Goodman v. Lukens Steel Co.

Justice Powell,

with whom Justice Scalia joins, and with whom Justice O’Connor joins as to Parts I through IV, concurring in part and dissenting in part.

I concur in the Court’s holding that the state statute of limitations for personal injury actions should apply to claims arising under 42 U. S. C. § 1981. I also agree that the Court’s ruling on the statute of limitations question should *681apply to the parties in this case and therefore join Part I of the Court’s opinion. I dissent, however, from Part II of the Court’s opinion, that affirms the judgment against the Unions for violating § 1981 and Title VII of the Civil Rights Act of 1964. The ambiguous findings of the District Court, accepted by the Court of Appeals for the Third Circuit, do not provide adequate support for the Court’s conclusion that the Unions engaged in intentional discrimination against black members. Neither of the courts below specifically found that the Unions were motivated by racial animus, or that they are liable to black members under the alternative Title VII theory of disparate impact. Accordingly, I would remand to permit the District Court to clarify its findings of fact and to make additional findings if necessary.

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Close examination of the findings of the District Court is essential to a proper understanding of this case. The plaintiffs, blacks employed by the Lukens Steel Company, sued the United Steelworkers of America and two of its local unions (Unions) for alleged violations of § 1981 and Title VII. The plaintiffs’ allegations were directed primarily at the Unions’ handling of grievances on behalf of black members. The District Court found that “[t]he steady increase in grievance filings each year has not produced a corresponding increase in the capacity of the grievance-processing system to handle complaints.” 580 F. Supp. 1114, 1158 (ED Pa. 1984). Consequently, the court found, the Unions gave priority to “[sjerious grievances” — that is, “those involving more than a four-day suspension, and those involving discharges.” Ibid. In an effort to reduce the backlog of grievances, the Unions disposed of many less serious grievances by simply withdrawing them and reserving the right to seek relief in a later grievance proceeding. The District Court found “no hard evidence to support an inference that these inadequacies disadvantage blacks to a greater extent than whites.” Ibid. *682The incomplete evidence in the record suggests that the percentage of grievances filed on behalf of black employees was proportional to the number of blacks in the work force. Ibid. Of the relatively few grievances that proceeded all the way to arbitration, the District Court found that the number asserted on behalf of black members was proportional to the number of blacks in the work force. Ibid. Moreover, black members had a slightly higher rate of success in arbitration than white members. Id., at 1158-1159. In sum, the District Court found that “plaintiffs’ generalized evidence concerning perceptions about racial inequities in the handling of grievances does not, without more, establish a prima facie case . . . ,”1 Id., at 1159.

The District Court concluded, however, that the plaintiffs were “on firmer ground” in challenging the Unions’ “repeated failures, during the limitations period, to include racial discrimination as a basis for grievances or other complaints against the company.” Ibid. Beginning in 1965, the Unions’ collective-bargaining agreements with the employer prohibited discrimination on the basis of race against any employee, permanent or probationary. It is undisputed that the Unions “were reluctant to assert racial discrimination as a basis for a grievance.” Ibid. The court found the Unions’ explanation for this reluctance facially reasonable. Ibid. The Unions observed that employees were more likely to obtain relief if a grievance based on racial discrimination was framed as a violation of another provision of the collective-bargaining agreement that did not require proof of racial animus. Moreover, when faced with an allegation of racial dis*683crimination, “the company tended ‘to get its back up’ and resist [the] charge.” Ibid. The court nevertheless rejected the Unions’ explanation, for two reasons. First, the court found that the Unions “virtually ignored” the “numerous instances of harassment, which were indisputably racial in nature, but which did not otherwise plainly violate a provision of the collective bargaining agreement.” Id., at 1160. Second, the court concluded that “vigorous pursuit of claims of racial discrimination would have focused attention upon racial issues and compelled some change in racial attitudes,” and that the Unions’ “unwillingness to assert racial discrimination claims as such rendered the non-discrimination clause in the collective bargaining agreement a dead letter.” Ibid.

The District Court also found that the Unions had adopted a policy of refusing to process any grievances on behalf of probationary employees, despite the fact that the collective-bargaining agreement prohibited employers from discriminating against any employee, permanent or probationary, on the basis of race. The Unions adhered to this policy, the court found, even though they “knew that blacks were being discharged ... at a disproportionately higher rate than whites.” Id., at 1159. Finally, the court found that the Unions failed to object to written tests administered by the employer on the ground that it had a disparate impact on black members, even though they “were certainly chargeable with knowledge that many of the tests . . . were notorious in that regard.” Ibid. The court found, however, that the Unions objected to “tests of all kinds,” on the ground that they gave an unfair advantage to younger employees who had recently completed their formal education. Ibid.

The Court of Appeals accepted each of the District Court’s findings of fact and affirmed the judgment against the Unions. 777 F. 2d 113 (CA3 1985). The appellate court concluded that the Unions’ “deliberate choice not to process grievances” violated Title VII “because it discriminated against the victims who were entitled to representation.” *684Id., at 127. The Court of Appeals also concluded that “[t]he district court’s finding of intentional discrimination properly supports the claims under § 1981 as well.” Ibid.

I — I I — I

A

As the Court recognizes, plaintiffs can recover under § 1981 only for intentional discrimination. Ante, at 665-666, n. 10; General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 382-391 (1982). The Court also recognizes that a valid claim under Title VII must be grounded on proof of disparate treatment or disparate impact. Ante, at 664. A disparate-treatment claim, like a §1981 claim, requires proof of a discriminatory purpose. Teamsters v. United States, 431 U. S. 324, 335-336, n. 15 (1977). Of course, “ ‘[discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979) (citation omitted). It implies that the challenged action was taken “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Ibid, (footnote omitted). The Court concedes that “there was no suggestion below that the Unions held any racial animus against or denigrated blacks generally.” Ante, at 668. It nevertheless concludes that the Unions violated Title VII and § 1981 because they “refuse[d] to file any and all grievances presented by a black person on the ground that the employer looks with disfavor on and resents such grievances,” ante, at 669, and “pursue[d] a policy of rejecting disparate-treatment grievances presented by blacks solely because the claims assert racial bias and would be very troublesome to process,” ibid. In my view, this description of the Union’s conduct, and thus the Court’s legal conclusion, simply does not fit the facts found by the District Court.

The Unions offered a nondiscriminatory reason for their practice of withdrawing grievances that did not involve a dis*685charge or lengthy suspension. According to the Unions, this policy, that is racially neutral on its face, was motivated by the Unions’ nondiscriminatory interest in using the inadequate grievance system to assist members who faced the most serious economic harm. The District Court made no finding that the Unions’ explanation was a pretext for racial discrimination. The Unions’ policy against pursuing grievances on behalf of probationary employees also permitted the Unions to focus their attention on members with the most to lose. Similarly, the Unions’ stated purpose for processing racial grievances on nonracial grounds — to obtain the swiftest and most complete relief possible for the claimant, see 580 F. Supp., at 1159 — was not racially invidious. The Unions opposed the use of tests that had a disparate impact on black members, although not on that ground. Their explanation was that more complete relief could be obtained by challenging the tests on nonracial grounds. 1 App. 237. The District Court made no finding that the Unions’ decision to base their opposition on nonracial grounds was motivated by racial animus.2 Absent a finding that the Unions intended to dis*686criminate against black members, the conclusion that the Unions are liable under § 1981 or the disparate-treatment theory of Title VII is unjustified.

B

Although the District Court stated that the plaintiffs raised both disparate-treatment and disparate-impact claims, 580 F. Supp., at 1119, it did not make specific findings nor did it conclude that the plaintiffs are entitled to recover under a disparate-impact theory. Indeed, the limited amount of statistical evidence discussed by the District Court indicates that the Unions’ grievance procedures did not have a disparate impact on black members. See supra, at 682. Moreover, neither the District Court nor the Court of Appeals considered the validity of potential defenses to disparate-impact claims. For example, before the court properly could have held the Unions liable on a disparate-impact theory, the court should have considered whether the Unions’ practices were justified by the doctrine of business — or union — necessity. See Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971). The court also should have considered arguments that some of the challenged practices, such as the Unions’ refusal to pursue grievances of probationary employees, were justifiable as part of a bona fide seniority system.3 See Ford *687Motor Co. v. EEOC, 458 U. S. 219, 239-240 (1982). Because this Court is reluctant to consider alternative theories of liability not expressly passed upon by the lower courts, see Furnco Construction Corp. v. Waters, 438 U. S. 567, 580-581 (1978), I would remand to the District Court to permit it to consider whether the Unions are liable under a disparate-impact theory.4

Ill

The Court does not reach the question whether a union may be held liable under Title VII for “mere passivity” in the face of discrimination by the employer, because it agrees with the courts below that the record shows more than mere passivity on the part of the Unions. Ante, at 665-666. I disagree with that conclusion, and so must consider whether the judgment can be affirmed on the ground that Title VII imposes an affirmative duty on unions to combat discrimination by the employer.

The starting point for analysis of this statutory question is, as always, the language of the statute itself. Kelly v. Robinson, 479 U. S. 36, 43 (1986). Section 703(c), the provision of Title VII governing suits against unions, does not suggest that the union has a duty to take affirmative steps to remedy employer discrimination.5 Section 703(c)(1) makes it unlawful for a union “to exclude or to expel from its membership, or otherwise to discriminate against, any individual *688because of his race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e-2(c)(l). This subsection parallels § 703 (a)(1), that applies to employers. See 42 U. S. C. §2000e-2(a)(1). This parallelism, and the reference to union membership, indicate that § 703(c)(1) prohibits direct discrimination by a union against its members; it does not impose upon a union an obligation to remedy discrimination by the employer. Moreover, § 703(c)(3) specifically addresses the union’s interaction with the employer, by outlawing efforts by the union “to cause or attempt to cause an employer to discriminate against an individual in violation of this section.” § 2000e-2(c)(3). If Congress had intended to impose on unions a duty to challenge discrimination by the employer, it hardly could have chosen language more ill suited to its purpose. First, “[t]o say that the union ‘causes’ employer discrimination simply by allowing it is to stretch the meaning of the word beyond its limits.” 1 A. Larson & L. Larson, Employment Discrimination, § 44.50, p. 9-40 (1985). Moreover, the language of § 703(c)(3) is taken in haec verba from § 8(b)(2) of the National Labor Relations Act (NLRA), 29 U. S. C. § 158(b)(2). That provision of the NLRA has been held not to impose liability for passive acquiescence in wrongdoing by the employer. Indeed, well before the enactment of Title VII, the Court held that even encouraging or inducing employer discrimination is not sufficient to incur liability under § 8(b)(2). Electrical Workers v. NLRB, 341 U. S. 694, 703 (1951).

In the absence of a clear statement of legislative intent, the Court has been reluctant to read Title VII to disrupt the basic policies of the labor laws. See Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 79 (1977). Unquestionably an affirmative duty to oppose employer discrimination could work such a disruption. A union, unlike an employer, is a democratically controlled institution directed by the will of its constituents, subject to the duty of fair representation. Like other representative entities, unions must balance the *689competing claims of its constituents. A union must make difficult choices among goals such as eliminating racial discrimination in the workplace, removing health and safety hazards, providing better insurance and pension benefits, and increasing wages. The Court has recognized that “[t]he complete satisfaction of all who are represented is hardly to be expected.” Ford Motor Co. v. Huffman, 345 U. S. 330, 338 (1953). For these reasons unions are afforded broad discretion in the handling of grievances. Electrical Workers v. Foust, 442 U. S. 42, 51 (1979); Vaca v. Sipes, 386 U. S. 171, 191-194 (1967). Union members’ suits against their unions may deplete union treasuries, and may induce unions to process frivolous claims and resist fair settlement offers. Electrical Workers v. Foust, supra, at 51-52; Vaca v. Sipes, supra, at 191-193. The employee is not without a remedy, because union members may file Title VII actions directly against their employers. Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974). I therefore would hold that Title VII imposes on unions no affirmative duty to remedy discrimination by the employer.

1 — I <1

I agree that the judgment in No. 85-1626 should be affirmed. For the reasons stated above, I would vacate the judgment in No. 85-2010 and remand the case for further proceedings consistent with this opinion.

The District Court found that black union members “actively participated” in union meetings and affairs. 580 F. Supp., at 1157. A black member served as chairman of the grievance committee, and other black members served on the committee. Brief for Petitioners in No. 85-2010, p. 7; 2 App. 714-715. The percentage of black shop stewards, the Unions’ primary representatives in the grievance process, frequently exceeded the percentage of black members in the bargaining unit. Brief for Petitioners in No. 85-2010, p. 7; 2 App. 634-640.

Of course, an inference of discriminatory intent may arise from evidence of objective factors, including the inevitable or foreseeable consequences of the challenged policy or practice. Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279, n. 25 (1979); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 266 (1977). But when “the impact is essentially an unavoidable consequence of a . . . policy that has in itself always been deemed to be legitimate,. . . the inference simply fails to ripen into proof.” Personnel Administrator of Mass. v. Feeney, supra, at 279, n. 25.

The District Court did not expressly rely on any inference of racial animus drawn from the consequences of the Unions’ grievance policies. Indeed, it appears that the District Court imposed liability for intentional discrimination without finding that the Unions acted, or failed to act, with the purpose of harming black members. The District Court’s primary justification for imposing liability was that “mere union passivity in the face of employer-discrimination renders the unions liable under Title VII and, if racial animus is properly inferrable, under § 1981 as well.” 580 F. Supp., at 1160 (citations omitted). It then stated:

*686“Moreover, the evidence in this case proves far more than mere passivity-on the part of the unions. The distinction to be observed is between a union which, through lethargy or inefficiency simply fails to perceive problems or is inattentive to their possible solution (in which case, at least arguably, the union’s inaction has no connection with race) and a union which, aware of racial discrimination against some of its members, fails to protect their interests.” Ibid.

Par from inferring racial animus from the foreseeable consequences of the Unions’ inaction, the District Court merely stated its view that union passivity — whether deliberate or inadvertent — is a basis for liability without regard to the Unions’ purpose or intent.

Although these defenses do not appear to have been raised by the Unions in the courts below, this is not surprising in view of the fact that the plaintiffs did not present evidence or legal arguments to support a disparate-impact theory.

An additional consideration supporting a remand is the Court’s determination that a 2-year statute of limitations applies rather than the 6-year statute of limitations applied by the District Court. It is not clear whether the District Court would impose liability on the Unions based solely on their conduct after 1971. The Court of Appeals vacated the District Court’s finding that racial harassment was a classwide problem because it could not determine from the record whether racial harassment after 1971 amounted to more than “a few isolated incidents.” 777 F. 2d 113, 121 (CA3 1985). Moreover, there is evidence in the record that the Unions filed grievances explicitly alleging racial discrimination after 1971. 2 App. 412, 422, 491, 657, 659, 684.

Section 703, 42 U. S. C. §2000e-2(c), is set out in full ante, at 658-659, n. 2.