|Dothard v. Rawlinson
[ Stewart ]
[ Rehnquist ]
[ Marshall ]
[ White ]
Dothard v. Rawlinson
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the result and concurring in part.
I agree with, and join, Parts I and III of the Court's opinion in this case, and with its judgment. While I also agree with the Court's conclusion in Part II of its opinion, holding that the District Court was "not in error" in holding the statutory height and weight requirements in this case to be invalidated by Title VII, ante at 332, the issues with which that Part deals are bound to arise so frequently that I feel obliged to separately state the reasons for my agreement with its result. I view affirmance of the District Court in this respect as essentially dictated by the peculiarly limited factual and legal justifications offered below by appellants on behalf of the statutory requirements. For that reason, I do not believe -- and do not read the Court's opinion as holding -- that all or even many of the height and weight requirements imposed by States on applicants for a multitude of law enforcement agency jobs are pretermitted by today's decision.
I agree that the statistics relied upon in this case are sufficient, absent rebuttal, to sustain a finding of a prima [p338] facie violation of § 703(a)(2), in that they reveal a significant discrepancy between the numbers of men, as opposed to women, who are automatically disqualified by reason of the height and weight requirements. The fact that these statistics are national figures of height and weight, as opposed to state-wide or "pool of labor-force" statistics, does not seem to me to require us to hold that the District Court erred as a matter of law in admitting them into evidence. See Hamling v. United States, 418 U.S. 87, 108, 124-125 (1974); cf. Zenith Corp. v. Hazeltine, 395 U.S. 100, 123-125 (1969). It is for the District Court, in the first instance, to determine whether these statistics appear sufficiently probative of the ultimate fact in issue -- whether a given job qualification requirement has a disparate impact on some group protected by Title VII. Hazelwood School Dist. v. United States, ante at 312-313; see Hamling v. United States, supra, at 108, 124-125; Mayor v. Educational Equality League, 415 U.S. 605, 621 n. 20 (1974); see also McAllister v. United States, 348 U.S. 19 (1954); United States v. Yellow Cab Co., 338 U.S. 338, 340-342 (1949). In making this determination, such statistics are to be considered in light of all other relevant facts and circumstances. Cf. Teamsters v. United States, 431 U.S. 324, 340 (1977). The statistics relied on here do not suffer from the obvious lack of relevancy of the statistics relied on by the District Court in Hazelwood School Dist. v. United States, ante at 308. A reviewing court cannot say as a matter of law that they are irrelevant to the contested issue or so lacking in reliability as to be inadmissible.
If the defendants in a Title VII suit believe there to be any reason to discredit plaintiffs' statistics that does not appear on their face, the opportunity to challenge them is available to the defendants, just as in any other lawsuit. They may endeavor to impeach the reliability of the statistical evidence, they may offer rebutting evidence, or they may disparage in arguments or in briefs the probative weight which [p339] the plaintiffs' evidence should be accorded. Since I agree with the Court that appellants made virtually no such effort, ante at 331, I also agree with it that the District Court cannot be said to have erred as a matter of law in finding that a prima facie case had been made out in the instant case.
While the District Court's conclusion is by no means required by the proffered evidence, I am unable to conclude that the District Court's finding in that respect was clearly erroneous. In other cases, there could be different evidence which could lead a district court to conclude that height and weight are, in fact, an accurate enough predictor of strength to justify, under all the circumstances, such minima. Should the height and weight requirements be found to advance the job-related qualification of strength sufficiently to rebut the prima facie case, then, under our cases, the burden would shift back to appellee Rawlinson to demonstrate that other tests, without such disparate effect, would also meet that concern. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). But, here, the District Court permissibly concluded that appellants had not shown enough of a nexus even to rebut the inference.
Appellants, in order to rebut the prima facie case under the statute, had the burden placed on them to advance job-related reasons for the qualification. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This burden could be shouldered by offering evidence or by making legal arguments not dependent on any new evidence. The District Court was confronted, however, with only one suggested job-related reason for the qualification -- that of strength. Appellants argued only the job-relatedness of actual physical strength; they did not urge that an equally job-related qualification for prison guards is the appearance of strength. As the Court notes, the primary job of correctional counselor in Alabama prisons "is to maintain security and control of the inmates . . . ," ante at 326, a function that I at least would [p340] imagine is aided by the psychological impact on prisoners of the presence of tall and heavy guards. If the appearance of strength had been urged upon the District Court here as a reason for the height and weight minima, I think that the District Court would surely have been entitled to reach a different result than it did. For, even if not perfectly correlated, I would think that Title VII would not preclude a State from saying that anyone under 5'2" or 120 pounds, no matter how strong in fact, does not have a sufficient appearance of strength to be a prison guard.
But once the burden has been placed on the defendant, it is then up to the defendant to articulate the asserted job-related reasons underlying the use of the minima. McDonnell Douglas Corp. v. Green, supra at 802; Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); Albemarle Paper Co. v. Moody, supra, at 425. Because of this burden, a reviewing court is not ordinarily justified in relying on arguments in favor of a job qualification that were not first presented to the trial court. Cf. United States v. Arnold, Schwinn & Co., 388 U.S. 365, 374 n. 5 (1967); Thomas v. Taylor, 224 U.S. 73, 84 (1912); Bell v. Bruen, 1 How. 169, 187 (1843). As appellants did not even present the "appearance of strength" contention to the District Court as an asserted job-related reason for the qualification requirements, I agree that their burden was not met. The District Court's holding thus did not deal with the question of whether such an assertion could or did rebut appellee Rawlinson's prima facie case.
1. The appellants sought to raise for the first time in their brief on the merits the claim that Congress acted unconstitutionally in extending Title VII's coverage to state governments. See the Equal Employment Opportunity Act of 1972, 86 Stat. 103, effective date, Mar. 24, 1972, 42 U.S.C. §§ 2000e(a), (b), (f), (h) (1970 ed., Supp. V). Not having been raised in the District Court, that issue is not before us. See Adickes v. Kress & Co., 398 U.S. 144, 147 n. 2; Irvine v. California, 347 U.S. 128, 129.
2. The statute establishes minimum physical standards for all law enforcement officers. In pertinent part, it provides:
(d) Physical qualifications. -- The applicant shall be not less than five feet two inches nor more than six feet ten inches in height, shall weigh not less than 120 pounds nor more than 300 pounds, and shall be certified by a licensed physician designated as satisfactory by the appointing authority as in good health and physically fit for the performance of his duties as a law enforcement officer. The commission may for good cause shown permit variances from the physical qualifications prescribed in this subdivision.
Ala.Code, Tit. 55, § 373 (109) (Supp. 1973).
3. See 42 U.S.C. § 2000e-5(f) (1970 ed., Supp. V).
4. A second plaintiff named in the complaint was Brenda Mieth, who, on behalf of herself and others similarly situated, challenged the 5'9" height and 160-pound weight requirements for the position of Alabama state trooper as violative of the Equal Protection Clause. The District Court upheld her challenge, and the defendants did not appeal from that aspect of the District Court's judgment.
5. Although a single-judge District Court could have considered Rawlinson's Title VII claims, her co-plaintiff's suit rested entirely on the Constitution. See n. 4, supra. Given the similarity of the underlying issues in the two cases, it was not inappropriate to convene a three-judge court to deal with the constitutional and statutory issues presented in the complaint. When a properly convened three-judge court enjoins the operation of a state law on federal statutory grounds, an appeal to this Court from that judgment lies under 28 U.S.C. § 1253. See Engineers v. Chicago, R. 1. & P. R. Co., 382 U.S. 423; Philbrook v. Glodgett, 421 U.S. 707.
6. Administrative Regulation 204 provides, in pertinent part, as follows:
1. The purpose of this regulation is to establish policy and procedure for identifying and designating institutional Correctional Counselor I positions which require selective certification for appointment of either male or female employees from State Personnel Department registers.
* * * *
4. All Correctional Counselor I positions will be evaluated to identify and designate those which require selective certification for appointment of either a male or female employee. Such positions must fall within a bona fide occupational qualification stated in Title 4-2000c of the United States Code. . . .
* * * *
5. Selective certification from the Correctional Counselor Trainee register will be requested of the State Personnel Department whenever a position is being filled which has been designated for either a male or female employee only.
* * * *
8. Institutional Wardens and Directors will identify each institutional Correctional Counselor I position which they feel requires selective certification and will request that it be so designated in writing to the Associate Commissioner for Administration for his review, evaluation, and submission to the Commissioner for final decision.
9. The request will contain the exact duties and responsibilities of the position and will utilize and identify the following criteria to establish that selective certification is necessary;
A. That the presence of the opposite sex would cause disruption of the orderly running and security of the institution.
B. That the position would require contact with the inmates of the opposite sex without the presence of others.
C. That the position would require patroling dormitories, restrooms, or showers while in use, frequently, during the day or night.
D. That the position would require search of inmates of the opposite sex on a regular basis.
E. That the position would require that the Correctional Counselor Trainee not be armed with a firearm.
10. All institutional Correctional Counselor I positions which are not approved for selective certification will be filled from Correctional Counselor Trainee registers without regard to sex.
Although Regulation 204 is not limited, on its face, to contact positions in maximum security institutions, the District Court found that it did not "preclude . . . [women] from serving in contact positions in the all-male institutions other than the penitentiaries." 418 F.Supp. at 1176. Appellants similarly defended the regulation as applying only to maximum security facilities.
7. Note, The Sexual Segregation of American Prisons, 82 Yale L.J. 1229 (1973).
8. The official job description for a correctional counselor position emphasizes counseling as well as security duties; the District Court found:
[C]orrectional counselors are persons who are commonly referred to as prison guards. Their duties primarily involve security, rather than counseling.
418 F.Supp. 1169, 1175.
9. At the time of the trial, the Board of Corrections had not yet classified all of its correctional counselor positions in the maximum security institutions according to the criteria established in Regulation 204; consequently, evidence of the exact number of "male only" jobs within the prison system was not available.
10. Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) (1970 ed. and Supp. V), provides:
(a) Employer practices. It shall be an unlawful employment practice for an employer --
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) 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 race, color, religion, sex, or national origin.
11. See Teamsters v. United States, 431 U.S. 324, 335-336, n. 15.
12. Affirmatively stated, approximately 99.76% of the men and 58.87% of the women meet both these physical qualifications. From the separate statistics on height and weight of males, it would appear that, after adding the two together and allowing for some overlap, the result would be to exclude between 2.35% and 3.63% of males from meeting Alabama's statutory height and weight minima. None of the parties has challenged the accuracy of the District Court's computations on this score, however, and the discrepancy is, in any event, insignificant in light of the gross disparity between the female and male exclusions. Even under revised computations the disparity would greatly exceed the 34% to 12% disparity that served to invalidate the high school diploma requirement in the Griggs case. 401 U.S. at 430.
13. The height and weight statute contains a waiver provision that the appellants urge saves it from attack under Title VII. See n. 2, supra. The District Court noted that a valid waiver provision might indeed have that effect, but found that applicants were not informed of the waiver provision, and that the Board of Corrections had never requested a waiver from the Alabama Peace Officers' Standards and Training Commission. The court therefore correctly concluded that the waiver provision, as administered, failed to overcome the discriminatory effect of the statute's basic provisions.
14. In what is perhaps a variation on their constitutional challenge to the validity of Title VII itself, see n. 1, supra, the appellants contend that the establishment of the minimum height and weight standards by statute requires that they be given greater deference than is typically given private employer-established job qualifications. The relevant legislative history of the 1972 amendments extending Title VII to the States as employers does not, however, support such a result. Instead, Congress expressly indicated the intent that the same Title VII principles be applied to governmental and private employers alike. See H.R.Rep. No. 92-238, p. 17 (1971); S.Rep. No. 92-415, p. 10 (1971). See also Schaeffer v. San Diego Yellow Cabs, 462 F.2d 1002 (CA9). Thus, for both private and public employers, "[t]he touchstone is business necessity," Griggs, 401 U.S. at 431; a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge.
15. Cf. EEOC Guidelines on Employee Selection Procedures, 29 CFR § 1607 (1976). See also Washington v. Davis, 426 U.S. 229, 246-247; Albemarle Paper Co. v. Moody, 422 U.S. 405; Officers for Justice v. Civil Service Comm'n, 395 F.Supp. 378 (ND Cal.).
16. By its terms, Regulation 204 applies to contact positions in both male and female institutions. See n. 6, supra. The District Court found, however, that
Regulation 204 is the administrative means by which the [Board of Corrections'] policy of not hiring women as correctional counselors in contact positions in all-male penitentiaries has been implemented.
418 F.Supp. at 1176. The Regulation excludes women from consideration for approximately 75% of the available correctional counselor jobs in the Alabama prison system.
17. See, e.g., Gillin v. Federal Paper Board Co., 479 F.2d 97 (CA2); Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (CA3); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (CA9); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (CA7); Meadows v. Ford Motor Co., 62 F.R.D. 98 (WD Ky.), modified on other grounds, 510 F.2d 939 (CA6). See also Jones Metal Products Co. v. Walker, 29 Ohio St.2d 173, 281 N.E.2d 1; EEOC Guidelines on Discrimination Because of Sex, 29 CFR § 1604 (1976).
18. See Interpretative Memorandum of Senators Clark and Case, 110 Cong.Rec. 7213 (1964).
19. The EEOC issued guidelines on sex discrimination in 1965 reflecting its position that "the bona fide occupational qualification as to sex should be interpreted narrowly." 29 CFR § 1604.2(a). It has adhered to that principle consistently, and its construction of the statute can accordingly be given weight. See Griggs v. Duke Power Co., 401 U.S. at 434; McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279-280.
20. In the case of a state employer, the bfoq exception would have to be interpreted, at the very least, so as to conform to the Equal Protection Clause of the Fourteenth Amendment. The parties do not suggest, however, that the Equal Protection Clause requires more rigorous scrutiny of a State's sexually discriminatory employment policy than does Title VII. There is thus no occasion to give independent consideration to the District Court's ruling that Regulation 204 violates the Fourteenth Amendment, as well as Title VII.
21. See, e.g., Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 232-236 (CA5); Bowe v. Colgate-Palmolive Co., supra at 717-718; Rosenfeld v. Southern Pacific Co., supra.
22. The record contains evidence of an attack on a female clerical worker in an Alabama prison, and of an incident involving a woman student who was taken hostage during a visit to one of the maximum security institutions.
23. Alabama's penitentiaries are evidently not typical. Appellee Rawlinson's two experts testified that, in a normal, relatively stable maximum security prison -- characterized by control over the inmates, reasonable living conditions, and segregation of dangerous offenders -- women guards could be used effectively and beneficially. Similarly, an amicus brief filed by the State of California attests to that State's success in using women guards in all-male penitentiaries.
24. The record shows, by contrast, that Alabama's minimum security facilities, such as work-release centers, are recognized by their inmates as privileged confinement situations not to be lightly jeopardized by disobeying applicable rules of conduct. Inmates assigned to these institutions are thought to be the "cream of the crop" of the Alabama prison population.