Crum et al. v. Alabama

Decision Date29 December 1999
Docket NumberNo. 98-6600,98-6600
Citation198 F.3d 1305
Parties(11th Cir. 1999) IN RE: EMPLOYMENT DISCRIMINATION LITIGATION AGAINST THE STATE OF ALABAMA, et al., EUGENE CRUM, JR., individually and on behalf of a class of similarly situated individuals, ROBERT L. SMITH, et al., Plaintiffs-Appellees, v. STATE OF ALABAMA, HALYCON VANCE BALLARD, individually and in her official capacity as Director, Alabama Department of Personnel, et al., Defendants-Appellants, UNITED STATES OF AMERICA, Intervenor
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted] Appeal from the United States District Court for the Middle District of Alabama. D. C. Docket No. 94-00356-CV-T-N.

Before ANDERSON, Chief Judge, TJOFLAT, Circuit Judge, and FAY, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

The question presented in this appeal is whether Congress validly abrogated the states' Eleventh Amendment sovereign immunity from claims arising under the disparate impact provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq. We answer in the affirmative.

I.

On March 24, 1994, the United States District Court for the Middle District of Alabama consolidated several race discrimination cases1 brought by African-Americans against the State of Alabama, and several of its boards, departments, and agencies;2 they also sued the Governor of Alabama and other state officials in both their individual and official capacities.3 Some of the cases were class actions in which plaintiffs sued on behalf of themselves and all other black persons who are employed, have been employed, or who may in the future be employed by the defendants.4 Plaintiffs claimed, inter alia, discrimination against African-Americans

in layoffs, recalls from layoffs, terminations, discipline, hiring, rehiring, evaluations, compensation, transfers, job duty assignments, recruitment, screening, selection procedures, denial of promotions, demotions, rollbacks, sick leave, subjective decision-making practices, and other terms and conditions of employment which have resulted in disparate impact and treatment of the plaintiff-intervenors and the plaintiff class.

They sought declaratory, injunctive, and compensatory relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq., and 42 U.S.C. 1981 and 1983 (1994).

On October 7, 1997, the State of Alabama and all parties named as defendants moved the court, under Federal Rule of Civil Procedure 12(b)(1),5 to dismiss any and all claims arising under Title VII that were

predicated upon a disparate impact theory of discrimination[,] on the separate grounds that (a) the assertion of such claims against the State is barred by the doctrine of sovereign immunity embodied in the Eleventh Amendment to the United States Constitution and (b) Congress did not express an unequivocal intent to waive immunity from such claims.

The district court denied defendants' motion without prejudice, citing its recent decision in Reynolds v. Alabama Department of Transportation, 4 F. Supp. 2d 1092 (M.D. Ala. 1998).6 Defendants moved the court to issue a final, appealable order under Federal Rule 54(b), and the court granted defendants' motion, vacating its earlier order, and denying defendants' motion for dismissal on the merits. Again citing its decision in Reynolds, the district court held that the Eleventh Amendment did not bar private suits against states under Title VII, which are predicated on a disparate impact theory of liability. Defendants timely appealed.7

II.

A district court's order denying or granting a motion to dismiss a complaint against a state based on the Eleventh Amendment's grant of sovereign immunity is reviewed by this court de novo. See Seminole Tribe v. Florida, 11 F.3d 1016, 1021 (11th Cir. 1994), aff'd on other grounds, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996).

III.

In resolving the issues presented on this appeal, it is helpful to look first at the anatomy of a Title VII discrimination case that employs disparate impact methodology.8 The genesis of the disparate impact theory lies in the Supreme Court's decision in Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). The question presented in Griggs was

whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites.

Id. at 425-26, 91 S. Ct. at 851.9 Prior to the date of Title VII's enactment, the defendant company in Griggs had openly discriminated on the basis of race in the hiring and assignment of its employees. When the company abandoned its policy of de jure discrimination, it made the completion of high school a prerequisite for employees who wanted to transfer from the company's labor department (the only department previously employing African-Americans) to any other department in the company (all of which formerly hired only whites). The Court found that the high school requirement, as well as other standardized tests used by the defendant, had a disparate impact on African-Americans because "[i]n North Carolina . . ., while 34% of white males had completed high school, only 12 % of Negro males had done so." Id. at 430 n.6, 91 S. Ct. at 853 n.6. Similarly, "with respect to standardized tests, the EEOC in one case found that use of a battery of tests, including the Wonderlic and Bennett tests used by the Company in the instant case, resulted in 58% of whites passing the tests, as compared with only 6% of the blacks." Id. Despite this showing of disparate impact, the company continued to utilize the tests even though "neither the high school completion requirement nor the general intelligence test [was] shown to bear a demonstrable relationship to successful performance of the jobs for which it was used." Id. at 431, 91 S. Ct. at 853. Given these facts, the Supreme Court reversed the Fourth Circuit's holding that "a subjective test of the employer's intent should govern" Title VII analysis, id. at 428, 91 S. Ct. at 852, and concluded that "[u]nder the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to `freeze' the status quo of prior discriminatory employment practices," id. at 430, 91 S. Ct. at 853. From Griggs, therefore, emerges the now familiar formulation of the core of a disparate impact analysis:

The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.

Id. at 431, 91 S. Ct. at 853.

Since Griggs, Congress has codified the appropriate burdens of proof in a disparate impact case in 42 U.S.C. 2000e-2(k) (1994), and a settled jurisprudence has arisen to implement the methodology. In the first stage of a disparate impact case, the "complaining party [must] demonstrate[] that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin." 42 U.S.C. 2000e-2(k)(1)(A)(i).10 To "demonstrate" means to "meet[] the burdens of production and persuasion." 42 U.S.C. 2000e(m) (1994). In other words, in order to surmount the first hurdle in a disparate impact race discrimination case, the plaintiff must make out a prima facie case "that [a] facially neutral employment practice ha[s] a significantly discriminatory impact." Connecticut v. Teal, 457 U.S. 440, 446, 102 S. Ct. 2525, 2530, 73 L. Ed. 2d 130 (1982). Demonstrating disparate impact in the first instance can be tricky business; it often involves ominous-sounding methods of statistical inquiry like "multiple regression analysis," see Eastland v. TVA, 704 F.2d 613, 621 (11th Cir. 1983), "standard deviation," see Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 995 n.3, 108 S. Ct. 2777, 2789 n.3, 101 L. Ed. 2d 827 (1988) (plurality), and the EEOC's "four-fifths rule," see id. But what the plaintiff must attempt to do is show that there is a legally significant disparity between (a) the racial composition, caused by the challenged employment practice, of the pool of those enjoying a job or job benefit; and (b) the racial composition of the qualified applicant pool.11 See Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 650-51, 109 S. Ct. 2115, 2121, 104 L. Ed. 2d 733 (1989); Edwards v. Wallace Community College, 49 F.3d 1517, 1520 (11th Cir. 1995).

The focus during this first stage of the inquiry, and indeed during the whole of the disparate impact analysis, is on defining the qualified applicant pool. In order to determine whether an employment practice causes a "disparate" impact, the court must gain some handle on the baseline racial composition that the impact is "disparate" from; that is, what should the racial composition of the job force look like absent the offending employment practice. "[S]tatistics based on an applicant pool containing individuals lacking minimal qualifications for the job would be of little probative value." Watson, 487 U. S. at 997, 108 S. Ct. at 2790 (plurality). The Supreme Court has described as "nonsensical" comparisons to a baseline pool that is not adequately tailored to reflect only those potential applicants who are actually qualified for the job or job benefit at issue. Wards Cove, 490 U.S. at 651, 109 S. Ct. at 2122; see also New York...

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