Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Attorneys with the U.S. Equal Employment Opportunity Commission in Washington, D.C., have urged a federal appellate court in Atlanta to reinstate an employment discrimination case against Southern Co. and its subsidiary Georgia Power Co. The amicus brief, filed Friday by EEOC attorneys in the 11th U.S. Circuit Court of Appeals, slammed Chief U.S. District Judge Orinda D. Evans of Georgia’s Northern District for discounting as evidence of discrimination hangman’s nooses found in Georgia Power plants across the state. The brief also criticized Evans for giving little weight to statistical evidence of discrimination against Southern Co.’s black employees. The brief accused her of ignoring U.S. Supreme Court precedents by “effectively deciding the merits of the plaintiffs’ claims of systemic race discrimination in the guise of denying class certification,” rather than allowing a jury to do so. EEOC attorney Dori K. Bernstein said the agency weighs in on only a fraction of federal discrimination cases. The decision to do so in this case was based on the strength of the evidence and the fact that it potentially could affect the development of federal discrimination law, Bernstein said. “We have an interest in making sure the courts apply the proper evidentiary standards to allow these cases to go to trial,” she said. That “obviously didn’t occur in this case,” she said. “We’re not surprised that the EEOC would file because that’s a role they typically play in these types of cases,” Georgia Power spokesman John L. Sell said Monday. “Just because they file on behalf of the plaintiffs is not an indication of the merits of the case. We maintain the cases lack merit, and we feel exonerated by Judge Evans’ rulings, and we feel they were correct rulings.” Sell said neither Southern Co.’s general counsel nor its attorneys at Troutman Sanders had seen the brief. A RULING OF ‘GREAT CONCERN’ The EEOC brief was filed as part of the appeal of Evans’ March orders granting the Southern Co., Georgia Power Co. and two Southern Co. subsidiaries summary judgment in a 3-year-old discrimination suit brought by seven black Georgia Power employees. Cooper v. Southern Co., No. 03-12230 (11th U.S. Cir., April 28, 2003). Evans, in October 2001, denied class certification in the case. Three years ago, the seven employees sued on behalf of an estimated 2,400 other black employees, claiming that the company promoted a working environment that was hostile and demeaning. The plaintiffs claimed that Southern Co. routinely shortchanged black employees in promotions and pay. Such discrimination, the suit suggested, manifested itself in the blatant display of more than a dozen nooses that were allowed to hang in power plant facilities across Georgia until shortly after the suit was filed. Georgia Power attorneys and executives argued that the nooses, including one looped around the throat of a small, black doll, were never intended to be offensive or intimidating, and that emphasis on the nooses in their workplace as an indication of systemic discrimination was misplaced. In tossing out the suit earlier this year, Evans said that none of the seven plaintiffs in the case established that their race cost them either raises or promotions. Evans also noted in each of seven orders she issued (one for each plaintiff in the case) that the presence of the hangman’s nooses didn’t prove racial bias by the company. Evans reviewed sworn accounts of racial slurs, epithets, jokes and harassment in 111 affidavits sworn by black employees before dismissing the case. But she concluded that in a workforce of more than 12,000 employees, “The noose evidence and evidence of racial slurs, jokes and epithets … are inadequate to establish the existence of a pattern and practice of discrimination.” Steven J. Rosenwasser, an associate with Atlanta’s Bondurant, Mixson & Elmore who is representing the plaintiffs, said the EEOC’s decision to file a brief supporting the appeal “shows that the district court’s ruling is of great concern to everyone from the individual employees to the highest levels of government.” Rosenwasser is working with Bondurant partners Emmet J. Bondurant, Michael B. Terry and Joshua F. Thorpe on the case. INTERNAL AUDITS REVEAL GLASS CEILING In asking the appellate court to overturn Evans’ ruling, EEOC attorneys spelled out race discrimination findings of Southern Co.’s internal audits. According to the EEOC brief, a 1998 internal Southern Co. audit of its hiring practices disclosed that interview pools were composed primarily of white men. About 17 percent of the energy conglomerate’s work force is black. The brief also cited a Southern Co. spreadsheet analysis showing that of 1,342 company positions that were filled, only 13.6 percent were from a diverse candidate pool. That spreadsheet also showed that 98 percent of promotions resulting from job reassignments went to white males. Two percent went to women and none to minority employees. The EEOC brief also cited a 1999 Georgia Power Diversity report card noting black employees were subject to “a glass ceiling effect” and a “substantial racial disparity in average pay” as well as in the distribution of annual bonuses. The EEOC brief also cited an analysis of Southern Co. labor data by labor economist Janice F. Madden confirming Southern Co.’s internal reports. Madden found “statistically significant shortfall in the numbers of promotions awarded to African-American employees, when compared to Caucasian employees … for 1996 through 1999,” according to the brief. In addition, the analysis showed that black employees reported significantly lower compensation than whites. Madden’s analysis, which took into account experience, education and job function, concluded, “African-Americans are at least as qualified [or more qualified] for promotion as Caucasians in the same salary grade, subsidiary and year.” The racial differential in promotions was so wide that Madden suggested that any possibility it wasn’t intentional was less than “26 in 10 trillion.” Evans had reviewed the analyses and Southern Co. documents cited in the EEOC brief, as well as an analysis by a Southern Co. expert. In her orders, Evans noted that while there appeared to be some salary and promotion gaps between black and white employees, it was “impossible to determine what the gaps are, whether they are statistically significant or whether factors other than race are involved.” Discounting such evidence suggested that Evans “usurped the jury’s function,” according to the EEOC brief. “The district court abused its discretion by effectively deciding the merits of plaintiffs’ pattern-or-practice and disparate impact claims — without a hearing, let alone a jury trial — in the guise of denying class certification,” the EEOC brief continued. The U.S. Supreme Court in 1974 found nothing that gives a court “any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” Eisen v. Carlisle, 417 U.S. 156, 176 (1974). “The court,” EEOC lawyers argued, “plainly violated these principles.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.