Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 3182, 78 C 2042 -- Stanley J. Rozkowski, Judge.
Before Fairchild, Chief Judge, Castle, Senior Circuit Judge, and Cudahy, Circuit Judge.
Plaintiff-appellant Equal Employment Opportunity Commission (EEOC) filed this suit, challenging hiring practices of defendant-appellee Libbey-Owens-Ford Co. (LOF). The EEOC suit was subsequently consolidated with a similar suit filed by plaintiff-appellant Sherry Eirhart. The district court then granted LOF's motion for summary judgment as to both Eirhart and the EEOC. The basis for the district court's decision was a determination that LOF was immune from any suit under § 713(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(b). We hold that the district court erred in granting LOF immunity from suit and, accordingly, reverse the decision of the district court.
The facts of this case are apparently not in dispute. In 1968 the EEOC received a complaint against, and started investigating, the employment practices at one of the LOF's plants in Toledo, Ohio (Plant 8). The complaint alleged the restriction of female employees to two departments containing lower paying jobs and the maintenance of seniority lists which were segregated on the basis of sex. The EEOC then issued a "reasonable cause" letter and entered into conciliation negotiations with LOF. The negotiations failed and the EEOC referred the case to the Justice Department with a recommendation that a civil suit against LOF be instituted.*fn1 Such a suit was filed, United States v. Libbey-Owens-Ford Co., No. C70-212 (N.D. Ohio, filed July 20, 1970), and on February 3, 1971 a consent order was entered into by the parties and approved by the United States District Court for the Northern District of Ohio, 3 Emp. Pract. Dec. P 8052 (1971). The order, which dealt primarily with transfers, promotion, and seniority rights, included a provision concerning height and weight requirements. The provision stated that "minimum physical and non-physical requirements for entry level jobs, which were in writing as of February 4, 1970, shall continue to be applicable to both males and females seeking employment with the Company, except that the minimum weight requirement for females shall be 110 pounds." The written physical requirements referred to the consent order included a minimum height requirement of 5' 4 .
In December, 1970 hiring standards including a minimum height requirement of 5' 4 and minimum weight requirement of 110 pounds were instituted at LOF's plant in Ottawa, Illinois. In August, 1976 Sherry Eirhart filed a lawsuit challenging the height requirements of the Ottawa plant. Eirhart v. Libbey-Owens-Ford Co., 482 F. Supp. 357, No. 76 C 3182 (N.D.Ill.). In May, 1978 EEOC filed a lawsuit challenging the Ottawa plant's height and weight requirements. EEOC v. Libbey-Owens-Ford Co., No. 78 C 2042 (N.D.Ill.). These suits were consolidated by an order dated September 18, 1978. On June 1, 1979 the district court, in ruling on cross-motions for summary judgment, granted LOF's motions for summary judgment against both Eirhart and the EEOC. Both Eirhart and the EEOC have appealed and jurisdiction of this Court is based on 28 U.S.C. § 1291.
The basis for the district court's opinion is § 713(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(b). That section provides, in pertinent part, that:
(b) In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission . . . .
The district court held that LOF was immune from suit under Section 713(b) and that LOF's immunity entitled the company to summary judgment.
In order to reach that conclusion, the district court decided that the Ohio consent decree was indeed a "written interpretation or opinion of the Commission." This proposition misconstrues both Section 713(b) and the nature of consent decrees. As noted by the Supreme Court:
Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation. Naturally the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve. For these reasons, the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it.
United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S. Ct. 1752, 1757, 29 L. Ed. 2d 256 (1971)(emphasis in original)(footnote omitted). Such a compromise and product of bargaining skill between two parties cannot be deemed to be an "order or opinion" of either of the parties. It would not be appropriate for this Court to expand the narrowly drawn Congressional grant of immunity contained in Section 713(b) to include such a decree. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 423 n. 17, 95 S. Ct. 2362, 2374 n. 17, 45 L. Ed. 2d 280 (1975). See also id. at 444, 95 S. Ct. at 2385 (Rehnquist, J., concurring).
Moreover, in granting LOF's motion for summary judgment, the district court chose to ignore the EEOC's regulations concerning Section 713(b). Those ...