LeBeau v. Libbey-Owens-Ford Co.

• Decision Date: 07 January 1987
• Docket Number: No. 85-1242,LIBBEY-OWENS-FORD,85-1242
• Citation: 799 F.2d 1152
• Parties: 41 Fair Empl.Prac.Cas. 1054, 41 Empl. Prac. Dec. P 36,415, 55 USLW 2166 Lorraine LeBEAU, et al., Plaintiffs, and Equal Employment Opportunity Commission, Plaintiff-Intervenor-Appellant, v.COMPANY, An Ohio Corporation, and Local 19, United Glass and Ceramic Workers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1152

799 F.2d 1152

41 Fair Empl.Prac.Cas. 1054,

41 Empl. Prac. Dec. P 36,415, 55 USLW 2166

Lorraine LeBEAU, et al., Plaintiffs, and Equal Employment Opportunity Commission, Plaintiff-Intervenor-Appellant, v. LIBBEY-OWENS-FORD COMPANY, An Ohio Corporation, and Local

19, United Glass and Ceramic Workers, Defendants-Appellees.

No. 85-1242.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 13, 1985.

Decided Aug. 22, 1986.

As Modified on Denial of Rehearing and Rehearing En Banc

Jan. 7, 1987. ^*

Mark S. Flynn, Office of General Counsel, Appellate Services, E.E.O.C., Washington, D.C., for plaintiff-intervenor-appellant.

Terrence E. Kiwala, Rooks, Pitts & Poust, Keith C. Hult, Matkov, Griffin, Parsons, Salzman & Madoff, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

CUDAHY, Circuit Judge.

The Equal Employment Opportunity Commission ("EEOC") appeals from an order of the district court granting Libbey-Owens-Ford Company ("LOF") and Local 19, United Glass and Ceramic Workers ("Local 19") the attorneys' fees they incurred defending this Title VII lawsuit. ¹ We reverse.

I

The factual background and complicated procedural history of this protracted litigation, now in its fifteenth year, are set forth in detail in our 1984 opinion disposing of the EEOC's appeal on the merits. LeBeau v. Libbey-Owens-Ford Co., 727 F.2d 141 (7th Cir.1984) (the "1984 Appellate Opinion"). We provide here only those facts that are necessary to understand the issues now before us.

This case has revolved around the impact of Title VII on pre-existing state "protective" labor legislation, which regulated the conditions under which women could work. From 1909 until 1970, when it was declared unconstitutional, Caterpillar Tractor Co. v. Grabiec, 317 F.Supp. 1304 (S.D.Ill.1970), Illinois had such a protective statute in effect. Called the Illinois Female Employment Act, it provided that women could not be employed in factory work for more than eight hours in any one day or more than forty-eight hours in any one week. Laws 1909, p. 212, Sec. 1 (as amended); Ill.Rev.Stat. ch. 48, Sec. 5 (1969). ² The act was enforced with criminal penalties. On the other hand, Title VII provides that it is an unlawful employment practice for an employer to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's ... sex...." 42 U.S.C. Sec. 2000e-2(a)(2). Virtually the same proscription applies to labor organizations. Id. Sec. 2000e-2(c)(2). Thus, when Title VII became effective a conflict arose as to the application of the federal in relation to the state law.

In November 1965 the EEOC issued the following guidelines, stating its position on the conflict:

The Commission does not believe that Congress intended to disturb such laws and regulations which are intended to, and have the effect of, protecting women against exploitation and hazard. Accordingly, the Commission will consider limitations or prohibitions imposed by such state laws or regulations as a basis for application of the bona fide occupational qualification exception. However, in cases where the clear effect of a law in current circumstances is not to protect women but to subject them to discrimination, the law will not be considered a justification for discrimination. So, for example, restrictions on lifting weights will not be deemed in conflict with Title VII except where the limit is set at an unreasonably low level which could not endanger women.

(1) An employer, accordingly, will not be considered to be engaged in an unlawful employment practice when he refuses to employ a woman in a job in which women are legally prohibited from being employed or which involve duties which women may not legally be permitted to perform because of hazards reasonably to be apprehended from such employment.

(2) On the other hand, an employer will be deemed to have engaged in an unlawful employment practice if he refuses to employ or promote a woman in order to avoid providing a benefit for her required by law--such as minimum wage or premium overtime pay.

(3) Where state laws or regulations provide for administrative exceptions, the Commission will expect an employer asserting a bona fide occupational qualification pursuant to this paragraph to have attempted in good faith to obtain an exception from the agency administering the state law or regulation.

29 C.F.R. Sec. 1604.1(c) (1965); 30 Fed.Reg. 14,927.

In August 1969, the EEOC changed its position on state protective legislation and amended its guidelines to state that such laws conflicted with Title VII and could never be the basis for a bona fide occupational qualification exception. See 45 Fed.Reg. 13,367 (August 19, 1969); 29 C.F.R. Sec. 1604.1(b)(2) (1970).

LOF operates two plants in Ottawa, Illinois, which make automobile windshields and other automotive glass products. Until 1970, LOF segregated its production workforce by sex, allowing women to work only in "plastics" and "assembly." Women were maintained on a separate seniority list ("Plastic and Assembly Girls") and were subject to a different system for layoff and recall. The most senior female employees worked fulltime in either plastics or assembly; the more junior were maintained on a list, called the "extra board," from which they were called in if a replacement or an extra worker were needed. In late 1969 and early 1970, LOF took steps to eliminate the sex-segregated system at Ottawa. The process was complete by March 1970.

Also in March 1970, eleven days after the LOF switch-over was complete, plaintiff LeBeau and other female employees at Ottawa filed a charge with the EEOC alleging sex discrimination at Ottawa. (No such charge had ever been filed while the discriminatory system was in place.) Upon receiving their "right to sue" letter from the EEOC, the women filed this suit in federal district court for the Northern District of Illinois on August 3, 1971. They claimed that the defendants had (1) segregated departments and jobs by sex; (2) maintained sex-segregated seniority lists; and (3) operated sex-segregated systems of job assignment, layoff and recall--all in violation of Title VII. They also alleged continuing gender discrimination and sought both injunctive and monetary relief.

In June 1975 the EEOC intervened in this action as a party plaintiff and filed a complaint claiming that the defendants had discriminated and were currently discriminating against female employees at Ottawa by maintaining policies and practices with respect to hiring, assignment, compensation and other terms of employment that denied women equal employment opportunity. Three years later, in October 1978, the EEOC was granted leave to file an amended complaint, which omitted any reference to continuing discrimination and any prayer for relief beyond backpay. In this posture, as a suit for backpay as a result of discrimination between July 2, 1965 and March 1970, the suit survived motions to dismiss and for summary judgment and finally went to trial in October and November 1981. In March 1982 the district court entered judgment for the women plaintiffs on the issue of liability but for the defendants "on the question of back wages." ³ It found for the defendants as against the EEOC on all issues.

In the Memorandum Opinion accompanying the order, LeBeau v. Libbey-Owens-Ford Co., No. 71-C-1902 (N.D.Ill. Mar. 31, 1982) (the "1982 District Court Opinion"), the district court acknowledged that the plaintiffs had made out a prima facie case of gender discrimination, id. at 14. It noted that the defendants raised as affirmative defenses their reliance upon the EEOC's 1965 guidelines and the terms of the Illinois protective statute and it found that they had met their rebuttal burden:

I conclude that the defendants have proved by a preponderance of evidence reliance upon the Illinois laws in support of their practices, and reliance upon the guidelines of E.E.O.C. itself in continuing their reliance upon the state law. I conclude that the government is equitably estopped from claiming that the defendants violated the Act of 1964, and that the individual plaintiffs, although they established a prima facie case under the Act, are equitably estopped from asking [sic] damages, in the form of claimed back wages or any other form.

Id. at 30.

The EEOC appealed this ruling. It argued that the defendants were not entitled to a defense of good faith reliance upon the Illinois protective statute because they had not shown that the full range of their discriminatory practices was mandated by the statute. To deny backpay in the absence of an actual conflict, it asserted, would frustrate the policies of Title VII. It also argued that the defendants were not entitled to a defense of good faith reliance upon the EEOC guidelines because (a) their discriminatory employment practices were not authorized by the guidelines and (b) they had not proven actual reliance upon the guidelines. We affirmed, finding that the district court had not clearly erred in finding that the defendants had relied in good faith on both the Illinois statute and the EEOC guidelines and rejecting as unreasonable the EEOC's reading of its guidelines as prohibiting the defendants' practices. 1984 Appellate Opinion, 727 F.2d at 147-48.

The defendants then returned to the district court seeking attorneys' fees for their defense of this lawsuit at both the trial and appellate levels. The district court granted their fee request, ⁴ and it is from that order that the EEOC now appeals.

II

Section 706(k) of Title VII, 42 U.S.C. Sec. 2000e-5(k), provides that the trial court may in its discretion allow the prevailing party "a reasonable attorney's fee as part of the...