Equal Employment Opportunity Commission v. O & G Spring and Wire Forms Specialty Company

hand, On the other posing Bethlehem’s wastewa- penalties civil alleged violations in sludges ter treatment do not fall within the through counts two six. listing for F006 par- hazardous waste. The agree sludges ties are a mixture of waste, gov-

F006 and non-hazardous and the allege

ernment does not that Bethlehem’s

sludges are hazardous waste virtue of theory listing other than its as F006 waste. EQUAL such, EMPLOYMENT sludges As OPPOR- Bethlehem’s two la- goons subject COMMISSION, and landfill are not TUNITY RCRA requirements subtitle Plaintiff-Appellee, C as a listed hazardous waste. portion We therefore VACATE opinion grants district court’s partial O &

summary G SPRING judgment injunctive AND WIRE FORMS relief COMPANY, Bethlehem on the United States’ SPECIALTY sec7 claims, through ond sixth and Remand Defendant-Appellant. case with partial instructions to enter sum- 92-3436, Nos. 92-4118. mary judgment favor Bethlehem with regard to those five claims. United Appeals, States Court Circuit. Seventh

RIPPLE, Judge, Circuit concurring part dissenting part. Argued Nov. 1993. This is a difficult my case and colleague Decided Oct. thoughtful has crafted a careful opinion.

I pleased join am aspect all but one of it.

I believe that sludge at the bottom of finishing lagoons

Bethlehem’s and the fil- sludge

tered properly its landfill are classi-

fied as F006 listed waste because these

sludges are sludges “wastewater treatment

from electroplating operations.” 40 C.F.R. view,

§ my 261.31. In agency’s descrip- very

tion is clear and specificity further required. I note that the listing F006

specifically scope eliminates from its sludges

produced by processes. certain If agen-

cy exclusions, believed that other based for

instance on percentage sludge waste,

attributable to appro- hazardous

priate, it would have specifi- included such a

cation.

ORDER

Jan. opinion our September dated

we vacated the liability District Court’s find- ing on through counts two six of the com-

plaint and remanded District Court

with instructions partial to enter summary

judgment in favor of Corpo- Bethlehem Steel

ration on those IT counts. IS NOW OR-

DERED that the instruction to the District Court shall include portion vacation of that August order, memorandum im-

Burns, Atty., Mary Office of the U.S. B. Manzo, E.E.O.C., IL, Chicago, plaintiff- appellee in No. 92-4118. (argued),

Gerard C. Smetana Michael E. Avakian, Avakian, Smetana & Andrew W. Levenfeld, Associates, Chicago, Levenfeld & IL, defendant-appellant. WOOD, Jr., CUDAHY,

Before and MANION, Judges. Circuit CUDAHY, Judge. Circuit Spring 0 & G and Specialty Wire Forms (0 G) Company company & is a small on Chicago’s West Side that manufactures springs specialty and wire forms to order. workers, shop has about 50 about 35 of jobs whom work at low-skilled in the “sec- ondary department” operating kick and punch presses. 0 & G recruited for these positions by word-of-mouth accepting and applications street, from walk-ins off the al- though walk-ins were during considered hiring certain “windows.” From 1979 until people 0 & G hired 87 for the second- ary department, 58 of whom were walk-in applicants. None of the 87 hires were Afri- can-Americans. On November Equal Employment Opportunity Commission (EEOC) complaint filed a charging 0 & G engaging with pattern practice in a age racial and discrimination in recruiting hiring in violation of Title VII of the Rights § Civil Act of 42 U.S.C. 2000e- 6(a) (1988), Age and the Discrimination in Employment (ADEA), Act of 1967 29 U.S.C. (1988).1 § seq. 621 et After a bench trial and subsequent opinions, amended the district court found that 0 & engaged G had in a pattern of intentional against African-Americans. F.Supp. (argued), Equal Gail S. Coleman Employ- (N.D.I11.1988). Com’n, Opportunity ment Office of Gen. Counsel, DC, Washington, Burns, James B. Background I. Atty., IL, Office of Chicago, the U.S. that, alleged The EEOC from 1979 until plaintiff-appellee in No. 92-3436. intentionally O & G discriminated (argued), E.E.O.C., Gail S. Coleman Office persons African-Americans and over Counsel, DC, Washington, Gen. age B. James 40 in hiring recruitment and for the years 1. In the neighborhood two after the EEOC filed its com- 1985 the “switched” from Polish plaint, people 0 & G hired 12 new in the second- to African-American. O & G also claims that the ary department, 5 of them African-Americans. opening nearby of a market attracted African- demographic 0 & G attributes the increase to past Americans and increased foot traffic &O G. changes neighborhood, claiming that in agreed with 0 & G claim. The 0 & G’s secondary department, and also that expect that had a it was 0 G’s recruiting technique reasonable word-of-mouth might disproportionately com- force impact on African-Americans disparate trial, pre- immigrants, posed and reasonable 40.2 At recent over workers rep- experienced applicants. prefer African-Americans for & G sented evidence so, walk-in largest group 406. But even the district resented al- period, time during explanation the relevant that “no is suffi- pool court concluded individuals that these though 0 & G claimed the ‘inexorable zero’ em- cient to overcome African- request applications. Four did not & from 1979 ployment of blacks G provided also anecdotal witnesses though American Id. African-American avail- 1985.” jobs rejected for they had been evidence that ability in labor market relevant at 0 & G.3 extremely tó low—6%—to have be account and, if hires even for no African-American ease was statisti- But heart of the the the precisely had never been the relevant market parties to presented both cal evidence defined, proven had that availabil- the EEOC many African-Americans calculate how higher. The ity significantly in Id. was fact on the relevant have been hired based should May its decision on amended court serving 0 & G. The labor market clarify findings. 1989 to Vise, that concluded expert, Dr. Pierre de availability in relevant the African-American court January 1990 the district On to 31%. ranged from 22.5% labor market light in of Wards reconsidered its decision figures proba- opined that these Dr. de Vise Atonio, Packing 490 U.S. Co. Cove bly the African-American underestimated (1989), 2115, 104 L.Ed.2d 738 and unemployed availability, excluded since disparate impact claim failed held that the over- and African-Americans were people, proven that had not O & G’s since the EEOC among unemployed. 0 & represented the legiti recruiting no served word-of-mouth Meyers, expert, Dr. Glen testified G’s purpose. F.Supp. mate business of African- determinations Dr. de Vise’s (N.D.Ill.1990). Focusing only on G’s O & availability Dr. were inaccurate. American hiring, district court reaffirmed walk-in failed to that Dr. de Vise Meyers testified that O & G was liable inten its decision ma- preference consider 0 & G’s for skilled court The district tional discrimination. or workers’ own self- as workers chinists on again its decision March reconsidered Meyers also 0 & Dr. testified selection. decided EEOC v. Chica 1992 after this court justifications for legitimate had business G Works, Lamp go Miniature re- and relying on wórd-of-mouth walk-in (7th Cir.1991), in we lower which reversed hiring. cruiting and finding of intentional discrimination court’s sufficient had not offered the EEOC found 0 & liable because The district court G found the The district court proof of intent. on both the intentional of Title VII violations dissimilar, claims, found no reason to and disparate impact two cases and discrimination proeeed- finding.4 In later prior ADEA disturb its not liable on 0 & G but found ignored language completely fac- only relevant district court age claims are 2. fees, pool. applicant attorneys’ and the cross-appeal might have skewed the on tors that to the below. heavy the case will be discussed Recognizing of burden on a defendant merits clearly findings were that a district court's show witnesses that none of these 3. O G claims erroneous, case that in that nonetheless found we "hiring applied during window" therefore and important unreliable about the statistics were too testimony is irrelevant. The district their Although the Chica- 947 F.2d at 301. variables. matter, explicitly finding but made no on did here, key facts analysis go is useful Miniature anecdotal evidence. credit the EEOC's only Not are different. these two cases of (N.D.I11.1990). F.Supp. labor of the relevant the EEOC's calculations case, in this market far more refined Chicago we found In language other account of took district court relevant market definition of the labor EEOC's evaluating particular, the statistics. significant respects. . variables when flawed broadly scope geographic was defined too commut- account for the effect that and failed to Also, the ing might available have on labor. time ings, pay showing proba- court awarded back or the district racial ethnic imbalance are paid pro applicants to a class or rata of tive a case such as this one because applicants would-be 0 & G. sign such imbalance is often telltale (N.D.I11.1992). appeals 0 & G the dis- discrimination; purposeful explana- absent finding liability trict court’s on the Title tion, ordinarily expected it is that nondis- claim, VII and the denial of its motion for criminatory hiring practices in time re- will attorneys’ ADEA fees for the claim. representa- sult in a work force or more less composition tive of the racial and ethnic Sufficiency II. evidence population community from which Teamsters, 0 & G contends that there was employees are hired.” insufficient evidence for the district court to at 339-40 n. 97 S.Ct. at 1857 n. 20.5 engaged pattern practice find that it Appropriate statistical evidence can also be discrimination, arguing primar of intentional pattern practice sufficient to establish a ily that statistical evidence alone cannot words, discrimination —or other prove intentional The dis discrimination. alleged discriminatory hiring practices were squarely noting trict court held the opposite, “more than the mere occurrence of isolated beyond proof that “it is cavil that statistical sporadic discriminatory ‘accidental’ or liability alone is sufficient to establish under Teamsters, 336, acts.” 431 U.S. at 97 S.Ct. disparate disparate both the treatment and 1855; Hazelwood, 308, at 433 U.S. at 97 S.Ct. (em impact of models.” 705 at 408 at 2742. phasis original). arguments in 0 & G’s But, course, statistics, any like contrary firmly rejected by the have been evidence, irrefutable; Supreme strong are not the Court and this circuit. Int’l statis States, may prove own, Brotherhood Teamsters v. tics a case on their United while 324, 1843, shaky 431 U.S. 339-40 n. 97 S.Ct. statistics be insufficient unless (1977) (“Since n. by 1857 52 L.Ed.2d 396 accompanied the additional evidence. Team passage Rights sters, Civil Act of 1857; 431 U.S. at 97 S.Ct. at frequently upon courts have Miniature, relied statistical Chicago 947 F.2d at 300-01. O & prove many ... evidence violation G maintains that the EEOC’s statistical evi proof cases the available avenue of is the fatally respects. dence was flawed in several use of racial statistics to uncover clandestine validity Determining the and value of statisti by employer.”); and covert discrimination firmly cal evidence is within the discretion of States, Hazelwood School Dist. v. United 433 court, the district and we will reverse its 299, 307-08, 2736, 2741, 97 S.Ct. 53 findings only clearly if are erroneous. (1977); Miniature, Chicago L.Ed.2d 768 Swint, Pullman-Standard 456 U.S. (“Statistical dispari F.2d at 299 evidence of 287-90, 1781, 1789-91, 72 L.Ed.2d minority representation ties between in an (1982). respect, In this “a statistical mod employer’s minority repre force and el [in case] need not be community sentation in the from which em completely specified arguably and some rele ployees prove disparate are hired can treat vant variables can be omitted in certain pattern case.”); in a practice ment Chicago 300; cases.” 947 F.2d at Sears, Co., EEOC v. Roebuck & 385, 400, Friday, Bazemore v. (7th Cir.1988). Reliance on statistical (1986). 92 L.Ed.2d 315 plain evidence no means diminishes the obligation prove discriminatory Determining tiff’s in the relevant labor cases, dispari tent —but some statistical step determining market is an essential may prove ties alone any intent. statistically significant “Statistics whether there are weakened, long potentially 5. This line cases was not as O firmed the "decisive” value of statisti suggests, by evidence, & G our recent decision in EEOC v. noting cal that "Consolidated had Sys., Consolidated Service 989 F.2d 233 Cir. applicants employment, some non-Korean 1993). There, we affirmed a district court’s find any support, and if it had never hired this would ing company engaged a small had not perhaps decisively, inference of discrimina intentional discrimination with its word-of- tion.” Id. at 236-37. hiring policy. specifically mouth The court af application mony from & staff data and the em- 0 G the market between deviations represent- indicating that African-Americans Chicago Minia- hiring patterns. ployer’s applicant pool. of the walk-in ed about 20% ture, The EEOC’s F.2d at 299-800. Moreover, incor- F.Supp. at 74. 0 & G different provided three Dr. de Vise expert (and repeats dissent rectly states several labor mar- & G’s relevant of 0 formulations times) district court found that Afri- geographic ket, slightly different each with preferred not to work at O can-Americans court scope.6 The district occupational models, spoke Span- Polish or G because its workers among three did not choose finding of surprisingly, no such sufficiently accu- ish. Not they presented a found part of language-based selection bias on the range against the district which rate any shred of evi- African-Americans —nor hiring record. Under 0 & G’s could evaluate finding— definition, such a support African- dence that would conservative the most in the record. The dissent’s conclusion availability 22.5%. exists least was American Spanish presence of Polish and that “the statistical court found would, own, on its analysis speakers O & G drive using standard deviation probability entirely away unfound- African-Americans during period hires of no black ed, suggests without ethnic attitudes infinitesimal.” through certainly It would support in the evidence. F.Supp. at appeal. impute such biases on improper do argues that EEOC statistics 0 & G event, such a variable mean- make applicant self-selection. Se- account have to show that Afri- ingful, O & G would participants in part bias on the lection preference can-Americans exhibited can, of labor market otherwise-relevant greater to other na- significantly proportion course, number disparities in the account for English The district speakers. tive-born num- shop and the people who walk self-selection, applicant court thus considered Chicago walk in. See who ber that, the extent it was concluded but 302, But cited therein. F.2d at and cases factor, significantly not reduce the valid it did claim factor in 0 & G’s court did the district disparities. statistical dis- would be its relevant labor market that that, expert testified as a Polish O & G’s also composed of recent proportionately company, could not afford to small O & G poor work- immigrants, 0 & offered since G hires, but, thus needed hire compen- train new and pay, as a ing conditions and low The district court dis- experienced workers. factor, English. 705 require not sating did secondary, depart- jobs in the 406; agreed that F.Supp. at 779 see F.Supp. at also but found that it (district required experience, the ment noted it considered court that & factor). however, qualification. O this, a desirable G could be language Even ignore the EEOC statistics any contends that of African- for the account absence not workers.7 The preference for skilled hires, light in of testi- this particularly American code, availability zip of the Afri- as O & G's 60651 were defined the relevant labor If market operatives would be operators can-American 31.8%. stamping press punching machine and Cf. 14, 309, Hazelwood, (the n. S.Ct. at 433 U.S. at Chicago City narrowest of in (standard greater deviations than 2 categories n. 14 occupational geographic relevant and Partida, census), statistically significant); Castaneda are African-American then 1281 n. 497 n. availability be Under for hire would 22.5%. (statistics (1977) lawyers). op- for category 51 L.Ed.2d 498 occupational "machine for broader erators, inspectors,” with a but assemblers and preference category such a rea- geographic 7. The district court found narrowly focused more sonable, dispute just although parties still applicants considering within O G's based on played G's radius, experience in O & of a role how much availabili- the African-American a 5-mile that hiring O G contended almost analysis, decisions. & Dr. ty a third would be Under 23.1%. employees secondary department had reporting employers' half of its EEO-1 de Vise looked to training, Tr. previous yearly technical African-American that show the forms factory experi- general "operatives," most of the others had participation rate from 1980-85 ence, O that most of & the EEOC asserted processing while operators of "machine defined as presi- O & G vice hires were unskilled factory-type of inter- G's equipment" duties or “other jobs in Joseph Olinyk testified that had in a dent can be mastered skill level mediate which department "unskilled" and that secondary training.” require only limited few weeks and fully upon three occu- but will not are con- EEOC statistics were based disturb unless we categories punch stamp press vinced the district court has erred. And 0 & pational — operators general and G fails to note that the district court did not operators, machine exclusively evidence, rely on the statistical expert own con- operators 0 & G’s —that it in considered tandem with the EEOC’s appropriate. This situation con- ceded were anecdotal evidence. We are led to the same trasts, analysis example, with the conclusion as the Court Teamsters that Chicago unpersuasive court found Minia- event, any tuning “[i]n fine of the statistics ture, presented only a in which the EEOC glaring could not have obscured the absence simplistic analysis based on race and the company’s inability minoritfies].... The region. F.2d at 301. In Chicago entire to rebut the inference of discrimination event, though 0 & G’s work does even comes not from a measure of statistics but skill, argues still that require high 0 & G ” Teamsters, from ‘the inexorable zero.’ categories occupational these included too U.S. at 342 n. at 1858 n. 23.8 many But unskilled workers. the district preference court factored in 0 & G’s proof III. Burden workers, experienced and still concluded that disparity the market and 0 & between argues subject 0 & G also that it was great. too G’s hires was erroneously high proof. to an burden of 0 & argument also considered 0 & G’s G relies on numerous statements which workers, usually unemployed hired and that pointed the district court out that 0 & G’s only the EEOC statistics considered skilled outweigh evidence was insufficient employed workers. This factor could cut in EEOC’s evidence of intentional discrimina ways, presented different since the EEOC tion. The district court did err to the extent unemploy- evidence that African-American implied required that it that 0 & G was higher unemployment. than ment was white statistic-by-statis refute the EEOC evidence end, In the & G’s failure to hire African- tic, just compelling or offer evidence as as justified Americans would statisti- Instead, presented by the EEOC. availability cal terms if African-American employer disparate in a treatment case were 6% of the labor market —or was dis- by showing refute the EEOC’s evidence nearly counted factor three from Sears, insignificant. it is inaccurate or most conservative EEOC estimate in this F.2d at any question 308. There was never case. any about whether 0 & G met intermediate production. Addressing burdens of 0 & G’s thoroughly weighed The district court complaints burden-shifting, about the district objections all of the raised here and court noted “the net result not was that 0 & dissent the EEOC’s statistical evi attempt legally G’s to rebut was insufficient. candidly pointed dence. The district court proof This does not shift the burden of to 0 mathematically out the areas that were not G; only prima & means that facie provable. But even the use of the most presented by statistical case EEOC was forgiving variables could not reduce the cal strong enough to overcome 0 & G’s rebuttal culation of African-Americans the relevant by preponderance a of the evidence.” Order labor market to a that level would account 22, May of statistically any for &0 G’s failure to hire precisely event, African-Americans. These are inAnd after a full trial merits, sort of determinations that we review care- on the the intermediate burdens are words, inexperienced person op an discriminatory hiring could learn how to that was the stan- Teamsters, erate the machines in an hour. Tr. 210. operating procedure. dard 431 U.S. 336, may prove at at 97 S.Ct. 1855. Statistics respect 8. We reach the same conclusion with id., pattern, they clearly such a and here did. O & G's contention that the EEOC did not ade- presented The EEOC witnesses who testified that quately prove "pattern practice” a or of discrimi- jobs; did receive not the district court cred- required prove nation. The EEOC was a testimony (importantly, ited this unlike the dis- "regular, purposeful, less-favorable treatment of Consolidated). trict court in Co., protected group," King a v. General Electric 617, (7th Cir.1992); 623 in other

879 awarding appropriate method of whether fashion an only look consequence: we noof objected publication, pattern pay. O & G demonstrated back plaintiffs have “the by preponder arguing the court should first determine of discrimination that practice awarded, pay ought This is because and evidence. whether ance of the back point is so, at that period to be decided of time and what only if for what issue proved actually plaintiffs have whether But the district court determined amount. Bazemore, 478 U.S. discrimination.” it needed to know the number of claim 3007; Ser States Postal United 106 S.Ct. give outset to it an idea wheth ants from the Aikens, 460 U.S. v. vice Board Governors feasible, would be er individualized remedies 1478, 1481-82, 714-16, 75 103 S.Ct. relief in order. or whether class-wide Hearst, (1983); Hybert v. L.Ed.2d Corp., F.2d v. General Motors Stewart (7th Cir.1990). & G con F.2d O denied, Cir.1976), cert. the district court nonetheless tends that (1977); 919, 53 L.Ed.2d 1105 S.Ct. erroneously high ultimate burden an placed Chicago 947 F.2d at 300. Although the district G. proof on O & published a notice addressed to The EEOC initially that O & G carried believed court applied who or would African-Americans court rec persuasion, the district burden of jobs applied have to O & G low-skilled the evi and reevaluated ognized this error and from 1979 until 1985. Four hundred 26,1990 January follow decision dence in its fifty responded. appeal, & G claimants On O recog The district court ing Cove. Wards argues court should not have that the district burden of EEOC carried the nized that the publish a class notice allowed the EEOC to v. Mary’s Honor Center persuasion, St. cf. determining the other elements of an — before Hicks, —, U.S. remedy. appropriate O G contends (1993), weighed and the evi L.Ed.2d broadly might reach too the notice to numer accordingly. points O & G dence many claims to generate false entitlement too court on which ous occasions does not claim that to relief. But O & G examples an al as weighed the evidence approach was unlawful or such an constituted per in the burden of legedly improper shift equitable court’s an abuse the district true, any equation if held But suasion. remedy, Pa powers to fashion a Albemarle im weighing of evidence would reflect 405, 415-21, Moody, 422 per Co. proof, and the of the burden of proper shift (1975). 2362, 2370-73, L.Ed.2d 280 rely on apparently could never district court request reversal or a remand does not O & G proof. In our defendant’s deficiencies for its point, reimbursement on this but view, improperly court did not the district with reme expenses fees “associated G, properly any burden to O & shift But, dy if the court did not phase.” abuse proven its the EEOC had concluded discretion, reject its choice will flagged bottom we case. The district error, given points to no remedy. O & G the “inexorable zero.” line case: to fashion wide discretion signifi the district court’s findings that there light of the was remedy, Franks v. participation in O & Title YII Bowman cant African-American 747, 763, Co., 96 market, 424 court U.S. Transportation labor the district G’s relevant (1976), 1251, 1263, L.Ed.2d 444 we concluding that the EEOC had 47 not err in S.Ct. did by preponderance of the the district court abused proven not conclude that its ease do by determining the size of first evidence. its discretion fashion the proceeding then the class and Remedy IV. remedy. remedy, deciding on the Before then deter district court The granted the EEOC leave district court $378,754 pay, owed back mined that & G identify of O O seeking to

publish notice victims prejudgment interest.9 including and could so that the court benefits & G’s discrimination new hires Since one-third of figure, determined discrimination. this the court first 9. To reach word-of-mouth, shortfall, at the by hiring of Afri- were recruited or the O & number G’s secondary period all beginning in 1979 would have hired absent O & G can-Americans 880 Co., 736, Cir.), denied, $378,754 paid pro would be rata to all 740 cert.

The 1100, 674, eligible class members. For the next four 454 102 70 S.Ct. L.Ed.2d 641 required (1981). fill years, & G also would be 0 The district court included in its positions equal with least numbers of new applied calculations individuals who had to O and non-class members. 0 & class members 1979, early they might & as since G as still argues that the district court should not G employed have been in 1982. But these indi pay should have con- have awarded back only pay viduals could recover for back lost such as establishment of sidered alternatives after not from the date of hire. The pay But program. an affirmative action back clearly district court was entitled to include presumptively appropriate in a Title VII remedy properly all victims in the limit Albemarle, 422 U.S. at 95 S.Ct. at case. recovery year ed in accordance with the two Homes, 2373; F.2d Horn v. Duke § limitation of Title VII. 2000e- U.S.C. (7th Cir.1985). may only It be denied for 5(g). applied generally, “if reasons which statutory purposes the central frustrate Attorneys’ V. fees eradicating making ... ruling, In its December the dis- Albemarle, persons whole.” 422 U.S. at trict court found in favor O & G on the If, example, at 2373. the back attorneys’ ADEA claim. O & G moved for bankrupt pay award would 0 & G and render Equal fees under the Access to might Justice Act judgment-proof, it be within the (1988). (EAJA), § 2412 district court’s discretion to alter the 28 U.S.C. After a award. here, hearing, But the district court concluded that 0 denied the motion pay judgment, & could G afford to the entire from the bench on November find- dispute a conclusion & G does not on ing position that the EEOC’s was substan- appeal. justified. tially appeals. O & G The EEOC argues justifica- that the EAJA’s substantial argues & also 0 G the district court standard, 2412(d), § tion 28 U.S.C. does not improperly pay period. extended the back ease, apply to an ADEA but that even if it But pay the court calculated back due does, (two position substantially the EEOC’s was years from October before the justified. question Commission, ap- of what statute filing charge of a with the as required by plies squarely § has not 2000e-5(g)); U.S.C. see been addressed Youngstown circuit, also Patterson v. Sheet Tube so we first consider whether white, department employees fringe actually by were at first most benefits earned the 87 hires by word-of-mouth recruits would also have been from 1979 African-American hir- applicants (17 87). white. But the walk-in ing percentage would be ex- shortfall out of This pected makeup to mirror the of the relevant by offset number was the amount that those (as applicant labor market data shows that it rejected O & G earned or could have earned did). Since &0 G hired 58 walk-ins out of a jobs during period. 706(g), § in other labor market that at the most conservative esti- 2000e-5(g). § U.S.C. To hold individualized African-American, mate 22.5% 13 hires hearings applicants for 451 to determine what (58 should have 22.5%). x been African-Americans they employed had earned when were not presence As the African-American in 0 unreasonable; O & G would have been more- through & G's work force increased non-discrim- over, given jobs entry that O & G’s level however, inatoiy hiring, walk-in it would be ex- jobs requiring experience, little it would be im- pected that more African-Americans would be possible specific to determine which class mem- word-of-mouth, recruited as occurred in have been bers would hired absent discrimina- 1986-87. Thus if African-Americans had been wages tion. The court determined that interim 1979-1985, average hired at a uniform rate in an by presuming could be determined that the em- of 6.5 African-Americans would have been em- ployment among appli- rate African-American time, ployed any constituting at 0 & G at one applicants cants or would-be to O & G mirrored Assuming of its force. that 14% 14% employment the African-American rate in the people by hired 29 word-of-mouth from 1979 to parties agreed relevant labor market. The African-American, 1985 were 4 of the word-of- of African-Americans in relevant market 22% mouth hires should have been African-American. sum, unemployed. pay back award hiring 0 & G's total shortfall was therefore 17 by multiplying wages was determined the total (13 4).+ of the 87 benefits hires times O & G's Afri- (17 87) percentage The district court then determined back can-American shortfall out of pay by multiplying wages award the value of times 22%.

881 so, and the United shall be liable for costs if whether the district States applies, and EAJA [including attorney’s pri- the same as a denying attorneys’ fees] fees. 0 & G court erred Christiansburg person”);

vate Garment Co. A. EEOC, 412, 422, 694, 700, 434 98 S.Ct. v. U.S. (1978) (awarding pre- 54 L.Ed.2d 648 fees rule, parties the American Under vailing Title defendants if suit was VII unless Con their own costs generally bear frivolous). Alyes specifically provides otherwise. gress Society, 421 Pipeline v. Wilderness ka Co. argues EEOC EAJA 1612, 1616, 240, 247, 44 L.Ed.2d U.S. 95 S.Ct. (the 2412(d) justification § stan substantial (1975). But, passage of the prior to 141 dard) apply does not to suits likewise fee-shifting stat even where EAJA ADEA brought under the ADEA. Since the costs, govern for the federal utes allowed requires prevail the court to award fees to a immunity law retained its common ment recovery ing plaintiff provide but does not fee-shifting statute or from suit unless the defendants, EEOC, argues prevailing explicitly allowed recov other statute some may only recover under the com a defendant (such as Title II ery from the States United exception faith” to the Ameri mon-law “bad Act, § 42 2000a- Rights U.S.C. Civil rule, applied government can to the federal 3(b)). (1975); Alyeska, § 2412 421 28 U.S.C. 2412(b). by § EAJA 265-67, 95 at 1626. The EAJA U.S. at S.Ct. § 2412 to allow for significantly overhauled policy standpoint, From a the EEOC’s ar recovery government. against the federal gument interpret ADEA should that the 2412(b) im government’s waived Section respect Title with to fees makes ed like VII munity provided that the Unit from suit and sense. The ADEA and Title VII share some for fees under the ed States would be hable goal of discrimination the same —elimination any same extent as other common law the pro workplace their substantive —and 2412(d) excep party. carved out Section Pons, v. hibitions are identical. Lorillard litigants, law for most as tion to the common 866, 872, 575, 584, 55 434 U.S. 98 S.Ct. 2412(d)(2)(B), holding gov §in defined (1978). construing Thus cases L.Ed.2d 40 higher to a standard: ernment authority persuasive are often when Title VII Except specifically provided as otherwise interpreting Hayden ADEA. v. La-Z- statute, prevail- to a by a court shall award (7th Cir.1993), Co., Boy 9 F.3d Chair than the United States fees ing party other — denied, U.S.—, 114 S.Ct. cert. by ... expenses and other incurred (1994); Rogers Sugar v. Tree L.Ed.2d 47 brought party civil action ... (7th Cir.1993); Products, Inc., 7 F.3d ... States unless the the United Airlines, Thur Inc. v. also Trans World see position of the United court finds 613, 621, ston, 111, 121, 105 S.Ct. 469 U.S. justified substantially or that States was Nakshian, (1985); Lehman v. L.Ed.2d 523 make an award un- special circumstances 2698, 2703, 156, 163-64, 101 S.Ct. 453 U.S. just. (1981). Supreme Court And the L.Ed.2d 2412(d)(1)(A). § 28 U.S.C. the fee- consistently made clear that has Rights Act are clear, shifting provisions of the Civil makes the EAJA As the text advancing integrally the substantive apply if linked provision, and does is a default goal of discrimination —a goal of eradication specifically provides for fees another statute Piggie ADEA. Newman v. shared as described in the same situation Inc., 400, 401-02, 2412(d). Enterprises, example, does not Park § For the EAJA (1968) 19 L.Ed.2d v. apply under Title VII. EEOC suits (Title Albemarle, II); Sys., 30 F.3d 58 Services Consolidated (Title VII). substantive These Cir.1994); Kimbrough at 2370 Investment (5th Cir.1983). treat Title VII's differential Co., goals underlie Under prevailing prevailing plaintiffs and VII, ment of defendants recover prevailing Title 412, Christiansburg, 434 U.S. defendants. only if suit was frivolous. fees the EEOC’s —Inc., 2000e-5(k) (“the 694; Fantasy, Fogerty v. 98 S.Ct. § Commission 42 U.S.C. 882 —, —, fee-shifting provision, provides 114 S.Ct. 127 FLSA which

U.S. (1994). shall, reasoning any judg L.Ed.2d The Court’s “the court ... in addition to 455 equally plaintiff ADEA: applies plaintiff plaintiffs, “[T]he to the ment awarded to the or Congress instrument of to vin attorney’s paid is the chosen allow a reasonable fee to be ‘policy Congress 216(b); considered the § dicate a the defendant.” 29 U.S.C. 29 626(b). highest priority 216(b) ... when a district [and] § § Although U.S.C. makes prevailing plaintiff, court awards fees to a it prevail clear that allowance of to a fees awarding against a violator federal is them ing plaintiff mandatory, Alyeska, 421 U.S. ... policy law these considerations which 34, 34, at 261 n. 95 S.Ct. at 1624 n. what of prevailing support the award of fees to a 216(b) prevailing pro § defendants? Either plaintiff present are not in the case of a awarding prevailing hibits fees to a defen prevailing Christiansburg, defendant.” 434 preclude application dant —which would 418-19, at U.S. at 98 S.Ct. 698-99. The it the EAJA —or is silent on the matter— recently Supreme Court has underscored which means the or EAJA the common law appropriate policies that it is to consider the steps language fill the void. The of the animating fee-shifting statute when inter provision, emphasis with its on an award “to ” — preting Fogerty, similar statutes. U.S. plaintiffs” paid “by defendants, to be at—, 1028; Stomper 114 at see also S.Ct. strongly suggests by negative implication 241, Amalgamated Transit Union Local precludes awarding prevail that it fees to a (7th Cir.1994) 316, J., (Cudahy, 320 ADEA, ing defendant. The unlike the dissenting). might expect We therefore FLSA, backdrop was enacted ADEA, VII, substantively so similar to Title Title VII under which defendants recov fee-shifting regime. to follow a similar See fees; any provision er the absence of Inc., Donnelly Freight Sys., v. Yellow 874 allowing ADEA for an award to defendants is (7th Cir.1989), 820, aff'd, F.2d 402 494 U.S. worthy suggest of note. Some courts have 1566, (1990) 110 S.Ct. 108 L.Ed.2d 834 ed, although ambiguously, somewhat (ADEA fee-shifting provision interpreted like might preclude awarding FLSA fees to a VII); Wis., County, Title Heiar v. prevailing Alyeska, Crawford defendant. See 421 U.S. (7th Cir.1984), denied, 746 F.2d 1190 cert. at 264 n. 95 at n. (“Congress S.Ct. 1625 37 1027, 105 S.Ct. 87 L.Ed.2d 631 ... provided has some instances that ei (1985) (ADEA fee-shifting provisions inter party given depend ther could be an award 1988); § preted like 42 U.S.C. but see Stom- ing upon litigation the outcome of the and the per (counseling against drawing inferences court’s discretion ... while in others it has 1988). § from Title VII or specified litigants one of the can be ... awarded fees. See Fair Labor although Congress

But Stan intended the Act, 216(b).”); § substance, dards 29 ADEA to mirror U.S.C. Christians Title VII burg, very explicitly adopted 434 U.S. at 415-16 n. 98 at a different remedial 697 FLSA, (contrasting n. 5 provides scheme —a modified version of which for a the Fair La- (FLSA), mandatory § bor prevailing plaintiffs, Standards Act award to U.S.C. Lorillard, 578-79, seq. permissive et at with U.S. statutes allow awards to 869; 626(b).10 7(b) § party, party); U.S.C. Section of one awards either see incorporates by Airlines, Inc., the ADEA reference the also Richardson v. Alaska bill, Although adopted other manager statutes have the lan crimination and was a floor guage fee-shifting provision, explicit: techniques of the FLSA see made this "The enforcement Stomper, examples, provided by directly analogous F.3d 318 n. for some ADEA]are [the notably explicit incorporation the ADEAis in its those available under the Fair Labor Standards Act; fact, legisla incorporates by of FLSA's entire remedial scheme. [the ADEA] refer ence, history quite greatest tive possible, provi the ADEA makes clear that to the extent ADEA, enacting Congress Cong.Rec. "in [FLSA].” exhibited both sions of the (1967), Lorillard, knowledge provisions quoted a detailed of the FLSA 434 U.S. at — ——, judicial interpretation willingness Fogerty, their and a S.Ct. at 871. See also depart provisions regarded (noting from expressly incorpo those as unde S.Ct. 1023 that ADEA inappropriate incorporation.” provisions; refusing presume sirable or illard, Lor rated FLSA sim congressional 434 U.S. at legis 98 S.Ct. at 870. Senator ilar intent for statute where Javits, clear). proposed applying age history who FLSA to dis lative was less

883 (1985), Cir.1984) grounds, (9th overruled on other 846 (prevailing de 1219 763, F.2d 767 (7th Cir.1988) (ADEA ADEA); does not under F.2d 457 may not recover fees fendants Comm’n, awarding prevail preclude costs to expressly Texas Rehabilitation Mizrany v. 54(d)). (S.D.Tex.1981), aff'd, 685 under Fed.R.Civ.P. F.Supp. ing 611 defendants 522 Cir.1982) (same). (5th See, The e.g., Chris- are in accord. F.2d 1384 courts Cova Several Court, argu (8th rejecting Coca-Cola, 958, the EEOC’s tiansburg 574 F.2d 962 v. Cir. only could 1978) Title VII defendants (prevailing ment defendants under ADEA faith attorneys’ under the bad fees rule); Gray Eng recover subject to v. New American (the argument the EEOC same Co., exception Telegraph 792 Telephone & F.2d land statutory provi here), noted that no pursues (1st Cir.1986) (same); 251, Morgan v. 260 necessary Congress if have been sion would (6th 792, Mfg., F.2d 796 Metal 757 Union apply. 434 rule to this default had intended Cir.1985) (same); Kreager v. Solomon & 419, the Court at 699. But at 98 S.Ct. U.S. (11th P.A., 1541, 1542-43 Flanagan, 775 F.2d provided for Congress “had also remarked Cir.1985) (American FLSA); applies to rule successful attorney’s awards to fees Printing, F.3d 813 Clay v. 13 been made argument could have plaintiffs, Cir.1994) (EAJA applies prevailing ADEA to pre-empted action had congressional defendant); Mar v. Dialamerica Donovan therefore, rule, that, the common-law Cir.1985), (3d Co., 1376, keting F.2d 1388-89 attor could recover defendant successful denied, 919, 106 S.Ct. rt. ce who had plaintiff ney’s fees even (no 246, discussion of 88 L.Ed.2d 13, n. faith.” Id. proceeded bad 216(b), prevailing applying § EAJA to but 699 n. 13. defendant); Steinberg Regis, v. St. FLSA 216(b) (S.D.N.Y.1984); 421, § implication Riley of v. negative F.Supp. 424-25 But Congressional persuasively Memory, evince a No. does not Resthaven Gardens 90- of 261717, application 1227-C, common preclude 1991 U.S. Dist. intent to 1991 WL (D.Kan. 1991). recovery acted allowing plaintiff if a Nov. law rule Lexis 17804 Hudson, 490 v. faith. Sullivan bad Cf. EAJA, private to of the Prior enactment 877, 891-92, attorneys’ fees un- employers recover could (1989) provi (refusing to read L.Ed.2d allegations plaintiffs if the der the FLSA following awarding “ad EAJA fees sion of faith, the EEOC or in bad were frivolous recovery adjudication” preclude versary to Dish, School immune. Kenosha Unified adjudication); non-adversary following fees passage F.2d at With 1228. Young, 576 v. Krodel vanished, immunity and the has EAJA (D.D.C.1983) must be (congressional intent 2412(b) § under 28 U.S.C. EEOC is liable clear, words although need not use statute plaintiff is liable under just private as a fees”). pre Congress must be “attorneys concedes But while the EEOC common law. know, incorporating the upon to sumed standard) 2412(b) (the § bad faith that EAJA ADEA, that in the absence of into the FLSA ADEA, it maintains applies to the provision, prevailing defendants specific 2412(d) § preempts application of ADEA fees absent not be able to recover standard). (the justification This substantial changing By explicitly showing of bad faith. ADEA either is untenable. distinction plaintiffs but re respect with this rule § 2412 or of EAJA preempts application defendants, maining respect silent with not, that it does not. have held does We reading that the FLSA sensible the most nothing precludes application all thus law rule adopt ADEA the common and the justification 2412, including substantial § prevailing defendants. We respect with 2412(d). § Accord EEOC v. standard about already reached this conclusion have Co., Clay Printing v. Kenosha the FLSA. EEOC Unified (7th Cir. No. 620 F.2d 1220 School Dist. B. 1984) pre (attorneys’ only available fees is therefore entitled O & G under bad under FLSA vailing defendant finds that the unless the court rule); attorneys’ fees also exception see to American faith litigation was position in the sub- Allis-Chalmers, F.2d EEOC’s Matthews stantially justified, special demanding aspects or that circum- “because of these of sec- unjust. work, make an award 28 ondary prefer stances would younger we to hire 2412(d)(1)(A). parties argue § U.S.C. years males between 20-45 old.” The EEOC length precise meaning some about the alone, argues certainly that these letters “substantially justified.” Obviously it re- evidence, conjunction with the other indi- quires stronger showing good than mere cate that the EEOC had a reasonable basis faith, require showing but does not pursuing ADEA the claim. government’s position was either correct or vigorously probative O & G contests the Instead, “justified high degree.” even to a respect value of this evidence. With to the “justified position the must be ... evidence, points statistical O G is, justified degree main —that to a that could hearing court’s statements at the fees satisfy person.... position a reasonable [A] indicating correct, that it found the justified though it EEOC’s statisti- can be even is not (i.e., substantially age extremely it cal case on the claim and we believe can be weak. justified court, part) per- clearly if a most reasonable But the district aware of the correct, is, think it if case, son could it has a weaknesses in the EEOC’s statistical reasonable basis law and fact.” Pierce v. did not conclude that the weakness rendered Underwood, 565-66 & n. government’s position untenable. O & G n. 2550 & 101 L.Ed.2d 490 also claims the anecdotal witnesses were (1988). The district court reviewed the qualified not in fact for work at O & G. But litigation, EEOC’s evidence in the and ruled weighing credibility of these witnesses that 0 & G was not entitled to fees. We decidedly was within pre- the district court’s ruling cannot disturb this unless record rogative. Although the district court made “commands the conclusion” that the district specific findings no testimony, about this 570-71, wrong. court was Id. at 108 S.Ct. at appear significantly does not to be different court, Although ruling the district from the anecdotal evidence the district court bench, from the by did not facilitate review credited on the racial discrimination claim. clearly setting reasoning, forth its we cannot Lastly, argues O & G that the letters to by conclude it abused its discretion de- repudiated by the EEOC were other testimo- nying attorneys’ &O G fees. ny, and thus were an insufficient basis for trial, expert At the EEOC Dr. de Vise proceed the EEOC to to trial. But the evi- testified that &O G had hired about half dence not thoroughly have been as dis- many as workers older than 40 than would be credited as & although O G contends: O & expected based on the relevant labor market. attorney G’s personal testified that he had no The district court found that Dr. de Vise’s knowledge hiring preferences of O & G’s analysis flawed, severely was comparing the merely that his letter had repeated what age age already of new hires with the stated, Gregg Gregg admitted that he had employed workers the relevant market. approved both letters and written his own proper analysis, Under the O & G’s he age before was aware that force included even more older workers than prohibited by Tr. law. 509. O & G expected would be based on the relevant also contends that the EEOC knew before market. But the EEOC had offered addi- trial that O & G had fact hired a sufficient tional support evidence to claim. Three number workers to eliminate statisti- people testified that were over 45 and disparity. cal again, weight But to be qualified G, to work at O & but had been factor, given true, such a if is within the rejected. The EEOC also introduced two province Moreover, of the district court. letters written to the EEOC. The first letter whole, evidence must be evaluated as a attorney was written O & G’s and stated evidence, on the basis of all of “many we cannot require younger of our machines do conclude that the district court person erred when it because the extensive effort re- quired operate justified determined that the machines and the EEOC was move necessary parts.” letter, bringing The second written its case. We therefore will Gregg, O & G controller Richard deny attorneys’ stated disturb the decision to fees. disparate against O & G on the EEOC’s

VI. “To succeed in a claim treatment claim. dangerous suggestion a rather think it We treatment, alleging disparate the EEOC ulti- immigrants, by that recent of the dissent mately proving by pre- had the burden tongues, somehow native clinging to their ponderance of the evidence that &[O G] effect, and, in minority applicants repel other practice’ engaged ‘pattern in a or of discrimi- under normal consideration deprive them of Sears, ...” v. Roebuck & nation. E.E.O.C. the reasons laws. For the discrimination (7th Cir.1988). Co., 302, 839 F.2d “This above, of the district given the decisions employer’s proof includes discriminato- Affirmed. court are ry Id. The EEOC must also intent....” practice” prove “pattern a other MANION, dissenting. Judge, Circuit —in words ‘“that racial discrimination was the disturbing. particularly ease I find this operating procedure— company’s standard Opportunity Com- Equal Employment regular prac- the unusual the rather than (“EEOC”) duty a to intercede on has mission ” v. American Ma- tice.’ Mozee Commercial of unwarranted of vulnerable victims behalf (7th 1036, Co., 940 1050-51 rine Serv. F.2d But here the EEOC seems discrimination. Cir.1991) (quoting International Bhd. of line, especially in way the gone to have over States, 324, v. 431 U.S. Teamsters United and the mone- age discrimination claim the 52 L.Ed.2d 396 97 S.Ct. I that follow tary remedy. For the reasons (1977)). found intentional The district court respectfully dissent. must discrimination on the basis of statistical evi- dence and so-called “anecdotal” evidence. Disparate Treatment Claim I. this This court concludes that evidence was Gryezkiewicz migrated to America Ted support the district court’s find- sufficient he Poland. In 1966 or 1967 from Communist ing disagree. discrimination. I of intentional dream began pursuit of the American his Spring and Wire Forms founding & G First, look at the so-called anecdotal (“0 G”), Company company Specialty & This evidence consisted of testimo evidence: spring products. manufactures wire which applied ny by four black witnesses who to O have been rea- entrepreneurial His efforts may rely A and were not hired. court & G employs now sonably successful. 0 & G of individual acts intentional on evidence Chicago plant, and roughly fifty people at its prove disparate treatment. modestly For the company profitable. Sears, at 308. But this case See 839 F.2d defending years, ten 0 & G has been last testimony of the four black witnesses complaints by the EEOC. His itself from any that individu to demonstrate insufficient alone, defense, already attorney’s has fees had occurred because al discrimination $400,000. Today, this him more than cost open prove that O & G had EEOC did not pay some 451 that O & G must court holds ings secondary department when in its might applied to O & G” persons “who have Chicago Miniature applied. E.E.O.C. v. four $378,000 pay. The court (7th more than back Works, Cir. Lamp 947 F.2d thirty-five because his found discrimination 1991) (evidence applicants the black secondary department employees included unpersuasive not hired itself was workers, no black Hispanic discrimination). Polish See also show intentional this result not- workers. The court reached Co., Tripler Pierce v. F.R. produce withstanding EEOC’s failure to Cir.1992) (in (2d order to be liable applied fill a available). who even one black witness discrimination, position must be only faulty vacancy There was at O & G. filled, ... vacancy to be there is no “[I]f by the EEOC for presented model statistical normally of a Title VII would be the end litigation. purposes of Corp., F.2d claim.” Rush v. McDonald’s Cir.1992). The district Sufficiency the Evidence A. witnesses of the black did not find positions at O & G. O applied for vacant suffi- had concludes that there was This court existed and the that no vacancies find & G asserts the district court to cient evidence for dispute pool purposes fact in does not its brief. relevant statistical Instead, percent- demonstrating discriminatory the EEOC asserts that the exclusion must applying qualified un- age of blacks when 0 & G was be number minorities percentage particular City hiring be the same as the dertake the task.” Rich- Co., fact, however, of whites. This has no bear- mond J.A. Croson 501- 706, 725-26, ing on whether vacancies existed when the 102 L.Ed.2d 854 (1989). people applied. finding Without a that a Reliance on a statistical model which existed, “vacancy” testimony important of these wit- fails to account for such an varia- See, clearly e.g., Chicago nesses cannot be considered anecdotal evi- ble is erroneous. dence of individual acts of discrimination 947 F.2d at 301-03. See, Sears, 310, 8; e.g., 0 & G. 839 F.2d at n. argues The EEOC that since O & G did Miniature, 292; Pierce, Chicago 947 F.2d require expe- not all of new hires its to have F.2d 820.1

955 training, or failure rience to account for only remaining supporting preference evidence this is But as we not- irrelevant. Co., position consists of a statistical ed in EEOC’s Holder v. Old Ben Coal 618 F.2d (7th 1198, by Cir.1980), presented model Dr. deVise. a 1201-02 Supreme While plaintiff district court has broad discretion in deter- Court has said a “Title VII must statistics, Sears, mining probativeness rejection job show that for a did not result 310, at if legitimate 839 F.2d the statistical model fails from ‘the two common most rea- factor, important employer might rely to account for an reliance on sons which to reject job applicant: on that model constitutes clear error. Chica- an absolute or relative Miniature, go qualification 947 F.2d at 301. Such is the lack or the absence aof ” here:, vacancy job sought.’ (quoting case the statistical model on which the Team- sters, fatally 44, district court relied was flawed be- 431 at n. 97 S.Ct. at 1866 added). 44) by (emphasis cause the relevant labor market used n. logi- Thus Holder identify qualified cally failed to and inter- concluded: desire to “[a] hire the more applicants. experienced ested qualified applicant or better is a non-discriminatory, legitimate, and common The statistical model on which the district hiring reason on to which base decision.” court relied was flawed first of all because 0 Holder, 618 F.2d at 1202. Accord Heerdink preference hiring & had a for G skilled or Co., v. Amoco Oil 919 F.2d experienced workers since even in the sec- Cir.1990). Judge Or as now Chief Posner ondary department employees required were put it in Mason v. Continental III. Nat. blueprints operate to read to the manual Bank, (7th Cir.1983): “No punch stamp presses. and Also &0 G de- enterprise rational that qualified has several promote jobs sired to more skilled from position among candidates for a selects them F.Supp. within. making at 406. its lot; picks qualified.” it the best decision, testified, hiring Gryezkiewicz Ted preference experienced for fatally workers The statistical model was also played approximately identify role 90% of it O & flawed because failed to inter- hiring portion G’s decisions. The district court found ested of the labor market. “The in fact preference O & G had a identification of a relevant labor market —the preference key skilled workers and that this issue in a class-based Title VII case— F.Supp. only reasonable. 705 identifying qualified potential Not- means not however, withstanding finding, applicants job the dis- for the at issue but also identi- fying trict court credited as Dr. potential applicants.” evidence deVise’s interested Chi- Miniature, cago statistical model which failed to account for 947 F.2d at 302. The statis- experience this skill and factor. varia- tical This model that the district court relied on in important ignored ble was too identify ap- to be because this case failed the interested special qualifications necessary, plicants jobs “where are at O & G because did not recognizes plaintiff 1. The court failed to but nonetheless credits this evidence as evidence show that vacancies existed at the time that of individual acts of intentional discrimination. people applied, opinion the seven n. requirement, prominent Spanish use of require not its & G does consider G, preference The lack and English. read and Polish at O & O & G’s speak workers labor, fluency requirement experienced increases this court English for skilled or of an speaking Polish non-English interest of reasons that the district factored these job-seekers at & Hispanic analysis to work 0 G. and considerations the statistical The statistical model requiring fluency at 406. in En- model because not fact that Polish for the pay poor working also failed account glish was offset low routinely spoken (which at 0 & G. Spanish incidentally logi- conditions another the interest why English-speaking job-seekers This would also reduce cal reason white) (and labor English speaking black only apply). One would think that would G., F.Supp. at at & English market to work immigrants spoke who little or no Cf. jobs 406.2 working if conditions would take these pay were bad. Since couldn’t Chicago F.2d at held in We language require- elsewhere because of iii a statistical failing to account ment, En- this was their alternative. employer did not for the fact that an model experience glish-speaking workers with speak English ren- require its workers go workplace higher to a better with We the statistical evidence defective. dered fact, F.Supp. at 406. In Dr. pay. See 705 crediting evi- held that such statistical' also deVise testified to this effect. consti- proof disparate of treatment dence as prece- I would follow the tuted clear error. Nevertheless, the court concludes that the Chicago Miniature and conclude that dent of fluency English requirement lack of an clearly crediting erred the district court any not account for the absence of “could evidence of a statistical model as hires_” the EEOC’s Opinion at 7. African-American practice of intentional discrimina- pattern or major ignored court also the The district This flawed model failed tion 0 & G. in the statistical model3 because O & defects for, English- just the lack of an account not employees among any not have black G did prominent but also the flueney requirement, secondary thirty-five workers. its languages in Spanish and Polish of the use court, however, F.Supp. at 409. This states workplace at 0 & G. the failure to hire African-Ameri- that “O & G’s justified in terms if statistical model failed to cans would though Even the statistical availability of the fluency African-American were 6% English an for the lack of account bias, migrants & G in opin- be drawn to work at O Contrary portrayal would the court's of 2. immigrants presence of Polish of Polish numbers in excess ion at it is not certainly large. reasonable Spanish would dis- work force at It is workers at 0 & G that white, applying. speak expect employees who do not anyone, or from that black suade Rather, working language English the lack of it is the barrier and would be more comfortable language setting" large of company that would has a number “comfort in the for a that English-speaking employees. workers—(cid:127) Polish-speaking the interest of is also to be lessen It Spanish any immigrant populations where Polish and expected of race—to work spoken by routinely co-workers. availabili- are to communicate the have a network ‘403, Span- F.Supp. surroundings. Polish-speaking at 406. Just as Polish- ty jobs of ish-speaking to a Hispanic workers would be attracted immi- would be true for The same with workplace could communicate expected where grants to be also would be who workers, F.Supp. people who other employer that has a substantial drawn to an languages might speak well do not those employees. Hispanic-speaking number of inability apply of their to communicate because expect that recent reasonable to It is also existing portion with a substantial of the willing immigrants to work at lower would be force. poorer as an offset pay conditions and under setting. language for comfort in fact, recognized that these 3. In the district court employer such as for an It is also reasonable disparity in the ra- would cause a exact factors employees preference with O & G to have workforce, stating: composition O & G's cial background because experience or a technical training program desire G, i.e., and its of its lack of a background of O & Given the jobs rather promote from within to skilled immigrant speaking being a Polish founder advertising expense Polish, than to incur the O & G had its fluent and the fact that employees. skilled employees taken from start-up Polish with F.Supp. at 406. Spring, it is obvious that Polish im- American Thus, clearly hypothetical own shows that market....” the court’s This labor formula, employees English fluency requirement the absence of black absence of among thirty-five greatly impact percentage worked in the who could inter- fact, statistically explain- secondary department is ested workers. In under the circum- court, however, make-up does not think this stances of this case the racial able. The words, statistically possible other labor market would be more is interested even —in percentage not believe that worker court does black skewed because the white availability possibly drop job-seekers immigrant neigh- to 6% even if in this could Polish properly the statistical model defined the borhood would be assumed not fluent in En- quali- glish. relevant labor market as relevant This still does not even take into many job- market. English-speaking and interested labor account fied seekers not want to work an environ- signifi- misapprehends conclusion This (es- predominantly foreign languages ment of English fluency impact cant the lack of an pecially given pay apparently the low and. alone, requirement, composition has on the conditions). working poor Chicago a work force. It also does not account for O & G’s just F.2d at this court demonstrated how preference experienced for skilled work- significant factor racial this one is on the ers.4 makeup by presenting of a work force following hypothetical: reasoned that even though the statistical evidence was flawed employers equidis- Assume that five are respects, supported certain it nevertheless blacks, job-seekers: tant to 300 finding of intentional discrimination. A sta- whites, Hispanics. Assuming and 100 model, however, impressive tistical as employers equally all are attractive and underlying hypothesis. Chicago as the Min- conditions, requirements have identical iature, 947 F.2d at 301. hypothesis Where a expect employer then one would each to faulty, support is it does not its conclusion. approximately applications 20 receive from Id.; Peters, 12 Free v. F.3d 705 group. employer cf. each ethnic Each would Cir.1993) (“So deficient is Professor Zeisel’s racially applicant have a balanced flow. study study ... support would not However, if employer # 1 En- had no conclusion_”). above, explained As [its] fluency glish requirement and the other hypothesis underlying the statistical employers English four did have an fluen- fatally model used in this ease was flawed cy requirement, pattern a different would it because misidentified the relevant labor emerge. Assuming that all of the blacks by failing identify qualified market to fluent, and whites are as well as 50 of the portion interested the labor market. Hispanics, Hispanics and that the other 50 Therefore, this statistical model does not fluent, employer are not # 1 then would support its conclusion that O & G intentional- applications

receive 60% of its from His- ly against applicants. discriminated black (all panics Hispanics ap- of the non-fluent plications flaw, and its recognized share of the fluent His- The district court this not- blacks, panics), ing 20% from and 20% from that “the relevant labor for market O & Thus, non-fluency if clearly whites. plaintiff.” charac- G was never established employer ignored, teristic of # 1 it at 73. The district court and appear court, however, discriminating against would to be attempt remedy to Conversely, blacks and hypothesis by modifying whites. the other flawed the results of employers appear hypothesis. statisticians, four would to be dis- are not We however, criminating Hispanics, impact because the and cannot know the actual majority Hispanics, change underlying hypothesis for nondiseriminato- can ry reasons, employer apply hypothesis # 1. on sup- have the conclusion that preference experienced training 4. O & G's for skilled or the student how to read rulers and mi- explains why approximately lathes, workers also half of operate milling crometers and how to Poland, its workforce is Polish. In technical machines, presses. training taught high is school. This includes every not rely solely But zero is “inexorable.” Craik going to is If the EEOC ports. Bd., of inten- State Univ. 731 F.2d prove a case v. Minnesota data on statistical discrimination, (8th Cir.1984) imperative J., (Swygert, dissenting). it is tional valid; judicial intu- See, amount of e.g., Transportation Agency, no model be Johnson model. rectify Cal., 616, 656, 107 statistical a defective Cty., ition can Clara U.S. Santa Therefore, position, (1987) contrary to the court’s L.Ed.2d 615 5.Ct. in the sec- employees (no of black the absence (O’Connor, J., concurring) account- have been ondary department could though there were no in fact existed even it consid- model had for the statistical ed say positions). craft To women skilled require- English fluency the lack of ered go against Congress’ caution otherwise would Spanish ment, the Polish and the use of hiring quo- “employers engage G, preference and 0 & languages tas_” at 0 & G’s Miniature, Chicago 947 F.2d at Chicago experienced workers. for skilled 2000e-2). § (quoting U.S.C. Sears, Miniature, also F.2d at 292. See case, in- work force is In this a small (“interest job] [in F.2d at 334-35 only thirty-five positions. In con- comput- disparities for the can account alone volved— trast, work force in Teamsters the included analysis”). failure of ed EEOC’s under Teamsters, 431 positions. over 1800 variables to account these this model a zero 97 S.Ct. at 1855. Where and it was model unreliable rendered the large force is when such to credit it inexorable the district court clear error involved, force is so not when the work intentional discrimination. evidence of as Moreover, where, here, at 302.5 as the 100% small.6 Chicago statistically explainable, the work force is really to is the comes this case down What gender race or is alone absence of a certain from 1979 none fact that finding support a of intentional insufficient to secondary employees of 0 & G thirty-five words, the “zero” other discrimination.7 (and opinion In this court’s were black. and, therefore, in this case is not inexorable court), zero” this “inexorable of the district O sufficient evidence that it cannot constitute concept of “inexora- fate. The seals & G’s engaged in intentional discrimination. & G Teamsters, zero” first arose ble n. 23. at 1858 Since at 342 n. recognized an “inexo- has then this court Remedy B. intentional discrim- evidence of rable zero” is agree if I with the court Bros., Inc., Even were 25 F.3d Loyd Phillips ination. v. support a find- Cir.1994). existed to fact, sufficient evidence in dicta discrimination, I ing of intentional segregated work

Loyd that a 100% indicated the district court conclude that sup- nonetheless alone sufficient force “is sometimes pay than ordering in G to more erred O & plaintiff.” the Id. port judgment for evi- Thus “when the statistical present any F.2d at evidence 300-01. EEOC's failure 5.The adequately di- account for dence does not ‘the con- acts of intentional discrimination individual necessary qualifications specialized verse and "This court weakness of the statistics. firms question]' strong positions in evidence [the ‘examples recognized dis- individual has vi- of discrimination become individual instances always required, we but are not crimination Sears, plaintiff’s case.” F.2d tal to the proof of such that the lack reinforces think omitted). (internal quotations evi- This vital validity questions arising doubt from the about ” lacking totally in this case. dence is Sears, F.2d at evidence.’ the statistical Mather, Inc., Ogilvy & See also Rossini sample points ("In out that small (2d Cir.1986) 6. The also evaluating 798 F.2d misleading case, provide results in standard sizes also of the evidence in all analysis in unless the total number deviation quality may properly court consider analysis thirty, sample is of at least such is of such any evidence or the of evidence.”). anecdotal absence significance. no statistical Moreover, recog- has this court "strong may prove on a case statistics nized own, may completely shaky be insuffi- without while statistics their 7. O G’s workforce question the accompanied by employees, evi- at the time in unless additional black cient Teamsters, thirty-five secondary did not include (citing workers Op. dence.” at 876 1857); any. Chicago S.Ct. at $378,000 pay eligible monetary payment in back to some 451 claimants. for a as a result govern The district court calcu- of a at 780. lawsuit filed the federal Spring ment, EEOC v. O & G & Wire pay the amount of back first deter- lated Specialty hiring Company, Forms mining & G’s shortfall of black O No. 85 C However, determining workers. O & G’s pending court. in federal shortfall, hiring the district court relied on encouraged The ad then the reader to send availability presented the 22.5% labor market for an EEOC claim form. by Dr. deVise. But as both the district court surprisingly, Not 451 claims were submit- recognize, percentage this and this compared ted. This can result to inci- prominent failed to account for the use of the city dents where buses are involved in traffic G, languages Spanish Polish and at O & the Jump-ons ghost get accidents. riders on fluency English requirement, lack of an bus, injury.8 Appar- the stalled then claim preference experienced O & G’s for skilled or ently in this case some claimants were assuming workers. Even that the court is prison during period they suppos- when correct that these factors would not reduce edly applied. would have Others held better availability applicants of black to 6%— higher-paying jobs. O & elected not G percentage required support finding engage expensive process of chal- they clearly of no reduce the discrimination — lenging claims of individual class members percentage pool by of blacks in the labor already because its substantial financial bur- something. How much reduce the den had a fixed amount. Even so it had to availability applicants, of interested black pay to run the ads. $8000.00 Since the however, hypothe- is unclear. As the earlier EEOC did not bother to clean out the seem- demonstrated, English sis the lack of an claims, ingly fraudulent windfall went to fluency requirement by substantially itself See Hunter v. Allis-Chalmers payees. composition skewed the racial of the interest- Div., Corp., Engine 1429-30 significant A ed labor market. reduction in (7th Cir.1986). only likely remaining the interested labor market would have a deterrent to further fraud on the court would correspondingly significant reduction in the be the likelihood that successful claimants pay pay. must amount O & G back This is would not tell others because additional especially company true when a small in- claims would reduce their cut. volved. liability question, Even where is without troubling As as the actual award and the process flies the face of common pay, publica- amount of back is the EEOC’s be, sense. Tedious as the EEOC following tion of the advertisement carefully should screen claimants before allo- Tribune, Times, Chicago Chicago Sun Chica- cating compensation alleged wrong. for the go Chicago TV Guide and Defender: you If you are black and looking for a Attorney’s II. Fees punch kick press operator job be- and/or Spring tween 1979 and 1985 at O & against G The EEOC’s suit O & G was not Specialty Company, Wire Forms disparate located limited to its racial treatment claim; city Division and Kostner in the of Chica- it also filed suit O & for .G go, you looking or if for that kind age. of intentional discrimination based on The area, surrounding in you may district court Age found no violation of the See, Kerr, e.g., Target Peter passengers "Ghost Riders” Are accident—the crash the heard came Times, 18, 1993, Sting, Aug. an Insurance N.Y. only from behind the bus and involved a car and of (video bus); lorry, at A1 cameras O'Cleiy, inside bus involved in a not the Conor Bus Firm staged Ghosts, Times, people accident filmed seventeen Aug. scram- Exorcises Its The Irish bling (one onto the bus after the videotape during staged accident occurred at l made arrived); Kerr, police but jumping before Peter Insurance accident showed a man on board and Sting Jump declaring Fraud passengers: you people Catches "Ghost Riders” Who to the "All who Crashes, Bandwagon Jersey there, on get paid, you stay right in New stay Bus want to down. Limited, 19, 1993, Newspapers Aug. Guardian for the Wait ambulance to come. Your neck (in case, hurts, hurt, twenty-seven passengers your legs one get bus all of that. You’ll some though money. filed claims Stay They pay."). even the bus was not in an there. Act, comparing “apples oranges.” F.Supp. to Employment 29 U.S.C. Discrimination (“ADEA”), but nonetheless concluded at 407. A look at the model offered Dr. § 626 not entitled to recover & G was the obvious flaw. Dr. that 0 deVise demonstrates attorney’s from the EEOC. fees com- deVise created statistical model which percentage persons forty- pared the of over Equal Ac- holds that while This court percentage at & to of five hired O G the (“EAJA”) applies to ac- Act cess to Justice persons forty-five already working in over ADEA, is not brought under the 0 & G tions positions Chicago in similar other facilities agree Act. I to fees under this entitled County. F.Supp. at 400. This Cook age suits. applies to the EAJA unscientific, model more than statistical was However, I that 0 & G was entitled conclude fact, misleading. completely it In attorney’s fees from the EEOC was to recover on the EAJA. district court found Dr. deVise’s reliance under this model so incredible that he called into government the EAJA the bears “Under question credibility concerning Dr. deVise’s proving position that its was burden testimony. his other It was unreasonable for Shalala, justified.” v. substantially Marcus attempt rely on the EEOC to to this obvious- Cir.1994). (7th posi- 17 F.3d ly inappropriate statistic. substantially States is tion of the United “justified justified if it in substance or faulty The EEOC’s reliance on this statis- is, justified degree that to a the main —that especially tic borders on bad faith. This is v. satisfy person.” a reasonable Pierce could given ac- true the fact that the EEOC had Underwood, 552, 565, comparison, apparently a valid cess to (1988). 2541, 2550, L.Ed.2d 490 “EAJA ignored disproved it this statistic because its may govern- if either the fees be awarded proper comparison case. The scientific ligation prelitigation conduct or its ment’s percentage people have been the justified.” substantially position are not G, forty-five working age over then at O & “Thus, Marcus, may fees 17 F.3d at 1036. percentage of workers at other simi- (cid:127)with the government’s be awarded cases where age forty-five. F.Supp. lar facilities over substantially conduct not prelitigation proper comparison demon- at 407. This though litigating position justified even of O & G’s strates that over 50% justified substantially have been only age while 37% work force was over vice versa.” Id. comparable employees at other facilities case, the district court concluded forty-five. at 407. were over alleging age position dis the EEOC’s prove the comparison This does not substantially justified be crimination was ease, troubling disproves it. It is EEOC’s testify expert an to on cause it had retained gov- agency think that an of our federal litigant can obtain its behalf. Just because a expert generate an ernment would retain behalf, however, expert testify on its comparison prove dis- an invalid statistical litigant’s position is does not mean that the Twain crimination where none exists. “Mark Litigants attempt to sub reasonable. often thing perhaps more memora- the same said “expert” mit and unreliable testi irrelevant lies, kinds of bly: ‘There are three lies— Cf., Daubert v. mony support their case. lies and statistics.’” damned , Griffin — Pharm., —, Merrell Dow Inc. Univ., Regents Regency Board —, 125 L.Ed.2d Cir.1986). 1281, 1289 (1993). power further of its The EEOC’s misuse case, Dr. In the EEOC had retained this age by of its dis- its modification evidenced sup- in present a statistical model deVise original The EEOC’s crimination claim. position that & G discriminated port of its O complaint alleged that O & G discriminated forty-five. This against persons over statisti- pre- valid, people. At trial the EEOC against five scientifically howev- cal model was not original people9 five stated, only three of the like sented the district court was er. Or as placed fact, on deposi- idea how his name was during and he had no the five testified one of the EEOC did not file a claim with tion that he any “Many require younger not find that of them of the machines do and the court did applied position person for a vacant at 0 & G. of the extensive had because effort re- fact, quired operate the case of two of the three the machines and move the In. witnesses, persons letter, hired 0 & G necessary part.”' the next The second written forty-five fifty-five. controller, ages Instead were &O G’s stated: “Because of determining that dropping Work, the suit after demanding aspects Secondary these not these five individuals were the victims of prefer younger we to hire males between 20- discrimination, along EEOC somewhere years old.” The district court conclud- changed emphasis of its suit from the line ing position that the EEOC’s was reasonable a pattern individual acts of discrimination to rely letters, any way did not on these practice The EEOC or of discrimination. likely because the letters unauthorized un- placed then reliance on an invalid and policy. and incorrect statements of O & G’s yet, model. scientific statistical Worse The EEOC nonetheless claims that these originally complaint EEOC’s asserted provided bring- letters a reasonable basis for against persons forty & G discriminated ing age an discrimination suit. These letters were, new hires over. 30.4% of 0 & G’s originally provided have a reasonable however, forty years old or older. investigating age basis for a claim of discrim- high percentage at 403. of new This began investiga- ination. Once the EEOC apparently support hires did not a claim of tion, however, immediately ap- it would be somewhere, along, the discrimination because parent make-up from the of O & G’s line, the modified its claim to involve EEOC force that no such discrimination occurred. older, persons forty-five reducing thus point, longer At that would no the EEOC percentage of & G’s new hires to 17%. justified continuing against its claim O & Again, dropping against instead of its suit appropriate G. Since EAJA fees are where G, (Moreover, forged & the forward. EEOC government’s prelitigation either “the con- aside, rely EEOC, statistics if the wants to on ligation position duct or its are not substan- proof the so-called “inexorable zero” as -of Marcus, justified,” tially 17 F.3d at discrimination, ignore promi- it cannot justification provided by initial the letters panorama nent of older workers —more than protect does not the EEOC from an award of twenty-six approximately fif- workers unjustified litigation position. fees for its Id. ty-three forty-five. workers were over 406.) F.Supp. at III. Conclusion gov The EEOC is “an arm of the federal very This entire case is founded on a authority subject ernment with its citizens analysis. flawed statistical Thus the evi- litigation. to the burdens of au With this prove dence was insufficient racial dis- thority responsibility....” comes a United crimination. The same statistics resulted in Hodgekins, v. high coupled an award that was too with a States Cir.1994). The facts of this case demon remedy distribution that invited fraud. And neglected strate the EEOC not its pursuit the EEOC’s of its non-existent responsibility, power. it abused its Its be justifies attorney ADEA claim fees to the goes beyond havior the realm of reasonable outset, defendant. IAs stated at the Equal ness. “The Access to Justice Act was case troubles me. No doubt the EEOC has intended, might thought, just one have range potential a broad victims to look this, groundless such a case as where a ... Among after. those vulnerable are iion-En- brought by mighty govern suit is federal glish-speaking Hispanic Polish immi- tiny ment firm..-..” E.E.O.C. grants exposed who are to discrimination F.2d.233, Sys., Consolidated Serv. 238 because of their race their national and/or (7th Cir.1993). By origin. taking language factor argues position into consideration the EEOC has effect put quota group reasonable based on two letters. The first on one vulnerable at the letter, attorney, expense one from O & G’s stated: of another. complaint. appear altogether.

the EEOC’s Another failed to Service, case of Consolidated

In recent brought suit America, F.2d at STATES of UNITED by immi- a Korean company owned Plaintiff-Appellee, company with discrimina- charging the grant, origin. persons of Korean in favor of tion CANOY, Defendant-Appellant. Marius immigrant com- court found the The district liable, court reversed. au- pany but this No. 93-3315. Judge Posner opinion, now thoring that Chief Appeals, Court of United States wrote: Seventh Circuit. immigrants, this must be

In a nation despite case its out- an ominous reckoned Argued April 1994. many recent The United States has come. Decided Oct. they today historically

immigrants, and as communities, in their own tend to cluster culture, language,

united ties they form small busi-

background. Often relatives, composed largely, of

nesses

Mends, of their com- and other members employees new

munity, and obtain small businesses— of mouth. These

word stores, stores, clothing furniture

grocery restaurants,

stores, services, gas cleaning immigrant many

stations —have been be, rung the first

groups, and continue American success. Derid-

on the ladder of clannish, for their ambition

ed as resented work, despised for their

and hard hated

otherness, immigrants frequent are recent discrimination, of it vio-

targets of some irony if the be a bitter

lent. It would enforcing the agency dedicated to

federal using laws succeeded

antidiscrimination people kick these off the

those laws to by compelling them to institute

ladder

costly systems hiring.

Id. at 237-38. pass

Judge prophecy has come Posner’s respectfully

in this ease. I dissent.

Case Details

Case Name: Equal Employment Opportunity Commission v. O & G Spring and Wire Forms Specialty Company

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 11, 1994

Citation: 38 F.3d 872

Docket Number: 92-3436, 92-4118

Court Abbreviation: 7th Cir.