697 F.2d 1172 (4th Cir. 1982), 81-1229, Wright v. Olin Corp.

Docket Nº:81-1229, 81-1230.
Citation:697 F.2d 1172
Party Name:Theresa Williams WRIGHT, individually and on behalf of all others similarly situated; William Virgil Howell, individually and on behalf of all others similarly situated, Appellants, v. The OLIN CORPORATION, and United Paperworkers International Union, Local No. 1971, AFL-CIO; United Paperworkers International Union, AFL-CIO, Appellees, American Civ
Case Date:December 23, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1172

697 F.2d 1172 (4th Cir. 1982)

Theresa Williams WRIGHT, individually and on behalf of all

others similarly situated; William Virgil Howell,

individually and on behalf of all others

similarly situated, Appellants,

v.

The OLIN CORPORATION, and United Paperworkers International

Union, Local No. 1971, AFL-CIO; United

Paperworkers International Union,

AFL-CIO, Appellees,

American Civil Liberties Union Women's Rights Project;

American Federation of State County and Municipal Employees;

Coal Employment Project; Coalition for the Medical Rights

of Women; Coalition for the Reproductive Rights of Workers;

Committee for Abortion Rights and against Sterilization

Abuse; Employment Law Center; Equal Rights Advocates;

International Chemical Workers Union; Oil, Chemical &

Atomic Workers International Union; Planned Parenthood

Federation of America; Reproductive Rights National

Network; Jeanne M. Stellman, Ph.D. and Mary Sue Henifin,

M.P.H.; United Automobile Aerospace & Agricultural

Implement Workers of America; United Rubber, Cork, Linoleum

& Plastic Workers of America; Women Employed; Women's

Legal Defense Fund; Equal Employment Advisory Council; The

Chemical Manufacturers Association; Lead Industries

Association, Inc.; and American Cyanamid Company, Amicus Curiae.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant,

v.

The OLIN CORPORATION, a Virginia Corporation; United

Paperworkers International Union, Local No. 1971,

AFL-CIO; United Paperworkers

International Union, AFL-CIO, Appellees,

American Civil Liberties Union Women's Rights Project;

American Federation of State County and Municipal Employees;

Coal Employment Project; Coalition for the Medical Rights

of Women; Coalition for the Reproductive Rights of Workers;

Committee for Abortion Rights and against Sterilization

Abuse; Employment Law Center; Equal Rights Advocates;

International Chemical Workers Union; Oil, Chemical &

Atomic Workers International Union; Planned Parenthood

Federation of America; Reproductive Rights National

Network; Jeanne M. Stellman, Ph.D. and Mary Sue Henifin,

M.P.H.; United Automobile Aerospace & Agricultural

Implement Workers of America; United Rubber, Cork, Linoleum

& Plastic Workers of America; Women Employed; Women's

Legal Defense Fund; Equal Employment Advisory Council; The

Chemical Manufacturers Association; Lead Industries

Association, Inc.; and American Cyanamid Company, Amicus Curiae.

Nos. 81-1229, 81-1230.

United States Court of Appeals, Fourth Circuit

December 23, 1982

Argued March 1, 1982.

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Joel M. Cohn, Washington, D.C. (Deborah A. Reik, Michael J. Connolly, Gen. Counsel, Philip B. Sklover, Acting Associate Gen. Counsel, Vella M. Fink, Asst. Gen. Counsel, Washington, D.C., on brief), for appellants.

Carin Ann Clauss, Washington, D.C. (University of Wisconsin Law School; Joan E. Bertin, American Civil Liberties Union Foundation, New York City, on brief), for amici curiae, American Civil Liberties Union Women's Rights Project, et al.

Thornton H. Brooks, M. Daniel McGinn, Greensboro, N.C. (William P.H. Cary, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, N.C., William B. Dickinson, Labor Counsel, Olin Corp., Stamford, Conn., on brief), for appellee.

Thompson Powers, Washington, D.C. (Ronald S. Cooper, Daniel C. Sauls, Steptoe & Johnson, Edmund B. Frost, Patrick C. Joyce, Washington, D.C., Standish F. Medina, Jr., Debevoise, Plimpton, Lyons & Gates, New York City, Donald C. Droste, Marilyn H. Martin, Wayne, N.J., on brief), for amici curiae The Equal Employment Advisory Council, the Chemical Mfrs. Ass'n, Lead Industries Ass'n, Inc. and American Cyanamid Co.

Before PHILLIPS, MURNAGHAN and SPROUSE, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

These consolidated appeals were taken from judgments entered in favor of defendant

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Olin Corporation (Olin) in two employment discrimination actions consolidated for trial. In No. 81-1230, the Equal Employment Opportunity Commission (EEOC), pursuant to 42 U.S.C. Sec. 2000e-5(f)(1), had charged Olin with race and sex discrimination in its Pisgah Forest, North Carolina, plant in recruitment, hiring, job assignments and classifications, promotion, terminations, re-employment and in its seniority system. In No. 81-1229, Olin employees Theresa Wright and William Howell had raised similar claims in a class action partially certified by the district court. 1

Over Olin's threshold jurisdictional objection, the district court reached the merits but then found for Olin on all the claims in both actions. On Olin's properly preserved jurisdictional objection we first hold that the district court had jurisdiction of all the race discrimination claims as to which challenges are presented on appeal. We next hold that though the district court did not have jurisdiction over all the sex discrimination claims in the EEOC action because they were not proven to be the subject of reasonable cause determinations, it did have jurisdiction over those claims--save for those related to hiring--as part of the properly certified Wright-Howell class action, so that they are properly before us for review on the merits.

On the merits, we affirm the district court's judgment in favor of Olin in all respects save one. On that issue, the district court determined that Olin's "fetal vulnerability" policy which restricts female access to jobs requiring contact with toxic chemicals was justified by sound medical evidence and instituted and maintained with no intent to discriminate on the basis of sex. We vacate that portion of the judgment and remand for further factual development of the fetal vulnerability issue under controlling legal principles that we hold were not properly applied by the district court.

I

In addition to defending its favorable judgment on the merits as to all claims, Olin as appellee brings forward its general objection to the jurisdiction of the court below to entertain most of the claims made in the agency action. We first address that jurisdictional objection.

Because the plaintiffs have not challenged all the merit determinations, we consider the jurisdictional objection only with respect to those that are challenged. These are race discrimination in a) denial of training and entry into craft positions, b) maintaining a seniority system with a disparate impact on blacks, c) refusing to promote to foreman positions, d) extending probationary periods, and e) discharging during probation; and sex discrimination in f) refusing to hire women applicants, g) maintaining sex-segregated departments and jobs, h) denial of training and entry into craft positions, i) maintaining a seniority system with a disparate impact on women, j) refusing to promote to foreman positions, and k) extending probationary periods.

We discuss them separately.

A

The parties to the EEOC action stipulated that more than 50 discrimination charges--including charges of race and sex discrimination in hiring, classification, seniority, and discharges--had been filed with the EEOC against Olin. The EEOC complaint does not stray beyond the jurisdictional limits originally set by this broad array of charges. But these limits are not the only ones to be considered under the jurisdictional requirements of 42 U.S.C. Sec. 2000e-5(b). In addition, for each type of discrimination alleged in the complaint the EEOC must have made a reasonable cause determination and attempted conciliation between the employer and employees. See EEOC v. General Electric Co., 532 F.2d 359,

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366 (4th Cir.1976). These latter two requirements are also essentials in the statutory jurisdictional scheme.

Whether a particular claim has been sufficiently identified in a reasonable cause determination and sufficiently conciliated for jurisdictional purposes may not be readily apparent from the record. Fair notice to the parties is the key consideration where--as here--jurisdiction is disputable. See EEOC v. American National Bank, 652 F.2d 1176 (4th Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). Taking fair notice as the determinant, we find it sufficiently revealed on the record as to some of the claims, but not as to others.

We first conclude that jurisdiction did not exist in the EEOC action as to any of the major sex discrimination issues. The record is virtually devoid of direct evidence that any of these was the subject of a reasonable cause determination. To bridge the evidentiary gap, the EEOC relies on stipulation # 4 between the parties. This stated that "[t]he Commission has complied with the administrative and procedural requirements of Title VII material to this action and with all conditions precedent to bringing this action."

We cannot hold that this vague and conclusory stipulation suffices to establish jurisdiction over all the discrimination claims in the agency action. 2 While jurisdictional "facts" may certainly be stipulated with binding effect, subject matter jurisdiction cannot be conferred by consent, whether by "stipulation" or otherwise. Whether a particular stipulation was intended to do the one or the other may pose a difficult question--as does this one. But to treat this one as effectively establishing the existence of the requisite jurisdictional facts--i.e., that a reasonable cause determination was made as to all the agency action claims--would require that we make assumptions not compelled by its language and indeed now challenged by one of the parties to the...

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