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Subject: After 19 Years, Racial Job-Bias Case Isn't Over Yet<By Joan
Date: Mon, 23 Nov 92 09:54:16 EST
Message-ID: <21.1992Nov23.095416@AmeriCast.com>

After 19 Years, Racial Job-Bias Case Isn't Over Yet<By Joan
Biskupic=Washington Post Staff Writer=

Most of the black workers who sued the Du Pont Louisville plant
for discrimination in 1973 have retired. One third of them have
died.

Children have grown up. People have moved away.  But last week,
the case that outlasted a generation was resolved. Maybe.

A federal judge ruled Nov. 16 that the seniority system in place
in the early 1970s was intentionally discriminatory. Blacks were
stuck in poor-paying, dead-end jobs, U.S. District Judge Carl B.
Rubin said, and the company owes money to an estimated 154 work-
ers or their survivors. The amount of damages has yet to be
determined.

"This is the greatest week in Louisville, Kentucky," said the
Rev. Louis Coleman Jr., whose 72-year-old father worked at the
plant and used to tell his children about segregated lunchrooms
and white men who refused to enter wash-up areas when black men
were there.

The case is the longest-running dispute on the docket of the U.S.
Equal Employment Opportunity Commission (EEOC). Straightening out
money damages and subsequent appeals could take more years. The
dispute that took nearly two decades to get to trial (and then
took only four days for a hearing) shows what a quagmire the jus-
tice system can be, particularly when it comes to class-action
discrimination suits.

Ordinary people might be astounded that it took 19 years to get a
judge to hear a case; that a legal controversy that began when
Richard M. Nixon was president, the Vietnam War still raged and
Archie Bunker was the most popular character on TV is just coming
to a close.

But labor lawyers contacted for this  article - after expressing
outrage about the marathon Du Pont case - proceeded to offer
their own horror stories about protracted job-bias litigation.

There is no single reason why it took so long. There are many
reasons, none of them of great moment, making it all the more
baffling.

It may not be over yet. Even as the workers were celebrating, a
lawyer for E.I. du Pont de Nemours & Co. continued to assert that
the promotion plan was not discriminatory. Jon L. Fleischaker,
who says he has the distinction of being the only lawyer who has
been on the case since the start, said the company is considering
an appeal.

The setting for the joint cases of Williams v. Du Pont and Equal
Employment Opportunity Commission v. Du Pont is a Louisville
plant that opened in 1941 as a U.S. government installation.  It
makes neoprene, a synthetic rubber used in the manufacture of
tires, shoes, adhesives and other products. Du Pont took over the
plant in 1949 and worked on government contracts.

The seniority system there can be traced back to the late 1950s
when Du Pont, joined by the Neoprene Craftsmen Union (also a de-
fendant in the lawsuit), adopted a plan that separated workers
into four distinct divisions. For whatever reason, the system
made it extraordinarily difficult for blacks to move from lower-
paying jobs into higher-paying ones.  Black workers mostly bagged
finished neoprene and did custodial work.

Du Pont's seniority system was first attacked in 1968, and that
case ended a year later with a court ordering promotions for a
group of blacks. Shortly thereafter, the U.S. Atomic Energy Com-
mission investigated the plant after complaints that it failed to
meet administration rules for government contractors. Du Pont and
the commission negotiated a settlement that also resulted in
black promotions.

But blacks still felt shut out, and in 1973 John R. Williams and
others filed a lawsuit in federal court.

While job discrimination cases are usually tricky business be-
cause of all the variables that go into personnel decisions, com-
plaints against seniority systems are even more difficult.

Title VII of the 1964 Civil Rights Act prohibits job discrimina-
tion based on race, sex, national original or religion. But the
act contains an exception that says an employer may use different
standards of compensation and benefits under a bona fide seniori-
ty system, provided that the differences do not reflect an intent
to discriminate.

A seniority system is not illegal simply because minority workers
fare worse under its rules. The law says a complaining worker
must show that the system was adopted with a discriminatory pur-
pose.

So the black workers had no easy chore ahead of them in 1973.

There were bad omens from the outset. The first judge disquali-
fied himself from the case after three weeks. It is not clear
why.

Then the first pretrial conference, scheduled for April 1974, was
postponed because the parties had not finished gathering docu-
ments, interviews and other facts from each other.

That process is known as "discovery," and the skirmishing over
every piece of paper coughed up or not coughed up is the classic
reason for delayed trials. Throughout this case, there was a con-
stant drumbeat of disagreements over what personnel records Du
Pont needed to supply.

The EEOC recorded more than 15 separate battles over documents
and interviews, essentially materials that the workers wanted and
the company refused, saying the information sought was confiden-
tial, irrelevant, unavailable or too costly to gather.

Then there were the numerous requests for dismissal or judgment
without a trial, made by Du Pont and the company union.

Every motion to end the case was met with a written response from
the black workers on why it should not end, and then a response
to that. Motions without motion.

In 1977, the second judge on the case died.

While fights over paper hold up cases, and routine motions hold
up cases, nothing delays a case more effectively than a new
Supreme Court ruling in the same area of law. In 1977, the
Supreme Court issued a ruling (Teamsters v. United States) that
protected discriminatory seniority systems if they originated be-
fore the 1964 Civil Rights Act. Du Pont thought it was a windfall
and said it should win the case based on that decision.

Two years later, in 1979, the judge in the case agreed. But three
years later, an appeals court reversed the 1979 decision and or-
dered a trial.

Fights over discovery continued. Pretrial conferences were
scheduled and postponed. The months and years went by. Then, in
1989, came yet another Supreme Court ruling, Lorance v. AT&T
Technologies, this one setting up a strict deadline for challeng-
ing seniority systems. Based on that decision, Du Pont tried to
quash the case again. The judge sided in part with Du Pont, but
allowed the case to go on.

Then that judge died.

That brought everyone up to 1992 and the March assignment of
Judge Rubin. Rubin, a 72-year-old, semi-retired Nixon appointee,
actually sits in Cincinnati. He was helping the Western District
of Kentucky with its backlog.

EEOC lawyer George C. Bradley recalled, "During the first meeting
we had with Judge Rubin in his chambers, after all the courtesies
were out of the way, he said, 'This is absolutely outrageous.
This case is going to end.' "

"And I think everyone was relieved," Bradley added.

Rubin quickly set a trial date, tried the case in four days, said
he would have a ruling in 30 days, and then delivered. Rubin, who
is known for his no-nonsense approach, makes no mention of causes
for delay in his opinion.

"This judge was a gift from the Lord," said Dennis Palmer Jr.,
67, who for most of his time at the plant was in a blacks-only
job, cutting and packaging synthetic rubber. "I feel like a big
burden has been lifted."

In fact, the case might not be over.

Money damages for the workers will not be determined until after
Dec. 15, the deadline for both sides to make recommendations.
Resolution could take months.  In 1990 Du Pont offered to settle
the case, but the workers rejected the reported offer of
$210,000, saying, in Coleman's words, that it would be "like
crumbs off the table."

"It's a long tortuous path to bring these class-action suits,"
said Bruce Fredrickson, a Washington lawyer who represents em-
ployees in a sex discrimination lawsuit against the U.S.  Infor-
mation Agency. "Nineteen years is extraordinarily long to get to
trial.  But there are others with that kind of track record."

His USIA case is an example. It began in 1977. A federal judge
ruled in favor of the women in 1984, but money damages for the
women have yet to be determined.

Another ongoing class action lawsuit in the District involves fe-
male civilian employees who sued the Navy in 1973. A federal dis-
trict judge ruled in 1981 and 1986 that the Navy discriminated in
hiring and promotion and, in 1991, told the Navy to pay $670,000
in damages. The Navy's appeal is pending.  Countless factors pro-
long these cases: crowded court dockets, resistance among lawyers
to representing low-wage workers, vigorous defenses by companies
wanting to avoid costly judgments, and the sheer number of par-
ties involved.  In the USIA case, for example, the claims of more
than 1,100 women over a 10-year period are involved. "Numerous
employment decisions were made," said Fredrickson, "and it takes
time to examine personnel files."

Kerry A.  Scanlon, a lawyer with the NAACP Legal Defense and Edu-
cational Fund, one of the lawyers representing the Du Pont work-
ers, said, "One lesson of this case is that it is extremely dif-
ficult for plaintiffs to win employment cases. Sure they won the
case, but . . . what other plaintiffs would wait this long?"

In his opinion, Judge Rubin said that in 1973 less than 2 percent
of the better-paying jobs at the Louisville plant were held by
blacks. Referring to the 1969 court ruling and Atomic Energy Com-
mission order, he said, "Only coercive action by third parties
ever reduced discrimination."

Du Pont had said blacks did not get better jobs because "the
black employees didn't want to leave familiar surroundings," and
blacks "preferred shift work at a lower rate than a rotating
shift work at a higher rate."

Rubin rejected the statements as a "stereotype" of blacks.

"A seniority system which existed for 15 years is not bona fide
if at the end of that time white employees hold over 98 percent
of the higher-paying jobs and black employees are confined to the
lower-paying jobs," he concluded.

Fleischaker, representing Du Pont, attributed the differences in
numbers to layoffs and dwindling opportunities at the plant dur-
ing the 1970s. He said the system in place in the early 1970s did
not discriminate. "Everyone was treated the same," he said.
"Everyone had the right to transfer if qualified. It was totally
race-blind."

K. Tracy Rigor, a lawyer for the Neoprene Craftsmen Union, said:
"At no time did the union negotiate any agreement in bad faith.
It secured the best employment package for all employees." The
union also has filed an action against Du Pont saying the com-
pany, not the union, was ultimately responsible for all seniority
decisions.

Today, 15 percent of the approximately 700 workers at the plant
are black and roughly 11 percent of the top jobs are held by
blacks, according to plant manager Jim Wilson. The city of Louis-
ville is almost 30 percent black.

"We just wish we could go on with today's business and stop wor-
rying about 20 years ago," Wilson said Friday.

But Palmer, who says he sometimes thinks about the deprivation
his wife and three children suffered because he did not make much
money, responded, "We were mistreated, and how can you forget
that?"

But will this case ever be ended, let alone forgotten?  The ef-
fects of a 1989 Supreme Court decision and the 1991 Civil Rights
Act, which reversed that ruling and others, could further compli-
cate it.

An overriding legal question nationally is whether the 1991 law
should be applied to discrimination cases that were pending when
it was enacted. Several appeals courts have said it should not;
one has said it should. The Supreme Court has yet to weigh in.

Du Pont argues that one of the Supreme Court cases reversed by
the 1991 act - Lorance v. AT&T - should have caused a judge to
rule for Du Pont. The 1989 Lorance case imposed a strict deadline
for challenging seniority systems, and Du Pont contends that it
would have barred the workers' claims here.

Du Pont's Fleischaker has raised the possibility that the company
will appeal the case in part based on the Lorance decision. If
so, it is conceivable that years from now a federal judge may
have to decide whether the court case that went on for more than
two decades actually began too late.09:01 11-23C9999-----

Copyright 1992, The Washington Post.  This story is from the
Washington Post's Capitol Edition On-Line and is not to be ar-
chived or redistributed.

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