Whitworth Stokes, Washington, D.C., for appellant in No. 73-1342 and appellee in No. 73-1442.

Jonas Ben Katz, Cincinnati, Ohio, with whom Benjamin Gettler, Cincinnati, Ohio, and Samuel Levine were on the brief for appellant in No. 73-1442 and appellee, Hotel & Restaurant Employees and Bartenders International Union in No. 73-1342. Louis Ginberg, Mark H. Grunewald and Ronald I. Tish, Washington, D.c., entered appearances for appellant in No. 73-1442. Ronald I. Tish, Washington, D.C., also entered an appearance for appellee Sheraton Park Hotel.

Before McGOWAN and ROBB, Circuit Judges, and MATTHEWS,* Senior District Judge for the United States District Court for the District of Columbia.

MATTHEWS, Senior District Judge.

Appellant Lorraine Evans, a regular banquet waitress employed at the Sheraton Park Hotel (Hotel) and a member of Local 507, Hotel and Restaurant Employees and Bartenders International Union (Waitresses Local 507), brought this action under the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., against the Hotel, Waitresses Local 507, the Joint Executive Board, Hotel and Restaurant Employees and Bartenders International Union (Joint Board), the Hotel and Restaurant Employees and Bartenders International Union (International), and Local 781 Hotel and Restaurant Employees and Bartenders International Union (Waiters Local 781) seeking injunctive relief, back pay and damages.

After extensive pretrial proceedings, the District Court held that maintenance of the two sex-segregated Locals constituted a per se violation of the Civil Rights Act, 42 U.S.C. 2000e-2(c), and, no bona fide occupational qualifications having been shown by defendants, 42 U.S.C. 2000e-2(a) and (c) had been violated. The District Court awarded Mrs. Evans (1) $1,100 as a result of the discrimination in assignments to receptions (all defendants being jointly and severally liable); (2) $500 for harassment (against the hotel only); and (3) her costs and nominal attorney's fee of $1,000.

In No. 73-1342, Mrs. Evans has appealed the amounts awarded as not being adequate or proper.

International, appellant in No. 73-1442,1 raises three issues: (1) whether the International may be joined in a civil action brought by an aggrieved party under 42 U.S.C. 2000e-5(e) where the International was not named as a respondent in the charge filed by the aggrieved party with the Equal Opportunity Employment Commission (EEOC); (2) whether the mere existence of Waiters Local 781 and Waitresses Local 507 within the International Union constituted a per se violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq.; and (3) whether the awards of $1,100 damages and $1,000 attorney's fee for which all defendants are jointly and severally liable were clearly inadequate and an abuse of discretion by the District Court.

* JOINDER OF INTERNATIONAL

After the original complaint was filed in District Court against the Hotel, Joint Board, and Waitresses Local 507, the Hotel filed a motion to dismiss for failure to join indispensable parties, namely, the International and Waiters Local 781. The District Court granted the motion, without prejudice, but thereafter vacated its order and allowed appellant Evans to file an amended complaint naming the two unions as parties defendant. International then proceeded with a motion for summary judgment (as to it), asserting the lack of a jurisdictional prerequisite to bringing a civil action against International in that International was not a party named or charged in the complaint filed with the EEOC. The EEOC, having been permitted earlier to participate as Amicus Curiae in this case, filed a brief opposing International's motion.

In a Memorandum and Order dated March 22, 1972, the District Court denied the motion. Having already held the International to be an indispensable party, the Court believed summary judgment to International would mean that the entire case would be stopped in its tracks. Noting that several courts had allowed additional defendants to be brought into a case despite the fact that the defendant was not named as a respondent in the administrative proceeding before the EEOC, the District Court reasoned:

'Charges of discrimination filed with the EEOC are frequently initiated by complainants, without aid of counsel, who have no way of ascertaining the identities of all the parties who may become parties to the subsequent litigation. Even if the complainant were represented by counsel, it is unrealistic to expect that the complainant could accurately anticipate all potential parties to the subsequent litigation arising out of the claim. This is particularly true where, as in the instant case, one of the parties, the chartering International, is not highly visible, and it required court action to determine whether or not the International was an indispensable party. Title VII is a broad and humanitarian Act which seeks to encourage parties to attempt conciliation before they resort to court action but it does not seek to foreclose claimants from their legal remedies because of technical pleading requirements at the administrative stage.'

Appendix, p. 14, 4 EPD PP 7727.

We think International, in the present case, meets the conditions of Rule 19(a), Federal Rules of Civil Procedure, which provides:

'A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties * * *.'

In accordance with its constitution, International had chartered Waiters Local 781 and Waitresses Local 507, and by its constitution, only International had the power to alter, suspend or terminate operation of these locals. Although neither the by-baws of Waiters Local 781 nor Waitresses Local 507 specifically prohibited membership to persons of the opposite sex, as a matter of practice and as their respective names imply, only men were admitted to Waiters Local 781 and only women were admitted to Waitresses Local 507.

Plaintiff's complaint sought general injunctive relief against sex discrimination in her employment opportunities and specific relief against maintenance of sexually segregated locals. It becomes readily apparent that specific injunctive relief against maintenance of sexually segregated locals necessitated International's presence. Further, any general injunctive relief granted to plaintiff against the Sheraton Hotel and Waitresses Local 507 only for the purpose of eliminating sex discrimination in her employment opportunities would be akin to rather ineffective symptomatic relief, leaving the root (sexually segregated locals) to continue. While money damages was an available remedy to compensate for any past illegal discrimination, we conclude that without International complete relief could not be accorded appellant Evans by way of injunctive relief necessary to prevent future discrimination.

The United States Court of Appeals for the Fifth Circuit, speaking through Judge Carswell, said in Schutten v. Shell Oil Company, 421 F.2d 869, 873 (1970):

'Subdivision (a) of Rule 19 categorizes those persons whose joinder is desirable from the standpoint of complete adjudication and elimination of relitigation. If there are no procedural or jurisdictional bars to joining such a party, Rule 19 requires that he be joined.'

We turn then to the question of whether failure to charge International before the EEOC is a jurisdictional bar to its joinder.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(e) (1970) provides that if after a charge of discrimination is filed, the EEOC is unable to achieve compliance with the Act, within a specified time 'a civil action may * * * be brought against the respondent in the charge.' Courts have generally interpreted this provision to mean that a charge must be filed against a party with the EEOC before court action can be commenced against the party. Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967); Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969); Bowe v. Colgate-Palmolive Company, 416 F.2d 711 (7th Cir. 1969); Cox v. United States Gypsum Company, 409 F.2d 289 (7th Cir. 1969); Marlowe v. Gen. Motors Corp., 6 FEP Cases 1083 (6th Cir. 1973); Norman v. Missouri Pacific Railroad, 414 F.2d 73 (8th Cir. 1969).2

The rule was circumvented in Waters v. Wisconsin Steel Wks. of Internat'l Harvester Co., 427 F.2d 476 (7th Cir. 1970), cert. denied sub nom. United Order American Bricklayers v. Waters, 400 U.S. 911, where in a civil action alleging racial discrimination based for jurisdictional purposes on the Civil Rights Act of 1866, 42 U.S.C. 1981 as well as Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e to 2000e-15, plaintiffs' complaint included a local union as party defendant which had not been a party charged before the EEOC.3 Plaintiffs were allowed to sue the local union directly under 1981, having shown a reasonable excuse for failure to exhaust EEOC remedies, and the Seventh Circuit did not consider the district court's ruling concerning the applicability of Rule 19, Fed.R.Civ.P. However, recently in LeBeau v. Libby-Owens-Ford Company, 484 F.2d 798 (7th Cir. 1973), where a Title VII action had been dismissed on the ground that the International union was a Rule 19 indispensable party, which could not be joined because it was not a party charged before the EEOC, the Seventh Circuit held that the International, in the circumstances there presented, was not an indispensable party. Consequently, it affirmed the dismissal of the action as to International on the ground that International was not named as a respondent before the EEOC, and it reversed the judgment dismissing the suit against LOF and Local 19, finding a misapplication of Rule 19.

While there appears to be no Circuit opinion directly in point, several district courts have permitted joinder of parties, who had not been previously charged before the EEOC. Bremer v. St. Louis Southwestern Railroad Company, 310 F. Supp. 1333 (E.D.Mo.1969); Torockio v. Chamberlain Mfg. Co., 51 F.R.D. 517 (W.D.Pa.1970); Reyes v. Missouri-Kansas-Texas Railroad Company, 53 F.R.D. 293 (D.Kan.1971); Pegues v. State Employment Service, 57 F.R.D. 102, 5 FEP Cases 289 (N.D.Miss.1972). The rationale of these decisions is persuasive.

In Bremer, it was the court, sua sponte, who noted the absence of certain parties, and although neither had been charged before the EEOC, the court ordered them joined as necessary parties under Rule 19. In the interest of uniformity, consideration of time, effort and expense involved in duplication, and with the possibility of inconsistent results, the court thought the entire matter should be disposed of in one proceeding.

The defendant sought joinder of the international union in Torockio and the court ordered it joined (under Rule 21) although the international had not been charged before the EEOC, reasoning that the Civil Rights Act of 1964 should not deprive defendants of their very valuable rights under the Federal Rules of Civil Procedure to have a resolution of all facts of the dispute in one proceeding.

The procedure in Reyes was quite similar to the case herein. There the defendant had moved to dismiss the action for failure to join a local union (a party not charged before the EEOC) as a necessary party under Rule 19. The court denied defendant's motion and allowed plaintiff to file an amended complaint naming the local union-- relying exclusively on Bremer.

In Pegues, the district judge ordered that the Secretary of Labor be made a party defendant in the Title VII action under Rule 19. The ruling was pursuant to the defendant's motion to dismiss for failure to name the Secretary as an indispensable party. Inasmuch as the relief sought allegedly would violate regulations promulgated by the Secretary prescribing policies and procedures with which all state employment agencies must comply in order to receive federal funds, the court found that, in the absence of the Secretary, complete relief could not be accorded those already parties in the action, and his absence would leave the employment service subject to substantial risk in incurring multiple or otherwise inconsistent obligations by reason of the interest that the Secretary had in that litigation. The court stated simply that the Secretary was subject to the process of the court and could be made a party without depriving the court of jurisdiction over the subject matter.

The stormy legislative history of Title VII renders the intent of Congress in its administration far from clear. The two-fold purpose of bringing a charge before the EEOC is to give notice to the charged party and to provide a means for voluntary compliance and conciliation, expeditiously and inexpensively. Bowe v. Colgate-Palmolive Company, 416 F.2d 711, 719 (7th Cir. 1969). A complaint under Title VII cannot by-pass the EEOC. The effect of a contrary holding would be virtually to elminate the Commission established by Congress to encourage fair employment practices. 'Of course, the legislative compromise changed the concept from an enforcing-adjudicatory administrative agency to one in which the agency would conciliate, leaving the ultimate, final sanction to be judicial enforcement. As a part of the scheme such judicial enforcement was to be initiated by and at the hands of individual working grievants.' Jenkins v. United Gas Corporation, 400 F.2d 28, 31-32 (5th Cir. 1968). And, there are restrictions both in time and pre-conditions for court action.

However, we are not convinced that the value of conciliation supersedes the value of enforcement, to the end that after a charge has been processed before the EEOC and court action commenced, the district court is powerless to order joinder under Rule 19(a) and is further required to dismiss the action under the indispensable party provisions of Rule 19(b). Where, as here, the chartering International was an obscure party, requiring court action to determine whether or not its presence in the action was necessary for complete relief among those already parties, to deny joinder under 19(a) would cripple the rights of the charging party as well as those of the party charged. Further, dismissal of the action under 19(b) would frustrate the intent of Congress in this type of case. Surely the means devised cannot be more important than the end envisioned.

We do not believe that the procedures of Title VII were intended to serve as a stumbling block to the accomplishment of the statutory objective. To expect a complainant at the administrative stage, usually without aid of counsel, to foresee and handle intricate procedural problems which could arise in subsequent litigation, all at the risk of being cast out of court for procedural error, would place a burden on the complainant which Congress neither anticipated nor intended.

Appellant Evans filed a Charge of Discrimination with the EEOC against the Hotel which was her employer, Waitresses Local 507, and the Joint Board alleging violations of the Civil Rights Act of 1964.4 She was timely advised by the Commission of its failure to obtain voluntary compliance and of her right to file suit. She then brought this action, naming the same parties as those charged before the EEOC in her complaint. It is our conclusion that appellant Evans exhausted her administrative remedies as anticipated by Congress.

It was through the motion of defendant Hotel that the absence of International was brought to the attention of the District Court, and joined thereafter pursuant to Rule 19. We hold this action by the District Court within its jurisdiction and proper under the circumstances presented.

II

UNIONS SEGREGATED ON THE BASIS OF SEX

At all times pertinent to this litigation, appellant International maintained in the District of Columbia Waiters Local 781 and Waitresses Local 507. These locals supplied banquet waiters and waitresses to a number of establishments in the city, including 20 to 25 employed at the Sheraton Park Hotel, although the Hotel employed about twice as many regular banquet waiters as waitresses. Each local was represented at the Hotel separately by a different shop delegate who dealt with and presented grievances in the first instance to the banquet captain, who represented the Hotel.

While waiters and waitresses were all paid the same hourly rates for participation in varying types of duties, these rates varied according to the nature of the work. Alternating shifts, each composed of males and females, worked either breakfasts and lunches, or dinners, receptions and dances. Miscellaneous duties such as coffee breaks, setups and cleanups and the side jobs of filling salt and pepper shakers were performed at lower or even non-paying hourly rates.

A significant and substantial portion of total compensation came from dividing an obligatory 16 percent gratuity among the waiters and waitresses participating in a particular function. The most lucrative work involved serving bar and food receptions because the number of waiters and waitresses required for these functions was relatively small, while the bill and resulting gratuity received were relatively high.

The Hotel records disclosed that waiters as a group worked more hours than waitresses and received larger total hourly compensation and larger gratuities. The District Court found that this difference reflected decisions by the Hotel banquet captain, himself a member of Waiters Local 781, to assign waiters rather than waitresses to lucrative receptions, as well as other discrimination against waitresses, and that the favoritism shown regular banquet waiters over regular banquet waitresses was made possible because the locals segregated by sex were maintained and recognized. The District Judge stated:

'The discrimination in reception assignments is a classic example of the abuse inherent in maintaining and recognizing separate female and male locals for co-workers performing the same duties. It is inevitable in such a situation that not only will controversy and suspicion arise between males and females, but that the more dominant group, in this case the males, will gain privileges of various kinds. The failure of Local 507 to support plaintiff's justifiable official complaints concerning uneven and unfair assignments demonstrates the inability of a Janus-headed union to safeguard sex equality.'

Appendix, p. 25, 5 FEP Cases 393, 395 (1972).

The District Court concluded that maintenance of the two sex-segregated locals5 constituted a per se violation of 42 U.S.C. 2000e-2(c), and no bona fide occupational qualification having been shown, defendants' practices in this case violated 42 U.S.C. 2000e-2(a) and (c),6 citing United States v. International Longshoremen's Association, 460 F.2d 497, 4 FEP Cases 719 (4th Cir.), cert. denied, 409 U.S. 1007, 93 S. Ct. 439, 34 L. Ed. 2d 300 (1972). ILA is a case strikingly similar to the case at bar. There, the Fourth Circuit held that racially segregated unions constituted per se violation of 42 U.S.C. 2000e-2(c)(2). Appellant International would distinguish ILA on the ground that the Court's underlying basis for holding that the maintenance of racially segregated locals constitutes a per se violation of Title VII was the Supreme Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 347 U.S. 483 (1954), hence, ILA is limited to racial segregation. There being no Brown in the area of sex segregation, International says there is no reason to assume that the principles applicable to the effects of racial segregation apply to the effects of sex segregation.

We do not agree. The unions in ILA were segregated on the basis of race. The unions here were segregated on the basis of sex. The precise statute (42 U.S.C. 2000e-2(c)(2)) involved in ILA is the one involved here. It specifically prohibits discrimination based on race, color, religion, sex, or national origin.

Moreover, in Frontiero v. Richardson, 411 U.S. 677, 687, 93 S. Ct. 1764, 1770, 36 L. Ed. 2d 583 (1973), Mr. Justice Brennan noted that: