Bazemore v. Friday

PETITIONER: Bazemore
RESPONDENT: Friday
LOCATION: Hardwick's Apartment

DOCKET NO.: 85-93
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 478 US 385 (1986)
ARGUED: Apr 22, 1986
DECIDED: Jul 01, 1986

ADVOCATES:
Carolyn B. Kuhl - on behalf of the petitioners in No. 85-428
Eric Schnapper - on behalf of the petitioners in No. 85-93
Howard E. Manning, Jr. - on behalf of the respondents

Facts of the case

Question

Media for Bazemore v. Friday

Audio Transcription for Oral Argument - April 22, 1986 in Bazemore v. Friday

Warren E. Burger:

We will hear arguments first this morning in Bazemore against Friday.

Ms. Kuhl, you may proceed whenever you are ready.

Carolyn B. Kuhl:

Thank you, Mr. Chief Justice, and may it please the Court, I would like to address in my argument this morning three of the issues raised in this case, but first I would like to articulate briefly our position with respect to each.

The first issue concerns the intentionally discriminatory pay disparity between black and white Agricultural Service agents which originated pre-Title 7 and continued after the effective date of Title 7.

Both courts below agreed on the existence of these disparities, but the Court of Appeals held that because the difference in pay originated before Title 7, the current pay practice was not actionable.

It is our position that a current practice of intentionally paying blacks less than whites on the basis of race cannot be immunized by the fact that the practice began before Title 7's effective date.

The second issue concerns use of the statistics in Title 7 disparate treatment cases.

The issue framed by the private petitioners is whether a statistical analysis must take into account every conceivable nonracial variable before the statistics may be considered probative.

We do not believe that a plaintiff's statistical proof must account for every conceivable factor that might bear on salary.

Indeed, a statistician would tell us that that is not possible, but we do take the position that the plaintiff here has met the burden of proof by a preponderance of the evidence in proving discrimination on the statistics presented in this case.

In contrast to petitioners, however, we argue that in order to raise an inference of intentional discrimination, it is necessary for the statistical analysis to eliminate the most common nondiscriminatory reason for the disparate treatment, leaving racial discrimination as a logical inference, and we also believe that the plaintiffs must offer statistics raising that inference as part of his prima facie case in accordance with the order of proof set forth in McDonnell-Douglas.

Finally, the third issue concerns disestablishment of the pre-Act segregated system of operating 4H and Extension Homemaker Clubs.

Private petitioners now seem to be arguing that the courts below erred in not addressing whether there was current discrimination in recruitment for membership in the clubs.

This is essentially a fact-found question, and although we believe that recruitment was addressed by the courts below, we would have no objection to a remand on that liability issue.

However, in their petition, the private petitioners seem to state a different legal issue, that is whether as a matter of law respondent should be held to have failed to disestablish a formerly segregated system when some all white and some all black clubs continue to exist.

On this legal issue, we believe that the court below was clearly correct.

A state that has ensured that all of its practices relating to admissions are truly race neutral need not eliminate an open admission membership system that would otherwise be the norm in order to assure a particular racial mix.

To return then in somewhat more detail to the first issue, the continuing race-based salary disparity, it is important to note that pre-1965 the entire Agricultural Extension Service was operated on a de jure segregated basis.

Both the District Court and the Court of Appeals found that agents working in this system were paid different depending on whether they worked in the black branch or in the white branch.

Both the District Court and the Court of Appeals also found that this pay disparity was intentionally continued by the service and persisted after 1972, when Title 7 became applicable to the states.

The error of the Court of Appeals was in excusing this post-Act discrimination on the basis that it originated in the pre 1965 de jure period, but the Court of Appeals analysis, we think, misreads this Court's decisions in Evans and in Hazelwood, and misconstrues the nature of the violation proof.

The wrong alleged here is not that the service failed to correct the effects of pre-Act discrimination.

The wrong here is rather a current post-Act practice of paying blacks less than whites.

As was stated in Evans, the question is really whether a present violation exists.

An employer is entitled to treat pre-Act discriminatory practices as to which the time... either pre-Act practice or practice as to which the time has run, as if it was totally legal.

Thus, in Evans the firing of the stewardess was merely considered an unfortunate event in history, but there we have something entirely different from a pre-Act promotion or hiring decision or firing decision.

What we have here is a present violation of the sort that was lacking in Evans.

The violation here rests solely... does not rest solely on pre-Act conduct.

Rather, there is a purposeful post-Act practice of paying blacks less than whites.

On the second issue of the statistical proof of discrimination in the agent's salaries, we have shown in our brief that the statistics offered in this case were sufficient to meet the plaintiff's burden of showing purposeful discrimination.