After appropriate deferral to the PHRC, and after investigating plaintiff's charge, the EEOC issued a right-to-sue letter to plaintiff on May 6, 1974.
Plaintiff then filed her judicial complaint on May 28, 1974.
Pursuant to plaintiff's motion to amend, this Court granted leave to plaintiff to file an amended complaint, which included, inter alia, class action allegations pursuant to Rule 23, Fed.R.Civ.P. Plaintiff's amended complaint was filed on December 11, 1974.
Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, by Opinion and Order dated March 25, 1976, this Court certified this action as a class action. We defined the class as all present female faculty employees at Swarthmore College, all future female faculty employees at Swarthmore College, all former female faculty employees who left the employ of Swarthmore College on or subsequent to March 24, 1972, and those applicants for faculty positions who applied to Swarthmore College and were rejected on or subsequent to March 24, 1972, who have been, are at present being or in the future may be:
(1) denied hire, promotion and/or tenure at Swarthmore College or were not recruited by Swarthmore on account of their sex; and/or
(2) denied equal compensation for performance of substantially similar work as is performed by male faculty members at Swarthmore College, on account of their sex.
However, we certified the class action as to declaratory and injunctive relief only. A certification ruling on damages in the form of back pay was deferred until after a determination of liability.
In addition, the March 25 Opinion and Order dismissed plaintiff's claims brought under 42 U.S.C. §§ 1981 and 1985(3), and dismissed plaintiff's Title VII claim against those individual defendants (Theodore Friend, Stephen G. Lax and Alice K. Brodhead) not named in plaintiff's charge before the EEOC. By Order dated January 12, 1977, we also dismissed plaintiff's claim brought under 42 U.S.C. § 1983.
At the time trial commenced, the only defendants before the Court were Swarthmore and Mr. Gilbert, and plaintiffs' claims were based solely on Title VII.
III. THE TRIAL
Plaintiffs' evidence at trial consisted mainly of the testimony of 16 class members, Barbara Presseisen's own testimony as individual plaintiff, the testimony of a statistical expert witness, Dr. John deCani, Professor of Statistics at the University of Pennsylvania, and numerous exhibits. Plaintiffs included in their presentation of evidence in the class case hundreds of documents from faculty personnel files, which they contend, when considered in conjunction with the testimony and statistical evidence, establish a prima facie case of a pattern and practice of sex discrimination by defendants. The Court directed plaintiffs' counsel to file a written statement to identify specifically what women were unfairly treated due to their sex and in what way. Plaintiffs, in response, submitted "Plaintiffs' Memorandum of Comparisons."
At the close of plaintiffs' evidence, defendants moved for dismissal pursuant to Fed.R.Civ.P. 50(a), and later amended the motion to dismiss pursuant to Fed.R.Civ.P. 41(b). The Court deferred ruling on defendants' motion and requested defendants to present their evidence in defense.
Defendants' primary witness was Harold E. Pagliaro, present Provost of Swarthmore, who described all aspects of Swarthmore's employment practices and procedures regarding the faculty. He further testified with respect to defendants' response to plaintiffs' Memorandum of Comparisons. [Ex. D-147.] Defendants also presented Dr. Robert Cross, Alice Brodhead and Mr. Gilbert, all of whom testified with respect to Barbara Presseisen's individual case. Finally, defendants offered the testimony of two statistical expert witnesses, Dr. Paul Meier, Professor of Statistics at the University of Chicago, and Dr. Gudmund Iversen, Professor of Statistics at Swarthmore College.
Plaintiffs offered rebuttal testimony, and defendants surrebuttal.
DISCUSSION OF APPLICABLE LEGAL PRINCIPLES
On May 31, 1977, in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396, the Supreme Court set forth specific guidelines with respect to the burden of proof of the respective parties in a Title VII class action case. Although Teamsters was a Government-initiated pattern or practice suit, the Court finds, and all parties are in agreement, that the evidentiary bases for a private across-the-board class action suit are almost identical to a Government pattern or practice suit. Accordingly, we will look to Teamsters as our primary source of guidance in this case.
Teamsters makes clear that the plaintiff must prove illegal discrimination in his or her individual case and a pattern or practice of discrimination against the class he or she represents. Quite simply, plaintiffs in this case contend that Swarthmore regularly and purposefully treated women faculty members less favorably than male faculty members. They allege disparate treatment with respect to, inter alia, recruitment, hiring, salary, promotion, reappointments and tenure. Accordingly, as stated in Teamsters, at 335, "[the] ultimate factual issues are thus simply whether there was a pattern or practice of such disparate treatment and, if so, whether the differences were 'racially [or in this case sexually] premised.'" (Citation omitted.) (Footnote omitted.)
Before we address the specific burden of proof with respect to the individual and the class case, we note that the Court in Teamsters recognized that there are two types of discrimination in Title VII cases. The first are claims of disparate treatment wherein the "employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin." Teamsters, supra, at 335 n.15. The other type of claims stress disparate impact which "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Id. Since plaintiffs concede in their "Post Trial Brief in Support of Findings of Fact and Conclusions of Law," at pp. 2-4, that the entire thrust of their case was to establish that disparate treatment was accorded to women faculty members by Swarthmore in all terms and conditions of employment, we need only concern ourselves with the "disparate treatment" type of discrimination.
The distinction is an important one since, as was stated in Teamsters, supra, at 335 n.15, under a disparate treatment theory, "[proof] of discriminatory motive is critical," whereas under a disparate impact theory proof of discriminatory motive is not required. Id. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 430-432, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); Dothard v. Rawlinson, 433 U.S. 321, 328, 97 S. Ct. 2720, 2726, 53 L. Ed. 2d 786 (1977). As defendants point out in their Supplemental Memorandum of Law, at pp. 10-11, the Supreme Court's citation, in Teamsters, 431 U.S. at 335 n.15, to its previous opinion in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977), is most instructive with respect to proof of discriminatory motive. In Arlington Heights, the Court noted that, since legislators and administrators are concerned with balancing numerous competing considerations in making decisions, as must the administration of Swarthmore, "courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality." 429 U.S. at 265-266. This judicial deference is no longer justified "[when] there is a proof that a discriminatory purpose has been a motivating factor in the decision . . . ." Id. The Court in Arlington Heights then went on to explain as to how one might establish an invidious discriminatory purpose:
Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action -- whether it "bears more heavily on one race than another," Washington v. Davis, 426 U.S. 229, at 242 -- may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. . . . The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence.
Accordingly, it is the plaintiff's burden in a Title VII disparate treatment case to establish not only the existence of disparate treatment but also that such treatment was caused by purposeful or intentional discrimination.
Since plaintiffs in effect have brought a pattern and practice case, Teamsters explicitly defined what the plaintiffs must do in order to establish a prima facie case of class discrimination. They must show that alleged differences in treatment between men and women are sexually premised. In addition, since plaintiffs alleged a system-wide pattern or practice of resistance to the full enjoyment of Title VII rights, they must show by a preponderance of the evidence that sex discrimination against female faculty members is the standard operating procedure of Swarthmore. As the Teamsters Court noted:
the Government ultimately had to prove more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts. It had to establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure -- the regular rather than the usual practice. 431 U.S. 324 at 336 (footnote omitted).