                                   Shirley FERRILL, Plaintiff-Appellee,

                                                      v.

                           THE PARKER GROUP, INC., Defendant-Appellant.

                                                No. 97-7013.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               Feb. 26, 1999.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV-96-AR-2175-S),
William M. Acker, Jr., Judge.

Before BIRCH and BARKETT, Circuit Judges, and ALAIMO*, Senior District Judge.

        ALAIMO, Senior District Judge:

        Appellant, The Parker Group, Inc. ("TPG"), appeals the District Court's order granting summary

judgment to plaintiff-appellee, Shirley Ferrill, on Ferrill's claim of race discrimination in job assignment in

violation of Title 42 of the United States Code, section 1981. TPG argues that the District Court erred in

finding TPG liable under § 1981 despite the District Court's finding that TPG had no racial animus. TPG also

appeals the jury award of compensatory and punitive damages.

        Because this appeal involves the grant of a motion for summary judgment, we review the facts in the

light most favorable to TPG, the non-moving party on this motion.

                                                      I.

        TPG is a telephone marketing corporation, often hired to perform work for political candidates. The

conduct at issue in this case involves TPG's work making "get-out-the-vote" calls for various political

candidates preceding the November 1994 election. About 60% of TPG's overall business is pre-election

"get-out-the-vote" calling. Approximately 10% of such calling is race-matched, such that black voters are

called by black TPG employees who use the "black" script, while white voters are called by white TPG



   *
    Honorable Anthony A. Alaimo, Senior U.S. District Judge for the Southern District of Georgia, sitting
by designation.
employees who use a different, "white" script.1 Race-matched calling apparently is used only when

specifically requested by customers. TPG employees doing the race-matched calling in 1994 were assigned

separate calling areas and separate scripts according to race. To facilitate supervision, TPG also physically

segregated employees who worked at race-matched calling.2 Black callers were segregated into one room,

and white callers segregated into another.3

        Ferrill, an African-American woman, was hired as a temporary employee to fill TPG's pre-election

staffing needs from September through November 1994.4            She worked primarily on Jim Folsom's

gubernatorial campaign, making race-matched "get-out-the-vote" calls. Ferrill was laid off during a

"reduction in force" ("RIF") immediately after the election.




   1
   TPG apparently also tries to match other characteristics. For example, TPG claims that it attempts to
match callers with Midwestern accents with Midwestern voters.
   2
    TPG asserts that it has now abandoned the practice of physical segregation. Through use of
computers and other technological innovations, it is now possible to supervise callers effectively even if
callers on different projects work side by side.
   3
    TPG's building contains two calling areas. The main room is larger and, according to some callers,
more comfortable than the smaller annex room. There is some disagreement on the relative merit of the
two rooms the larger room, for example, was noisier. Sometimes black callers used the main room; at
other times, black callers used the annex room.
   4
    Ferrill was not a TPG employee, but rather was employed by a temporary placement agency. Thus,
she was precluded from suing TPG under Title VII.

                                                     2
        Ferrill filed this action under 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991,5 alleging

race discrimination in her termination and job assignment. Ferrill and TPG filed cross-motions for summary

judgment. The District Court granted TPG's Motion for Summary Judgment on the unlawful termination

claim because Ferrill failed to rebut TPG's proffered legitimate nondiscriminatory reason for the termination,

namely, a RIF. The District Court granted Ferrill's Motion for Summary Judgment on the unlawful job

assignment claim. TPG appeals this grant of summary judgment to Ferrill.

        After granting Ferrill's Motion for Summary Judgment and finding TPG liable on the unlawful job

assignment claim, the District Court struck a jury to decide damages. The jury awarded Ferrill $500 in

compensatory damages and $4000 in punitive damages. TPG also appeals this award of compensatory and

punitive damages.

                                                      II.

        Section 1981 prohibits intentional race discrimination in the making and enforcement of public and

private contracts, including employment contracts. See, e.g., Johnson v. Railway Express Agency, 421 U.S.

454, 459-460, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975) (holding unequivocally that § 1981 protects

against racial discrimination in private employment). Section 1981 liability must be founded on purposeful

discrimination. See General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 389, 102 S.Ct. 3141,




   5
    Section 1981 states:

                (a) All persons within the jurisdiction of the United States shall have the same right in
                every State and Territory to make and enforce contracts, to sue, be parties, give evidence,
                and to the full and equal benefit of all laws and proceedings for the security of persons
                and property as is enjoyed by white citizens, and shall be subject to like punishment,
                pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

                (b) For purposes of this section, the term "make and enforce contracts" includes the
                making, performance, modification, and termination of contracts, and the enjoyment of
                all benefits, privileges, terms, and conditions of the contractual relationship.

                (c) The rights protected by this section are protected against impairment by
                nongovernmental discrimination and impairment under color of State law.

                                                      3
3149, 73 L.Ed.2d 835 (1982); Lincoln v. Board of Regents of Univ. System of Ga., 697 F.2d 928, 935 n. 6

(11th Cir.1983).

         A showing of disparate impact through a neutral practice is insufficient to prove a § 1981 violation

because proof of discriminatory intent is essential. See General Bldg. Contractors Ass'n, 458 U.S. at 388,

102 S.Ct. at 3149 (recognizing that the drafters of § 1981 were not concerned with practices that were facially

neutral); Lincoln, 697 F.2d at 935 n. 6. Accordingly, only direct or inferential modes of proving intentional

discrimination are available to the § 1981 plaintiff. See Larkin v. Pullman-Standard Div., Pullman, Inc., 854

F.2d 1549, 1561 (11th Cir.1988), overruled on other grounds by Swint v. Pullman-Standard, Inc., 493 U.S.

929, 110 S.Ct. 316, 107 L.Ed.2d 307 (1989) (where plaintiff proceeded on a theory of disparate impact,

plaintiff is limited to Title VII and cannot seek the broader § 1981 remedies and longer liability period). Cf.

Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir.1985) (where plaintiff claims only disparate treatment

under both Title VII and § 1981, courts may analyze claims together).

         The test for intentional discrimination in suits under § 1981 is the same as the formulation used in

Title VII discriminatory treatment cases. See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109

S.Ct. 2363, 2377-78, 105 L.Ed.2d 132 (1989). An employee who adduces direct evidence of disparate

treatment on the basis of race makes out a prima facie case of intentional discrimination. The burden of

persuasion then shifts from the employee to the employer, who must rebut the direct evidence of

discrimination by affirmatively proving that it would have made the same decision even if it had not taken

race into account. See Price Waterhouse v. Hopkins, 490 U.S. 228, 242, 109 S.Ct. 1775, 1786, 104 L.Ed.2d

268 (1989).

        TPG has admitted that the 1994 assignments of "get-out-the-vote" calls and scripts were made on the

basis of race and that TPG employees were segregated on the basis of race.6 TPG's admission is direct

evidence of disparate treatment on the basis of race and sustains Ferrill's prima facie case. The District Court



   6
    TPG so stipulated in the Pretrial Order.

                                                       4
relied on that unrebutted evidence to find TPG liable for intentional race discrimination in job assignments

in violation of § 1981.

         Implicit in the District Court's finding is the notion that racial animus and intent to discriminate are

not synonymous.7 In its Memorandum Opinion, the District Court stated that there is "no evidence" that TPG

acted with any racial animus. The crucial issue then is whether a defendant who acts with no racial animus

but makes job assignments on the basis of race can be held liable for intentional discrimination under § 1981.

Clearly, the answer is yes.

        In Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), the Supreme

Court faced this very issue. In Goodman, union members sued their union for intentionally failing to assert

race discrimination claims against the employer. The Court found that "there was no suggestion that the

[defendant] held any racial animus against or denigrated blacks generally," id. at 668, 107 S.Ct. at 2625, but

found the defendant liable for racial discrimination under § 1981 regardless of whether the union leaders were

favorably disposed toward minorities. Id. at 669, 107 S.Ct. at 2625. The Goodman Court clearly held that

liability for intentional discrimination under § 1981 requires only that decisions be premised on race, not that

decisions be motivated by invidious hostility or animus. Id.

                                                      III.

         Discrimination in employment on the basis of protected traits such as sex, religion, age, national

origin, or race, may be permissible in at least three circumstances. First, disparate treatment on the basis of

religion, sex, or national origin is allowed where a particular religion, sex, or national origin is deemed a

qualification reasonably necessary to the functioning of a business (a "bona fide occupational qualification").

Secondly, facially neutral employer practices that disparately impact protected classes may be justified by

"business necessity." Finally, under the aegis of "affirmative action," employers may engage in disparate

treatment in favor of a protected class for the purpose of remedying past discrimination.



   7
    In other words, ill will, enmity, or hostility are not prerequisites of intentional discrimination.

                                                       5
         An employer may intentionally discriminate "on the basis of ... religion, sex, or national origin in

those certain instances where religion, sex, or national origin is a bona fide occupational qualification

reasonably necessary to the normal operation of that particular business or enterprise...." 42 U.S.C. § 2000e-

2(e)(1). The bona fide occupational qualification ("BFOQ") defense is an extremely narrow exception, see,

e.g., Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977); EEOC

Guidelines, 29 C.F.R. § 1604.2 (referring to BFOQ for gender), and is not available for racial discrimination.

See Miller v. Texas State Bd. of Barber Exam'rs, 615 F.2d 650, 652 (5th Cir.1980)8 (acknowledging that race

is "conspicuously absent" from the statutory language); Swint v. Pullman-Standard, 624 F.2d 525, 535 (5th

Cir.1980), overruled on other grounds by 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (professing

court's belief that the omission of race and color as BFOQs was deliberate and intentional on the part of

Congress and holding that the BFOQ defense is not available in race discrimination cases); Burwell v.

Eastern Air Lines, Inc., 633 F.2d 361, 370 n. 13 (4th Cir.1980) (statutory BFOQ defense is not available for

facial race discrimination in employment); Knight v. Nassau County Civil Serv. Comm'n, 649 F.2d 157, 162

(2d Cir.1981) (same). Because § 1981 proscribes discrimination solely on the basis of race, and the BFOQ

defense does not apply to racial discrimination, the BFOQ defense is never available to the § 1981 defendant.

        An employer may assert "business necessity" as a defense to claims that facially neutral employment

practices have discriminatory effects. The business necessity defense originally had no textual basis but

evolved primarily from Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), as

a defense to claims that facially neutral employment practices have discriminatory effects. In 1991, Congress

codified the business necessity defense as articulated by the Court in Griggs. See 42 U.S.C. § 2000e-2(k).

When a facially neutral practice is challenged for its disparate impact, an employer need not assert a BFOQ




   8
    In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

                                                      6
for justification, but may argue instead that the practice is grounded in a legitimate, job-related purpose.9 See,

e.g., International Union, United Auto., Aerospace & Agric. Implement Workers of Am., UAW v. Johnson

Controls, Inc., 499 U.S. 187, 198-200, 111 S.Ct. 1196, 1203-04, 113 L.Ed.2d 158 (1991) (noting different

applications of BFOQ and business necessity defenses and holding that the business necessity defense, and

not the BFOQ defense, is the appropriate standard for disparate impact cases). Because § 1981 liability must

be grounded on intentional discrimination, see General Bldg. Contractors Ass'n, 458 U.S. at 389, 102 S.Ct.

at 3149, and the neutral practice mode of proof is inapposite in § 1981 cases, the business necessity defense

is not available to the § 1981 defendant. See also 42 U.S.C. § 2000e-2(k)(2) (making explicit that "a

demonstration that an employment practice is required by business necessity may not be used as a defense

against a claim of intentional discrimination ... ").

        In sum, then, it is clear that the BFOQ and business necessity defenses are not available to a

defendant who, like TPG, is accused of intentional discrimination on the basis of race in violation of § 1981.10


   9
    Both the BFOQ and business necessity defense are defenses but a BFOQ is a warrant for affirmative
deliberate discrimination while a business necessity defense is a defense to the prima facie case made
when an apparently neutral employment practice is shown to have a discriminatory effect. The difference
between the two defenses is demonstrated in Dothard, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786,
which involved a Title VII challenge to one employment policy based expressly on sex and another which
was facially neutral but which had a disparate impact on women. The Court considered only the BFOQ
defense in assessing the legality of the facially discriminatory policy and only the business necessity
defense for the facially neutral policy.
   10
     The District Court expressed some concern that its decision "might well prevent advertisers from
employing, based on race, actors to solicit products to a certain group." This conclusion, however, does
not necessarily follow. A film director casting a movie about African-American slaves may not exclude
Caucasians from the auditions, but the director may limit certain roles to persons having the physical
characteristics of African-Americans. Indeed, the drafters of Title VII expressly anticipated this issue. In
their interpretative memorandum, Senators Case and Clark explained that

                 [a]lthough there is no exemption in Title VII for occupations in which race might be
                 deemed a bona fide job qualification, a director of a play or movie who wished to cast an
                 actor in the role of a Negro, could specify that he wished to hire someone with the
                 physical appearance of a Negro.

        110 Cong. Rec. 7213, 7217 (1964) (emphasis added). See also Miller, 615 F.2d at 654
        (suggesting that a director wishing to cast the role of Henry VIII may announce that only
        applicants of sufficient physical likeness to Henry VIII will be considered). As applied here,

                                                        7
         Neither is Title VII's "affirmative action" exception available to TPG. Although discrimination to

remedy the effects of past discrimination is permitted under Title VII,11 and this defense is available to the

§ 1981 defendant,12 the defense is not applicable to the case at bar. Ferrill's assignment to call African-

Americans "was not affirmative action, or benign discrimination, intended to correct racial imbalance.

Rather, it was based on a racial stereotype that blacks" would respond to blacks and "on the premise that

[Ferrill's] race was directly related to her ability to do the job." Knight, 649 F.2d at 162.13

                                                      IV.

        Recently, the Seventh Circuit adopted a narrow, judicially-crafted racial BFOQ in Wittmer v. Peters,

87 F.3d 916 (7th Cir.1996). In Wittmer, white boot camp correctional officers denied promotions to

lieutenant sued for race discrimination in violation of the Equal Protection Clause. Applying strict scrutiny,

the Seventh Circuit held that preference given to a black applicant on the basis of his race did not violate

equal protection because expert evidence suggested that black boot camp inmates would not participate in

the correctional game of "brutal drill sergeant" unless there were some black officers in authority positions

at the camp. Id. at 920. Subsequently, in McNamara v. City of Chicago, 138 F.3d 1219 (7th Cir.1998), the



        TPG could have legally assigned jobs based on accent, speech pattern or dialect, but not expressly
        on race.

                Although the statutory language allows gender to be a valid BFOQ for hiring an actor or
        actress where it is necessary for the "purpose of authenticity or genuineness," see 29 C.F.R. §
        1604.2(a)(2), Congress specifically rejected race as a BFOQ. See generally 110 Cong. Rec. 2550-
        63 (1964) (House discussion on inclusion of race and color in the BFOQ exception).
   11
    See, e.g., United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61
L.Ed.2d 480 (1979) (holding that a race-conscious affirmative action plan was a permissible temporary
measure designed to eliminate a pre-existing manifest racial imbalance).
   12
    See Brown v. American Honda Motor Co. Inc., 939 F.2d 946, 949 (11th Cir.1991) (citing Patterson,
491 U.S. at 185-87, 109 S.Ct. at 2377-78, for the proposition that claims under section 1981 and claims
under Title VII are evaluated under the same principles).
   13
     "No matter how laudable [an employer's] intention might be ... the fact remains that [an employee]
was assigned a particular job (against [her] wishes) because [her] race was believed to specially qualify
[her] for the work. This is a violation of Title VII." Knight, 649 F.2d at 162.

                                                       8
Seventh Circuit declined to extend this racial BFOQ to firefighters because there was no compelling evidence

that white firefighters could not be effective as firefighters. Id. at 1222.

        Although two cases from the former Fifth Circuit suggest in dicta that such a defense may be justified

in certain circumstances, this circuit has never adopted a racial BFOQ. In Baker v. City of St. Petersburg, 400

F.2d 294 (5th Cir.1968), the former Fifth Circuit suggested that race may be considered for "the undercover

infiltration of an all-Negro criminal organization or plainclothes work in an area where a white man could

not pass without notice. Special assignments [on the basis of race] might also be justified during brief periods

of unusually high racial tension." Id. at 301 n. 10 (emphasis added). Similarly, in Miller, 615 F.2d 650, the

former Fifth Circuit stated that a "business necessity defense may also be appropriate in the selection of actors

to play certain roles," id. at 654, but explicitly recognized that "the black on black assignments tentatively

approved in Baker may be prohibited unless a business or similar exception is recognized for such intentional

discrimination." Id. at 653. No such business or similar exception has been recognized by this Circuit, and

we decline to do so today.

                                                       V.

         TPG raises for the first time on appeal their argument that their practice of using race-matched

calling is political speech protected by the First and Fourteenth Amendments. Specifically, TPG argues that

its clients, political candidates, should be able to choose the particular mode of political expression, i.e.,

race-matched get-out-the-vote calling.

         "As a general principle, this court will not address an argument that has not been raised in the district

court." Stewart v. Department of Health and Human Servs., 26 F.3d 115 (11th Cir.1994) (citing Baumann

v. Savers Fed. Sav. & Loan Assoc., 934 F.2d 1506, 1510 (11th Cir.1991)). See also Bliss v. Equitable Life

Assur. Soc. of U.S., 620 F.2d 65, 70 (5th Cir.1980) (judicial economy is served by binding parties to the

theories raised in the lower court); Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d

826 (1976) (recognizing the general rule that a federal appellate court does not consider an issue presented



                                                        9
for the first time on appeal). TPG advances no persuasive argument to deviate from this general rule. Thus,

because TPG did not present a First Amendment argument in the district court, we decline to consider this

issue on appeal.

                                                       VI.

         TPG argues that an award of compensatory damages is not warranted both because it did not

intentionally discriminate against Ferrill and because Ferrill adduced insufficient proof of actual harm. As

previously discussed, this Court affirms the District Court's finding that TPG knowingly and voluntarily

treated Ferrill differently according to race, that is, that TPG engaged in intentional discrimination in violation

of § 1981. This Court also affirms the jury's reasonable determination that Ferrill suffered compensable

damages in the amount of $500.

         Although compensable damage must be proven, see Carey v. Piphus, 435 U.S. 247, 263-64, 98 S.Ct.

1042, 1052-53, 55 L.Ed.2d 252 (1978), general compensatory damages, as opposed to special damages, need

not be proven with a high degree of specificity. Compensatory damages "may be inferred from the

circumstances as well as proved by the testimony." Id. (quoting Gore v.Turner, 563 F.2d 159, 164 (5th

Cir.1977)). See also H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1088 (11th Cir.1986) (same). Ferrill's

testimony that the terms, conditions, and privileges of her employment were adversely affected by TPG's

disparate treatment of employees on the basis of race was sufficient evidence of harm. Any evidentiary

shortcomings "go more to the amount, rather than the fact, of damage," Marable v. Walker, 704 F.2d

1219,1220 (11th Cir.1983), and were considered by the jury when it decided that $500 would compensate

Ferrill for her injuries.

         The amount of Ferrill's damages properly included recovery for her emotional harms. A plaintiff

may be compensated for intangible, psychological injuries as well as financial, property, or physical harms.

See Carey, 435 U.S. at 263-64, 98 S.Ct. at 1052-53. See also Marable, 704 F.2d at 1220 (holding that

plaintiff's own testimony that he was embarrassed and humiliated by defendant's conduct was sufficient to



                                                        10
support compensatory damages award). The Supreme Court has indicated that a plaintiff may recover for

emotional harm under § 1981. See Johnson, 421 U.S. at 460, 95 S.Ct. at 1720. Ferrill testified that she was

humiliated by TPG's physical separation of employees on the basis of race and by TPG's allocation of work

and scripts according to race. Humiliation and insult are recognized, recoverable harms. See, e.g., Patterson

v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir.1996), cert. denied, 519 U.S. 1091, 117 S.Ct. 767, 136

L.Ed.2d 713 (1997); Marable, 704 F.2d at 1220.

         The standard of review for awards of compensatory damages for intangible, emotional harms is

"deferential to the fact finder because the harm is subjective and evaluating it depends considerably on the

demeanor of the witnesses." P.H.P. Healthcare Corp., 90 F.3d at 937-38. Once a defendant is found liable

for the plaintiff's injury, the District Court has a great deal of discretion in deciding the level of damages to

be awarded. See Stallworth, 777 F.2d at 1435. When an award of damages has been reviewed and upheld

by the trial judge, it is entitled to a presumption of validity. See, e.g., Honda Motor Co., Ltd. v. Oberg, 512

U.S. 415, 421, 114 S.Ct. 2331, 2335, 129 L.Ed.2d 336 (1994). Accordingly, this Court defers to the findings

below that Ferrill suffered injury compensable in the amount of $500.

                                                      VII.

         TPG also contends on appeal that punitive damages are not warranted and alternatively that, given

the circumstances of this case, $4000 is an excessive amount. Because we find on these facts that punitive

damages are not warranted, we do not reach the second issue.

         Under § 1981, punitive damages may be awarded "when the defendant's conduct is shown to be

motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally

protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1628, 75 L.Ed.2d 632 (1983).

"Punitive damages are disfavored by the law and are awarded solely to punish defendants and deter future

wrongdoing." See Walters v. City of Atlanta, 803 F.2d 1135, 1147 (11th Cir.1986).




                                                       11
        To support a punitive damages award, a plaintiff must show that the defendant acted with malice or

reckless indifference to the plaintiff's federally protected rights. Reynolds v. CSX Transportation, Inc., 115

F.3d 860, 869 (11th Cir.1997). Malice means "an intent to harm" and recklessness means "serious disregard

for the consequences of [one's] actions." Splunge v. Shoney's, Inc., 97 F.3d 488, 491 (11th Cir.1996)

(quotation omitted). See also Walters, 803 F.2d at 1147 (defining the standard as "cynical disregard").

        Although the evidence shows that TPG intentionally discriminated on the basis of race in job

assignment, the District Court specifically found that TPG lacked any racial animus. Thus, the evidence is

insufficient to find that TPG acted with the requisite malice or reckless disregard of Ferrill's federally

guaranteed rights.

                                                    VIII.

        This Court affirms the District Court's finding that TPG intentionally discriminated on the basis of

race in violation of § 1981. In addition, we affirm the award of compensatory damages in the amount of

$500. However, because the record is devoid of evidence of the ill will required to support the imposition

of punitive damages, we reverse on that issue.

        AFFIRMED in part and REVERSED in part.




                                                     12
