E.E.O.C. v. Contour Chair Lounge Co., Inc.

• Decision Date: 15 May 1979
• Docket Number: Nos. 78-1843,78-1869,s. 78-1843
• Citation: 596 F.2d 809
• Parties: 19 Fair Empl.Prac.Cas. 818, 19 Empl. Prac. Dec. P 9189 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee, v. CONTOUR CHAIR LOUNGE COMPANY, INC., Appellant. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. CONTOUR CHAIR LOUNGE COMPANY, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 809

596 F.2d 809

19 Fair Empl.Prac.Cas. 818, 19 Empl. Prac.

Dec. P 9189

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellee, v. CONTOUR CHAIR LOUNGE COMPANY, INC., Appellant.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. CONTOUR CHAIR LOUNGE COMPANY, INC., Appellee.

Nos. 78-1843, 78-1869.

United States Court of Appeals,

Eighth Circuit.

Submitted April 19, 1979.

Decided April 24, 1979.

Rehearing and Rehearing En Banc Denied May 15, 1979.

William Sitzer of Dubail, Judge, Kilker & Maier, St. Louis, Mo., for appellant Contour Chair Lounge Co., Inc.

Leopoldo Fraga, Jr. of Equal Employment Opportunity Commission, Appellate Div., Washington, D. C., for appellee EEOC; Issie L. Jenkins, Acting Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, Washington, D. C., on brief.

Before ROSS, STEPHENSON and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

This case involves alleged racial discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e Et seq. The case comes to us from the United States District Court for the Eastern District of Missouri, The Honorable John F. Nangle, District Judge.

The plaintiff, Equal Employment Opportunity Commission, an agency of the United States, sought specific performance of an over-all conciliation agreement entered into between it and the defendant, Contour Chair Lounge Company, Inc., and also sought specific relief for an individual black man, George Martin. The defendant denied that the Commission was entitled to any of the relief sought by it and filed a counterclaim seeking an adjudication that the conciliation agreement was unenforceable as involving "reverse discrimination." Cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and Weber v. Kaiser Aluminum & Chemical Corp., 563 F.2d 216 (5th Cir. 1977), ¹ Cert. granted, --- U.S. ----, 99 S.Ct. 720, 58 L.Ed.2d 704 (1978).

The district court held that the Commission was in general entitled to specific performance of the agreement, but not to any relief with respect to Martin. EEOC v. Contour Chair Lounge Co., 457 F.Supp. 393 (E.D.Mo.1978). The judgment provided, Inter alia, that the life of the agreement which had expired by then be extended to September 28, 1980, a date two years from the date of the decree. Neither side was satisfied with the action taken by the district court, and both sides have appealed. Most of the facts of the case are substantially undisputed.

The Commission is the federal agency charged with enforcement of the antidiscrimination provisions of the Act, and it often proceeds on the basis of complaints filed by individuals who claim to have been the victims of prohibited discrimination on the basis of race, religion, sex or national origin. 42 U.S.C. § 2000e-2(a). The defendant is an employer covered by the Act and is engaged in the manufacture of upholstered furniture, including chairs, at its place of business in the Eastern District of Missouri. During the period with which we are concerned the defendant employed individuals in various crafts and departments, and some of the craft employees were represented for collective bargaining purposes by the Upholsterers Union, Local 25. ²

In 1972 Lonnie Anderson, a black male, was employed by the defendant. In December of that year and thereafter Anderson filed discrimination complaints against the defendant, and those complaints were investigated by the Commission. While those charges were pending, the defendant discharged Anderson. On January 24, 1974 the Commission made a formal determination that there was reasonable cause to believe that Anderson had been the victim of racial discrimination. The defendant was duly notified of that determination by a formal "determination letter," a copy of which is in the record before us.

Thereafter, the defendant and the Commission entered into a formal conciliation agreement that expired by its own terms in August, 1977. That agreement was designed not only to benefit Anderson as an individual but also to benefit blacks as a class, the members of which had been or might be the victims of discrimination at the hands of the defendant. It seems that the agreement was complied with as it affected Anderson, and this case presents no issue as to him personally. The basic controversy between the parties is about an employment "quota provision" appearing in the contract.

The agreement provided that during its life the defendant would "use its best efforts to increase its Black utilization rate by hiring one Black for each of its new White employees for the period of this agreement." The agreement also required the defendant to use its best efforts to increase black employment in job classifications in which blacks had not been assigned or in which classifications they were statistically underrepresented, and specifically to hire "a black person" in the sewing and office departments.

Finally, the defendant was required to make semiannual reports to the Commission setting out information as to hirings and discharges and indicating names, races, sex, job classifications and rates of pay of persons hired or discharged.

In entering into the agreement the parties stipulated that in signing the contract the defendant did not admit that it had been or was guilty of prohibited discrimination.

During most of the life of the agreement the defendant consistently failed and refused to comply fully with the reporting requirements of the agreement. After the suit was filed in July, 1977, and shortly before the expiration of the agreement the defendant did file a report that indicated that during the life of the agreement the defendant had employed eleven white persons and only one black.

An individual alleged discriminatee, Martin, has worked as an upholsterer in the St. Louis area since 1971 and has been a member of the Upholsterers Union in St. Louis since 1975. In May, 1977 he applied to the defendant for employment as an upholsterer and was denied employment, being advised in that connection that there were no openings. Presumably, he was qualified for the employment that he sought. "Shortly thereafter," to use the district court's term, the defendant hired two white persons, one as an upholsterer, the other as a "cutter." ³

The facts, substantially as above stated, were found by the district court to exist, and that court granted and denied relief to the parties to the extent indicated. We observe, however, that the district judge did not make any specific finding that the defendant had been guilty of discrimination during or prior to the execution of the conciliation agreement. Nor did the trial judge make any finding as to whether the refusal of the defendant to employ Martin was racially discriminatory. ⁴

I.

The enforcement provisions of Title VII are to be found in the various subdivisions of § 706 of the Act, which is codified as 42 U.S.C. § 2000e-5. Initial enforcement responsibility is on the Commission and ultimate responsibility is on the federal courts within the framework of litigation initiated either by one or more aggrieved employees or by the Commission.

Basically, the statutory scheme involves investigations by the Commission, efforts at conciliation in instances in which the Commission finds that reasonable cause exists for the belief that employment discrimination has existed, and finally by litigation in the federal courts should conciliation fail.

The agency has certain powers, including investigatory powers. And ordinarily an individual discriminatee cannot file a suit against an employer until after an agency finding that there is reasonable cause to believe that the employee has been a victim of discrimination. However, the agency has not been given the powers that Congress has bestowed on older regulatory agencies such as the National Labor Relations Board for example. The Commission cannot make binding adjudications or issue cease and desist orders, and if its underlying findings are challenged in later litigation they are not entitled to the benefit of the "substantial evidence" or "clearly erroneous" rule.

If with respect to a given employee litigation in the district court develops, and if the employer loses the case, the court has broad powers to fashion appropriate relief both to prevent continued discrimination in the future and also to remedy the results of discrimination that has occurred in the past. In that connection § 706(g) provides that in proper cases a district court may require "affirmative action" to remedy past discrimination, and that the affirmative action may require hiring or reinstatement of individuals with or without back pay or "any other equitable relief as the court deems appropriate."

A private suit until Title VII may be maintained as a class action under Fed.R.Civ.P. 23, and where class action is approved by the district court, members of the class may come into the case or benefit from the relief granted to members of the class even though they have not personally filed discrimination charges with the Commission. It makes no difference that the individual plaintiff who started the action loses interest in the case or turns out not to be entitled to any relief. Franks v. Bowman Transp. Co., 424 U.S. 747, 770-79, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Albermarle Paper Co. v. Moody, 422 U.S. 405, 414, n. 8, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir.), Cert. denied, 414 U.S. 854, 94 S.Ct. 153, 38 L.Ed.2d 103 (1973); Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (8th Cir. 1970).

In framing its decree the district court may take into consideration the terms of a conciliation agreement that has been worked out between an employer and the Commission. But the court is not bound by those terms and they are not binding on individual discriminatees who had not...