Bowe v. Colgate, Palmolive Company

• Decision Date: 28 November 1973
• Docket Number: No. 72-1343.,72-1343.
• Citation: 489 F.2d 896
• Parties: Thelma BOWE et al., Plaintiffs, v. COLGATE, PALMOLIVE COMPANY et al., Defendants. Appeal of Georgianna SELLERS et al., Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

489 F.2d 896 (1973)

Thelma BOWE et al., Plaintiffs, v. COLGATE, PALMOLIVE COMPANY et al., Defendants.

Appeal of Georgianna SELLERS et al., Appellants.

No. 72-1343.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 1973.

Decided November 28, 1973.

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Sylvia S. Ellison, Caruthers G. Berger, Washington, D.C., for appellant.

Thomas C. Galligan, New York City, Jerry Anker, Washington, D. C., Herbert L. Segal, Hubert T. Willis, Louisville, Ky., John O. Moss, Indianapolis, Ind., Marion W. Garnett, Chicago, Ill., for appellee.

Before FAIRCHILD, STEVENS and SPRECHER, Circuit Judges.

FAIRCHILD, Circuit Judge.

This case involves job restrictions and a seniority system at the Jeffersonville plant of Colgate-Palmolive Company which produced results discriminatory against female employees. Many of the relevant facts appear in the 1967 decision of the district court, Bowe v. Colgate-Palmolive Company, 272 F.Supp. 332 (S.D.Ind., 1967). The district court found that discrimination had occurred and awarded damages to twelve plaintiffs whose claims it considered properly before it.

On appeal, this court expanded the class entitled to pecuniary recovery, and decided, contrary to the district court, that Colgate's exclusion of women, but not men, from jobs requiring the lifting of more than 35 pounds was unlawful. The cause was remanded with directions to grant such injunctive relief as may be required to eliminate the discriminatory system and any residual effect. Those discriminatorily laid off were to be compensated and the district court was directed to ascertain the feasibility of computing the damage to those who, while not laid off, were denied the opportunity to bid on higher paying jobs. Bowe v. Colgate-Palmolive Company, 416 F.2d 711 (7th Cir., 1969).

On remand, the district court, on February 25, 1970, issued a preliminary injunction which, among other things, opened all jobs without discrimination on the basis of sex. The ultimate judgment appears in an order dated May 7, 1971, as modified February 21, 1972. It required adjustments in seniority of 17 female employees, required certain options to be given to all female employees, and awarded recovery of money to 54. Plaintiff Georgianna Sellers and others have appealed, claiming that the seniority adjustments and job-assignment options were inadequate to eliminate the residual effects of the past discriminatory systems, and that the back-pay awards did not reasonably represent the difference between the amount earned by the women and the amount they would have earned had no discrimination been practiced.

Some members of the class appear to have been satisfied with the relief granted, although Sellers and others were not. Originally all named plaintiffs were represented by a single attorney, and sought relief for themselves and all the approximately 160 females employed at the plant. On the first appeal the named plaintiffs were divided into two groups, the Bowe group and the Sellers group, each employing its own counsel, but asserting the same legal positions. On remand, the two groups took somewhat different stands as to the appropriate remedies, and the Bowe group did not appeal from the new judgment. Their brief as appellees defended the injunctive relief granted, but not the back pay relief. It has not been expressly determined which members of the class, other than the named plaintiffs, are to be represented by either group. Although there are doubtless differences in facts relevant to individual cases which produced the division among named plaintiffs, referred to, they are not clear cut, and sub-classes were never formally defined. No one has argued that if relief be gained by this appeal, the named plaintiff-appellees in the Bowe group, or others of the class who may have supported their position, should be excluded from its benefits. Under all the circumstances it seems fair not to exclude any of them.

As will appear, we conclude that the portion of the judgment granting injunctional relief should be affirmed without modification, but that the back-pay relief granted does not adequately compensate all members of the class for past discrimination.

The seniority system, weekly job assignment system, and the restrictions making many jobs unavailable to women are described in the 1967 district court decision, 272 F.Supp. at 340 to 347. Unnecessary repetition will be avoided here.

Before the 1966 changes in the collective bargaining agreement, the so-called general labor jobs were reserved for men; finishing labor jobs for women. Only four of the seventeen departments contained jobs reserved for women. The majority of women were employed in TAF, the Toilet Articles Finishing Department. The highest rate for a finishing labor job was the same as the lowest rate for a general labor job. Thus women were confined to the work where the pay was, for the most part, lower than that for men.

During the same period, separate seniority rosters were maintained for men and women. It could happen that an employee of either sex might be forced out of the department where seniority was being gained, or be laid off, when employees of the other sex, with less seniority were not, but for various reasons this occurred more often to women than to men.

In April, 1966, the collective bargaining agreement was changed. The separate seniority rosters for men and women were combined and the designations of jobs as male or female were eliminated. Colgate, however, imposed the 35 pound lifting limitation, so that in practical effect, although all jobs were open to men, the better paying jobs which had previously been reserved for men remained, for the most part, closed to women.

After the first appeal, all jobs were opened to women, beginning in March, 1970. Because, however, the seniority rules would require that a new entrant in any department would start last on the list in the weekly competition for jobs, women employees largely remained in the departments where they had previously worked.

Seniority Remedies Ordered by the District Court.

The judgment contained, for the purpose of eliminating remaining disadvantages as a result of past discrimination, the following components:

1. Adjustments in seniority. A layoff in 1963 lasted more than one year and caused a number of women employees to lose seniority. The court ordered previously existing departmental, and in some cases, date-of-employment seniority restored to fourteen. The 1963 layoff was the last one before the effective date of Title VII which caused a loss of seniority as a result of discrimination. The court deemed it impractical to determine whether any earlier layoffs were discriminatory or to ascertain which employees would currently have more or less seniority if there had been no discrimination. Three additional women, who had lost seniority as a result of the 1963 layoff, had been laid off again in 1965, and had not been recalled, were re-entered at the bottom of the recall list and ordered to be given five years date-of-employment seniority if eventually recalled.

2. Option to transfer to new Home department. Each female employee was permitted to enter a new department of her choice where she would be given departmental seniority equal to her seniority in the department she was leaving. Colgate was required to set up an "exposure program" whereby women would be given an opportunity to visit and observe operations of the various departments, examine job descriptions, and be formally instructed in the nature of the work. Employees were to be paid for time spent in the program including overtime rates for overtime. The transfer option had to be exercised within sixty days after completion of the program. Within sixty days after transfer, the employee could return to her former department and re-assert her position there.

3. Option to select secondary department. Each female employee was permitted, within sixty days after the completion of the program, to select a secondary department, in which she would, for one year, have department seniority of July 2, 1965, the effective date of Title VII, or her date-of-employment seniority, if less. Accordingly, if she were forced out of a department within one year, she could bid on jobs in her secondary department with 1965 seniority. This device was intended to establish parity with those men who had seniority in a secondary department as a result of involuntary transfers within one year.

Contentions of the Appellants with Respect to Seniority.

Appellants contend that the adjustments and options granted were insufficient to eliminate the residual effects of past discrimination. They argue that rights under Title VII can not be compromised or bargained away, and that the district court had merely approved a "package deal," agreed to by some members of the class. They contend that as a matter of law full relief to all members of the class demands the substitution of a seniority system based solely on date-of-employment seniority.

Whether or not compromise settlements are an acceptable basis for granting relief under Title VII is not at issue in the present case. Although conferences were held and the record shows much talk among court and counsel concerning possible settlement and give and take compromise, it is clear that agreement was not attained and the court carried out the process of decision.

It happens that much of the factual material before the court was not developed in evidentiary hearing, but was, as the judge noted, "presented through the uncontradicted statements of counsel in on-the-record conferences with the Court." All parties signed a stipulation "that an evidentiary hearing is unnecessary to complete the record in this case." Except for such qualification as may result from the agreed manner of procedure just referred to, the judgment of the district court is to be tested for factual support,...