Maalik, Safiyyah v. Int'l Union Elev 2 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2355
SAFIYYAH MAALIK,
Plaintiff-Appellant,
v.
INTERNATIONAL UNION OF ELEVATOR
CONSTRUCTORS, LOCAL 2,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 1514—Matthew F. Kennelly, Judge.
____________
ARGUED JANUARY 6, 2006—DECIDED FEBRUARY 9, 2006
____________
Before EASTERBROOK, MANION, and WOOD, Circuit
Judges.
EASTERBROOK, Circuit Judge. A union of elevator workers
negotiated a multi-employer collective bargaining agree-
ment under which pay depends on classification. See
http://www.iuec.org/master_agreement.asp. Senior workers,
called “mechanics,” train and supervise a group of learners,
called “helpers.” Depending on experience, helpers earn
either 50% or 70% of mechanics’ pay. Helpers serve an
apprenticeship and may earn a mechanic’s permit (and thus
a substantial pay increase) after working for three years in
the industry, receiving prescribed classroom instruction,
2 No. 05-2355
passing an examination, and obtaining on-the-job training
from the master mechanics.
Safiyyah Maalik joined Local 2 of the union and was
assigned to work as a helper, receiving 70% of a mechanic’s
pay in light of her experience. She worked for three years,
took the classroom training, and passed the examination.
But the union would not give her a mechanic’s permit (and
thus her employers could not give her a raise), because the
master mechanics with whom she had worked refused to
provide on-the-job training. After a bench trial in this suit
against the union under Title VII of the Civil Rights Act of
1964, the district judge concluded that the mechanics had
balked because Maalik is a black woman. She protested to
Local 2 about the discrimination, and it did nothing to help
her. Officials of the local falsely told her that there was
nothing that could be done, but as the district judge
observed the union has many tools at its disposal, including
fines of up to $2,000 and the expulsion of non-cooperating
mechanics.
Despite finding that Local 2’s members had engaged in
discrimination to which the union was at best indifferent
and at worst complicit, the judge held that Maalik is not
entitled to relief. This is so, he concluded, because only
employers are appropriate defendants in suits under
Title VII. Relying on EEOC v. Pipefitters Local 597, 334
F.3d 656 (7th Cir. 2003), the judge held that employers
alone may be liable, because they alone control the terms
and conditions of employment.
The EEOC contended in Pipefitters that neither the
employer nor the union had done enough to prevent racial
discrimination (manifested by pervasive harassment) in the
working conditions at a construction site. The employer
settled, leaving only the complaint about the union’s
nonfeasance. We held that, when the grievance con-
cerns terms and conditions of employment, only the em-
No. 05-2355 3
ployer is liable, because §703(a) of Title VII, 42 U.S.C.
§2000e-2(a), imposes the duty of providing nondiscrimina-
tory terms and conditions of employment on employers only.
Although a different part of the statute exposes unions to
liability, see §703(c), 42 U.S.C. §2000e-2(c), we held that
this clause concerns the union’s role as the employees’ agent
(in bargaining and in implementing contracts) and that if a
union “discriminates in the performance of its agency
function, it violates Title VII, but not otherwise. Thus a
union that refuses to accept blacks as members, or refuses
to press their grievances, is guilty of discrimination. But if
it merely fails to effectuate changes in the workplace—if for
example it urges the company to take steps to prevent
harassment and the company fails to do so—the union is
not guilty of discrimination”. 334 F.3d at 659.
Local 2 insists that it has not discriminated in the
performance of its agency function and thus cannot be
liable. That’s far from clear; what was the refusal to
vindicate Maalik’s right to training from other union
members, if not a form of discrimination in the agency role?
See Goodman v. Lukens Steel Co., 482 U.S. 656, 668-69
(1987) (holding that a union’s refusal to grieve complaints
by black members about racial discrimination violates Title
VII). But we need not pursue this question because Maalik
does not rely on §703(c).
Maalik invokes §703(d), 42 U.S.C. §2000e-2(d), a sub-
section that Pipefitters did not mention because it had no
bearing on that dispute. Section 703(d) provides: “It shall be
an unlawful employment practice for any employer, labor
organization, or joint labor-management committee control-
ling apprenticeship or other training or retraining, includ-
ing on-the-job training programs to discriminate against
any individual because of his race, color, religion, sex, or
national origin in admission to, or employment in, any
program established to provide apprenticeship or
other training.” Local 2 ran a training program in cooper-
4 No. 05-2355
ation with elevator-repair contractors. Just as §703(a)
makes employers rather than unions answerable for terms
and conditions in the workplace, so §703(d) makes both
employers and unions answerable for the administration of
joint training and apprenticeship programs. Plenty of
decisions hold unions responsible for their actions (and
oversights) in the administration of training or apprentice-
ship programs. See, e.g., EEOC v. Sheet Metal Workers, 532
F.2d 821 (2d Cir. 1976); United States v. Electrical Workers,
428 F.2d 144 (6th Cir. 1970); Hameed v. Bridge Workers,
637 F.2d 506 (8th Cir. 1980); Eldredge v. Carpenters, 833
F.2d 1334 (9th Cir. 1987). Pipefitters did not disagree with
these decisions; it had no occasion to discuss §703(d).
Local 2 may not have abetted the mechanics’ discrimina-
tory refusal to train Maalik, but it made a conscious
decision to do nothing, thus allowing the discriminators
to prevail. It did not use intra-union remedies such as fines,
suspension, or expulsion, nor did it grant Maalik
a mechanic’s permit to make her whole and acknowledge
the skills she had been able to accumulate through work as
a helper and classroom study. It issued mechanic’s permits
to white men who were otherwise identically situated while
leaving Maalik behind. As Goodman holds, that is a form of
discrimination by Local 2 itself. See also, e.g., EEOC v.
Indiana Bell Telephone Co., 256 F.3d 516, 520-26 (7th Cir.
2001) (en banc).
Title VII makes both employers and unions liable for their
own conduct, not that of employees or members. Thus when
line employees engage in discrimination, employers are not
automatically liable; only if they know (or ought to know)
what is going on and choose to do nothing (or select ineffec-
tual steps when better ones are available) are they liable.
See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S.
742, 759 (1998) (explaining the circumstances under which
an employer’s feckless responses to intentional misconduct
by an employee means that the misconduct is attributed to
No. 05-2355 5
the firm); Faragher v. Boca Raton, 524 U.S. 775 (1998).
Rules that Ellerth and Faragher prescribe for employers in
suits under §703(a) are no less apt for unions under §703(d).
Local 2 thus is not vicariously liable for the mechanics’
discriminatory refusal to train Maalik, but it is liable for its
decision to do nothing in response, a passivity that led it to
grant mechanics’ credentials (and thus higher pay) to many
of its members while holding back Maalik because of race
and sex. Cf. Dunn v. Washington County Hospital, 429 F.3d
689 (7th Cir. 2005) (employers may be liable for refusal to
do anything about the discrimination of non-employees,
such as independent contractors).
Now if Local 2 did everything that was reasonable
under the circumstances, it could not be liable. As in
Goodman and Indiana Bell, however, turning a blind eye to
members’ or employees’ discrimination is not reasonable.
Local 2 has tools (from fines to expulsion) and decided not
to use them. It appears to take the view that its members
may do as they please, and that the local’s leaders won’t
risk a threat to reelection by taking the side of any minority
or stirring up intra-membership conflict. That is no more
responsible—and no more legally permissible—than an
employer’s declaration that its staff may run the shop any
way they like, and that blacks or women whose lives are
made miserable must lump it. Both managers and union
officials may prefer the quiet life, but Title VII requires
action.
In its brief and at oral argument, Local 2 insisted that
there would have been no point in rolling out the artillery,
because employers or customers may make training impos-
sible. When the building manager at the Sears Tower
contracts for routine maintenance, he may tell Otis Elevator
or some other contractor (Maalik worked for several) that
the building will pay for x hours of labor and no more. If x
is too low to permit on-the-job training—or if the customer
directs Otis to send only master mechanics—then helpers
6 No. 05-2355
won’t be trained on those jobs. It is possible that by unlucky
chance Maalik drew assignment after assignment in which
decisions by customers or contractors ruled out training no
matter what the mechanics and Local 2 did. But the law of
large numbers makes this unlikely—and counsel for the
union conceded at oral argument that no evidence in the
record suggests that this occurred.
If Maalik received the same sort of assignments as
other helpers, then training would be possible on some jobs,
and not others, in about the same proportion, and over a
multi-year period she would have received approximately
the same training as other helpers. But the district judge
found that she had not been trained—and the reason was
race and sex discrimination by the master mechanics rather
than demands by customers or employers. Local 2 does not
contend that employers control who is certified as a me-
chanic; that decision is in the union’s hands. So it had to do
something in its role as manager of the training program.
It chose to do nothing, and for that it is liable. The employer
was liable in Pipefitters because §703(a) makes it responsi-
ble for terms and conditions of employment; the union is
liable here because §703(d) makes it responsible for the
operation of training and apprenticeship programs.
The judgment of the district court is reversed, and the
case is remanded with instructions to fashion an appro-
priate remedy.
No. 05-2355 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-9-06