Procter & Gamble Manufacturing Company v. Dennis Fisher, 449 U.S. 1115 (1981)

449 U.S.
1115
101 S.Ct. 929
66 L.Ed.2d 845
PROCTER & GAMBLE MANUFACTURING COMPANY

v.
Dennis FISHER
No. 80-474
Supreme Court of the United States

January 19, 1981
On petition for writ of certiorari to the United States Court of Appeals for
the Fifth Circuit.
The petition for a writ of certiorari is denied.
Justice REHNQUIST, dissenting.
The decision by the Court of Appeals for the Fifth Circuit in this case seriously
undermines our recent decision in Teamsters v. United States, 431 U.S. 324, 97
S.Ct. 1843, 52 L.Ed.2d 396 (1977), and accordingly I would grant certiorari.
Respondent, a black employee of petitioner, filed this Title VII action on July
15, 1974, alleging that petitioner discriminated against black employees in
promotion decisions at its Dallas, Tex., plant. Pursuant to the provisions of a
collective-bargaining agreement, promotions at the plant are based on seniority
when the ability and merit of competing employees are approximately equal.
For most jobs at the plant, ability and merit are determined by evaluating work
performance, absentee record, disciplinary history, and medical condition.
Promotion to certain "critical" jobs is governed by the results of an evaluation
system known as the "total assessment process," involving examinations,
interviews, and questionnaires. Employees bidding for promotion to one of the
critical jobs are ranked, pursuant to this process, as "strong," "acceptable,"
"borderline," or "weak." The promotion is awarded to the most senior bidder
receiving an "acceptable" rating.
In an opinion filed one month prior to our decision in Teamsters, the District
Court concluded that petitioner's seniority system was not bona fide under
703(h) of Title VII, 42 U.S.C. 2000e-2(h), 1 and that petitioner had
discriminated against respondent and the class he represented. In Teamsters,
however, we held that an otherwise valid seniority system did not lose its bona
fide character simply because its operation may perpetuate past discrimination.
On appeal after Teamsters, the Court of Appeals acknowledged that the District
Court had erred and that petitioner's seniority system was bona fide and legally
valid under 703(h). 613 F.2d 527, 542. The court nonetheless "saved" the
District Court decision on the ground that it was based not only on the existence
of a seniority system which perpetuated past acts of discrimination but also on a
finding of active, current discrimination. The support for this finding consisted
of statistical evidence demonstrating that black employees "are marked by their
conspicuous presence in the 'lower echelons' of the employee hierarchy." Id., at
543.
The difficulty with the lower court's reliance on this statistical evidence of
disparate impact to support the ultimately required finding of discriminatory
intent is that the court completely failed to consider the effect of the bona fide
seniority system on the significance of the statistics. All of the nonmanagement
employees with seniority dates predating July 1, 1966, are white. As of January
1, 1977, there were 239 white employees at the plant with more seniority than
the most senior black employee. App. to Pet. for Cert. Thus, despite the highly
successful efforts of petitioner to hire blacks2 the normal operation of the
seniority system for promotion results, at least for the present, in the statistical
evidence of disparate impact relied upon by the Court of Appeals.
In Teamsters we stressed that "the unmistakable purpose of 703(h) was to

make clear that the routine application of a bona fide seniority system would
not be unlawful under Title VII . . . even where the employer's pre-Act
discrimination resulted in whites having greater existing seniority rights than
Negroes." 431 U.S., at 352, 97 S.Ct. at 1863. See also California Brewers Assn.
v. Bryant, 444 U.S. 598, 600, 100 S.Ct. 814, 816, 63 L.Ed.2d 55 (1980). Here,
however, the Court of Appeals has premised a Title VI violation on just such a
routine application. Surely little is left of Teamsters or indeed 703(h) if the
results of the normal operation of a concededly bona fide seniority system may
be used as proof of discrimination. In such a case the employer is found liable
not for present racial discrimination but for complying with a seniority system.
This is directly contrary to the intent of Congress, embodied in 703(h), and
the opinion of this Court interpreting that provision in Teamsters.
Although statistical evidence of disparate impact in promotions may be a sign
Although statistical evidence of disparate impact in promotions may be a sign

of intentional discrimination in some cases, it is not when the statistics are
based on the operation of a bona fide seniority system or reflect other
nondiscriminatory factors. This has been recognized by other courts employing
a more sensitive approach to statistical evidence than that used by the court
below. For example, in an opinion remanding a District Court decision for
reconsideration in light of Teamsters, the Court of Appeals for the Sixth Circuit
recognized that "[w]hile the plaintiffs introduced into evidence . . . statistical
exhibits . . . that indicated blacks were underrepresented in the better-paying
jobs, . . . the statistical differences must be discounted to the extent they are
simply a reflection of the impact of the bona fide seniority system. . . ."
Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1382 (1977), cert. denied,
436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787 (1978). See also Movement for
Opportunity and Equality v. General Motors Corp., 622 F.2d 1235, 1244-1245
(CA7 1980).
This Court has recognized that "[s]tatistical analyses have served and will
continue to serve an important role as one indirect indicator of racial
discrimination. . . ." Mayor of Philadelphia v. Educational Equality League,
415 U.S. 605, 620, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974). The blind use
of statistics, however, cannot be permitted to undermine the policies of
Congress or erode our decisions on substantive law. Disraeli's familiar
statement that "there are three kinds of lies: lies, damned lies and statistics,"
rings true in this case. Because of the growing importance of statistical
evidence and the apparent misuse of it below, I would grant certiorari.
THE CHIEF JUSTICE would grant certiorari.
This provides, in pertinent part:

"[I]t shall not be an unlawful employment practice for an employer to apply
different standards of compensation, or different terms, conditions, or privileges
of employment pursuant to a bona fide seniority . . . system, . . . provided that
such differences are not the result of an intention to discriminate because of
race. . . ."
In 1966, 0.5% of petitioner's employees at the Dallas plant were black. As of

1977 this figure had risen to 14.7%, surpassing the percentage of blacks in the
area's total work force (12.8%). App. to Pet. for Cert. 40a.

Procter & Gamble Manufacturing Company v. Dennis Fisher, 449 U.S. 1115 (1981)

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Procter & Gamble Manufacturing Company v. Dennis Fisher, 449 U.S. 1115 (1981)

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449 U.S.

PROCTER & GAMBLE MANUFACTURING COMPANY

Supreme Court of the United States

In Teamsters we stressed that "the unmistakable purpose of 703(h) was to

Although statistical evidence of disparate impact in promotions may be a sign

THE CHIEF JUSTICE would grant certiorari.

This provides, in pertinent part:

In 1966, 0.5% of petitioner's employees at the Dallas plant were black. As of

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