Case No. 02-2057 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and JAMES M. FERGUSON, Intervening Plaintiff-Appellee, v. PIPEFITTERS ASSOCIATION LOCAL UNION 597, Defendant-Appellant. ________________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Case Nos. 98 C 1601 and 98 C 3217The Honorable David H. Coar _________________________________________________________ BRIEF FOR PLAINTIFF-APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel JOSEPH A. SEINER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 TABLE OF CONTENTS Page TABLE OF CONTENTS..............i TABLE OF AUTHORITIES.........iii STATEMENT OF JURISDICTION........ 1 STATEMENT OF ISSUES...............2 STATEMENT OF THE CASE.............3 STATEMENT OF THE FACTS............5 STANDARD OF REVIEW...............13 SUMMARY OF ARGUMENT..............13 ARGUMENT.........................16 Title VII Prohibits a Labor Union from Acquiescing in an Employer's Hostile Work Environment.............................. 16 A. The Plain Language of Title VII Requires Unions to Prevent a Racially Hostile Working Environment......... 17 B. The Case Law Provides That a Union Cannot Acquiesce in an Employer's Discriminatory Practices.................. 21 Pipefitters' Conduct Went Well Beyond Acquiescence and Mere Passivity.......... 24 III. Pipefitters Discriminated in Selectively Choosing Not to Resolve Racial Problems in the Workplace, Thereby Violating Title VII Under the Goodman Rule........... 30 CONCLUSION................39 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Anjelino v. The New York Times, 200 F.3d 73 (3d Cir. 1999) 29, 30 Berry v. Delta Airlines, 260 F.3d 803 (7th Cir. 2001) 18, 25 Chrapliwy v. Uniroyal, 458 F. Supp. 252 (N.D. Ind. 1977) 24 Daniels v. Pipefitters' Ass'n Local Union No. 597, 945 F.2d 906 (7th Cir. 1991) 28, 32 Dowd v. United Steelworkers of America, 253 F.3d 1093 (8th Cir. 2001) 19 Farmer v. ARA Services, 660 F.2d 1096 (6th Cir. 1981) 23 Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) passim Hellums v. Quaker Oats Co., 760 F.2d 202 (8th Cir. 1985) 20 Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456 (7th Cir. 2001) 13 Howard v. Int'l Molders Union, 779 F.2d 1546 (11th Cir. 1986) 23 Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991) 22, 32 Macklin v. Spector Freight System, 478 F.2d 979 (D.C. Cir. 1973) 23 Marquart v. Lodge 837, 26 F.3d 842 (8th Cir. 1994) 20, 25 Mason v. S. Illinois University, 233 F.3d 1036 (7th Cir. 2000) 18 Nat'l R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Patterson v. America Brands, Inc., 535 F.2d 257 (4th Cir. 1976) 23 Petrilli v. Drechsel, 94 F.3d 325 (7th Cir. 1996) 13 Romero v. Union Pacific R. R., 615 F.2d 1303 (10th Cir. 1980) 21 Salvadori v. Franklin Sch. District, 293 F.3d 989 (7th Cir. 2002) 32 Seymore v. Shawver & Sons, 111 F.3d 794 (10th Cir. 1997) 22 Smith v. BMI, Inc., 957 F.2d 462 (7th Cir. 1992) 13 Smith v. Hussman, 619 F.2d 1229 (8th Cir. 1980) 21 Sorenson v. Sec'y of Treas., 475 U.S. 851 (1986) 19 Sullivan v. Stroop, 496 U.S. 478 (1990) 19 Thomas v. Denny's, 111 F.3d 1506 (10th Cir. 1997) 3 Thorn v. Amalgamated Transit Union, 305 F.3d 826 (8th Cir. 2002) 20, 28, 29, 30, 32 Thornton v. Brown, 47 F.3d 194 (7th Cir. 1995) 13 Vore v. Indiana Bell, 32 F.3d 1161 (7th Cir. 1994) 18 Woods v. Graphic Communications, 925 F.2d 1195 (9th Cir. 1991) 19, 23, 25, 32 York v. AT&T, 95 F.3d 948 (10th Cir. 1996) 22 FEDERAL STATUTES 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345 1 28 U.S.C. § 1291 2 42 U.S.C. § 1981 3 42 U.S.C. § 2000e-2(a) (Section 703(a) of Title VII) 17, 18, 19 42 U.S.C. § 2000e-2(c) (Section 703(c) of Title VII) 14, 17-20, 30, 31, 32 42 U.S.C. § 2000e-5(f) 1 Fed. R. Civ. P. 52(a) 13 LAW REVIEW ARTICLES David S. Schwartz, When is Sex Because of Sex?, 150 U. Pa. L. Rev. 1697 (2002) 18 STATEMENT OF JURISDICTION Appellant Pipefitters' jurisdictional statement is not correct and complete,<1> and the Commission provides the following separate jurisdictional statement (See 7th Circuit Rule 28(b)): In this case, the Commission brought suit against Pipefitters, together with Foster Wheeler Constructors and several related corporate entities, pursuant to section 706(f) of Title VII. (Doc. No. 1, Complaint; Doc. No. 83, Third Amended Complaint). The district court had jurisdiction in this case pursuant to 28 U.S.C. §§ 1331 (federal question), 1337 (federal statute regulating commerce), 1343 (civil rights), 1345 (federal agency as plaintiff), and 451 (defining agency). (Id). All of the Foster Wheeler defendants were dismissed from the case prior to trial – the related corporate entities were dismissed on summary judgment, and Foster Wheeler Constructors itself was dismissed pursuant to court-approved settlements with the plaintiffs. (Doc. No. 184, Minute Order dismissing parties on summary judgment; Doc. No. 249, Minute Order entering consent decree; Doc. No. 260, Entry of protective order covering confidential settlement terms). On March 29, 2002, following a bench trial, the District Court entered a final judgment against Pipefitters. (Doc. No. 281, Entry of Judgment). The final judgment incorporated by reference a permanent injunction against Pipefitters that was set forth in a separate order issued the same day. (Doc No. 282, Injunction). On April 26, 2002, Pipefitters filed a timely notice of appeal from the final judgment and injunction. (Doc No. 284, Notice of Appeal). This Court has jurisdiction to review this matter pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Does a Union violate Title VII when it knows that a racially hostile work environment exists, has significant control over the workplace, and has the ability to remedy the hostile work environment created in part by its own members – yet chooses to do nothing? 2. Under Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), does a Union violate Title VII by ignoring a racially hostile work environment that it knows about, when its practice is to remedy other workplace problems on its own initiative? STATEMENT OF THE CASE On March 17, 1998, the U.S. Equal Employment Opportunity Commission (EEOC or Commission) filed a complaint in the United States District Court for the Northern District of Illinois under Title VII to correct unlawful employment practices based on race and to provide appropriate relief to James Ferguson and a class of African-American employees who were adversely affected by such practices. (Doc. No. 1, Complaint). In its complaint, the Commission alleged that the Defendant Union, Pipefitters Local 597 (Pipefitters or Union), discriminated against a class of African-American members of the Union because of their race by maintaining a racially hostile and offensive work environment. (Doc. No. 1, Complaint). On June 17, 1998, James Ferguson filed a separate complaint intervening in the Commission's lawsuit and asked the court to award additional damages under 42 U.S.C. § 1981. (Doc. No. 27, Intervenor's Complaint; Doc. No. 40, Amended Complaint in Intervention).<2> The Commission also brought suit against the workers' employer, Foster Wheeler Constructors, Inc. (Doc No. 1). The Commission reached settlement with the employer before the case went to trial, however, leaving Pipefitters as the only defendant in this case. (Doc. No. 260, Entry of protective order covering confidential settlement terms). In September 1999, the District Court held a bench trial on the claims asserted by the Commission. (Doc. No. 222, Minute Order setting trial date). On March 28, 2002, the district court issued a 26-page opinion with specific findings of fact and conclusions of law outlining the egregious and intentional nature of the racial discrimination that occurred in this case. (Doc. No. 280, Defendant's Appendix (Def. App.)<3> at 4-29, Findings of fact and conclusions of law). More specifically, the court found that through its knowledge and inaction, Pipefitters acquiesced in the creation of a hostile work environment. (Def. App. at 14 ¶ 72). The court further concluded that Pipefitters had violated its duty to address workplace problems in a non-discriminatory manner, see Goodman v. Lukens Steel Co., 482 U.S. 656, 667 (1987), and had failed to “take effective action to report or remedy the racially hostile work environment.” (Def. App. at 23-24 ¶¶ 16-19, 22). The court entered judgment for the EEOC and Ferguson, and awarded $105,000 in compensatory damages and $50,000 in punitive damages to eight named victims of discrimination. (Doc. No. 281, Order). The court also awarded the Commission's costs and Ferguson's attorneys' fees. Id. By separate order, the district court entered a permanent injunction against Pipefitters prohibiting further discrimination. (Doc. No. 282, Injunction).<4> On April 26, 2002, Pipefitters filed a timely notice of appeal in this matter, and on May 2, 2002, the district court entered a stay of the injunction pending resolution of this appeal. (Doc. Nos. 284, 288, Notice of Appeal and Order Staying Injunction). STATEMENT OF FACTS Pipefitters is a labor organization (as defined by Title VII) that represents approximately 7000 pipefitters and welders in northeastern Illinois and northwestern Indiana. (Def. App. at 5 ¶2, Findings of Fact and Conclusion of Law). In January 1995, Foster Wheeler Constructors (Foster Wheeler) began constructing a stack foundation for the Robbins Resource Recovery facility (Robbins Project), and used workers from several different unions, including Pipefitters. (Id. at 5 ¶¶ 4-6). The Robbins facility, located in Robbins, Illinois, is a 1600-ton-per-day “waste to energy” facility. (Id. at ¶ 3). A minority of the workers at the Robbins Project were African-American, and a minority of the Pipefitters at the project were African-American as well. (Id. at 6 ¶ 9-10). The labor agreement in effect between the Union and Foster Wheeler contained an explicit anti-discrimination clause. (See Doc. No. 121-2 at Exhibits 6-7, Vol. II of Appendix to Union's Motion for Summary Judgment) (“No discrimination shall be exercised by an Employer against any pipefitter on account of race, color, creed, national origin, age or sex.”). Contrary to Pipefitter's contention below,<5> many of the African-American pipefitters working at the Robbins Project were exposed to a racially hostile environment. (Def. App. at 17). This environment included graffiti scrawled across the portable toilets used by the Union members, and included racially tinged phrases targeted both generally at African-Americans and more specifically at particular Union members, such as: “death to all niggers” (id. at 10 ¶ 41); “your grandmother is such a slut she even fucks niggers” (id.); “KKK” (id.); “Fergie [James Ferguson], if you don't want to be treated like a nigger, don't act like one” (id. at 10 ¶ 42); a drawing of an African-American male with the size of his lips exaggerated and drawn around the toilet paper roll with the phrase “pull out Joe's [Joe McGhee] tongue” (id.); swastikas drawn on the walls (id. at 9 ¶ 35); “I like black pussy” (Tr. at 53); “Fuck Niggers” (Tr. at 53, 96, Exhibit 1-D); “The shines are ruining this country” (Tr. at 195-96, Exhibit 1-N); “If black is butiful I just shit a . . .” (Tr. at 197, Exhibit 1-C); “fuck you Fergeson” (Tr. at 212, Exhibit 1-A); graffiti referencing James Ferguson's wife, as well as her body (Tr. at 217-19). African-American pipefitters, including the intervenor James Ferguson, Keith Hill, Joseph McGhee, Robert Smith, James Foster, David Payne, Larry Smizer, and Lance Williams, were subjected to this “racially hostile, offensive, derogatory, humiliating and threatening graffiti” on a daily basis. (Def. App. at 8-9 ¶¶ 25-32, 10 ¶ 43). In addition, the African-American Pipefitters were frequently subjected to additional forms of racial harassment, including: a swastika made out of cardboard was placed in one of the African- American union member's tool box, and a paper swastika was placed on the same individual's seat; a hangman's noose was hung at different locations at the Robbins Project; when African-American employees would walk into a safety meeting, other employees would laugh and joke “oops, there goes the neighborhood;” a KKK poster was hung in the trailer where the African-American union members would take breaks. (Id. at 9 ¶¶ 35-36; 10 ¶ 44; Tr. at 99-100, 108). Moreover, there was significant evidence, and a finding of fact, that the pipefitters themselves contributed to the racially hostile environment: Caucasian pipefitters frequently made racial jokes about African Americans;some pipefitter union members asked a Caucasian woman why she was “sitting with the nigger” during a lunch break;in response to a question why they didn't use a particular African-American employee for work on a project, Pipefitter Union members stated that “we don't use that black motherfucker.” (Def. App. at 9 ¶ 34; Tr. at 595-99). In response to Defendant's argument that the above did not constitute a racially hostile work environment, the district court found the argument frivolous: There can be no serious contention that the racial environment at the Robbins construction site was not racially hostile. Despite the contentions of Local 597, the graffiti on the walls of the port-a johns was vile, disgusting and insulting. Only a visitor from another planet would fail to understand the ugliness of what was written and drawn on those walls. To credit the testimony that Hahney, Toth, Jordan and others failed to understand that the graffiti was offensive to any African American pipe fitters would require an extraordinary level of naivete or cynicism . . . . In defense of its inaction, Local 597 argued that racial graffiti was common on all construction sites and that there was really nothing that could be done about it. It is unclear how the union knew that because there was very little evidence that it had ever tried to prevent it. If Local 597 is of the view that its members (and other construction workers) are so hopelessly bigoted that neither education nor sanctions will deter racist conduct, then perhaps the actions of Hahney, Toth and others were reasonable. However, the law, and experience suggest otherwise. It may be true that civil laws may not truly change what is in a person's heart, but experience has shown that the law can change conduct. (Def. App. at 17-18). Despite the fact that the graffiti was obviously pervasive and harassing, Union officials did not take prompt and effective measures to remedy the situation, even after receiving a complaint and even after the EEOC became involved in the matter. (Tr. at 55-59, 193, 220-22, 239, 266, 425, 820). Dennis Hahney, a Caucasian member of the Pipefitters Union, was Piping Superintendent for Foster Wheeler at the time of the Robbins Project, acted as lead pipefitter on the project from October 1995 until the completion of construction, and functioned as the Union steward for the project. (Def. App. at 7 ¶ 17; 12 ¶ 60, 24 ¶ 21). Thus, Union members at the Robbins Project reasonably believed that Hahney was acting as the on-site representative of Local 597 for the Project, and Hahney had actual authority to act for the Union. (Id. at 13 ¶ 62; 24 ¶ 21). As part of his duties, Hahney was responsible for hiring pipefitters through the hiring hall, deciding who would be foremen for the project, and laying out the work to be completed by the pipefitters. (Id. at 7 ¶¶ 22-23; Tr. at 417-18). Hahney “was hired to ensure that things ran smoothly. He had the ear of Foster Wheeler and the power to obtain redress for issues that affected the pipe fitters on the site.” (Def. App. at 18). Hahney saw racial graffiti in the portable toilets when he started work in October 1995 and knew that there was graffiti in almost all of the port-a-johns at the Robbins project. (Def. App. at 13 ¶ 65). Hahney also knew that a cardboard swastika was placed in one African-American pipefitter's toolbox, and that a noose had been hanging at the facility for at least two months. (Id. at 14 ¶¶ 68-69). Despite his knowledge of this racially hostile work environment, Hahney did nothing to correct the situation until July 6, 1996, when Ferguson finally complained about specific graffiti referencing himself and his wife. (Id. at 14-15 ¶¶ 67-69, 73). Although Hahney asked that a foreman paint over this specific graffiti, the complaint was not adequately resolved, and the Union's counsel even conceded that the Union had not done an effective job removing the graffiti from the port-a-johns in response to Ferguson's complaint. See Tr. at 820 (“Now, did they do a great job cleaning it up? Of course, they didn't.”). See also Def. App. at 7 ¶ 24; 14 ¶ 73; Tr. at 55-59, 193, 220-22, 239, 266, 820. Moreover, Hahney did nothing to resolve the more general racial graffiti that persisted in the portable toilets, or to prevent additional racial graffiti from appearing, until an EEOC investigator visited the worksite on September 9, 1996, to serve charges and examine the facility. (Def. App. at 12 ¶ 52; 15 ¶ 74; Tr. at 49, 425). Even after this visit, however, the graffiti continued. An EEOC investigator observed graffiti in the port-a-johns when he returned to the site on September 19 and September 26, 1996. (Def. App. at 12 ¶¶ 53-55; Tr. at 55-56). The investigator did not observe a worksite free of racial graffiti until he returned on November 4, 1996. (Tr. at 56). Although Hahney did not adequately resolve the problem of racial graffiti even after Ferguson's complaint, the district court found that he would act on other complaints from workers under his supervision and sometimes even acted on his own initiative when he saw something adversely affecting his Union members. (Def. App. at 13 ¶ 61). Indeed, it was one of Hahney's responsibilities to make sure that no Union members were “hassled.” (Id.; Tr. at 421). More specifically, Hahney indicated that if he recognized a safety issue, he would have independently taken steps to remedy the problem. (Def. App. at 13 ¶ 61; Tr. at 439). Moreover, Hahney made sure that Union members had proper facilities and would independently have had the portable toilets cleaned if he had noticed a need to do so. (Id. at 13 ¶ 61; Tr. at 423, 489). The Pipefitter business agent responsible for the Robbins Project, Steven Toth, a Caucasian, was also aware of the graffiti. (Def. App. at 11 ¶ 50-51; Id. at 18; Id. at 24 ¶ 20). As a business agent, Toth's duties included negotiating contracts, handling any problems that would arise within his jurisdiction, and looking out for the working conditions on his projects. (Tr. at 505-06, 549, 568). In his role as business agent for the Robbins project, Toth “walked the job” approximately 20 to 30 times, making sure that “everything was going all right.” (Tr. at 549). Despite his knowledge of the graffiti at the project, he did nothing until specific graffiti referencing Ferguson and his wife caused Ferguson to complain. (Def. App. at 11 ¶ 50; 14 ¶ 73; 18).<6> Even then, the situation was not adequately resolved, and the Union admittedly did not do a good job in painting over the graffiti. (Tr. at 55-59, 193, 220-22, 239, 266, 820). Completely independent of any complaint, however, Toth ordered that sexual graffiti of a penis and a vagina that he had noticed be removed because it might be considered “a little offensive.” (Def. App. at 11 ¶ 51; Tr. at 513-14). STANDARD OF REVIEW This Court may not reverse the district court's findings of fact following a bench trial unless those findings are “clearly erroneous.” See Petrilli v. Drechsel, 94 F.3d 325, 329 (7th Cir. 1996). In a bench trial, the district court is in the unique position to make credibility determinations of witnesses, and those determinations should be given due regard. See Thornton v. Brown, 47 F.3d 194, 196 (7th Cir. 1995); Fed. R. Civ. P. 52(a). The district court's application of the law to the facts is reviewed for clear error as well. See Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001). The clearly erroneous standard is a difficult one to meet, as “the challenger must convince the reviewing court that a mistake has been made.” Smith v. BMI, Inc., 957 F.2d 462, 463 (7th Cir. 1992). The district court's legal conclusions are reviewed de novo by this Court. See Petrilli, 94 F.3d at 329. SUMMARY OF ARGUMENT It is an understatement to say that the environment at the Robbins Project was racially hostile. Indeed, the vulgar and disgusting graffiti and racial acts prevalent at this worksite harken back to how African-American employees were treated prior to the enactment of Title VII. Acknowledging this fact and abandoning its argument below that the environment at the Robbins project was not racially hostile, the Union now attempts to avoid liability through semantic gamesmanship – arguing that the statute as interpreted by the courts somehow does not require a union to remedy racial harassment, even where the Union had specific knowledge of the discriminatory acts, independently resolved other worker issues, exercised significant control over the workplace, and where Union members contributed to the racially hostile environment. The Union cannot successfully hide behind Title VII, however, which clearly requires no such result. As a majority of appellate courts have recognized, section 703(c) of Title VII prohibits a union from acquiescing in a racially hostile work environment. Moreover, based on the district court's findings, there was more than acquiescence here on the part of the Union. By focusing almost exclusively on the district court's acknowledgment that a union may not acquiesce in an employer's discriminatory behavior – a correct but alternate holding of the court – the Union quickly dismisses the court's primary holding in this case: that the Union violated Title VII under the Supreme Court's decision in Goodman by intentionally failing to address the racially hostile work environment even though its practice was to address other workplace problems proactively. The district court's finding that “it was the practice of Local 597 to deal with members' problems in the work place in the absence of a grievance” but that the Union “failed to take effective action to report or remedy the racially hostile work environment existing at the Robbins site” is well supported by the record and certainly not clear error. (Def. App. at 23-24 ¶¶ 18, 22). Even Pipefitters acknowledges that under Goodman, it has a duty “not to discriminate on the basis of race in dealing with [its] members' workplace problems.” (Def. Br. at 33). There can be no serious contention here that the Union did not violate this duty. Indeed, the district court specifically held that the Union steward at the Robbins Project would independently resolve worker safety concerns of which he had knowledge and considered it his duty to make certain that the facilities were proper and that no Union members were hassled. And, the Union's business agent in this case independently ordered that sexual graffiti be painted over because it could have been viewed as offensive. By deliberately ignoring the pervasive racial graffiti and other racial problems at the Robbins Project, then, the Union treated these racial issues differently from other workplace problems. The Supreme Court's decision in Goodman, like every other appellate decision to address this issue, mandates that such discriminatory treatment of workplace problems violates Title VII. In summary, this Court should align itself with the majority of appellate courts and the plain meaning of the statute by holding that a union has an affirmative duty to remedy a racially hostile work environment of which it is aware – particularly here where there is more than passive union acquiescence. However, at a minimum, this Court must affirm the district court's decision under the principle set forth by the Supreme Court in Goodman – that the Union cannot discriminate on the basis of race in dealing with its members' workplace problems. ARGUMENT The district court held that the Union was liable for the hostile work environment at the Robbins project. There are three independent legal grounds for the district court's holding: (1) the Union violated its affirmative duty to remedy the racially hostile work environment; (2) the Union did more than passively acquiesce in the employer's discrimination because it had significant control over the workplace and the ability to remedy the situation, and its members contributed to the racially hostile environment; and (3) the Union violated Title VII under the principles set forth by the Supreme Court in Goodman. This Court can affirm the district court's decision on any one of these grounds. Title VII Prohibits a Labor Union from Acquiescing in An Employer's Hostile Work Environment. The Union maintains that it has no “affirmative duty” under Title VII to “take action to report or remedy a racially hostile work environment.” (Def. Br. at 16). Thus, the Union contends that it cannot be held liable for intentionally acquiescing in the hostile work environment of Foster Wheeler. This argument, however, runs contrary to the plain terms of the statute, as well as the decisions of the majority of appellate courts that have addressed the scope of a union's obligations under Title VII. A. The Plain Language of Title VII Requires Unions to Prevent a Racially Hostile Working Environment. Pipefitters clearly misreads Title VII as not requiring unions to prevent a racially hostile work environment. There is no doubt that Title VII was written to apply specifically to labor unions. Section 703(c) of Title VII specifically provides that: It shall be an unlawful employment practice for a labor organization– (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin . . . . 42 U.S.C. § 2000e-2(c) (emphasis added). The phrase “or otherwise to discriminate against” in the statute mirrors the provision for employers in section 703(a) of Title VII, which makes it illegal for employers to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . . 42 U.S.C. § 2000e-2(a)(1) (emphasis added). The language “or otherwise to discriminate” under section 703(a)(1) includes not permitting a hostile work environment. See Mason v. S. Illinois Univ., 233 F.3d 1036, 1042 (7th Cir. 2000) (noting that the language of section 703(a)(1) prohibits racially hostile working environment); Vore v. Indiana Bell, 32 F.3d 1161, 1163-64 (7th Cir. 1994) (“Title VII provides redress to employees subject to a hostile work environment as the result of racial harassment of fellow employees”); David S. Schwartz, When is Sex Because of Sex?, 150 U. Pa. L. Rev. 1697, 1717 (2002) (“the textual hook for the sexual harassment cause of action under Title VII is the phrase “or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.” See also Nat'l R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061, 2074 n.10 (2002) (“Hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment”). Thus, under section 703(a)(1) of Title VII an employer who knew or should have known of a hostile working environment and failed to act is liable for discrimination. See Berry v. Delta Airlines, 260 F.3d 803, 810 (7th Cir. 2001) (“An employer may be held responsible for coworker on coworker harassment only if the employer knew or should have known about [the coworker]'s acts of harassment and fails to take appropriate remedial action.”) (internal citations omitted). Because section 703(c)(1) contains the identical language found in section 703(a)(1), it must also be construed as not permitting a hostile work environment of which the Union knew or should have known. See Sullivan v. Stroop, 496 U.S. 478, 484-85 (1990) (“the normal rule of statutory construction [is] that identical words used in different parts of the same act are intended to have the same meaning.”) (internal quotations omitted); Sorenson v. Sec'y of Treas., 475 U.S. 851, 860 (1986) (same).<7> Indeed, the Eighth Circuit has interpreted the language “or otherwise to discriminate” under Section 703(c)(1) as specifically including harassment. See Dowd v. United Steelworkers of America, 253 F.3d 1093, 1102 (8th Cir. 2001) (noting that under section 703(c), “the plain language of the statute suggests that unions may be liable for any discrimination, including a claim of hostile work environment”); see also Woods, 925 F.2d at 1200 (“Title VII and Section 1981 prohibit discrimination by unions to the same extent they prohibit discrimination by employers”) (citation and quotation omitted).<8> As properly found by the district court, the Union had actual knowledge of the overtly hostile working environment here, yet failed to take any corrective measures. (Def. App. at 23-24 ¶¶ 19-22) (“Local 597 is liable . . . if 1) it knew or should have known of the racially hostile environment and 2) it failed to take effective action . . . . Plaintiffs have proven by a preponderance of the evidence that Hahney, Toth and Local 597 failed to take effective action to report or remedy the racially hostile work environment”). The Union should therefore be held accountable under Title VII.<9> B. Judicial Interpretations of Title VII Mandate that A Union Cannot Acquiesce in An Employer's Discriminatory Practices. In citing two cases that support its argument that a union has no affirmative duty to remedy harassment in the workplace – neither of which are dispositive here (see section II, infra) – Pipefitters simply ignores the fact that the majority of appellate courts to consider the issue have acknowledged that a union cannot acquiesce in the discriminatory practices of the employer. For example, the Tenth Circuit has unequivocally held that such an affirmative duty under Title VII exists: we point out that labor organizations have an affirmative duty to insure compliance with Title VII . . . . If a union does not take action against discriminatory practices by an employer, it may be held responsible for those practices . . . . A union cannot acquiesce in a company's prohibited employment discrimination and expect to evade Title VII liability for such discrimination. Romero v. Union Pac. R. R., 615 F.2d 1303, 1310-11 (10th Cir. 1980). More recent Tenth Circuit decisions have reaffirmed that a union may not acquiesce in conduct prohibited by Title VII. See Seymore v. Shawver & Sons, 111 F.3d 794, 798 (10th Cir. 1997); York v. AT&T, 95 F.3d 948, 956 (10th Cir. 1996). The Court in York also set out the standard for what it means to acquiesce in an employer's discriminatory conduct: “Acquiescence requires (1) knowledge that prohibited discrimination may have occurred and (2) a decision not to assert the discrimination claim.” Id. at 956. Here, the district court found that the Union had knowledge of the racially hostile work environment, yet did nothing to assert the discrimination claim for the minority members of the Union. Thus, at a minimum, Pipefitters has acquiesced in the racially hostile working environment created by Foster Wheeler.<10> The overwhelming majority of other circuit courts to address this issue have reached the same conclusion as the Tenth Circuit – acknowledging that a union has an affirmative duty to prevent harassment in the workplace, and that a union cannot acquiesce in the discriminatory practices of an employer. See Johnson v. Palma, 931 F.2d 203, 208 (2d Cir. 1991) (holding that union violates Title VII when it “acquiesces in a company policy that abridges the statutory rights of the plaintiff”); Patterson v. Am. Brands, Inc., 535 F.2d 257, 270 (4th Cir. 1976) (local union which “acquiesced without protest” in company's lines of progression which perpetuated effects of discrimination was properly held liable); Farmer v. ARA Services, 660 F.2d 1096, 1104 (6th Cir. 1981) (“A labor organization can be held jointly and severally liable under Title VII for acquiescing in the discriminatory practices of the employer”); Woods v. Graphic Communications, 925 F.2d 1195, 1200 (9th Cir. 1991) (“The union has an affirmative obligation to oppose employment discrimination against its members. If instead it acquiesced or joined in the Company's discrimination practices, it too is liable to the injured employees.”) (citation and quotation omitted); Howard v. Int'l Molders Union, 779 F.2d 1546, 1553 (11th Cir. 1986) (unions were liable to minority employees under Title VII for failing to use “all reasonable effort to cause the employer” to cease using racially discriminatory nonvalidated tests for promotion); Macklin v. Spector Freight Sys., 478 F.2d 979, 989 (D.C. Cir. 1973) (holding that “tacit union acquiescence in an employer's discriminatory practices” and “union passivity” can result in Title VII liability, and contrary result would “undermine Title VII's attempt to impose responsibility on both unions and employers”), disapproved of on other grounds by Johnson v. Railway Exp. Agency, Inc., 421 U.S. 454 (1975); see also Rainey v. Town of Warren, 80 F. Supp. 2d 5, 18 (D.R.I. 2000) (union liable where union officials “knew of plaintiff's harassment, and deliberately stuck their heads underneath the sand in response thereto”); Chrapliwy v. Uniroyal, 458 F.Supp. 252, 261 (N.D. Ind. 1977) (“Without citing any authority, the Union submits that acquiescence by a union to an employer's unlawful employment practices is a valid defense in a Title VII action. However, all authorities located by the court have reached the opposite conclusion.”). Despite the Union's failure to acknowledge this authority, these courts recognize that a union cannot acquiesce in an employer's discriminatory conduct and expect to avoid liability. Here too, Pipefitters should not escape its responsibilities under Title VII, as the Union clearly knew of the egregious discrimination and yet failed to act. Pipefitters' Conduct Went Beyond Acquiescence and Mere Passivity. As demonstrated above, a labor union is liable for intentionally acquiescing in a hostile working environment. However, in this case this Court need not decide whether acquiescence alone is sufficient to support the district court's liability decision, because Pipefitters' conduct went well beyond passive acquiescence here. Like the union in Goodman – which did more than acquiesce by selectively choosing to pursue only those workplace complaints that were not racially related – Pipefitter's conduct here constitutes more than “mere passivity.” See Goodman, 482 U.S. at 666. See also Woods, 925 F.2d at 1201 (“Courts following Goodman have continued to recognize that an affirmative duty may exist . . . . But, as in Goodman, we need not rest our ruling on this ground. The Union's acts constituted “more than mere passivity[.]”). Indeed, Pipefitters did far more than “acquiesce[] in the creation of a hostile work environment at the Robbins site” through its “inaction” (Def. App. at 14 ¶ 72). More specifically, Pipefitters' failure to take timely and appropriate remedial action when it became aware of the hostile environment in October 1995 must be considered in the context of the union's unusual level of control over the working environment of its union members.<11> Hahney, the union steward, was responsible for hiring pipefitters through the hiring hall, deciding who would be foremen for the project, laying out the work to be completed by the pipefitters, and determining who would be laid off. (Def. App. at 7 ¶¶ 22-23, Tr. at 417-18). In addition, Pipefitter business agent Toth's duties included negotiating contracts, handling any problems that would arise within his jurisdiction, and looking out for the working conditions on his projects to make sure that “everything was going all right.” (Tr. at 505-06, 549, 568). Thus, the Union controlled which pipefitters were hired and fired, what job assignments were to be completed, and the general working conditions of the union members at the employment site. In these respects, the Union was acting very much like an employer, and, like an employer, the Union should be held liable under Title VII for contributing to a racially hostile work environment. Along with its control of the working environment, the Union had the clear ability to remedy the hostile work environment. As found by the district court, Hahney “was hired to ensure that things ran smoothly. He had the ear of Foster Wheeler and the power to obtain redress for issues that affected the pipe fitters on the site.” (Def. App. at 18). And, business agent Toth independently ordered sexual graffiti he observed in the restrooms to be painted over. (Def. App. at 11 ¶ 51; Tr. at 513-14). Yet, the Union did nothing about the racial graffiti for approximately nine months until one of its members, Ferguson, complained about specific graffiti in July 1996. Even then, the situation was not adequately resolved, and the Union even concedes that it did not do a good job in painting over the graffiti. (Id. at 7 ¶ 24; 14 ¶ 73; Tr. at 55-59, 193, 220-22, 239, 266, 820). And, even after Ferguson's complaint, there was no attempt to remove the more general racial graffiti – which remained until approximately November 1996. (Def. App. at 12 ¶ 52; 15 at ¶ 74; Tr. at 49, 55-56, 425). Indeed, nowhere does the Union assert that it did not have the ability to remedy the situation if it had wanted to. Rather, the Union simply felt that it was not in its job description to remove offensive graffiti of which it was aware. See Tr. at 438 (in response to question as to why he did not get rid of racial graffiti that he saw, Hahney responded “It's not my job, sir”); Tr. at 438-39 (in response to question as to whether he could have had graffiti removed, Hahney stated “[i]f it would have been in my job description, I probably would have taken care of it every time.”). Finally, it cannot be ignored that it was Pipefitters' members who actively contributed to the racially hostile environment here. As found by the district court, Caucasian pipefitters frequently made racial jokes about African Americans. (Def. App. at 9 ¶ 34). The testimony at trial showed that some pipefitter union members asked a Caucasian woman why she was “sitting with the nigger” during a lunch break. (Tr. at 597). Further testimony revealed that pipefitter union members stated that they did not use a particular African-American employee for work on a project because “we don't use that black motherfucker.” (Tr. at 597-99). Because of the Union members' active contributions to the racial attitude at the site, then, the Union clearly did more here than passively “acquiesce” in the hostile environment created by Foster Wheeler. Cf. Daniels v. Pipefitters' Ass'n Local Union No. 597, 945 F.2d 906, 909 (7th Cir. 1991) (Pipefitters Local 597 found liable for intentional discrimination in hiring practices – African American union members at hiring hall were referred to as “‘baboon[s],'‘porch monkeys,' ‘spear-chuckers,' ‘ghetto assholes,' ‘nigger,' and ‘super nigger.'”). The facts here are largely uncontroverted: Pipefitters knew that a racially hostile work environment persisted at the Robbins Project; Pipefitters had the ability to remedy the situation; and Pipefitters' members actively contributed to the racially hostile situation. Yet, Pipefitters chose to do nothing. Based on these undisputed facts, Pipefitters has clearly done more than “passively” sit by while the employer violated its workers' rights with respect to Title VII – Pipefitters has violated its members' rights under the statute as well. In this respect, Pipefitter's heavy reliance on the Eighth Circuit's decision in Thorn v. Amalgamated Transit Union, 305 F.3d 826 (8th Cir. 2002), is misplaced. In Thorn, the Eighth Circuit “agree[d] with the district court that [plaintiff] has only alleged non-actionable passive acquiescence by the Unions in the employer's allegedly unlawful failure to remedy sexual harassment.” Id. at 833 (emphasis added).<12> Like the union held liable under Title VII in Goodman, the Union here did much more than passively sit by while the employer created a hostile working environment. The Union here had actual knowledge of the hostile environment, had significant control over the workplace as well as a demonstrated ability to remedy the situation, yet failed to act. For these reasons, the situation here is clearly distinguishable from that of Thorn, where the union was simply found to have passively acquiesced in the employer's conduct. Id. at 832-833. The only other appellate case relied upon by the Union, Anjelino v. The New York Times, 200 F.3d 73 (3d Cir. 1999), provides only a cursory discussion of a union's responsibilities with respect to Title VII. See id. at 95. In Anjelino, the court held that a union was not liable for harassment experienced by mail room employees because the union members had failed to show that “the Union itself instigated or actively supported the discriminatory acts.” Id.<13> Like the rationale in Thorn, then, the Anjelino decision is clearly based on the principle that a union cannot be held liable for mere passivity. As shown above, there is far more than mere passivity in this case to support the district court's liability decision.<14> Moreover, both the Thorn and Anjelino decisions were based on an acquiescence liability theory; neither decision (nor any other appellate court decision) holds that an employer may discriminate on the basis of race when addressing workplace problems, as was clearly done here. Indeed, as set forth below, Pipefitters' conduct constituted a clear violation of its duties as articulated in the Supreme Court's decision in Goodman. Pipefitters Discriminated in Selectively Choosing Not to Resolve Racial Problems in the Workplace, Thereby Violating Title VII Under the Goodman Rule. This Court should properly hold that a union may not acquiesce in an employer's discriminatory behavior – particularly here where there is more than mere union passivity. However, at a minimum, this Court should affirm the district court's decision on the rationale set forth in Goodman. In Goodman, the Supreme Court held that a union may not discriminate on the basis of race when addressing workplace problems. 482 U.S. at 669. In that case, the unions involved did not hold “any racial animus against” African-American employees, or “denigrate” those workers in any way. Id. at 668. However, the unions selectively chose which complaints to consider – effectively pursuing only those complaints from union members that were not based on racial discrimination. Id. at 669. In considering the discrimination claims of the union members, the Goodman Court held that the unions had violated Title VII and § 1981. Id. The Court noted with approval that the district court had found the Union liable for violating section 703(c)(1) of Title VII, and stated that the “plain language of the statute supports this conclusion.” Id. at 667. The Court further held that unions may not “refuse to file any and all grievances presented by a black person on the ground that the employer looks with disfavor on and resents such grievances.”<15> Thus, the Goodman decision stands for the proposition that a Union may not discriminate on the basis of race when addressing workplace problems. See id. at 667-69 (the “plain language” of section 703(c)(1) of Title VII prohibits unions from “discriminat[ing] on the basis of race by the way in which they represent[]” their members in the workplace). Under Title VII and Goodman, then, a Union cannot have a practice of remedying workplace problems generally, but then choose not to address racial issues that adversely affect union members. This standard set forth by the Supreme Court in Goodman has been adopted by this Court as well as every other appellate court that has addressed the issue. See, e.g., Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 998 (7th Cir. 2002) (“[a] union may not refuse to file race-based, disparate-treatment grievances solely because the union looks with disfavor on those types of claims or because they would be troublesome to process”); Daniels v. Pipefitters' Ass'n Local Union 597, 945 F.2d 906, 915 (7th Cir. 1991) (refusal to refer African-American plaintiff for employment falls within prohibition set forth in Goodman); Thorn, 305 F.3d at 832 (union organization can be held liable where it follows policy of rejecting disparate-treatment complaints); Johnson, 931 F.2d at 208 (under Title VII, union may not refuse to pursue certain complaints); Woods, 925 F.2d at 1200 (same). As its primary holding, the district court below found that Pipefitters had violated its duties with respect to Goodman, and had failed promptly and effectively to address racial problems of which it was aware, while remedying other workplace problems. As carefully set forth by the court: Local 597 has a duty to report or otherwise seek to remedy a racially hostile work environment if its practice is to report or otherwise seek to remedy workplace conditions and/or activities that adversely impact members of the union, even if a union member has not filed a grievance or complaint with Local 597. . . . EEOC has proven by a preponderance of the evidence that it was the practice of Local 597 to deal with members' problems in the work place in the absence of a grievance, and that, therefore it had a duty to take action to report or remedy the racially hostile work environment . . . . Plaintiffs have proven by a preponderance of the evidence that Hahney, Toth and Local 597 failed to take effective action to report or remedy the racially hostile work environment existing at the Robbins site. (Def. App. at 23-24 ¶¶ 17-22). In its brief, the Union focuses almost exclusively on the district court's acknowledgment that a union may not acquiesce in an employer's discriminatory behavior – a correct but alternate holding of the district court. In doing so, the Union provides only a cursory discussion of the district court's primary holding in this case – that the Union violated its duties with respect to the Supreme Court's decision in Goodman by taking affirmative steps to remedy some workplace problems without a grievance, but allowing the racially hostile environment to persist. Indeed, Pipefitters even acknowledges its duties with respect to Goodman, (Def. Br. at 13, 28, 33), but argues that its general policy was to remedy workplace problems only upon receipt of a complaint. (Def. Br. at 36-40). Based on the district court's findings, however, there can be no serious contention that the Union has not violated Title VII by discriminating on the basis of race in its treatment of workplace problems. To be sure, the court's conclusion that “it was the practice of Local 597 to deal with members' problems in the work place in the absence of a grievance”<16> but that the Union “failed to take effective action to report or remedy the racially hostile work environment existing at the Robbins site” is all but compelled by the evidence in the record. (Def. App. at 23-24 ¶¶ 18, 22). But at a minimum, this factual finding is not clearly erroneous. Despite the Union's overly-generalized argument that there was almost no evidence to support the district court's finding, (Def. Br. at 36-40), the evidence at trial showed that: Toth independently observed sexual graffiti of a vagina and a penis in one of the portable toilets, and immediately ordered that it be removed because it might be considered “a little offensive.” (Def. App. at 11 ¶ 51; Tr. at 513-14). Hahney indicated at trial that if he recognized a condition that threatened the safety of other union members, he would have independently taken steps to remedy the problem. (Def. App. at 13 ¶ 61; Tr. at 439). If Hahney became aware that the restrooms were dirty, he would have acted on his own initiative to have them cleaned. (Def. App. at 13 ¶ 61; Tr. at 423, 489).<17> Hahney sometimes acted on his own initiative when he saw something negatively affecting union members, and made sure that no one was “hassled.” (Def. App. at 13 ¶ 61; Tr. at 421). Toth's responsibilities included handling any problems that would arise at the Robbins project, and he walked around the project on approximately 20 to 30 different occasions, making sure that “everything was going all right.” (Tr. at 505-06, 549, 568). In response to these many examples of the Union affirmatively remedying workplace problems in the absence of a complaint, the Union points to no evidence of even a single incident where the Union had knowledge of a workplace problem but did nothing to correct it. In fact, the evidence reveals only one such instance: the Union's failure to remedy the racially hostile working environment at the Robbins project.<18> Certainly, the numerous instances cited by the district court of the Union acting independently to remedy workplace problems more than support the court's factual finding that it was the practice of the Union to deal with members' problems in the absence of a complaint, and such a finding is not clearly erroneous. (Def. App. at 23-24 ¶¶ 18, 22). Indeed, the Union not only failed to act here in the absence of a complaint, but, as properly found by the district court, even if the African-American Union members had filed a complaint, it would have proven futile. (Def. App. at 18). See also Tr. at 170-74, 222-23. As the district court explained: To complain about the graffiti would be to acknowledge the power of its authors to inflict harm. If this were the first incident of racially offensive conduct on a work site, perhaps the hope of remedial action would have outweighed the sting of acknowledgment: akin to saying uncle if that will result in relief. But the African American pipe fitters knew (or suspected, based on experience) that complaining would not produce relief, so they said nothing. (Def. App. at 18). The futility of complaining was further demonstrated by the Union's treatment of Ferguson's complaint about the graffiti in July 1996. The Union did not effectively handle this complaint, and racial graffiti at the Robbins project remained even after Ferguson was laid off from the project in August 1996. (Def. App. at 7 ¶ 24, 12 ¶ 53-55, 14 ¶ 73; Tr. at 55-56, 193, 239, 266, 820). Although the Union suggests that the only type of workplace problem that it would remedy without a complaint was safety-related concerns, (Def. Br. at 36-38), the trial evidence and district court findings set forth above reveal far more instances of where the Union would independently resolve worker problems without a complaint. By ignoring the weight of this evidence, the Union attempts to mischaracterize the district court's finding that it was the “practice” of Pipefitters to address workplace problems as a finding that the Union would address only safety concerns without a complaint. The district court's decision is much broader, however, and is well substantiated by the evidence presented at trial. To be sure, taken alone, each individual incident of the Union acting independently to address workplace problems might not be enough to support the court's finding that the Union had a “practice” of dealing with “members' problems in the work place in the absence of a grievance.” (Def. App. at 23 ¶ 18). When viewed in the aggregate, however, the many instances of the Union acting without a complaint support the finding that it was the Union's practice to do so. Certainly, such a finding is well supported by the record and not clearly erroneous. Thus, the Union violated Title VII by discriminating on the basis of race in its treatment of workplace problems. The Union took immediate action when it became aware of sexual graffiti in the port-a-johns,<19> independently resolved safety issues, maintained the cleanliness of the restrooms, made certain that no union members were “hassled,” and made sure that “everything was going all right” with Union members on a regular basis. However, despite knowledge by the Union steward and Union business agent that there was racially hostile graffiti in the port-a-johns and a racially hostile environment at the Robbins project, the Union took no action for almost nine months – and even then its response was wholly inadequate. This disparate treatment of workplace problems constitutes a clear violation of Title VII under the Supreme Court's decision in Goodman, which prohibits a union from “discriminat[ing] on the basis of race in dealing with their members' workplace problems.” (Def. Br. at 33). See also Goodman, 482 U.S. at 667-69. The plain language of Title VII dictates that a Union may not “discriminate[] on the basis of race by the way in which they represent[]” their members in the workplace. Goodman, 482 U.S. at 667. As shown above, the Union's conduct certainly runs afoul of Title VII here. CONCLUSION It is undisputed that the Union knew that a racially hostile work environment existed at the Robbins Project and had the ability to remedy the situation – yet chose to do nothing. Under the prevailing view of the controlling legal standard, based on these facts Pipefitters was properly held liable by the district court for violating its members' rights under Title VII. In addition, the district court's liability judgment must be affirmed because the Union discriminated on the basis of race in its treatment of workplace problems, thereby violating Title VII under the principle articulated by the Supreme Court in Goodman. The Union took immediate action when it became aware of sexual graffiti in the port-a-johns, independently resolved safety issues, maintained the cleanliness of the restrooms, made certain that no Union members were “hassled,” and made sure that “everything was going all right” with Union members on a regular basis. However, the Union did not take prompt and effective remedial action despite knowledge by the Union steward and Union business agent that there was racially hostile graffiti in the port-a-johns and a racially hostile environment at the Robbins project. The plain and unfortunate truth of this case is that the Union easily could have corrected the hostile working environment if it had chosen to do so. But the Union just did not see it as part of its job to do so. The district court properly rewrote the Union's job description, recognizing that while “civil laws may not truly change what is in a person's heart,” “experience has shown that the law can change conduct.” Def. App. at 18. We respectfully request that this Court affirm the decision of the district court. Respectfully submitted, Nicholas M. Inzeo Acting Deputy General Counsel Philip B. Sklover Associate General Counsel Carolyn L. Wheeler Assistant General Counsel ________________________ Joseph A. Seiner Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 9885 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed. R. App. P. 32(a)(5). _____________________ Joseph A. Seiner December 30, 2002 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 30th day of December, 2002, I caused: (1) copies of the attached brief, and (2) a diskette containing the brief in an Adobe Acrobat PDF format, to be sent via overnight mail to: Clerk of Court U.S. Court of Appeals for the Seventh Circuit 219 S. Dearborn Street Room 2722 Chicago, IL 60604 Dennis R. Johnson Johnson & Smetters, LLC 208 S. LaSalle Street Suite 1727 Chicago, IL 60604 Catherine Bremer Bremer & Warner 218 N. Jefferson Chicago, IL 60661 I further certify that on the 30th day of December, 2002, I caused (1) copies of the attached brief, and (2) a diskette containing the brief in an Adobe Acrobat PDF format, to be sent via messenger (for delivery on December 31, 2002) to: Andrew Roth Laurence Gold Bredhoff & Kaiser, PLLC 805 15th Street, N.W. Suite 1000 Washington, D.C. 20005 __________________________ Joseph A. Seiner EEOC / Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 December 30, 2002 1 The error in Pipefitters' jurisdictional statement is minor – Pipefitters simply omitted that the district court also had jurisdiction in this case pursuant to 28 U.S.C. §§ 1337, 1343, 1345 and 451; and that the complaint in this matter was brought pursuant to section 706(f) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f) (Title VII). Pursuant to Seventh Circuit Rule 28(b), however, the Commission sets forth a complete jurisdictional summary here. 2 The Commission agrees that for purposes of the issues raised in this appeal, the standards under 42 U.S.C. § 1981 are the same as under Title VII. See Defendant's Brief at 30-31; Thomas v. Denny's, 111 F.3d 1506, 1513 (10th Cir. 1997) (“In a case under Title VII and § 1981 arising out of the same facts, the commonality of factual issues between the § 1981 and Title VII claims is nearly all-encompassing. The elements of each cause of action have been construed as identical, and a jury verdict on the issue of liability . . . . under § 1981 is normally conclusive on the issue of liability in a parallel action under Title VII.”) (citations omitted). 3 Citations to the Appendix refer to the materials attached to the Defendant's opening brief. 4 Pipefitters does not challenge the scope of the monetary or injunctive relief awarded by the district court in its appeal. 5 Pipefitters no longer disputes that there was a racially hostile working environment, and does not set forth facts related to the hostile environment in its brief. The Commission presents those facts here, however, as they are clearly relevant to the district court's decision in this matter, as well as the issues on appeal. 6 As the district court properly found, the African-American pipefitters did not complain earlier because filing such a complaint would have proven futile. (Def. App. at 18). 7 The only substantive difference between Title VII section 703(a)(1) and section 703(c)(1) is that in section 703(a)(1) the phrase “otherwise to discriminate” is limited to the “compensation, terms, conditions or privileges of employment.” Thus, section 703(c)(1) must be construed at least as broadly as section 703(a)(1). See Dowd v. United Steelworkers of America, 253 F.3d 1093, 1102 (8th Cir. 2001) (plain language of Title VII suggests that unions can be liable for hostile work environment); Woods v. Graphic Communications, 925 F.2d 1195, 1200 (9th Cir. 1991) (Title VII prohibits discrimination “to the same extent” for both unions and employers) (citation and quotation omitted). 8 Some courts have also found that the Union's duty to address complaints of harassment arises under section 703(c)(3) of Title VII because a union may not “cause or attempt to cause an employer to discriminate against an individual.” See, e.g., Marquart v. Lodge 837, 26 F.3d 842, 853 (8th Cir. 1994). 9 The Union's concern that Title VII might place it in the “untenable position” of having to choose sides between those union members doing the harassing and the union members who are victimized, (Def. Br. at 25 n.8), is misplaced here, because there is no dispute in this case about the existence and nature of the racially hostile environment created by some union members. Moreover, even if there were factual disputes requiring resolution, unions are frequently placed in the position of having to represent adequately the interests of conflicting members – as is done when one member files a grievance against another member on any issue, including discrimination. As recognized by the case cited by defendant, Thorn v. Amalgamated Transit Union, 305 F.3d 826 (8th Cir. 2002), when a company “investigates a sexual harassment claim by one union member against another, the union has a statutory duty to fairly represent both in their disciplinary dealings with the employer.” Id. at 833. Accord Hellums v. Quaker Oats Co., 760 F.2d 202, 205 (8th Cir. 1985) (where altercation between union members presented “conflicting claims” by “different union members,” union properly “submit[ted] each of the grievances in a neutral fashion, permit[ted] the parties to present their own stories at the arbitration hearing, and [left] it to the arbitrator to make the necessary credibility determinations”); Smith v. Hussman, 619 F.2d 1229, 1238-41 (8th Cir. 1980) (where members have conflicting interests “union must fairly represent both groups of employees and may take a position in favor of one group only on the basis of an informed, reasoned judgment”). 10 Indeed, the Union does not appear to contest the district court's finding that it intentionally acquiesced in the egregious working conditions present at the Robbins Project. The Union argues only that such acquiescence does not violate Title VII. See Def. Br. at 19-30. 11 As shown above, Title VII prohibits discrimination “to the same extent” for both unions and employers. See Woods, 925 F.2d at 1200. Under Title VII, an employer “may be held responsible for coworker on coworker harassment” if the employer “knew or should have known about [the coworker]'s acts of harassment and fails to take appropriate remedial action.” Berry, 260 F.3d at 810. Here, the Union knew or should have known of the discriminatory acts of its members, but failed to take any remedial action, and is therefore liable under Title VII as well. See also Marquart v. Lodge 837, 26 F.3d 842, 853 (8th Cir. 1994) (suggesting that same test for harassment applies to both unions and employers). 12 The Union's extensive reliance on the dissenting opinion in Goodman is equally inappropriate, as the Union's actions in this case clearly run afoul of the Goodman Court's interpretation of Title VII. See Goodman, 482 U.S. at 667-669. See also discussion in Section III, infra. Obviously, the dissenting opinion is not binding precedent here, while the Court's opinion is controlling. 13 This was an alternate holding of the court, which also found that the case was properly dismissed because the plaintiffs had not shown that they had completely exhausted the internal grievance procedures of the union. Id. at 96. 14 To the extent that Thorn and Anjelino hold that there is no affirmative duty on the part of a union to remedy a hostile working environment, the Commission would argue that these decisions are simply erroneous and against the overwhelming weight of authority. See Section I.B., supra. Moreover, neither court discussed in any detail the statutory responsibility of a union under Section 703(c)(1) of Title VII not to permit a racially hostile work environment – the likely reason for these courts' faulty analysis. 15 Nothing in the Goodman decision limits that holding to grievances. As the Union properly concedes, Goodman represents a broader duty “not to discriminate on the basis of race in dealing with their members' workplace problems.” (Def. Br. at 28, 32-33). See also Def. Br. at 13 (noting that Goodman holds that “unions do have a negative duty under Title VII § 703(c)(1) to deal with their members' workplace problems on a non-discriminatory basis and not on a basis that distinguishes between non-race-based problems as a class and race-based problems by dealing with the former on their merits and refusing to deal with the latter no matter what their merits”). 16 The Union twists the district court's finding that Hahney himself “sometimes” acted in the absence of a complaint into a finding that the Union as a whole only sometimes acted. (Def. Br. at 33). But as quoted above, the district court's finding with respect to the Union as an entity was that it had a “practice” of remedying workplace problems without a complaint. (Def. App. at 23-24 ¶¶ 18, 22). 17 The Union maintains that Hahney testified that he would only have the restrooms cleaned if someone complained. (Def. Br. at 39). However, Hahney testified that he would act independently of a complaint to assure the cleanliness of the restrooms. See Tr. at 423 (in response to the question of what he would do if the port-a-johns were filthy, Hahney responded in part, “I would probably recommend to have the truck come out and clean it”); Tr. at 489 (Hahney testified that he could have filthy urinals cleaned without a complaint); Def. App. at 13 ¶ 61 (district court found that among his duties, Hahney was “responsible for seeing that the pipe fitters had proper facilities”). 18 Interestingly, the Union goes to great lengths in its brief to show that Hahney did not act on his own initiative to remedy any racial graffiti – including graffiti targeted at his own Caucasian ethnic group. (Def. Br. at 39-40) (quoting Hahney's trial testimony, “I seen honky on there. It didn't offend me either.”). Rather than helping the Union's cause, however, this example further demonstrates the Union's complete disregard for the racially hostile environment that existed at the project, regardless of which ethnic group the graffiti targeted. 19 The Union argues that the district court questioned the importance of this evidence in the Commission's closing remarks. (Def. Br. at 42). However, the Union fails to acknowledge that the Commission's attorney adequately explained the importance of the incident in response to this question, (Tr. at 833-35), and that the district court observed the significance of this event by including it in one of its findings of fact. (Def. App. at 11 ¶ 51).