USCA1 Opinion
March 10, 1995 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________
No. 94-1621
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, Appellee,
v.
STEAMSHIP CLERKS UNION, LOCAL 1066,
Defendant, Appellant.
_________________________
No. 94-1656
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, Appellant,
v.
STEAMSHIP CLERKS UNION, LOCAL 1066,
Defendant, Appellee.
_________________________
ERRATA SHEET
ERRATA SHEET
The opinion of the court issued on February 28, 1995, is
corrected as follows:
Cover page, next-to-last line replace "Bladewood" with
"Blackwood"
On page 16, line 2 replace "Judge Coffin" with "it"
On page 26, line 17 delete "written" after "submit"
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________
No. 94-1621
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, Appellee,
v.
STEAMSHIP CLERKS UNION, LOCAL 1066,
Defendant, Appellant.
_________________________
No. 94-1656
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, Appellant,
v.
STEAMSHIP CLERKS UNION, LOCAL 1066,
Defendant, Appellee.
_________________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
___________________
_________________________
Before
Selya, Boudin and Stahl, Circuit Judges.
______________
_________________________
Christopher N. Souris, with whom Thomas F. Birmingham and
______________________ _____________________
Feinberg, Charnas & Birmingham were on brief, for Local 1066.
______________________________
Paul D. Ramshaw, Attorney, with whom James R. Neely, Jr.,
________________ ____________________
Deputy General Counsel, Gwendolyn Young Reams, Associate General
_____________________
Counsel, Vincent J. Blackwood, Assistant General Counsel, and
_____________________
Lamont N. White, Attorney, were on brief, for EEOC.
_______________
_________________________
February 28, 1995
_________________________
SELYA, Circuit Judge. Labor unions have historically
SELYA, Circuit Judge.
______________
been instruments of solidarity, forged in an ostensible effort to
counterbalance the weight of concentrated industrial power. It
is, therefore, ironic but not unprecedentedly so, inasmuch as
"irony is no stranger to the law," Amanullah v. Nelson, 811 F.2d
_________ ______
1, 17 (1st Cir. 1987) that unions themselves sometimes engage
in exclusionary membership practices. The court below detected
such an elitist strain in the operation of the Steamship Clerks
Union, Local 1066 (the Union), determining that the Union's
policy requiring prospective members to be "sponsored" by
existing members all of whom, from time immemorial, have been
white constituted race-based discrimination. See EEOC v.
___ ____
Costello, 850 F. Supp. 74, 77 (D. Mass. 1994).
________
In this venue, the Union calumnizes both the district
court's evaluation of the sponsorship practice and the court's
remedial rulings. The Equal Employment Opportunity Commission
(the EEOC), plaintiff below, cross-appeals, likewise voicing
dissatisfaction with the court's remedial rulings (albeit for
very different reasons). Though we uphold the finding of
disparate impact discrimination, we conclude that the lower court
acted too rashly in fashioning remedies without pausing to
solicit the parties' views. Hence, we affirm in part, vacate in
part, and remand for further proceedings.
I. BACKGROUND
I. BACKGROUND
The relevant facts are not disputed. The Union is "a
labor organization engaged in an industry affecting commerce," 42
3
U.S.C. 2000e(d)-(e) (1988). It has approximately 124 members,
80 of whom are classified as active. The members serve as
steamship clerks who, during the loading and unloading of vessels
in the port of Boston, check cargo against inventory lists
provided by shippers and consignees. The work is not taxing; it
requires little in the way of particular skills.
On October 1, 1980, the Union formally adopted the
membership sponsorship policy (the MSP) around which this suit
revolves. The MSP provided that any applicant for membership in
the Union (other than an injured longshoreman) had to be
sponsored by an existing member in order for his application to
be considered. The record reveals, without contradiction, that
(1) the Union had no African-American or Hispanic members when it
adopted the MSP; (2) blacks and Hispanics constituted from 8% to
27% of the relevant labor pool in the Boston area; (3) the Union
welcomed at least 30 new members between 1980 and 1986, and then
closed the membership rolls; (4) all the "sponsored" applicants
during this period and, hence, all the new members, were
Caucasian; and (5) every recruit was related to usually the son
or brother of a Union member.
After conducting an investigation and instituting
administrative proceedings, the EEOC brought suit on June 7,
1991, alleging that the Union had discriminated against African-
Americans and Hispanics by means of the MSP.1 The EEOC accused
____________________
1The EEOC joined Bernard S. Costello, Inc. (Costello), a
firm that regularly employed steamship clerks, as a codefendant.
Costello is reportedly defunct, and, in any event, did not appeal
4
the Union of discrimination in violation of 42 U.S.C. 2000e-
2(c).2 In addition, the EEOC charged that the Union had
neglected to keep records (including so-called EEO-3 reports) in
the manner required by law.3
After ample discovery, the EEOC moved for partial
summary judgment, limiting its motion to the liability issues.
The Union followed suit. On February 7, 1994, Judge Stearns held
a hearing, reserved decision on the cross-motions, and extolled
the virtues of settlement. Having planted the seed, the judge
then provided an opportunity for cultivation; he advised the
____________________
from the entry of judgment below. Consequently, we treat the
case as if the Union were the sole defendant.
2The statute provides in pertinent part:
It shall be an unlawful employment practice
for a labor organization . . . to exclude or
expel from its membership, or otherwise
discriminate against, any individual because
of his race, color, religion, sex, or
national origin.
42 U.S.C. 2000e-2(c)(1) (1988). The district court found the
Union to have practiced disparate impact discrimination in
violation of this provision, and, therefore, did not consider the
EEOC's parallel charge of intentional discrimination. See
___
Costello, 850 F. Supp. at 76 n.5. We emulate the district
________
court's example.
3The operative statute obligates covered labor
organizations, inter alia, to:
_____ ____
(1) make and keep such records relevant to
the determinations of whether unlawful
employment practices have been or are being
committed, (2) preserve such records . . .,
and (3) make such records therefrom as the
Commission shall prescribe by regulation or
order . . . .
42 U.S.C. 2000e-8(c).
5
parties that he would take no action for the time being and
instructed them that, should no settlement eventuate within 30
days, he would thereafter render his decision. A month later,
the Union informed Judge Stearns that settlement discussions had
stalled. The EEOC, however, remained in a negotiating mode. On
March 24, 1994, it mailed a letter to the court and the Union
describing relief that it proposed for potential "inclusion in a
consent decree."
On the very same date, the district judge, presumably
unaware of the EEOC's letter, issued his decision. Judge Stearns
granted the EEOC's motion for partial summary judgment, holding
that the MSP evinced unlawful discrimination on the basis of
race. See Costello, 850 F. Supp. at 77-78. He also granted the
___ ________
Union's cross-motion for summary judgment on the record-keeping
count.4 See id.
___ ___
Nothing significant occurred until April 10, 1994, when
the court, without awaiting further motions or soliciting any
input from the parties, entered final judgment. Among other
things, it ordered the Union to (1) scrap the MSP; (2) open its
membership "to enable admission of at least one new member for
each listed member who, since the books were closed in 1986, has
died, retired or [become inactive]"; (3) submit a plan for
publicizing membership opportunities, taking special cognizance
of the need to recruit minority applicants; (4) periodically
____________________
4The EEOC has not appealed from this portion of the
judgment.
6
submit membership information to the EEOC; and (5) comply with
the EEOC's record-keeping requirements, including the filing of
EEO-3 reports. These appeals followed.
II. LIABILITY
II. LIABILITY
We begin with the liability issue. The EEOC's
allegations against the Union find their genesis in Title VII of
the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (1988).
__ ____
Broadly speaking, Title VII outlaws discrimination based on race,
color, religion, gender, or national origin. In so doing, the
law forbids both "overt discrimination" in the form of disparate
treatment, Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971),
______ _______________
and more subtle forms of discrimination, known as disparate
impact discrimination, arising from "the consequences of
____________
employment practices, not simply the motivation." Id. at 432.
___
In this instance, we limit our inquiry to whether the court below
supportably determined that the MSP resulted in race-based
disparate impact discrimination during the years 1980 through
1986.
A. The Disparate Impact Approach.
A. The Disparate Impact Approach.
_____________________________
It has long been understood that discrimination,
whether measured quantitatively or qualitatively, is not always a
function of a pernicious motive or malign intent. Discrimination
may also result from otherwise neutral policies and practices
that, when actuated in real-life settings, operate to the
distinct disadvantage of certain classes of individuals. See,
___
e.g., John Hart Ely, Democracy and Distrust 84 (1980) (observing
____ ______________________
7
that technical enfranchisement, under certain conditions, has
often fallen far short of actual enfranchisement). Within the
world of Title VII, this understanding is reflected in the
concept of disparate impact discrimination a concept born of a
perceived need to ensure that Title VII's proscriptive sweep
encompasses "not only overt discrimination but also practices
that are fair in form, but discriminatory in operation." Griggs,
______
401 U.S. at 431. Thus, the disparate impact approach roots out
"employment policies that are facially neutral in their treatment
of different groups but that in fact fall more harshly on one
group than another and cannot be justified by business
necessity." International Bhd. of Teamsters v. United States,
________________________________ _____________
431 U.S. 324, 335 n.15 (1977); accord Watson v. Fort Worth Bank &
______ ______ _________________
Trust, 487 U.S. 977, 987 (1988) (explaining that "the necessary
_____
premise of the disparate impact approach is that some employment
practices, adopted without a deliberately discriminatory motive,
may in operation be functionally equivalent to intentional
discrimination"). Beyond this abecedarian premise, however, the
nature and allocation of the relevant burdens of proof must be
clearly understood.5
____________________
5The Civil Rights Act of 1991, Pub. L. No. 102-166, 105
Stat. 1071 (1991), altered these burdens in some respects. See
___
id. 105 (codified at 42 U.S.C. 2000e-2(k) (Supp. III 1991))
___
(specifically addressing the allocation and nature of burdens in
disparate impact cases); see generally Rosemary Alito, Disparate
___ _________ _________
Impact Discrimination Under the 1991 Civil Rights Act, 45 Rutgers
_____________________________________________________
L. Rev. 1011 (1993). Here, however, because the EEOC sued before
the Act became law, the boggard of retroactive application
hovers. See Rivers v. Roadway Express, Inc., 114 S. Ct. 1510,
___ ______ ______________________
1519-20 (1994) (holding that 101 of the Act is nonretroactive);
Landsgraf v. USI Film Prods., 114 S. Ct. 1483, 1508 (1994)
_________ _________________
8
Under the legal framework that applies in this case,
see supra note 5, it is incumbent upon the plaintiff to
___ _____
demonstrate a prima facie case of discrimination. See Albemarle
___ _________
Paper Co. v. Moody, 422 U.S. 405, 425 (1975); McDonnell Douglas
_________ _____ _________________
Corp. v. Green, 411 U.S. 792, 802 (1973); Johnson v. Allyn &
_____ _____ _______ _______
Bacon, Inc., 731 F.2d 64, 69 (1st Cir.), cert. denied, 469 U.S.
____________ _____ ______
1018 (1984). In the disparate impact milieu, the prima facie
case consists of three elements: identification, impact, and
causation. First, the plaintiff must identify the challenged
employment practice or policy, and pinpoint the defendant's use
of it. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656
___ ______________________ ______
(1989).6 Second, the plaintiff must demonstrate a disparate
impact on a group characteristic, such as race, that falls within
the protective ambit of Title VII. See generally id. at 650-55.
___ _________ ___
Third, the plaintiff must demonstrate a causal relationship
between the identified practice and the disparate impact. See
___
____________________
(holding that 102 is nonretroactive); see also Mozee v.
___ ____ _____
American Commercial Marine Serv. Co., 963 F.2d 929, 932 (7th
______________________________________
Cir.) (holding that the 1991 Act does not apply retroactively to
a disparate impact claim), cert. denied, 113 S. Ct. 207 (1992).
_____ ______
We need not probe this point, for, although the Union alluded to
the 1991 Act in its appellate brief, neither party sought to
invoke it either in the court below or on appeal. It is,
therefore, not properly before us. See United States v. Slade,
___ _____________ _____
980 F.2d 27, 30 (1st Cir. 1992); Clauson v. Smith, 823 F.2d 660,
_______ _____
666 (1st Cir. 1987) (collecting cases). Thus, our ensuing
discussion reflects the legal framework as it existed without
regard to the 1991 Act.
6While Congress passed the 1991 Act partly in an effort to
nullify certain aspects of the Court's opinion in Wards Cove, see
__________ ___
Landsgraf v. USI Film Prods., 114 S. Ct. 1483, 1489 (1994), our
_________ _______________
reliance on Wards Cove is limited to portions of the opinion not
__________
affected by this legislative backlash.
9
id. at 656-57; Watson, 487 U.S. at 994.
___ ______
When the plaintiff rests, declaring herself satisfied
that she has established a prima facie case of disparate impact
discrimination, the ball bounces into the defendant's court. At
that point, the defendant has several options. First, it may
attack the plaintiff's proof head-on, debunking its sufficiency
or attempting to rebut it by adducing countervailing evidence
addressed to one or more of the three constituent strands from
which the prima facie case is woven, see Dothard v. Rawlinson,
___ _______ _________
433 U.S. 321, 331 (1977), asserting, say, that no identifiable
policy exists, or that the policy's implementation produces no
disparate impact, or that the plaintiff's empirical claims such
as the claim of causation are insupportable.
Alternatively, the defendant may confess and avoid,
acknowledging the legal sufficiency of the prima facie case but
endeavoring to show either that the challenged practice is job-
related and consistent with business necessity, see Griggs, 401
___ ______
U.S. at 431; see also Albemarle Paper, 422 U.S. at 425, or that
___ ____ _______________
it fits within one or more of the explicit statutory exceptions
covering bona fide seniority systems, veterans' preferences, and
the like.7 See 42 U.S.C. 2000e-2(h), 2000e-11; see also 1
___ ___ ____
Charles A. Sullivan et al., Employment Discrimination 4.5-4.8
_________________________
(2d ed. 1988). In all events, however, a defendant's good faith
is not a defense to a disparate impact claim. See Griggs, 401
___ ______
____________________
7Because the Union has never suggested that the MSP comes
within any such exception, we do not pursue this alternative.
10
U.S. at 432 (holding that "good intent or absence of
discriminatory intent does not redeem employment procedures or
testing mechanisms that operate as `built-in headwinds' for
minority groups and are unrelated to measuring job capability").
If the defendant fails in its efforts to counter the
plaintiff's prima facie case, then the factfinder is entitled
though not necessarily compelled, cf. St. Mary's Honor Ctr. v.
___ ______________________
Hicks, 113 S. Ct. 2742, 2748-50 (1993) to enter judgment for
_____
the plaintiff. See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372,
___ ____ _______ __________
381 (2d Cir.), cert. denied, 115 S. Ct. 205 (1994). On the other
_____ ______
hand, even if the defendant stalemates the prima facie case by
elucidating a legitimate, nondiscriminatory rationale for
utilizing the challenged practice, the plaintiff may still
prevail if she is able to establish that the professed rationale
is pretextual. See Wards Cove, 490 U.S. at 658-59; Johnson, 731
___ __________ _______
F.2d at 69-70; see also McDonnell Douglas, 411 U.S. at 804. The
___ ____ _________________
plaintiff might demonstrate, for example, that some other
practice, without a similarly undesirable side effect, was
available and would have served the defendant's legitimate
interest equally well. See Wards Cove, 490 U.S. at 660-61;
___ ___________
Johnson, 731 F.2d at 69-71. Such an exhibition constitutes
_______
competent evidence that the defendant was using the interdicted
practice "merely as a `pretext' for discrimination." Albemarle
_________
Paper, 422 U.S. at 425 (quoting McDonnell Douglas, 411 U.S. at
_____ _________________
804-05).
B. Standards of Review.
B. Standards of Review.
___________________
11
In general, summary judgment is proper only if, in the
context of the motion and any opposition to it, no genuine issue
of material fact exists and the movant has demonstrated its
entitlement to judgment as a matter of law. See Fed. R. Civ. P.
___
56(c); see also National Amusements, Inc. v. Town of Dedham, ___
___ ____ _________________________ ______________
F.3d ___, ___ (1st Cir. 1995) [No. 94-1176, slip op. at 5].
Hence, "a party seeking summary judgment [must] make a
preliminary showing that no genuine issue of material fact
exists. Once the movant has made this showing, the nonmovant
must contradict the showing by pointing to specific facts
demonstrating that there is, indeed, a trialworthy issue."
National Amusements, ___ F.3d at ___ [slip op. at 5]. An issue
___________________
is "genuine" when the evidence relevant to it, "viewed in the
light most flattering to the party opposing the motion, [is]
sufficiently open-ended to permit a rational factfinder to
resolve the issue in favor of either side." Id. at ___ [slip op.
___
at 5-6] (citation omitted). Since the summary judgment standard
requires the trial court to make a legal determination rather
than to engage in differential factfinding, appellate review is
plenary. See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st
___ _______ ________________
Cir. 1990).
Having recited the norm, we place it to one side, for
certain unique aspects of the instant case dictate that we depart
from the customary standard. The record discloses that, at the
time the parties cross-moved for summary judgment, the Union
voiced no disagreement with the facts on which the EEOC had
12
constructed its case.8 It gave no indication either that it
intended to introduce any additional evidence or that any such
evidence existed. To the exact contrary, the Union's contentions
centered entirely around the ultimate legal significance to be
accorded to conceded facts. In effect, then, the parties
submitted their dispute to the district court as a case stated.
Circuit precedent teaches that in such a situation
where, in a nonjury case, "the basic dispute between the parties
concerns the factual inferences . . . that one might draw from
the more basic facts to which the parties have drawn the court's
attention," where "[t]here are no significant disagreements about
those basic facts," and where neither party has "sought to
introduce additional factual evidence or asked to present
witnesses" the district court is freed from the usual
constraints that attend the adjudication of summary judgment
motions. Federacion de Empleados del Tribunal Gen. de Justicia
_______________________________________________________
v. Torres, 747 F.2d 35, 36 (1st Cir. 1984) (Breyer, J.). The
______
court may then engage in a certain amount of differential
factfinding, including the sifting of inferences. By the same
token, the court of appeals may assume that "the parties
considered the matter to have been submitted below as a case
____________________
8Of course, the mere fact that all parties move
simultaneously for summary judgment neither unties the district
court's hands nor renders the customary standard of review
obsolete. Barring special circumstances, the nisi prius court
____ _____
must consider each motion separately, drawing inferences against
each movant in turn, and the court of appeals must engage in de
__
novo review. See El Dia, Inc. v. Hernandez Colon, 963 F.2d 488,
____ ___ _____________ _______________
492 n.4 (1st Cir. 1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115
___________ _____
(1st Cir. 1990).
13
ready for decision on the merits." Id. Consequently, the
___
standard for appellate oversight shifts from de novo review to
__ ____
clear-error review. See id. ("Under these circumstances . . . we
___ ___
should set aside the district court's factual inferences only if
they are `clearly erroneous.'"); see also United States v. Ven-
___ ____ _____________ ____
Fuel, Inc., 758 F.2d 741, 744 n.1 (1st Cir. 1985) (stating in
__________
connection with a motion for summary judgment that when there are
"no significant disagreements about the underlying facts," and no
indications that "any further factual evidence" might be
available, the district court's factual inferences should be set
aside "only if they are clearly erroneous") (citing other cases).
Based on these precedents, we are constrained to apply
the more deferential clear-error standard when scrutinizing the
inferences drawn by the court below.9 Nonetheless, the court's
legal conclusions engender plenary review. See McCarthy v.
___ ________
Azure, 22 F.3d 351, 354 (1st Cir. 1994).
_____
C. Application of the Law.
C. Application of the Law.
______________________
In this case, the district court adroitly applied the
substantive law and concluded that the Union's sponsorship-based
____________________
9Our conclusion concerning the applicable standard of review
is reinforced by the Union's brief on appeal. In it, the Union
neither promotes the conventions of Rule 56 nor asserts that the
district court should have left the matter for trial, but,
rather, argues that the court entered judgment for the wrong
party because the EEOC failed to present a prima facie case; and,
alternatively, that even if a prima facie case emerged, the Union
successfully rebutted it. This scenario not only is consistent
with the submission of the matter as a case stated but also
amounts to a waiver of any contrary contention. See United
___ ______
States v. Zannino, 895 U.S. 1, 17 (1st Cir.) (explaining that
______ _______
theories which are not briefed or argued are waived), cert.
_____
denied, 494 U.S. 1082 (1990).
______
14
membership policy constituted disparate impact discrimination.
See Costello, 850 F. Supp. at 77. We descry no error.
___ ________
1. The Prima Facie Case. We agree with the district
1. The Prima Facie Case.
_____________________
court, see id. at 76-77, that the EEOC carried its burden of
___ ___
producing facts sufficient to limn the three elements essential
to its prima facie case. The first element identification
requires no elaboration.10 We start, therefore, with the
element of disparate impact and then move to causation. In both
instances, the relevant facts are not disputed.
a.
a.
__
Population statistics for the Boston area, proffered by
the EEOC and unchallenged by the Union, show that in the relevant
time frame African-Americans comprised 21%, and Hispanics 6%, of
the available labor force. Although there are no known
statistics on the racial composition of the steamship clerk
industry if such an "industry" exists "Census Bureau
statistics that merge the transportation industry's employment
statistics with similar statistics for public utilities . . .
show that blacks and Hispanics participate in the labor force as
clerical/clerks at a rate of 7% and 1% of the total,
respectively." Id. at 77 n.6. Despite the fact that the
___
combined pool of potential black and Hispanic applicants for
union membership ranged between 8% and 27% of the overall pool of
potential applicants, no African-American or Hispanic was granted
____________________
10It is transparently clear that the EEOC singled out the
MSP, identified it as the challenged employment practice, and
linked it to the Union.
15
Union membership. Finally, during the MSP's heyday the six-
year period from 1980 through 1986 the Union admitted 30 new
members. Based on a comparison of these figures with the profile
of the newly minted Union members 0 of 30, or zero percent
the district court found that the EEOC adequately demonstrated a
race-based disparate impact.
The Union is of a more skeptical mind. Although it
does not challenge either the accuracy or the relevance of the
underlying data, it contends that the small sample size renders
the figures statistically insignificant, thus undercutting the
EEOC's attempt to establish a disparate impact. This contention
is doubly flawed.
First, the contention misperceives the facts. While we
appreciate that "small sample size may . . . detract from the
value of [statistical] evidence," Teamsters, 431 U.S. at 339
_________
n.20, a defendant who asserts that a plaintiff's prima facie case
is insufficient must point out real deficiencies, not simply hurl
epithets from behind gauzy generalizations. In particular,
where, as here, a plaintiff has made out a colorable prima facie
showing of discrimination, a challenger must do more than trumpet
conclusory averments concerning the validity of the plaintiff's
statistical foundation. See 1 Sullivan et al., supra, 4.3.1,
___ _____
at 184 (explaining that a defendant must "attempt to undermine at
least one element of the plaintiff's case by bringing forth
__________________
sufficient evidence to create a question of fact on that
____________________
element") (emphasis supplied). In this case, the Union proffered
16
no such evidence.
Second, the Union's contention misperceives the law.
The cornerstone of its legal argument is our opinion in Fudge v.
_____
City of Prov. Fire Dep't, 766 F.2d 650 (1st Cir. 1985), and, yet,
________________________
its point-by-point reliance on Fudge leaves much to be desired.
_____
While the Fudge court cautioned against the use of "an intuitive
_____
judicial judgment" as the sole basis for discerning a disparate
impact, it carefully confined this admonition to cases "involving
a claim that a screening test for admission to employment imposes
a disparate and adverse impact" on a protected group. Id. at
___
657. Indeed, in a later case, not involving a screening test, we
cited Fudge for the proposition that, in weighing the probative
_____
value of statistical evidence, "[e]ven small samples are not per
___
se unacceptable." Freeman v. Package Mach. Co., 865 F.2d 1331,
__ _______ _________________
1342 n.5 (1st Cir. 1988). So it is here: because the EEOC's
claim does not involve an examination or other screening test,
and because it nestles in a singularly compelling factual
context, the Union's repeated references to Fudge shed far more
_____
heat than light.11
The utility of statistical evidence "depends on all of
the surrounding facts and circumstances." Teamsters, 431 U.S. at
_________
340. In this instance, the sample, though small, is telling.
Given the unique factual mosaic from which the statistical
____________________
11Furthermore, even if we were to overlook these important
distinctions and apply Fudge wholesale to the case at hand, we
_____
would endorse the trial court's meticulous explanation of why a
finding of disparate impact discrimination would still be
appropriate. See Costello, 850 F. Supp. at 77 n.7.
___ ________
17
scaffolding hangs, and the logical force of the conclusion that
the numbers suggest, it would blink reality to conclude that a
serious "sample size" problem lurks here. In our judgment, the
lower court did not err in considering the available statistical
evidence, and drawing founded inferences from it, en route to a
disparate impact determination. See, e.g., United States v.
___ ____ _____________
Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.) ("On the basis
____________________
that a showing of an absence or a small black union membership in
a demographic area containing a substantial number of black
workers raises an inference that the racial imbalance is the
result of discrimination, the burden of going forward . . . is
shifted to the accused, for such a showing is enough to establish
a prima facie case."), cert. denied, 404 U.S. 984 (1971); accord
_____ _____ _____ ______ ______
United States v. United Bhd. of Carpenters & Joiners, 457 F.2d
______________ _____________________________________
210, 214 (7th Cir.), cert. denied, 409 U.S. 851 (1972).
_____ ______
b.
b.
__
Reluctant to raise a white flag, the Union further
contends that, even if the EEOC established a significant racial
disparity, its prima facie case misfired on the element of
causation. The district court rejected this analysis. After
reviewing the MSP and the evidence of disparate racial impact, it
concluded that the former had caused the latter. See Costello,
___ ________
850 F. Supp. at 77 ("Chance is not a likely explanation for this
result."). The pertinent question on review is whether the court
erred in finding causation. We think not.
On this issue, the Union suggests three reasons why the
18
court blundered, asseverating that the EEOC (1) did not identify
particular African-Americans or Hispanics who unsuccessfully
sought Union membership; (2) confused nepotism with race-based
discrimination; and (3) failed to offer a suitably sophisticated
statistical analysis, beyond a mere presentation of accumulated
data. In the argot of the port, none of these arguments holds
water.
As for the absence of identifiable minority applicants,
the Union would have us rule that causation may be proven only by
demonstrating that a flesh-and-blood African-American or
Hispanic, who applied and was turned away, would have been
admitted as a member but for the MSP. This isthmian view is a
product of tunnel vision. The concept of causation under Title
VII, like the larger concept of discrimination itself, is
sometimes only discernible and inferable when viewed in context.
See, e.g., Julia C. Lamber et al., The Relevance of Statistics to
___ ____ ______________________________
Prove Discrimination: A Typology, 34 Hastings L.J. 553, 553
___________________________________
(1983) ("Discrimination is difficult to define, observe, and
prove. . . . [I]t may have no intrinsic meaning at all; rather,
it acquires meaning in the context of a larger whole."); see also
___ ____
Teamsters, 431 U.S. at 340 (explaining that the value of
_________
statistical data depends on the totality of the surrounding
circumstances). Here, the unvarnished reality of the situation
a sponsorship-based membership policy, enacted by an all-white
union, and a six-year track record of zero minority members
despite 30 new white members, all of whom had family ties to
19
existing members renders the district court's conclusion
irresistible notwithstanding the lack of a specific unsuccessful
minority applicant.12
If bolstering is needed and we do not believe that it
is we would add only that the cases and the commentators teach
that evidence involving the rejection of actual applicants is not
always necessary to prove causation. See, e.g., United States v.
___ ____ _____________
Sheet Metal Workers Int'l Ass'n, Local Union No. 36, 416 F.2d
______________________________________________________
123, 127 (8th Cir. 1969) (holding, in an intentional
discrimination case, that it was not "necessary for the
government to prove that the Locals have refused membership" to
actual black applicants); 1 Sullivan et al., supra, 4.3.1, at
_____
186 (enunciating similar view). The Court's opinion in Dothard
_______
bears stout witness to this principle. There, the plaintiff
alleged that Alabama's height and weight requirements for
correctional counselors had a disparate impact on female
____________________
12None of the three cases brandished by the Union is to the
contrary. Two of them Johnson v. Uncle Ben's, Inc., 965 F.2d
_______ _________________
1363 (5th Cir. 1992), cert. denied, 114 S. Ct. 1641 (1994), and
_____ ______
Walls v. City of Petersburg, 895 F.2d 188 (4th Cir. 1990) are
_____ ___________________
reminiscent of Fudge inasmuch as both involved challenges to an
_____
employment-related testing practice, such as an examination, that
had no inherently obvious tendency to discriminate against
protected classes of individuals. Here, by contrast, we are
dealing with a union consisting exclusively of whites which only
accepts applicants who have already been sponsored by a member.
Under such highly suggestive circumstances, far less additional
proof is necessary to establish causation. Similarly, in EEOC v.
____
Chicago Miniature Lamp Works, 947 F.2d 292 (7th Cir. 1991), the
____________________________
court rejected the EEOC's theory of causation because its
statistical analysis totally omitted several key explanatory
variables, thereby potentially skewing the results. See id. at
___ ___
301. Here, by contrast, there is nothing to indicate any omitted
variable or to cast doubt upon the apparent outcome.
20
applicants. In upholding the challenge, the Justices explicitly
disavowed any rule "that a statistical showing of
disproportionate impact must always be based on analysis of the
characteristics of actual applicants." Dothard, 433 U.S. at 330
_______
(citing Griggs, 401 U.S. at 430). In a passage that has marked
______
relevance to the instant case, the Court reasoned that "[t]he
application process itself might not adequately reflect the
actual potential applicant pool, since otherwise qualified people
might be discouraged from applying because of a self-recognized
inability to meet the very standards challenged as being
discriminatory." Id. In this case, as in Dothard, we think that
___ _______
the court below could have inferred causation, despite the dearth
of actual applicants, in part because the MSP would itself
naturally have discouraged potential minority candidates.
The Union's second asseveration need not detain us.
Although the district court did not find a formal policy of
nepotism, it recognized, as any thinking person must, that the
MSP appeared to operate nepotistically. See Costello, 850 F.
___ ________
Supp. at 76 n.4. The Union claims that this recognition betokens
a confusion of two separate concepts: nepotism and
discrimination. We do not agree. The history of the MSP's
actual implementation an archive which reveals that every new
member has been a relative of an existing member is competent
evidence on the element of causation. See Thomas v. Washington
___ ______ __________
County Sch. Bd., 915 F.2d 922, 925 (4th Cir. 1990) (explaining
________________
that "when the work force is predominantly white, nepotism and
21
similar practices which operate to exclude outsiders may
discriminate against minorities as effectively as any
intentionally discriminatory policy").
In mounting its third asseveration, the Union once
again eschews any challenge to the EEOC's basic data the
percentages of blacks and Hispanics in the relevant labor
populations, as compared with the percentage of blacks and
Hispanics on the Union's membership roster but, rather, impugns
the EEOC's failure to subject these proportionality data to some
kind of formal statistical analysis. Although the Union's
frustration is understandable, its position that a prima facie
case of disparate impact discrimination must invariably include a
formal statistical analysis is untenable.
We say that the Union's frustration is understandable
because it would almost certainly have been helpful to the
parties and to the court if the EEOC had processed its data in a
slightly more sophisticated manner. Moreover, given its
resources and institutional experience, the EEOC has no easily
ascertainable excuse for neglecting this avenue. Nonetheless,
though one would normally expect sound statistical analyses to
assist a plaintiff in making out a prima facie case, see Lamber
___
et al., supra, at 584-95, the absence of such analyses, by
_____
itself, does not automatically doom the plaintiff's efforts.
See, e.g., Ingram v. Madison Square Garden Ctr., Inc., 709 F.2d
___ ____ ______ ________________________________
807, 810-11 (2d Cir.) (affirming determination of Union's
liability under Title VII despite weak statistical evidence),
22
cert. denied, 464 U.S. 937 (1983). To hold otherwise would
_____ ______
effectively subordinate the whole of Title VII, in every last
disparate impact case, to the sometimes vagarious sway of
statistical proof.
In sum, it was not error for the lower court to
conclude, on the idiosyncratic facts of this case, that the MSP,
though neutral on its face, proximately caused the exclusion of
minorities between 1980 and 1986.13
2. The Union's Response. Once the EEOC demonstrated a
2. The Union's Response.
____________________
prima facie case of discrimination, the burden of production
shifted. In the absence of any applicable statutory exemption,
see supra note 7, it became incumbent upon the Union either to
___ _____
mount a satisfactory empirical rebuttal or to show that the
challenged practice was job-related and consistent with business
necessity. For all intents and purposes, the Union travels only
the second path. Its sojourn is unavailing.
The Union suggests that the MSP is job-related and
consistent with business necessity because it represents an
important vehicle for continuing family traditions. Most of the
30 new members, according to the Union, "joined simply because
their fathers had been members and because they wanted to
maintain a family tradition . . . ." We approach the task of
____________________
13We add one further note. Though it is perhaps true, as
the Union claims, that no court has ever invalidated a facially
valid sponsorship-based membership policy under Title VII, it
seems equally true that no such policy has ever been upheld. It
would be a peculiar rule of construction if a statute could not
be applied in a certain manner unless it had already been applied
in that manner in a previous case.
23
evaluating this rationale mindful that the meaning and scope of
the "business necessity" concept are blurred at the edges.14
See 1 Sullivan et al., supra, 4.3.2. In the case at bar,
___ _____
however, such potential indeterminacy is of no consequence, for
the Union's "family tradition" thesis falls hopelessly short of
limning a business necessity, and, thus, does not require us to
explore terra incognita.
_____ _________
We will not tarry. Here, the Union has not shown even
the glimmerings of a business necessity defense. Instead, it
asks us to undertake a leap of faith. It makes absolutely no
effort to explain, logically, why family tradition, and, thus,
the MSP, are necessary adjuncts to carrying on the business of
steamship clerks; and we, like the district court, can discern no
essential connection. See Costello, 850 F. Supp. at 77
___ ________
(concluding that the Union's justification "does not explain,
much less justify, the nexus between family tradition and the job
of steamship clerk," but "is merely an illumination of the
motives of those who have had its advantage"). If courts were to
accept an employer's arbitrary ipse dixit as a satisfactory
____ _____
justification for retaining a policy that produces an invidiously
discriminatory impact, Title VII would be reduced to no more than
____________________
14The 1991 Act did little to sharpen the focus. See Note,
___
The Civil Rights Act of 1991: The Business Necessity Standard,
_____________________________ ________________________________
106 Harv. L. Rev. 896, 903-06 (1993) ("On the issue of business
necessity, the Act merely returns the courts to where they were
just prior to Wards Cove, and appears to provide little guidance
__________
as to what direction they should take from there. The courts are
saddled, instead, with a rich but uncertain legislative history
arising from two years of complicated political maneuvering.").
24
a toothless tiger. A policy that is neutral on its face, but
that discriminates in fact, cannot elude the proscriptions of the
law merely because its sponsor prefers to retain it.15 See
___
Wards Cove, 490 U.S. at 659 (warning that courts must not "permit
__________
discrimination to be practiced through the use of spurious,
seemingly neutral employment practices").
The finish line looms. Because the Union neither
rebutted the EEOC's prima facie case nor articulated a
legitimate, nondiscriminatory justification for its membership
policy, we uphold the grant of partial summary judgment in the
EEOC's favor.
III. RELIEF
III. RELIEF
The remedial rulings rest on a less even keel.
Although the EEOC restricted its Rule 56 motion to the issue of
liability, the district court, shortly after granting the motion,
entered a judgment that awarded several items of permanent
equitable relief. See supra p. 5. The court acted entirely on
___ _____
its own initiative, without convening a hearing and without
affording the litigants any warning that it intended to resolve
the matter of remediation.
____________________
15The Union attempts to profit from the "family tradition"
gambit in another way as well. Though offering no empirical
rebuttal to the EEOC's prima facie case, the Union posits that no
African-Americans or Hispanics joined between 1980 and 1986
because of "the stark economic reality" of membership dues and
the lack of any guaranteed employment. It then seeks to explain
the 30 new recruits on the basis of family tradition. Although
this twist, if believed, might conceivably furnish an alternative
theory of causation, it is unsupported by any cogent evidence,
and, in all events, did not foreclose the district court from
making a contrary, inference-based determination of causation.
25
Both parties appeal from this aspect of the judgment.
The Union attacks on two fronts, assailing the district court for
proceeding too fast and for venturing too far. In the first
place, the Union asserts that the court flouted due process by
vaulting to the remedial stage without first putting the
litigants on notice of its intentions and giving them an
opportunity to be heard. In the second place, the Union
denounces certain components of the injunction, especially the
court's command that the membership rolls be reopened. The EEOC,
for its part, castigates the court for not proceeding far enough;
it says that backpay and mandated preferences to encourage
minority membership should have been included in the compendium
of relief.
Judicial dispensation of equitable remedies usually is
reviewed for abuse of discretion. See Rosario-Torres v.
___ ______________
Hernandez-Colon, 889 F.2d 314, 323 (1st Cir. 1989) (en banc).
_______________
Here, however, we need not consider the propriety of the remedies
bestowed or withheld, for the district court's failure to provide
notice taints its remedial rulings and necessitates vacating
virtually the entire relief-related portion of the judgment.16
The question of whether notice is required is a
question of law and is, therefore, subject to plenary review.
____________________
16Of course, the district court plainly possessed the
authority, without further proceedings, to order the Union to
cease using the MSP. This portion of the decree may stand
because it flows ineluctably from the court's finding of
disparate impact discrimination. Hence, our comments and our
instructions for vacatur are confined to the remainder of the
equitable relief ordered sua sponte by the trial court.
___ ______
26
See McCarthy, 22 F.3d at 354. We are in full agreement with the
___ ________
Second Circuit that "[n]o principle is more fundamental to our
system of judicial administration than that a person is entitled
to notice before adverse judicial action is taken against him."
Lugo v. Keane, 15 F.3d 29, 30 (2d Cir. 1994). Examples abound.
____ _____
We, ourselves, have had occasion to address issues involving
notice and its faithful companion, the opportunity to be heard,
in a variety of contexts. See, e.g., Foster-Miller, Inc. v.
___ ____ ____________________
Babcock & Wilcox Can., ___ F.3d ___, ___ (1st Cir. 1995) [No. 94-
_____________________
1498, slip op. at 21] (cautioning that, preparatory to deciding
important issues, judges should strive to see that parties are
given adequate notice and meaningful opportunities to be heard).
We offer two illustrations.
First, while we have acknowledged that district courts
possess the raw power to enter summary judgment sua sponte, we
___ ______
have repeatedly cautioned that this power must be "tempered by
the need to ensure that the parties are given adequate notice to
bring forward their evidence." Stella v. Town of Tewksbury, 4
______ __________________
F.3d 53, 55 (1st Cir. 1993); accord Jardines Bacata, Ltd. v.
______ ______________________
Diaz-Marquez, 878 F.2d 1555, 1560-61 (1st Cir. 1989); Bonilla v.
____________ _______
Nazario, 843 F.2d 34, 37 (1st Cir. 1988). A second, very recent,
_______
example of our adherence to this principle can be found in Banks
_____
v. Shalala, ___ F.3d ___ (1st Cir. 1994) [No. 94-1653]. There,
_______
we vacated the district court's denial of Social Security
disability benefits, not on the merits but because "the district
court issued its affirmance [of the Secretary's decision] before
27
affording [the adversely affected party] an opportunity to submit
argument explaining his objections to the Secretary's
determination . . . ." Id. at ___ [slip op. at 2]. In taking
___
that tack, we relied upon, and expressed our agreement with, the
Fifth Circuit's statement "that `district courts reviewing
disability determinations should not conclude their review
without an appropriate opportunity for the presentation of the
parties' contentions.'" Id. at ___ [slip op. at 6] (quoting
___
Flores v. Heckler, 755 F.2d 401, 403 (5th Cir. 1985)).
______ _______
The same principles also apply to and inform the
dispensing of most types of equitable remedies.17 Thus, absent
exigent or other extraordinary circumstances and there are none
reflected in this record a court generally may not award
equitable relief without first providing all affected parties
actual notice that it is contemplating remedial action and
affording them a meaningful chance to be heard. Nor does the
fact that the judge enjoys broad discretion in shaping solutions
relieve him from the obligation to afford procedural due process
to all parties in interest. The rights of due process are
constitutional and inviolable; hence, once a district court
chooses to exercise its discretion, its conduct must comport with
____________________
17We exempt from this discussion provisional remedies, such
as temporary restraining orders and ex parte attachments, which
__ _____
may from time to time be justified to preserve the status quo in
a given case despite the absence of either notice or a
predeprivation hearing. See, e.g., Fed. R. Civ. P. 65(b);
___ ____
Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175,
_______ _____________________________________
180 (1968) (recognizing that "[t]here is a place in our
jurisprudence for ex parte issuance, without notice, of temporary
__ _____
restraining orders of short duration").
28
the promise of the Constitution. Discretion ensures the judge's
right to choose rather freely among plausible remedial options;
it does not insulate him from listening to or, at least,
reading the parties' importunings.
We hold, therefore, that under ordinary circumstances
litigants must be accorded fair opportunities to submit proposals
for the judge's consideration and to offer arguments in support
of their positions before an award of equitable relief is made.
We caution, however, that due process does not necessarily
require any particular kind of hearing. See, e.g., In re
___ ____ ______
Nineteen Appeals, 982 F.2d 603, 611 (1st Cir. 1992) (noting that
_________________
"in many, if not most, instances, due process does not require a
full-scale trial, or even a hearing strictly conforming to the
rules of evidence"); Domegan v. Fair, 859 F.2d 1059, 1065 (1st
_______ ____
Cir. 1988) (discussing district courts' discretion to bypass oral
argument); see generally Morrissey v. Brewer, 408 U.S. 471, 481
___ _________ _________ ______
(1972) (explaining that due process is a malleable concept,
calling "for such procedural protections as the particular
situation demands"). Accordingly, many matters can lawfully
and satisfactorily be heard on the papers. See Aoude v. Mobil
___ _____ _____
Oil Corp., 862 F.2d 890, 894 (1st Cir. 1988); Cia. Petrolera
__________ ______________
Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 411 (1st Cir.
____________ ____________________
1985).
In the last analysis, whether any particular proceeding
within any specific case warrants live arguments before the
judge, as opposed to some other approach, is simply a function of
29
the characteristics of the situation. "The test should be
substantive: given the nature and circumstances of the case, did
the parties have a fair opportunity to present relevant facts and
arguments to the court, and to counter the opponent's
submissions?" Aoude, 862 F.2d at 894. In connection with this
_____
inquiry, one must bear in mind that litigants have no absolute
right to present their arguments in whatever way they may prefer,
or to expostulate for as long as they may choose. The inmates do
not run the asylum. Thus, the trial judge has broad authority to
place reasonable limits on the parties' presentation of their
positions. See, e.g., United States v. Gleeson, 411 F.2d 1091,
___ ____ _____________ _______
1096 (10th Cir. 1969).
This case, however, is about complete deprivation
rather than the reasonableness of limits. The Union received no
notice that the court had begun to mull proposed remedial
rulings. And all available indications were to the contrary:
the EEOC's motion for partial summary judgment, by its own terms,
was "confined to questions of liability only and [did] not
address relief"; the district court had not hinted at the hearing
on the cross-motions for summary judgment that it intended to
exceed the scope of the EEOC's motion;18 and the district
court's March 24 rescript sounded no warning bells. The Union,
then, had no reason to marshal its arguments on relief-related
____________________
18Indeed, the trial court stated then that the case was "not
yet at the remedy stage." In its rescript of March 24, 1994, the
court noted explicitly that "[t]he EEOC is seeking a
determination as to liability. It has not as yet suggested an
appropriate remedy." Costello, 850 F. Supp. at 75 n.2.
________
30
issues, and no opportunity to make its case to the decisionmaker.
Viewed in that light, the remedial rulings cannot endure.19
IV. CONCLUSION
IV. CONCLUSION
Our voyage is nearly complete. Having navigated the
waters of Title VII, we now steer this case into the port of
judgment and unload the cargo we have hauled. We affirm the
district court's grant of partial summary judgment in favor of
the EEOC on its claim of disparate impact discrimination. The
Union adopted a membership policy which, by its very nature,
created a strong likelihood that no non-white face would ever
appear in the Union's ranks. Based on the evidence we have
recounted, the EEOC established a prima facie case of
discrimination. Because the Union failed either to rebut that
case or to offer a legitimate, nondiscriminatory justification
for maintaining the membership policy, the district court did not
err in finding for the EEOC in respect to liability.
The court's remedial rulings float in more turbulent
seas. We agree with the Union that the district court's gadarene
rush to judgment deprived it of any meaningful opportunity to
____________________
19In a vain attempt to salvage the court's remedial rulings,
the EEOC speculates that the Union was on constructive notice
because the EEOC had requested injunctive relief in its
complaint. Relatedly, it theorizes that a hearing was
unnecessary because, no matter what the Union's input, injunctive
relief was warranted. These arguments are jejune, and we reject
them out of hand. The EEOC's insistence that its transmittal of
March 24 placed the Union on notice that the court was pondering
remediation is equally meritless. There is nothing about the
EEOC's discussion of possible anodynes in the context of a
______________________
proposed consent decree that would have alerted the most vigilant
_______________________
litigant to array its relief-related arguments, or risk
preclusion.
31
propose appropriate remedies or otherwise to participate in the
formulation of a decree. Hence, we vacate the remedial rulings
(save only for the exception previously mentioned, see supra note
___ _____
16) and remand for further proceedings.20 In so doing, we take
no view as to what forms of relief, apart from barring continued
use of the MSP itself, would, or would not, appear proper; and we
specifically decline to address the parties' substantive concerns
as to the remedies granted and withheld.
Affirmed in part, vacated in part, and remanded. Costs
Affirmed in part, vacated in part, and remanded. Costs
_______________________________________________ _____
in favor of plaintiff.
in favor of plaintiff.
_____________________
____________________
20Notwithstanding the foregoing, the unappealed judgment in
the Union's favor on the record-keeping count, see supra note 4
___ _____
and accompanying text, endures.
32
