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 agreement 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 concerns 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 nondiscriminatory 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 subsection 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 controlling apprenticeship or other training or retraining, including 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 apprenticeship 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’ discriminatory 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 ineffectual 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 impossible. 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 mechanic; 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 responsible 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 appropriate 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