SELYA, Circuit Judge.
Labor unions have historically been instruments of solidarity, forged in an ostensible effort to counterbalance the weight of concentrated industrial power. It is, therefore, ironic — but not unprecedentedly so, inasmuch as "irony is no stranger to the law," Amanullah v. Nelson, 811 F.2d 1, 17 (1st Cir.1987) — that unions themselves sometimes engage in exclusionary membership practices. The court below detected such an elitist strain in the operation of the Steamship Clerks Union, Local 1066 (the Union), determining that the Union's policy requiring prospective members to be "sponsored" by existing members — all of whom, from time immemorial, have been white — constituted race-based discrimination. See EEOC v. Costello, 850 F.Supp. 74, 77 (D.Mass.1994).
In this venue, the Union calumnizes both the district court's evaluation of the sponsorship practice and the court's remedial rulings. The Equal Employment Opportunity Commission (the EEOC), plaintiff below, cross-appeals, likewise voicing dissatisfaction with the court's remedial rulings (albeit for very different reasons). Though we uphold the finding of disparate impact discrimination, we conclude that the lower court acted too rashly in fashioning remedies without pausing to solicit the parties' views. Hence, we affirm in part, vacate in part, and remand for further proceedings.
The relevant facts are not disputed. The Union is "a labor organization engaged in an industry affecting commerce," 42 U.S.C. § 2000e(d)-(e) (1988). It has approximately 124 members, 80 of whom are classified as active. The members serve as steamship clerks who, during the loading and unloading of vessels in the port of Boston, check cargo against inventory lists provided by shippers and consignees. The work is not taxing; it requires little in the way of particular skills.
On October 1, 1980, the Union formally adopted the membership sponsorship policy (the MSP) around which this suit revolves. The MSP provided that any applicant for membership in the Union (other than an injured longshoreman) had to be sponsored by an existing member in order for his application to be considered. The record reveals, without contradiction, that (1) the Union had no African-American or Hispanic members when it adopted the MSP; (2) blacks and Hispanics constituted from 8% to 27% of the relevant labor pool in the Boston area; (3) the Union welcomed at least 30 new members between 1980 and 1986, and then closed the membership rolls; (4) all the "sponsored" applicants during this period and, hence, all the new members, were Caucasian; and (5) every recruit was related to — usually the son or brother of — a Union member.
After conducting an investigation and instituting administrative proceedings, the EEOC brought suit on June 7, 1991, alleging that the Union had discriminated against African-Americans and Hispanics by means of the MSP.
After ample discovery, the EEOC moved for partial summary judgment, limiting its motion to the liability issues. The Union followed suit. On February 7, 1994, Judge Stearns held a hearing, reserved decision on the cross-motions, and extolled the virtues of settlement. Having planted the seed, the judge then provided an opportunity for cultivation; he advised the parties that he would take no action for the time being and instructed them that, should no settlement eventuate within 30 days, he would thereafter render his decision. A month later, the Union informed Judge Stearns that settlement discussions had stalled. The EEOC, however, remained in a negotiating mode. On March 24, 1994, it mailed a letter to the court and the Union describing relief that it proposed for potential "inclusion in a consent decree."
On the very same date, the district judge, presumably unaware of the EEOC's letter, issued his decision. Judge Stearns granted the EEOC's motion for partial summary judgment, holding that the MSP evinced unlawful discrimination on the basis of race. See Costello, 850 F.Supp. at 77-78. He also granted the Union's cross-motion for summary judgment on the record-keeping count.
Nothing significant occurred until April 10, 1994, when the court, without awaiting further motions or soliciting any input from the parties, entered final judgment. Among other things, it ordered the Union to (1) scrap the MSP; (2) open its membership "to enable admission of at least one new member for each listed member who, since the books were closed in 1986, has died, retired or [become inactive]"; (3) submit a plan for publicizing membership opportunities, taking special cognizance of the need to recruit minority applicants; (4) periodically submit membership information to the EEOC; and (5) comply with the EEOC's record-keeping requirements, including the filing of EEO-3 reports. These appeals followed.
We begin with the liability issue. The EEOC's allegations against the Union find their genesis in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1988). Broadly speaking, Title VII outlaws discrimination based on race, color, religion, gender, or national origin. In so doing, the law forbids both "overt discrimination" in the form of disparate treatment, Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), and more subtle forms of discrimination, known as disparate impact discrimination, arising from "the consequences of employment practices, not simply the motivation." Id. at 432, 91 S.Ct. at 854. In this instance, we limit our inquiry to whether the court below supportably determined that the MSP resulted in race-based disparate impact discrimination during the years 1980 through 1986.
The Disparate Impact Approach.
It has long been understood that discrimination, whether measured quantitatively
Under the legal framework that applies in this case, see supra note 5, it is incumbent upon the plaintiff to demonstrate a prima facie case of discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 69 (1st Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984). In the disparate impact milieu, the prima facie case consists of three elements: identification, impact, and causation. First, the plaintiff must identify the challenged employment practice or policy, and pinpoint the defendant's use of it. See Wards Cave Packing Co. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989).
When the plaintiff rests, declaring herself satisfied that she has established a prima facie case of disparate impact discrimination, the ball bounces into the defendant's
Alternatively, the defendant may confess and avoid, acknowledging the legal sufficiency of the prima facie case but endeavoring to show either that the challenged practice is job-related and consistent with business necessity, see Griggs, 401 U.S. at 431, 91 S.Ct. at 853; see also Albemarle Paper, 422 U.S. at 425, 95 S.Ct. at 2375, or that it fits within one or more of the explicit statutory exceptions covering bona fide seniority systems, veterans' preferences, and the like.
If the defendant fails in its efforts to counter the plaintiff's prima facie case, then the factfinder is entitled — though not necessarily compelled, cf. St. Mary's Honor Ctr. v. Hicks, ___ U.S. ___, ___ _ ___, 113 S.Ct. 2742, 2748-50, 125 L.Ed.2d 407 (1993) — to enter judgment for the plaintiff. See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372, 381 (2d Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994). On the other hand, even if the defendant stalemates the prima facie case by elucidating a legitimate, nondiscriminatory rationale for utilizing the challenged practice, the plaintiff may still prevail if she is able to establish that the professed rationale is pretextual. See Wards Cove, 490 U.S. at 658-59, 109 S.Ct. at 2125-26; Johnson, 731 F.2d at 69-70; see also McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. The plaintiff might demonstrate, for example, that some other practice, without a similarly undesirable side effect, was available and would have served the defendant's legitimate interest equally well. See Wards Cove, 490 U.S. at 660-61, 109 S.Ct. at 2126; Johnson, 731 F.2d at 69-71. Such an exhibition constitutes competent evidence that the defendant was using the interdicted practice "merely as a `pretext' for discrimination." Albemarle Paper, 422 U.S. at 425, 95 S.Ct. at 2375 (quoting McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825-26).
Standards of Review.
In general, summary judgment is proper only if, in the context of the motion and any opposition to it, no genuine issue of material fact exists and the movant has demonstrated its entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). Hence, "a party seeking summary judgment [must] make a preliminary showing that no genuine issue of material fact exists. Once the movant has made this showing, the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue." National Amusements, 43 F.3d at 735. An issue is "genuine" when the evidence relevant to it, "viewed in the light most flattering to the party opposing the motion, [is] sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side." Id. at 735 (citation omitted). Since the summary judgment standard requires the trial court to make a legal determination rather than to engage in differential factfinding, appellate review is plenary. See Garside v.
Having recited the norm, we place it to one side, for certain unique aspects of the instant case dictate that we depart from the customary standard. The record discloses that, at the time the parties cross-moved for summary judgment, the Union voiced no disagreement with the facts on which the EEOC had constructed its case.
Circuit precedent teaches that in such a situation — where, in a nonjury case, "the basic dispute between the parties concerns the factual inferences ... that one might draw from the more basic facts to which the parties have drawn the court's attention," where "[t]here are no significant disagreements about those basic facts," and where neither party has "sought to introduce additional factual evidence or asked to present witnesses" — the district court is freed from the usual constraints that attend the adjudication of summary judgment motions. Federacion de Empleados del Tribunal Gen. de Justicia v. Torres, 747 F.2d 35, 36 (1st Cir.1984) (Breyer, J.). The court may then engage in a certain amount of differential factfinding, including the sifting of inferences. By the same token, the court of appeals may assume that "the parties considered the matter to have been submitted below as a case ready for decision on the merits." Id. Consequently, the standard for appellate oversight shifts from de novo review to clear-error review. See id. ("Under these circumstances ... we should set aside the district court's factual inferences only if they are `clearly erroneous.'"); see also United States v. Ven-Fuel, Inc., 758 F.2d 741, 744 n. 1 (1st Cir.1985) (stating in connection with a motion for summary judgment that when there are "no significant disagreements about the underlying facts," and no indications that "any further factual evidence" might be available, the district court's factual inferences should be set aside "only if they are clearly erroneous") (citing other cases).
Based on these precedents, we are constrained to apply the more deferential clear-error standard when scrutinizing the inferences drawn by the court below.
Application of the Law.
In this case, the district court adroitly applied the substantive law and concluded that the Union's sponsorship-based membership policy constituted disparate impact discrimination. See Costello, 850 F.Supp. at 77. We descry no error.
Population statistics for the Boston area, proffered by the EEOC and unchallenged by the Union, show that in the relevant time frame African-Americans comprised 21%, and Hispanics 6%, of the available labor force. Although there are no known statistics on the racial composition of the steamship clerk industry — if such an "industry" exists — "Census Bureau statistics that merge the transportation industry's employment statistics with similar statistics for public utilities ... show that blacks and Hispanics participate in the labor force as clerical/clerks at a rate of 7% and 1% of the total, respectively." Id. at 77 n. 6. Despite the fact that the combined pool of potential black and Hispanic applicants for union membership ranged between 8% and 27% of the overall pool of potential applicants, no African-American or Hispanic was granted Union membership. Finally, during the MSP's heyday — the six-year period from 1980 through 1986 — the Union admitted 30 new members. Based on a comparison of these figures with the profile of the newly minted Union members — 0 of 30, or zero percent — the district court found that the EEOC adequately demonstrated a race-based disparate impact.
The Union is of a more skeptical mind. Although it does not challenge either the accuracy or the relevance of the underlying data, it contends that the small sample size renders the figures statistically insignificant, thus undercutting the EEOC's attempt to establish a disparate impact. This contention is doubly flawed.
First, the contention misperceives the facts. While we appreciate that "small sample size may ... detract from the value of [statistical] evidence," Teamsters, 431 U.S. at 339 n. 20, 97 S.Ct. at 1857 n. 20, a defendant who asserts that a plaintiff's prima facie case is insufficient must point out real deficiencies, not simply hurl epithets from behind gauzy generalizations. In particular, where, as here, a plaintiff has made out a colorable prima facie showing of discrimination, a challenger must do more than trumpet conclusory averments concerning the validity of the plaintiff's statistical foundation. See 1 Sullivan et al., supra, § 4.3.1, at 184 (explaining that a defendant must "attempt to undermine at least one element of the plaintiff's case by bringing forth sufficient evidence to create a question of fact on that element") (emphasis supplied). In this case, the Union proffered no such evidence.
Second, the Union's contention misperceives the law. The cornerstone of its legal argument is our opinion in Fudge v. City of Prov. Fire Dep't, 766 F.2d 650 (1st Cir.1985), and, yet, its point-by-point reliance on Fudge leaves much to be desired. While the Fudge court cautioned against the use of "an intuitive judicial judgment" as the sole basis for discerning a disparate impact, it carefully confined this admonition to cases "involving a claim that a screening test for admission to employment imposes a disparate and adverse impact" on a protected group. Id. at 657. Indeed, in a later case, not involving a screening test, we cited Fudge for the proposition that, in weighing the probative value of statistical evidence, "[e]ven small samples are not per se unacceptable." Freeman v. Package Mach. Co., 865 F.2d 1331, 1342 n. 5 (1st Cir.1988). So it is here: because the EEOC's claim does not involve an examination or other screening test, and because it nestles in a singularly compelling factual context, the Union's repeated references to Fudge shed far more heat than light.
The utility of statistical evidence "depends on all of the surrounding facts and
Reluctant to raise a white flag, the Union further contends that, even if the EEOC established a significant racial disparity, its prima facie case misfired on the element of causation. The district court rejected this analysis. After reviewing the MSP and the evidence of disparate racial impact, it concluded that the former had caused the latter. See Costello, 850 F.Supp. at 77 ("Chance is not a likely explanation for this result."). The pertinent question on review is whether the court erred in finding causation. We think not.
On this issue, the Union suggests three reasons why the court blundered, asseverating that the EEOC (1) did not identify particular African-Americans or Hispanics who unsuccessfully sought Union membership; (2) confused nepotism with race-based discrimination; and (3) failed to offer a suitably sophisticated statistical analysis, beyond a mere presentation of accumulated data. In the argot of the port, none of these arguments holds water.
As for the absence of identifiable minority applicants, the Union would have us rule that causation may be proven only by demonstrating that a flesh-and-blood African-American or Hispanic, who applied and was turned away, would have been admitted as a member but for the MSP. This isthmian view is a product of tunnel vision. The concept of causation under Title VII, like the larger concept of discrimination itself, is sometimes only discernible and inferable when viewed in context. See, e.g., Julia C. Lamber et al., The Relevance of Statistics to Prove Discrimination: A Typology, 34 Hastings L.J. 553, 553 (1983) ("Discrimination is difficult to define, observe, and prove.... [I]t may have no intrinsic meaning at all; rather, it acquires meaning in the context of a larger whole."); see also Teamsters, 431 U.S. at 340, 97 S.Ct. at 1856-57 (explaining that the value of statistical data depends on the totality of the surrounding circumstances). Here, the unvarnished reality of the situation — a sponsorship-based membership policy, enacted by an all-white union, and a six-year track record of zero minority members despite 30 new white members, all of whom had family ties to existing members — renders the district court's conclusion irresistible notwithstanding the lack of a specific unsuccessful minority applicant.
The Union's second asseveration need not detain us. Although the district court did not find a formal policy of nepotism, it recognized, as any thinking person must, that the MSP appeared to operate nepotistically. See Costello, 850 F.Supp. at 76 n. 4. The Union claims that this recognition betokens a confusion of two separate concepts: nepotism and discrimination. We do not agree. The history of the MSP's actual implementation — an archive which reveals that every new member has been a relative of an existing member — is competent evidence on the element of causation. See Thomas v. Washington County Sch. Bd., 915 F.2d 922, 925 (4th Cir.1990) (explaining that "when the work force is predominantly white, nepotism and similar practices which operate to exclude outsiders may discriminate against minorities as effectively as any intentionally discriminatory policy").
In mounting its third asseveration, the Union once again eschews any challenge to the EEOC's basic data — the percentages of blacks and Hispanics in the relevant labor populations, as compared with the percentage of blacks and Hispanics on the Union's membership roster — but, rather, impugns the EEOC's failure to subject these proportionality data to some kind of formal statistical analysis. Although the Union's frustration is understandable, its position that a prima facie case of disparate impact discrimination must invariably include a formal statistical analysis is untenable.
We say that the Union's frustration is understandable because it would almost certainly have been helpful to the parties and to the court if the EEOC had processed its data in a slightly more sophisticated manner. Moreover, given its resources and institutional experience, the EEOC has no easily ascertainable excuse for neglecting this avenue. Nonetheless, though one would normally expect sound statistical analyses to assist a plaintiff in making out a prima facie case, see Lamber et al., supra, at 584-95, the absence of such analyses, by itself, does not automatically doom the plaintiff's efforts. See, e.g., Ingram v. Madison Square Garden Ctr., Inc., 709 F.2d 807, 810-11 (2d Cir.) (affirming determination of Union's liability under Title VII despite weak statistical evidence), cert. denied, 464 U.S. 937, 104 S.Ct. 346, 78 L.Ed.2d 313 (1983). To hold otherwise would effectively subordinate the whole of Title VII, in every last disparate impact case, to the sometimes vagarious sway of statistical proof.
In sum, it was not error for the lower court to conclude, on the idiosyncratic facts of this case, that the MSP, though neutral on
The Union suggests that the MSP is jobrelated and consistent with business necessity because it represents an important vehicle for continuing family traditions. Most of the 30 new members, according to the Union, "joined simply because their fathers had been members and because they wanted to maintain a family tradition...." We approach the task of evaluating this rationale mindful that the meaning and scope of the "business necessity" concept are blurred at the edges.
We will not tarry. Here, the Union has not shown even the glimmerings of a business necessity defense. Instead, it asks us to undertake a leap of faith. It makes absolutely no effort to explain, logically, why family tradition, and, thus, the MSP, are necessary adjuncts to carrying on the business of steamship clerks; and we, like the district court, can discern no essential connection. See Costello, 850 F.Supp. at 77 (concluding that the Union's justification "does not explain, much less justify, the nexus between family tradition and the job of steamship clerk," but "is merely an illumination of the motives of those who have had its advantage"). If courts were to accept an employer's arbitrary ipse dixit as a satisfactory justification for retaining a policy that produces an invidiously discriminatory impact, Title VII would be reduced to no more than a toothless tiger. A policy that is neutral on its face, but that discriminates in fact, cannot elude the proscriptions of the law merely because its sponsor prefers to retain it.
The finish line looms. Because the Union neither rebutted the EEOC's prima facie case nor articulated a legitimate, nondiscriminatory justification for its membership policy, we uphold the grant of partial summary judgment in the EEOC's favor.
The remedial rulings rest on a less even keel. Although the EEOC restricted its Rule 56 motion to the issue of liability, the district court, shortly after granting the motion,
Both parties appeal from this aspect of the judgment. The Union attacks on two fronts, assailing the district court for proceeding too fast and for venturing too far. In the first place, the Union asserts that the court flouted due process by vaulting to the remedial stage without first putting the litigants on notice of its intentions and giving them an opportunity to be heard. In the second place, the Union denounces certain components of the injunction, especially the court's command that the membership rolls be reopened. The EEOC, for its part, castigates the court for not proceeding far enough; it says that backpay and mandated preferences to encourage minority membership should have been included in the compendium of relief.
Judicial dispensation of equitable remedies usually is reviewed for abuse of discretion. See Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 323 (1st Cir.1989) (en banc). Here, however, we need not consider the propriety of the remedies bestowed or withheld, for the district court's failure to provide notice taints its remedial rulings and necessitates vacating virtually the entire relief-related portion of the judgment.
The question of whether notice is required is a question of law and is, therefore, subject to plenary review. See McCarthy, 22 F.3d at 354. We are in full agreement with the Second Circuit that "[n]o principle is more fundamental to our system of judicial administration than that a person is entitled to notice before adverse judicial action is taken against him." Lugo v. Keane, 15 F.3d 29, 30 (2d Cir.1994). Examples abound. We, ourselves, have had occasion to address issues involving notice and its faithful companion, the opportunity to be heard, in a variety of contexts. See, e.g., Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 148-49 (1st Cir.1995) (cautioning that, preparatory to deciding important issues, judges should strive to see that parties are given adequate notice and meaningful opportunities to be heard). We offer two illustrations.
First, while we have acknowledged that district courts possess the raw power to enter summary judgment sua sponte, we have repeatedly cautioned that this power must be "tempered by the need to ensure that the parties are given adequate notice to bring forward their evidence." Stella v. Town of Tewksbury, 4 F.3d 53, 55 (1st Cir.1993); accord Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555, 1560-61 (1st Cir.1989); Bonilla v. Nazario, 843 F.2d 34, 37 (1st Cir.1988). A second, very recent, example of our adherence to this principle can be found in Banks v. Shalala, 43 F.3d 11 (1st Cir.1994). There, we vacated the district court's denial of Social Security disability benefits, not on the merits but because "the district court issued its affirmance [of the Secretary's decision] before affording [the adversely affected party] an opportunity to submit argument explaining his objections to the Secretary's determination. ..." Id. at 12. In taking that tack, we relied upon, and expressed our agreement with, the Fifth Circuit's statement "that `district courts reviewing disability determinations should not conclude their review without an appropriate opportunity for the presentation of the parties' contentions.'" Id. at 13 (quoting Flores v. Heckler, 755 F.2d 401, 403 (5th Cir.1985)).
The same principles also apply to and inform the dispensing of most types of equitable remedies.
We hold, therefore, that under ordinary circumstances litigants must be accorded fair opportunities to submit proposals for the judge's consideration and to offer arguments in support of their positions before an award of equitable relief is made. We caution, however, that due process does not necessarily require any particular kind of hearing. See, e.g., In re Nineteen Appeals, 982 F.2d 603, 611 (1st Cir.1992) (noting that "in many, if not most, instances, due process does not require a full-scale trial, or even a hearing strictly conforming to the rules of evidence"); Domegan v. Fair, 859 F.2d 1059, 1065 (1st Cir.1988) (discussing district courts' discretion to bypass oral argument); see generally Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (explaining that due process is a malleable concept, calling "for such procedural protections as the particular situation demands"). Accordingly, many matters can lawfully — and satisfactorily — be heard on the papers. See Aoude v. Mobil Oil Corp., 862 F.2d 890, 894 (1st Cir.1988); Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 411 (1st Cir.1985).
In the last analysis, whether any particular proceeding within any specific case warrants live arguments before the judge, as opposed to some other approach, is simply a function of the characteristics of the situation. "The test should be substantive: given the nature and circumstances of the case, did the parties have a fair opportunity to present relevant facts and arguments to the court, and to counter the opponent's submissions?" Aoude, 862 F.2d at 894. In connection with this inquiry, one must bear in mind that litigants have no absolute right to present their arguments in whatever way they may prefer, or to expostulate for as long as they may choose. The inmates do not run the asylum. Thus, the trial judge has broad authority to place reasonable limits on the parties' presentation of their positions. See, e.g., United States v. Gleeson, 411 F.2d 1091, 1096 (10th Cir.1969).
This case, however, is about complete deprivation rather than the reasonableness of limits. The Union received no notice that the court had begun to mull proposed remedial rulings. And all available indications were to the contrary: the EEOC's motion for partial summary judgment, by its own terms, was "confined to questions of liability only and [did] not address relief"; the district court had not hinted at the hearing on the cross-motions for summary judgment that it intended to exceed the scope of the EEOC's motion;
Our voyage is nearly complete. Having navigated the waters of Title VII, we now steer this case into the port of judgment and unload the cargo we have hauled. We affirm the district court's grant of partial summary judgment in favor of the EEOC on its claim of disparate impact discrimination. The Union adopted a membership policy which, by its very nature, created a strong likelihood that no non-white face would ever appear in the Union's ranks. Based on the evidence we have recounted, the EEOC established a prima facie case of discrimination. Because the Union failed either to rebut that case or to offer a legitimate, nondiscriminatory justification for maintaining the membership policy, the district court did not err in finding for the EEOC in respect to liability.
The court's remedial rulings float in more turbulent seas. We agree with the Union that the district court's gadarene rush to judgment deprived it of any meaningful opportunity to propose appropriate remedies or otherwise to participate in the formulation of a decree. Hence, we vacate the remedial rulings (save only for the exception previously mentioned, see supra note 16) and remand for further proceedings.
42 U.S.C. § 2000e-2(c)(1) (1988). The district court found the Union to have practiced disparate impact discrimination in violation of this provision, and, therefore, did not consider the EEOC's parallel charge of intentional discrimination. See Costello, 850 F.Supp. at 76 n. 5. We emulate the district court's example.
42 U.S.C. § 2000e-8(c).