for any economic loss they suffered.

The next step in that procedure, it seems to me, is to go back for the District Court and make a -- the determinations of whether there's an economic loss and if so how much.

Chief Justice Warren E. Burger: This is essentially on accounting process so, it is not?

Mr. James P. Turner: Oh, I think --

Chief Justice Warren E. Burger: The only thing remains to be done?

Mr. James P. Turner: I think that's not entirely true now, we've indicated in the brief that reliance on female protective legislation for example might be a basis for some discretion.

There'd be the misconduct of particular individuals as in Green against McDonnell Douglas.

If you recall the facts there an applicant had misbehaved or criminally misbehaved in next month the company.

Chief Justice Warren E. Burger: Would the district judge be free in your view to make inquiry and whether or not a particular claimants had taken an advantage of the union company's joint training program and put that in the scales against its recovery?

Mr. James P. Turner: Well, if that's where it belong in the scales, yes, Your Honor.

The --

Chief Justice Warren E. Burger: Well, I thought you've said earlier that it did belong there, before --

Mr. James P. Turner: I've said it was relevant now.

I'm not -- I would not concede that it should be controlling.

You would have to know why the man didn't take part in it if he didn't.

What the program was?

What you got if you graduated from the school or training program?

Whether you -- if it was just a literacy business how that related to your job and it would seem to me you would have to make the kind of equitable judgment that that I'm outlining.

And they are in the Phelps Dodge case, in a one of the footnotes the Supreme Court indicated the kinds of discretion that's the labor board had normally used and deciding to award backpay and it -- it said it was not mechanically compel but there was discretion and yet, the overall goal of making the individual whole for any economic loss suffered by a violation of the law should be the touchstone.

We're also be the element of the apportionment of the loss of the backpay award between the two defendants would also cause call from some discretion.

If there was an applicant class that might be another area of discretion very seriously for the District Court to consider.

The other of special circumstance cited by the District Court was the delay in bringing the issue forward involving backpay aside from the that's -- thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Turner.

Mr. Lowden, I believe there's 10 minutes remaining for a petitioner's side here.

Rebuttal of Francis V. Lowden, Jr.

Mr. Francis V. Lowden, Jr.: Thank you sir.

Mr. Chief Justice, may it please the Court.

I'm afraid this will be a little disjunctive.

I've got it by five points I want to make and there not really connected but I'm -- I'd like to make him if I possibly can.

First of all in the Government's brief, they indicate that we don't have any call with there guidelines and that we didn't prove that the guidelines are, well, weren't unreasonable.

At the present time, let me say this first, the 1966 guidelines and the 1970 guidelines were published without any public opportunity to comment.

I would just publish and put it into effect whether the new law they are now having hearings on them.

Let us set guidelines in which all of the Government agencies involved in equal opportunity will be involved and they've had some testimony on the guidelines and I'm quoting from the BNA daily labor report for January 13, 1975 which is also in our brief at page 36 and at the hearings on the guidelines the people who testified and then describe them as unworkable, incomprehensible, technically unsound, too stringent beyond the State of New York, ambiguous yet, restrictive unnecessary impunitive and as one witness said --

Justice William H. Rehnquist: Do these comments Mr. Lowden have any effect on the validity of the guidelines insofar as they are promulgations of the EEOC?

Mr. Francis V. Lowden, Jr.: I think that the new guidelines are supposed to have relax the old ones and so we -- they're talking about the new proposal in which I suppose I have relaxed some of the requirements of the other guidelines and one witness of that hearing was quoted in the BNA as saying that they are just irrational, unreasonable, and impossible.

I wish I had time to point out in detail why I subscribed to that same view.

I would like to clear up one other thing and that is, what this test supply to?

This was not -- you can't take a given point in time and say that's facts of these cases.

This is a moving thing, have a new machinery, drop in various lines and so forth, so that since about the time of the validation study made by Dr. Taffet at that time.

We only use the test in four departments, the power plant, the big paper mill, the part mill, and technical services, and you'll find if you look in his study that he found validations in all of those lines and this been is about isn't in 13 lines in eight departments, that's the way it was in 1967 but that was not the facts in 1971.

On the supervisory ratings, what Dr. Taffet actually did was have these people immediate supervisors who incidentally have done all these jobs because we get our supervisors in the same way up through the ranks.

To rate employee A against employee B and the question they answer which one was better, Tom or Jack?

And then they go which one is better, Tom and Bill?

So, they only -- they didn't rate him in an order they just took each one -- which one of these two can do the job better.

And we submit that that is the fundamental question that supervisors answer everyday in a week.

It's one of the most basic things that they're paid to know.

Now, Mr. Chief Justice you asked about the high school education.

In 1965, the company where the high school education for all incumbents, so there was no longer required them.

We continued then up until the time of trial and the judge have knocked it out and we did not appeal that.

And of course the evidence is that we put the test in because the high school education requirement didn't predict anything.

Furthermore, hasn't been said but the injunctive decree in the District Court, we consent it to, that was a really a consent decree.

And one other thing hadn't said and I feel the Court should know that as early as September 24, 1969 before those any backpay or anything else in the case, I asked the judge for a trial and he denied it.

And one other thing on backpay, the judge in effect has given all these people a trial on backpay.

He ruled in the pretrial hand that backpay was an issue.

He said he would hear it, if it got too complicated.

He had send to a master but that we'll going to start this trial on Monday morning and we're going to go for two weeks, and we didn't finish it or coming back.

And he wanted everything single thing, we wanted him to hear in there, so when he adjourned that was it.

They have a courtroom full of these employees, the testimony is 16 of them in the record and the kind of testimony and I read this last night, put one man on the stand and when he got through the judge said, “Well, what job is it that Albemarle didn't give you because of your race?

And he said, “None”.

He said, “What job is it that you want?”

He said, “I want the job I got now.”

And this is the kind of testimony that is the background of the judge's exercise of his discretion.

And if we go back when the issue of backpay, as I understand it, we take these people, try to find out by through evidence.

What job they can do?

Was there ever an opening in it?

What were the rights to pay?

Could they have qualified?

And it will be another elaborate proceeding all over again.

In conclusion --

Justice Byron R. White: -- conducting this matter is a class action at all?

Mr. Francis V. Lowden, Jr.: Yes sir.

As first motion we made way back in 1967, with the first motion we made Your Honor was that it wasn't a proper class action under Rule 23 and that is time when we raise the question about the charges being filed and in 1967, the district judge, Judge Larkins, at that time overruled that motion and we try to -- when we got to before Judge Dupree, he said he wasn't going to act as a District Court, I mean, an appeal Court, anything that Judge Larkins rule.

We could forget about to see when going to change that, so we didn't make the motion before hand.

Justice Byron R. White: But the class had been designated?

Mr. Francis V. Lowden, Jr.: Well, --

Justice Byron R. White: And then -- and there hadn't been certification at that?

Mr. Francis V. Lowden, Jr.: He asked that The class was described by Judge Dupree, where this case --

Justice Byron R. White: Judge Dupree didn't describe that until 71?

Mr. Francis V. Lowden, Jr.: Well, but the way these cases go in the District Court they say, “We'll treat it as a class action for purposes of discovery and have get through all of that business, then will come back and describe what the class is in a by what that shows up.”

And this is a balloon as process very costly.

Justice William H. Rehnquist: I notice at page 46 of the appendix that Judge Dupree in -- on June of 71 ordered the plaintiffs to make a more specific answer to an interrogatory you've submitted as to the claims of the damages, did the -- did the plaintiffs ultimately comply with that order?

Mr. Francis V. Lowden, Jr.: We claim they did not, they claim they did.

They came back and instead of telling us what job the man would have?

What job he was qualified for?

They went back and took a couple of people who are employed at about the same time.

One might be white and he made $10,000.00 a year, one might be black and he made $8,000.00 a year.

Then they would claim that shows that the mail is damaged and we claim that we were entitled at that trial to have known what job was it that we didn't give the man and he wanted that he was qualified for and that if they have proof of case like that and you might have different situation on damages but here nothing was shown.

In fact, witness after witness said, I'm happy judge with the job I've got.

All I want is a raise.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Lowden.

Thank you, gentlemen.

The case is submitted.