The opinion of the court was delivered by: RICHEY
By Order of April 19, 1978, the Court conditionally certified this case as a class action. That class consisted of "all women who have applied for employment with or are currently employed by the United States Information Agency and who have been or continue to be adversely affected by the discriminatory employment practices of the defendant."
On November 16, 1984, this Court found that defendant had "discriminated against women as a class with regard to hiring" in six occupational categories at the defendant agency. Hartman v. Wick, 600 F. Supp. 361, 375 (D.D.C. 1984). That Opinion details the background of this long-lived litigation, as does De Medina v. Reinhardt, 222 U.S. App. D.C. 371, 686 F.2d 997, 1000-01 (D.C. Cir. 1982), an appeal of an earlier decision in this case.
The Court's 1984 Opinion and Order dealt solely with the question of liability. From January 12, 1987, through January 14, 1987, the Court held a trial to determine appropriate remedies. At trial, and in their post-trial submissions, the parties clarified the areas of agreement and disagreement about the proper scope and contour of remedies in this case. The Court has carefully considered the testimony, the exhibits, the pre-trial and post-trial briefs of both parties, and the underlying law. On the basis of the record and the law, the Court has made the following determinations.
I. THE NEW LAW SET FORTH BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA IN PALMER v. SHULTZ MAY NOT BE APPLIED RETROACTIVELY IN THIS CASE.
The Court must first note that the Court of Appeals for this Circuit has recently wrought a significant change in the law governing the use of statistics in a discrimination case. In Palmer v. Shultz, 259 U.S. App. D.C. 246, 815 F.2d 84 (D.C. Cir. 1987), the D.C. Circuit distinguished between "one-tailed" and "two-tailed" statistical analyses.
Ending its earlier silence on this issue, the Circuit stated that "although we by no means intend entirely to foreclose the use of one-tailed tests, we think that generally two-tailed tests are more appropriate in Title VII cases." Id. at 95.
If the Palmer decision were applied retroactively to the case at bar, the Court's 1984 finding of liability might be questioned, as it was based on a "one-tailed" statistical test that might no longer be deemed appropriate in this type of suit. See Hartman v. Wick, 600 F. Supp. 361, 369, 375 (D.D.C. 1984). Consequently, the Court must consider whether Palmer's strong suggestion that courts should employ a "two-tailed" analysis should be applied retroactively in this case.
In Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971), the seminal case on retroactive application of new case law, the Supreme Court noted that, although retroactive application is the usual rule, three factors may counsel against retroactivity:
Id. at 106-07 (quoting Linkletter v. Walker, 381 U.S. 618, 629, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965) and Cipriano v. City of Houma, 395 U.S. 701, 706, 23 L. Ed. 2d 647, 89 S. Ct. 1897 (1969)).
These factors suggest that retroactive application of Palmer would be inappropriate in this case. First, prior case law did not "foreshadow" Palmer's near-requirement of a two-tailed test; in fact, the Palmer court confessed "some trepidation" in approaching this uncharted issue. Palmer v. Shultz, 815 F.2d at 92. Second, failure to use a "two-tailed" test in this case will have no effect whatever on use of the test in subsequent cases. Moreover, equity clearly counsels against retroactive application of Palmer's preference for two-tailed tests. When remanding this very case, the Court of Appeals expressed approval for the statistical method that would later underlie the liability finding. Hartman v. Reinhardt, 686 F.2d 997, 1009-1010 (D.C. Cir. 1982). In light of that decision, and the resources devoted to this suit as a consequence thereof, the Court finds that equity prevents retroactive application of Palmer v. Shultz in this suit.
II. THE OCCUPATIONAL CATEGORIES AT ISSUE IN THIS SUIT.
A. The job categories in which the Court found discrimination have been reclassified.
In its 1984 decision on liability, the Court found that the United States Information Agency ("USIA" or "the agency") had discriminated against women applicants for jobs in six major occupational categories: Electronic Technician (Series 856), Foreign Language Broadcaster (Series 1048), Production Specialist (Series 1071), Writer/Editor (Series 1082), Foreign Information Specialist (Series 1085), and Radio Broadcast Technician (Series 3940). Hartman v. Wick, 600 F. Supp. at 370. Three categories have been reclassified and now have titles and job series numbers different from those described in the 1984 suit. See Defendant's Exhibit No. ("Def. Ex.") 3. n4
n4 On his Exhibit 3, defendant notes that three of the six job series have been redesignated as follows:
Former Series Current Series
Foreign Language IRB (Other) (1001)