PROCTER & GAMBLE MFG. CO. v. FISHER
449 U.S. 1115 (1981)

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U.S. Supreme Court

PROCTER & GAMBLE MFG. CO. v. FISHER , 449 U.S. 1115 (1981)

449 U.S. 1115

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 (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

Page 449 U.S. 1115 , 1116

"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 [449 U.S. 1115 , 1117]


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