Statistics Held Proof of Bias in Workplace

The Supreme Court, completing its 1987-88 term Wednesday in a blizzard of important decisions, handed women and minority group members a major, but mixed victory in employment discrimination cases.

The court ruled that civil rights plaintiffs in virtually all job discrimination cases--particularly those involving white-collar professional and managerial jobs--can use statistical analyses to prove their claims, a powerful weapon that formerly could be used only in some cases.

Litigation Likely

The case (Watson vs. Fort Worth Bank & Trust, 86-6139) was “the biggest civil rights decision of the year,” said Deborah Ellis of the American Civil Liberties Union, but determining its impact may require years of additional litigation, lawyers both for employers and civil rights plaintiffs said.

Four of the eight justices participating in the case said that they would change the rules to make it easier for a company to rebut a statistical study showing discrimination. That move, if it eventually wins the support of a five-justice majority of the court, could end up making “it easier to bring cases, but harder to win them,” Ellis said.

The issue in the case is the sort of technical question that seldom attracts great public attention but which is crucial in determining who wins thousands of job discrimination complaints. In some cases, proof of discrimination is easy--an incriminating memo or a damaging statement.

For most cases, however, that sort of intent cannot be proven, and plaintiffs must fall back on statistics to challenge a company policy. The high court in 1971 approved using statistics in cases where job decisions are based primarily on “objective” factors--to show, for example, that an aptitude test resulted in fewer minority group members being hired than would be expected if no discrimination were taking place.

But in recent years, the central focus of discrimination suits has shifted from blue-collar jobs, where objective tests predominate, to white-collar management and professional posts, where job decisions usually are based on interviews and other subjective criteria. The federal appeals courts have split sharply on whether statistical tests may be used in that sort of case.

Wednesday’s case was typical. Clara Watson, a black woman, had worked for eight years for Fort Worth Bank & Trust but repeatedly was passed over for supervisory jobs. In 1981, she quit and sued. When her case came to trial, her lawyers showed that in the years she worked there, the bank had had only one black supervisor, despite the fact that blacks make up 13% of the bank’s work force and about 10% of the population of the Ft. Worth metropolitan area. All the supervisors who made decisions about promotions were white.

The lower courts, however, ruled that Watson’s statistical evidence was irrelevant because the bank based promotion decisions on subjective judgments, not on objective tests. The Reagan Administration agreed.

But, Justice Sandra Day O’Connor wrote for a unanimous court, adopting the Administration’s rule would allow past anti-discrimination cases to “effectively be abolished” and would leave employees all but defenseless against “subconscious stereotypes and prejudices.” Employers would simply have to add one subjective element to their employment system to “insulate themselves,” she wrote.

Leaves Lawyers Puzzled

But while that part of O’Connor’s decision cheered civil rights lawyers, the rest left them puzzled. Until now, when a plaintiff has produced statistical evidence of bias, the defendant has had to prove that some “business necessity” required the policy under challenge.

That asks an employer to do too much, O’Connor wrote. All the defense should have to do is produce some evidence “that its employment practices are based on legitimate business reasons.” If the employer can do so, it should then be the plaintiff’s job to prove that some other way of making decisions would have worked just as well.

Three justices--William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun--opposed that change and one, Justice John Paul Stevens, took no position on it. Because only four of the nine justices joined O’Connor, that part of her opinion is not binding law. Justice Anthony M. Kennedy did not take part in the case.

In a second major ruling, the high court struck down Oklahoma’s attempt to execute a murderer, William Wayne Thompson, who was 15 when he, along with three other persons, brutally killed his former brother-in-law. The split opinion did not formally set a minimum age for executions, but seemed to indicate that the court would not allow capital punishment for crimes committed by 15-year-olds or younger killers.

“The line has been drawn, in my opinion,” said Oklahoma, Assistant Atty. Gen. David Lee. “Our reading of the opinion is that (the court) used 16 as the line.”

19 Set No Limit

Of the 37 states that allow capital punishment, 19 set no minimum age for imposing the penalty. The remaining states all provide that killers who are younger than 16 when they committed their crimes may not be executed. The minimum age in California is 18.

Four justices--Brennan, Marshall, Blackmun and Stevens--said that they would ban all executions of killers who are younger than 16. The fact that all the states which have decided the question have chosen 16 or older as a minimum establishes a “national consensus” that executions of younger killers would be uncivilized, Stevens wrote.

With three other justices dissenting and Kennedy not taking part, the crucial vote in the case (Thompson vs. Oklahoma, 86-6169), was cast by O’Connor.

“Although I believe that a national consensus forbidding the execution of any person for a crime committed before the age of 16 very likely does exist, I am reluctant to adopt this conclusion as a matter of constitutional law without better evidence than we now possess,” O’Connor wrote.

But, she added, she would not allow the execution to go forward in a state, like Oklahoma, that set no mimimum age at all.

In the one case the Administration won Wednesday, the court ruled that the government can give tax money to religious groups that teach teen-agers about the virtues of sexual abstinence. On a 5-4 vote, the court rejected the argument that this money constituted government support for religion.

‘Neutral’ Guideline

The ruling may prove significant in the future because the conservative majority said that the First Amendment does not require a strict separation of church and state. Rather, the court said, a government aid program that funds many religious groups is constitutional if it has a “neutral” purpose and if it does not support the teaching of one particular religious dogma.

The Adolescent Family Life Act of 1981 was passed by Congress in the early days of the Reagan Administration as a way to discourage teen-age promiscuity and abortion. The funds were to be distributed to “religious and charitable organizations” to teach adolescents about the danger of early pregnancies and to promote “self discipline and other prudent approaches to the problem of adolescent premarital sexual relations.” The law forbade counseling teen-agers about abortion.

In 1986, $10.7 million was distributed to 86 groups, of which $3.3 million went to religiously affiliated organizations. The program became a cause celebre among liberal and pro-choice groups because, they charged, the federal funds were being used to teach a strict Christian approach to teen-age sexuality.

In a federal court suit, the American Civil Liberties Union cited examples where teen-agers were taught that “Jesus is your date” during teen-age years and that sex is a “sin.” Based on that evidence, U.S. District Judge Charles E. Richey in Washington struck down the law in 1986 as a violation of the First Amendment’s ban on “laws respecting an establishment of religion.”

But writing for the court, Chief Justice William H. Rehnquist said that the case (Bowen vs. Kendrick, 87-253) was more akin to government aid to religiously affiliated hospitals, something that traditionally has been allowed, than aid to parochial schools, something of which the court has long been suspicious.

“This court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs,” he wrote.

Rehnquist said that Richey should look at the case again to decide if any particular groups were using their funds to teach religious dogma. If so, their individual grants could be canceled, he wrote.

The four dissenters attacked Rehnquist’s ruling as “a sharp departure from our precedents” requiring separation of church and state.

On a 7-2 vote, the high court sharply limited state and local regulation of charitable fund raising.

Governments may not force professional solicitors to tell potential donors how much of their contribution actually will go to charity, Brennan ruled for the court. Such laws violate the free speech clause of the First Amendment because “mandating speech that a speaker would not otherwise make” is a government-imposed restriction on free speech, Brennan said.

His opinion struck down a North Carolina statute that was enacted after lawmakers learned that more than 85% of the funds collected by the five largest professional solicitors in the state were kept by the companies. Less than 15% went to charities. The court’s ruling also calls into question a California law that requires solicitors to tell potential donors how much of their contribution will go to charity and an even stricter Los Angeles city ordinance that requires solicitors to provide this information on a card for donors.

Rehnquist and O’Connor dissented from the ruling (Riley vs. Federation of the Blind of North Carolina, 87-328).

The Administration lost a final case (Communications Workers of America vs. Beck , 86-637) in which it had angered its conservative allies by siding with organized labor.

In 1976 Harry Beck, a telephone company repairman from southern Maryland sued his union, charging that requiring him to pay union dues that were then used for political activity violated his rights.

Like some 6 million other workers across the country, Beck was covered by an “agency shop” contract that required him to pay a “representation fee” to the union even though he was not a union member.

In 1979, a federal district judge in Baltimore upheld his claim, ruling that the use of representation fees for purposes other than the direct costs of collective bargaining, grievance procedures and other similar activities violated the National Labor Relations Act. The judge eventually ordered the Communications Workers of America to repay Beck and 19 other plaintiffs 79% of all the fees they had paid.

The court’s 6-3 decision, written by Brennan, upheld the lower court.