disparate impact

In 1967 Congress enacted the Age Discrimination in Employment Act, which initially applied only to private employers. In 1974 Congress amended the Act through the Fair Labor Standards Amendments to extend its substantive requirements to the States. Congress redefined the term employer to include a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State. The same legislation also amended the incorporated Fair Labor Standards Act enforcement provision to authorize suits against any employer including a public agency in federal or state court. In December 1994 Roderick MacPherson and Marvin Narz, associate professors ages 57 and 58 at the University of Montevallo in Alabama, filed suit alleging age discrimination, retaliation for filing charges with the Equal Employment Opportunity Commission, and disparate impact from an evaluation system. In April 1995 J. Daniel Kimel, Jr., and other current and former faculty and librarians over age 40 at Florida State University and Florida International University filed suit against the Florida Board of Regents alleging that the failure to allocate previously agreed market-adjustment salary funds had a disparate impact on employees with longer service records. In May 1996 Wellington Dickson filed suit against the Florida Department of Corrections alleging failure to promote him because of his age and in retaliation for grievances concerning age discrimination. The District Court in the MacPherson case granted the university's motion to dismiss on Eleventh Amendment grounds. The District Courts in the Kimel and Dickson cases denied the state defendants' motions to dismiss. The United States intervened in all three cases. The Court of Appeals for the Eleventh Circuit consolidated the appeals and held that the ADEA does not abrogate the States' Eleventh Amendment immunity. The Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals.

The United States brought an action in a Tennessee federal court against T. I. M. E.-D. C., Inc., a common carrier of motor freight with nationwide operations. The complaint charged discriminatory hiring, assignment, and promotion policies against Negroes at its Nashville terminal. Almost three years later, the Government filed a second action in a Texas federal court against the company. It alleged a pattern and practice of employment discrimination against Negroes and Spanish-surnamed persons throughout the company's transportation system. The International Brotherhood of Teamsters was joined as a defendant. The two actions were consolidated for trial in the Northern District of Texas. The central claim in both lawsuits was that the company had engaged in a pattern or practice of discriminating against minorities in hiring so-called line drivers. Those Negroes and Spanish-surnamed persons who had been hired were given lower paying, less desirable jobs as servicemen or local city drivers. They were thereafter discriminated against with respect to promotions and transfers. The complaint also challenged the seniority system established by the collective-bargaining agreements between the employer and the union. The Government sought a general injunctive remedy and specific make-whole relief for all individual discriminatees. The cases went to trial. The District Court found that the Government had shown by a preponderance of the evidence that T. I. M. E.-D. C. and its predecessor companies were engaged in a plan and practice of discrimination in violation of Title VII. The court further found that the seniority system contained in the collective-bargaining contracts between the company and the union violated Title VII because it operated to impede the free transfer of minority groups into and within the company. With respect to individual relief the court accepted the Government's basic contention that the affected class of discriminatees included all Negro and Spanish-surnamed incumbent employees who had been hired to fill city operations or serviceman jobs at every terminal that had a line-driver operation. The Court of Appeals for the Fifth Circuit agreed with the basic conclusions of the District Court. It held, however, that the relief ordered by the District Court was inadequate. The Court of Appeals remanded the case to the District Court to hold the evidentiary hearings necessary to apply its remedial principles. The Supreme Court granted both the company's and the union's petitions for certiorari.

Before us are two cases in which proposed defendant-intervenors were denied intervention under Federal Rule of Civil Procedure 24(a) and (b). The actions were brought against the University of Michigan to contest the use of an applicant's race as a factor in determining admission. The appeals come from separate district courts but present similar issues. We have therefore consolidated the two cases for purposes of this opinion. In Gratz v. Bollinger, the named plaintiffs are two white applicants who were denied admission to the College of Literature, Arts and Science. They allege that the College's admissions policy violates the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. §§ 2000d et seq. The plaintiffs seek compensatory and punitive damages, injunctive relief forbidding continuation of the alleged discriminatory admissions process, and admission to the College. The proposed intervenors are 17 African-American and Latino/a individuals who have applied or intend to apply to the University, and the Citizens for Affirmative Action's Preservation (CAAP), a nonprofit organization whose stated mission is to preserve opportunities in higher education for African-American and Latino/a students in Michigan. The district court denied their motion for intervention as of right, holding that the plaintiffs did not have a substantial interest in the litigation and that the University could adequately represent the proposed intervenors' interests. The district court also denied the proposed intervenors' alternative motion for permissive intervention. In Grutter v. Bollinger, the named plaintiff is a white woman challenging the admissions policy of the University of Michigan Law School. She alleges that the race-conscious admissions policy utilized by the law school violates the Equal Protection Clause of the Fourteenth Amendment, 42 U.S.C. § 1981 and § 1983, and 42 U.S.C. §§ 2000d et seq. Grutter seeks compensatory and punitive damages, injunctive relief forbidding continuation of the alleged discriminatory admissions process, and admission to the law school. The proposed intervenors are 41 students and three pro-affirmative action coalitions. The individual proposed intervenors include 21 undergraduate students of different races who currently attend different undergraduate institutions, all of whom plan to apply to the law school for admission. Five black students who currently attend local high schools also plan to apply to the law school for admission. Twelve students of different races currently attend the law school. A paralegal and a Latino graduate student at the University of Texas at Austin intend to apply to the law school for admission. A black graduate student at the University of Michigan is a member of the Defend Affirmative Action Party. The district court denied the motion to intervene as of right on the basis that the intervenors failed to show that their interests would not be adequately represented by the University. The district court also denied the proposed intervenors' alternative motion for permissive intervention. The plaintiff opposed the motion to intervene, but the defendants, officials of the Law School and the University, did not oppose the motion. The appeals were argued on June 8, 1999, and decided on August 10, 1999.

The three cases consolidated before the Supreme Court arose when employers fired long-time employees shortly after the employees revealed their homosexual or transgender status. Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate whose leadership earned the county national awards. After a decade with the county, Bostock began participating in a gay recreational softball league. Influential community members then made disparaging comments about his sexual orientation, and he was fired for conduct unbecoming a county employee. Donald Zarda worked as a skydiving instructor at Altitude Express in New York for several seasons. After mentioning that he was gay, he was fired days later. Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Michigan, presenting as male when hired. After two years she began treatment for gender dysphoria and wrote a letter stating she planned to live and work full-time as a woman. The funeral home fired her before she left for vacation. Each employee sued under Title VII of the Civil Rights Act of 1964 alleging unlawful discrimination on the basis of sex. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and dismissed Bostock's suit as a matter of law. The Second Circuit allowed Zarda's claim to proceed on the ground that sexual orientation discrimination violates Title VII. The Sixth Circuit reached the same conclusion in Stephens's case regarding transgender status. Both Zarda and Stephens passed away during the proceedings, but their estates continued to press the claims. The Supreme Court granted certiorari to resolve the disagreement among the courts of appeals over the scope of Title VII's protections for homosexual and transgender persons.