E.E.O.C. v. Steamship Clerks Union, Local 1066

• Decision Date: 10 February 1995
• Docket Number: 94-1656,Nos. 94-1621,s. 94-1621
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 629, 63 USLW 2671 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellee, v. STEAMSHIP CLERKS UNION, LOCAL 1066, Defendant, Appellant. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellant, v. STEAMSHIP CLERKS UNION, LOCAL 1066, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 594

48 F.3d 594

67 Fair Empl.Prac.Cas. (BNA) 629, 63 USLW 2671

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellee, v. STEAMSHIP CLERKS UNION, LOCAL 1066, Defendant, Appellant.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Appellant, v. STEAMSHIP CLERKS UNION, LOCAL 1066, Defendant, Appellee.

Nos. 94-1621, 94-1656.

United States Court of Appeals First Circuit.

Heard Feb. 10, 1995.

Decided Feb. 28, 1995.

Christopher N. Souris, with whom Thomas F. Birmingham and Feinberg, Charnas & Birmingham, Boston, MA, were on brief, for Local 1066.

Paul D. Ramshaw, Attorney, with whom James R. Neely, Jr., Deputy Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Vincent J. Blackwood, Asst. Gen. Counsel, and Lamont N. White, Washington, DC, Attorney, were on brief, for E.E.O.C.

Before SELYA, BOUDIN and STAHL, Circuit Judges.

SELYA, Circuit Judge.

Labor unions have historically 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

The relevant facts are not disputed. The Union is "a labor organization engaged in an industry affecting commerce," 42 U.S.C. Sec. 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 the Union of discrimination in violation of 42 U.S.C. Sec. 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 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 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

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. Secs. 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, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (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, 91 S.Ct. at 854. 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.

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 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, 91 S.Ct. at 853. 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, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); accord Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 2785, 101 L.Ed.2d 827 (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

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, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 69 (1st Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (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, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (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, 109 S.Ct. at 2121-24. Third, the plaintiff must demonstrate a causal relationship between the identified practice and the disparate impact. See id. at 656-57, 109 S.Ct. at 2124-25; Watson, 487 U.S. at 994, 108 S.Ct. at 2788.

When the plaintiff rests, declaring herself satisfied that she has established a prima facie case of disparate impact discrimination, the ball bounces...