Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 24 EPD ¶31,319, Equal Opportunity Employment Commission, Plaintiff v. Cook Paint and Varnish Company et al., Defendants., (June 24, 1980), (Jun. 24, 1980)

Equal Opportunity Employment Commission, Plaintiff v. Cook Paint and Varnish Company et al., Defendants.

United States District Court, Western District of Missouri, Western Division.Civil Action No. 75-CV-380-W-2-6, June 24, 1980

Title VII--Civil Rights Act of 1964

Assignment to Jobs--Sex-Segregated Job Classifications--Statistical Evidence.

--Unrebutted statistical evidence indicating that an employer’s job classifications were segregated on the basis of sex warranted summary judgment in favor of the EEOC on the question of liability for sex discrimination. The employer failed to advance legitimate business reasons for the disproportionate exclusion of women from production and research units. Post-charge affirmative action efforts and the fact that hiring and transfers were controlled under a collective bargaining agreement did not justify the disparity. A remedial order was to be issued in a subsequent proceeding.

Back reference.-- ¶496.13 .

James R. Neely, Jr., Regional Attorney, Joseph H. Mitchell, Regional Attorney, Gretchen D. Huston, Supervisory Trial Attorney, Morgan Stewart, Trial Attorney, St. Louis, Missouri, for Plaintiff.

William C. Nulton (Blackwell, Sanders, Matheny, Weary and Lombardi), Kansas City, Missouri, for Defendants.

Sachs, D.J.: Pending in the above-captioned case is plaintiff’s Second Motion for Partial Summary Judgment, seeking a ruling of liability only against defendant. For the reasons stated below, the motion will be granted and procedures ordered for preparing a basis upon which a determination of relief may be made.

Joyce Chamberlain, a former employee of defendant, filed a charge with plaintiff Equal Employment Opportunity Commission on April 9, 1974, alleging discrimination by defendant on the basis of her sex. Conciliation followed and, failing to resolve the dispute through conciliation, plaintiff filed this suit on June 2, 1975, against the defendant company and the union which represents the company’s employees, alleging basically a pattern and practice of continuing violations of Title VII, 42 U.S.C. §2000e et seq., consisting of sex discrimination in hiring for, transferring to and assignments in, its production and technician job classifications, and maintenance of sexually segregated job classifications.

The unlawful act alleged by the individual complainant was refusal to hire her into the factory, or to transfer her from her position of payroll clerk to the plant upon her applications for several openings. The parties entered into a Stipulation for Judgment regarding Chamberlain and disposing of her claims by granting her the individual relief requested, upon which the Court entered an Order dated August 3, 1976. On August 5, 1976, the court entered summary judgment on the company’s cross-claim against the union, which judgment prohibits the union from instituting any grievance or arbitration, administrative or judicial proceeding based upon the relief granted to the complainant. Therefore, the issue presented at this time is of a class-wide nature, specifically, did defendant company engage in the patterns and practices alleged in violation of Title VII.

By sworn affidavit dated January 5, 1976, of Joseph A. Simunac, defendant’s “manager of personnel development” , the company admits that from July 2, 1965 (the effective date of Title VII) through June 5, 1975 (three days after this suit was commenced), the sexual composition of the company’s work force had been as follows: 1) Of more than 495 total employees in the factory bargaining unit, only five have been female, and all of these five were hired prior to 1944; 2) Of approximately 50 employees in the research bargaining unit, including only from September 20, 1971 when the union began representation of these employees, through June 5, 1975, one has been female, and that employee was hired in February, 1968.

Seniority lists in the record dated June 2, and June 3, 1975, for production (factory) workers and research workers show that of the six females hired as stated above, only one, the research employee, remained in the company’s employ as of those dates. The defendant attaches a more recent affidavit of Simunac to its suggestions in opposition to this motion, which does not give any raw data or “numbers” of employees, but which states that by September 1, 1976, females comprised 4.9% of the factory production bargaining unit, and 12.1% of the technician unit. A copy of defendant’s affirmative action plan for the period July 1, 1976 through June 30, 1977, was also submitted by defendant as an exhibit. It is unclear whether the number of male and female employees therein listed is for the plant which is the subject of this suit only or also includes employees at another location, as named on the Plan’s cover sheet, and that raw data cannot be used to make any statistical comparison. However, it is clear from the analysis in the plan, as stated therein by the company and obvious from the figures, that females are seriously underrepresented in almost all production and technician positions. A resolution is articulated in the plan to hire 20% females “until parity is reached.”

Neither party provided actual applicant data. In interrogatory answers dated July 22, 1975, and later supplemented, defendant states that employment applications are retained for a period of six months after a given opening is filled. Advertisements for job openings in newspapers or periodicals were not used to recruit applicants from at least April, 1969, to at least July 22, 1975. It was stated that applicants were located during that period through public employment agencies, union referral (although this was provided for in the collective bargaining unit, actual referral was denied by the union in its interrogatory answers), employee referral, walk-ins, the National Alliance of Businessmen, Missouri Department of Corrections, United Auto Workers-OJT Program and the Urban League.

A copy of the Collective Bargaining Agreement between the union and defendant is also an exhibit, and indicates that Clsss V and Class VI (described by defendant as entry-level) employees are to be given preference for job openings in Classes I through IV before new employees are hired, and promotions from within will be on the basis of seniority and ability. Transfers are not prohibited by the agreement, although in some circumstances they must be by seniority. Initial entry-level hiring, assignment of employees in entry-level positions, and transfers from a position outside the bargaining unit to an entry-level position within the unit are not restricted by the agreement. Defendant stated, in its interrogatory answers of July 22, 1975, that assignments to entry-level jobs are made by department managers subject to any applicable provisions of the bargaining agreement.

[Effect of Statistical Evidence]

The issue to be addressed is not whether any employment opportunities exist for women in defendant’s facility; “for Title VII purposes the crucial question is whether the women have equal opportunities available to them.” Palmer v. General Mills [9 EPD ¶10,034 ], 513 F.2d 1040, 1043 (6th Cir. 1975). Statistical evidence has been found particularly appropriate in considering such an issue in cases where, as here, the allegations are of patterns and practices of discrimination, or systematic exclusion or segregation. E.g., Hazelwood School District v. United States [14 EPD ¶7633 ], 433 U.S. 299 (1977); Teamsters v. United States [14 EPD ¶7579 ], 431 U.S. 324 (1977); Senter v. General Motors Corp. [11 EPD ¶10,741 ], 532 F.2d 511 (6th Cir. 1976), cert. denied [12 EPD ¶11,207], 429 U.S. 870. A plaintiff would be at an “inherent disadvantage in gathering hard evidence of employment discrimination, particularly when the discrimination is plant-wide in scope. It is for this reason that we generally acknowledge the value of statistical evidence in establishing a prima facie case of discrimination under Title VII.” Senter v. General Motors Corp., supra at 527.

“Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Hazelwood School District v. United States, supra at 307-08. Sufficient statistics basically create the inference that, more likely than not, the contested employment situation resulted from unlawful discrimination. This is of course not conclusive proof of a violation, and the employer must first be given the opportunity to rebut the prima facie case made through statistics before a finding of discrimination may be made. The employer may do this through attacking the sufficiency of the plaintiff’s statistics or by “articulating a legitimate, nondiscriminatory basis for the challenged action.” Kirby v. Colony Furniture Co., Inc. [21 EPD ¶30,553 ], 613 F.2d 696, 703 (8th Cir. 1980). See also, Hazelwood School District v. United States, supra at 309-10; Teamsters v. United States, supra at 340; United States v. City of Alexandria [22 EPD ¶30,829 ], 614 F.2d 1358, 1364-65 (5th Cir. 1980); D. Baldus & J. Cole, Statistical Proof of Discrimination §1.221[1], p. 28-29 (1980).

When analyzing the sufficiency of plaintiff’s statistical prima facie case, the initial considerations include the appropriate time frame and the selection of the most significantly related labor pool with which the employer’s own work force statistics should be compared. “[T]he ‘relevant time frame’ ” is 180 days “prior to the earliest valid charge upon which the lawsuit, or some portion thereof, is properly based.” B. Schlei & P. Grossman, Employment Discrimination Law, Ch. 36, p. 327 (1979 Supp.); Parham v. Southwestern Bell Telephone Co. [3 EPD ¶8021 ], 433 F.2d 421, 425 (8th Cir. 1970) (violations are determinable as of the time of act complained of and subsequent EEOC charge, not employment practices utilized later); Kohne v. Imco Container Co. [20 EPD ¶30,168 ], 480 F. Supp. 1015 (W.D. Va. 1979).

As to labor pool, plaintiff’s comparison is to the population percentage of women in this Standard Metropolitan Statistical Area (SMSA), and, more narrowly, to the percentage of the SMSA labor force composed of women (as of the 1970 census). Defendant also points to 1970 census SMSA figures, but argues that the percentage of women in “chemical and allied” manufacturing jobs should be utilized for comparison. The courts have employed general population data in several contexts. E.g., Teamsters v. United States, supra; Dothard v. Rawlinson [14 EPD ¶7632 ], 433 U.S. 321 (1977) (a discriminatory impact case); Green v. Missouri Pacific Railroad Co. [10 EPD ¶10,314 ], 523 F.2d 1290 (8th Cir. 1975); Boedeker v. Audrey Oil Co., 465 F. Supp. 715 (E.D.Mo. 1979) (comparison of women employed as service station attendants with “the female population as a whole”). Where special qualifications for a job are involved, the relevant labor market includes those persons in the geographical area who hold the minimum qualifications required for the job. E.g., Hazelwood School District v. United States, supra at 308 (qualified to teach public school). In the instant case, the “true” labor pool probably lies somewhere in between the one advanced by each party. See, Neloms v. Southwestern Electric Power Co., 440 F. Supp. 1353, 1371 (W.D.La. 1977) (general population too expansive, persons employed in the power industry too restrictive). However, a comparison with either figure reveals a disparity so striking that the most restrictive pool may be assumed for the purposes of this motion. [1]

The fact that 23 of 200 noncraft jobs at one branch of a defendant’s business had not been held by women, and 6 had not been held by men, and that at another branch 32 of 43 positions had not been held by women and 6 not by men, was found to constitute proof of sexually segregated positions, where the company had not demonstrated that the positions could not be filled by persons of the opposite sex. Patterson v. American Tobacco Co. [11 EPD ¶10,728 ], 535 F.2d 257 (4th Cir. 1976), cert. denied [13 EPD ¶11,424 ], 429 U.S. 920. In observing the “extraordinarily small number of black employees, except for the most part as menial laborers” , the Eighth Circuit has held statistics to establish a Title VII violation “as a matter of law” where the year prior to the complainant’s EEOC charge the company employed 54 blacks of 3,163 workers (1.71%), and at the relevant time, five weeks prior to the complainant’s application for employment, 56 blacks of 3,074 workers (1.82%). Parham v. Southwestern Bell Telephone Co., supra at 426 (taking judicial notice of the fact that blacks comprised 21.9% of the state’s population in the prior census).

In the instant case, the disparity of the raw numbers is even greater. There were no women working in defendant’s production unit out of 224 employees. There was one woman out of 30 employees in the research unit (3.33%). For both units combined, the percentage was therefore less than one-half of one percent (.39%). Even assuming the “chemical and allied” manufacturing industry is the appropriate labor pool for comparison, a calculation of the figures submitted by defendant reflecting women employed in various comparable classifications shows that women comprised 23% of that pool. [2] And, while the defendant did not state the actual number of total employees or of women employees on September 1, 1976, and that date is not the appropriate one for determining a violation, as discussed supra, the percentages provided by defendant itself reflect a disparity existed at that time also which was of remarkable significance. If the same approximate 7.5 to 1 ratio for production to research existed on that date as it did a year earlier, 4.9% in production and 12.1% technician/research would equal roughly 5.75% women in the total employ of defendant’s appropriate units as compared with 23% in the labor pool. Thus, even the figures advanced by the defendants reflect differentials too great to have occurred by chance, from which discrimination may be inferred absent an explanation of legitimate business reasons or other theory consistent with innocence. [3]

[Employer’s Rebuttal]

Defendant has not attempted to advance any business reason why women have not been employed in greater numbers in its production and research units, but has relied upon attempts to show the invalidity of plaintiff’s statistics. One of its arguments in this regard is the affirmative action program, which apparently did result in some increased hiring of women subsequent to the EEOC charge and filing of this suit. As noted above, the time frame for determining liability is not generally the same as that subsequently used to determine relief. While subsequent measures to correct a violation may affect the remedy, they do not affect the liability for that violation. Rule v. International Ass’n of Bridge, etc., Workers, Local 396 [15 EPD ¶7943 ], 568 F.2d 558 (8th Cir. 1977); Donnell v. General Motors Corp. [16 EPD ¶8315 ], 576 F.2d 1292, 1295 n. 3 (8th Cir. 1978). Nor does the fact that in July of 1976 a government agency approved the company’s progress in certain areas of its affirmative action program affect the outcome. See Stevenson v. International Paper Co. [10 EPD ¶10,320 ], 516 F.2d 103, 111 (5th Cir. 1975). Success in an affirmative action program so soon after the time at which a charge arose has even been considered a further indication of discrimination, absent other explanation. Senter v. General Motors Corp., supra at 530. [4]

Defendant also interposes rather vague contentions that the collective bargaining agreement governs hiring and transfer in certain positions and that these provisions therefore prohibit a finding of sex discrimination in those positions. This argument is founded, first of all, on use of employment figures of a later date when more hiring of women had occurred in the entry-level positions. The appropriate figures reflect segregation by sex in all positions in the two units under scrutiny. Since this Order is a finding of liability only and not designed to accord relief, no finding is made regarding the bona fide status of the seniority system under the collective bargaining agreement. However, under the provisions of that agreement, as set out briefly, supra, there is no prohibition on hiring or assignment, or transfers from jobs not covered by the collective bargaining agreement. The only restriction on the upper-level positions is that current employees be considered first, on the basis of seniority and ability, before new employees are hired. The collective bargaining agreement is not a defense to liability of the type found here. See, e.g., Kyriazi v. Western Electric Co. [18 EPD ¶8700 ], 461 F. Supp. 894, 923 (D.N.J. 1978) (dealing with supervisory positions - the agreement would be even less pertinent in the instant case).

The final attack upon the sufficiency of plaintiff’s support for its motion is the argument that plaintiff has failed to name any specific individual applicants, other than complainant, who have been discriminated against on the basis of sex, and that it cannot be determined from plaintiff’s proof whether there were any women even interested in the jobs. It is not up to the plaintiff to present those names, but simply to make a prima facie case. As noted above, one reason statistics are valued as a tool in employment discrimination cases is that the employer has control over the actual information regarding applicants. The defendant has not made any attempt, nor submitted any affidavit of other material supporting an attempted rebuttal of the statistics in this regard. The Court notes that employment applications have been stated by defendant in interrogatory answers to be retained for only six months after an opening is filled, so that even if defendant produced the applications in its possession the plaintiff would be unable to determine individuals denied employment at the time of the alleged violation. It is highly unlikely that if the company has a valid defense in this regard, it would have so totally failed to meet the prima facie case made by plaintiff. See generally, Kohne v. Imco Container Co., supra at 1034-35.

The argument derived from a 1972 opinion asserting “common sense” reasoning that few women would be interested in the type of jobs contemplated here advances a sex-role stereotype which is completely unsupported by the record. [5] As long ago as 1970 there were apparently at least 23% women in the work force interested in such jobs in defendant’s own “category” of manufacturing. Title VII was designed to override “stereotypical views of ‘macho’ roles” in making employment decisions. Gunther v. Iowa State Men’s Reformatory [19 EPD ¶9042 ], 462 F. Supp. 952, 957 (N.D.Iowa 1979) aff’d [22 EPD ¶30,564 ], 612 F.2d 1079 (8th Cir. 1980).

[Conclusion]

While liability is readily apparent from the record, relief must be tailored to the current employment situation and submission of appropriate information by the parties will therefore be ordered. Accordingly, it is hereby

Ordered that plaintiff’s motion for summary judgment on liability only is granted and the defendant is hereby declared to have violated Title VII in the following employment practices:

1) Failing or refusing to hire female applicants for employment in production and technician job classifications;

2) Failing or refusing to transfer female employees into production and technician job classifications;

3) Failing or refusing to assign female employees and/or applicants for employment to production and technician job classifications;

4) Maintaining sexually segregated job classifications.

It is further ORDERED that defendant shall file with the Court, on or before August 15, 1980, all of the following material which is available to it:

1) Copies of all applications for employment made from January 1, 1980 through June 30, 1980, and a statement of the disposition of that application;

2) A total of the number of openings which have occurred in either production or technician job classifications from July 1, 1979, through June 30, 1980, the sex of the applicant chosen to fill that position, and, if possible, the number of applicants and sex of each applicant applying for that position;

3) A copy of any affirmative action program now in effect, and affidavits or other appropriate supporting material to indicate compliance with that program;

4) A copy of the current collective bargaining agreement covering the units;

5) A list of all current employees in the production and technician job classifications, the date of hire, sex, the minimum “class” (as designated in the collective bargaining agreement I through VI) designation which may be held by an employee in that specific position, and the “class” of the current employee.

Plaintiff shall have reasonable access to defendant’s employment records during the period from the date of this Order through August 15, 1980, and shall submit any data from those records in addition to the above which it feels necessary or relevant to the issue of appropriate relief. Following submission of the data by the parties, they shall submit briefs on the issue of relief in light of the current situation. Plaintiff shall file a proposed remedial order and its brief on or before August 31, 1980, and shall include as attachments to that brief the most current statistics available for the Kansas City SMSA regarding percentage of women in: 1) the general work force; 2) manufacturing/production; 3) manufacturing/production in “chemical and allied” industries. Defendant shall file its brief in response on or before September 15, 1980. If either party believes a hearing on the issue of relief is necessary or would be desirable, it should so specifically state, along with supporting reasons, in its brief.

It is so Ordered.