
USCA1 Opinion

	




          March 10, 1995    UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1621                       EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,                                 Plaintiff, Appellee,                                          v.                         STEAMSHIP CLERKS UNION, LOCAL 1066,                                Defendant, Appellant.                              _________________________          No. 94-1656                       EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,                                Plaintiff, Appellant,                                          v.                         STEAMSHIP CLERKS UNION, LOCAL 1066,                                 Defendant, Appellee.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of  the court  issued on February  28, 1995,  is          corrected as follows:               Cover  page, next-to-last  line    replace  "Bladewood" with          "Blackwood"               On page 16, line 2   replace "Judge Coffin" with "it"               On page 26, line 17   delete "written" after "submit"                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1621                       EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,                                 Plaintiff, Appellee,                                          v.                         STEAMSHIP CLERKS UNION, LOCAL 1066,                                Defendant, Appellant.                              _________________________          No. 94-1656                       EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,                                Plaintiff, Appellant,                                          v.                         STEAMSHIP CLERKS UNION, LOCAL 1066,                                 Defendant, Appellee.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                              _________________________                                        Before                       Selya, Boudin and Stahl, Circuit Judges.                                                ______________                              _________________________               Christopher N.  Souris, with  whom Thomas F.  Birmingham and               ______________________             _____________________          Feinberg, Charnas & Birmingham were on brief, for Local 1066.          ______________________________               Paul D.  Ramshaw, Attorney, with  whom James R.  Neely, Jr.,               ________________                       ____________________          Deputy General Counsel, Gwendolyn Young Reams,  Associate General                                  _____________________          Counsel,  Vincent J.  Blackwood, Assistant  General Counsel,  and                    _____________________          Lamont N. White, Attorney, were on brief, for EEOC.          _______________                              _________________________                                  February 28, 1995                              _________________________                    SELYA, Circuit  Judge.  Labor unions  have historically                    SELYA, Circuit  Judge.                           ______________          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.          I.  BACKGROUND          I.  BACKGROUND                    The relevant facts are  not disputed.  The Union  is "a          labor organization engaged in an industry affecting commerce," 42                                          3          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.1  The EEOC accused                                        ____________________               1The  EEOC joined  Bernard S.  Costello, Inc.  (Costello), a          firm that regularly employed  steamship clerks, as a codefendant.          Costello is reportedly defunct, and, in any event, did not appeal                                          4          the  Union of discrimination in  violation of 42  U.S.C.   2000e-          2(c).2   In  addition,  the  EEOC  charged  that  the  Union  had          neglected to keep records  (including so-called EEO-3 reports) in          the manner required by law.3                    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                                        ____________________          from the entry  of judgment  below.  Consequently,  we treat  the          case as if the Union were the sole defendant.               2The statute provides in pertinent part:                    It  shall be an  unlawful employment practice                    for a labor organization . . . to exclude  or                    expel  from  its  membership,   or  otherwise                    discriminate against,  any individual because                    of  his  race,   color,  religion,  sex,   or                    national origin.          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.               3The    operative    statute    obligates   covered    labor          organizations, inter alia, to:                         _____ ____                    (1) make  and keep such  records relevant  to                    the   determinations   of  whether   unlawful                    employment practices have  been or are  being                    committed, (2) preserve  such records . .  .,                    and (3)  make such  records therefrom as  the                    Commission shall prescribe  by regulation  or                    order . . . .          42 U.S.C.   2000e-8(c).                                          5          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.4  See id.                   ___ ___                    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                                        ____________________               4The  EEOC  has  not  appealed  from  this  portion  of  the          judgment.                                          6          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.          II.  LIABILITY          II.  LIABILITY                    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 (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.                                                                ___          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.                          A.  The Disparate Impact Approach.                          A.  The Disparate Impact Approach.                              _____________________________                    It  has  long  been  understood   that  discrimination,          whether measured quantitatively or qualitatively, is not always a          function of a pernicious motive or malign intent.  Discrimination          may  also result  from otherwise  neutral policies  and practices          that,  when  actuated  in  real-life  settings,  operate  to  the          distinct disadvantage  of certain  classes of individuals.   See,                                                                       ___          e.g.,  John Hart Ely, Democracy and Distrust 84 (1980) (observing          ____                  ______________________                                          7          that  technical  enfranchisement, under  certain  conditions, has          often fallen  far short of  actual enfranchisement).   Within the          world of  Title  VII,  this  understanding is  reflected  in  the          concept  of disparate impact discrimination   a concept born of a          perceived  need to  ensure  that Title  VII's proscriptive  sweep          encompasses "not  only overt  discrimination  but also  practices          that are fair in form, but discriminatory in operation."  Griggs,                                                                    ______          401 U.S. at  431.  Thus, the disparate impact  approach roots out          "employment policies that are facially neutral in their treatment          of different  groups but  that in fact  fall more harshly  on one          group  than   another  and   cannot  be  justified   by  business          necessity."   International Bhd.  of Teamsters v.  United States,                        ________________________________     _____________          431 U.S. 324, 335 n.15 (1977); accord Watson v. Fort Worth Bank &                                         ______ ______    _________________          Trust, 487 U.S. 977, 987  (1988) (explaining that "the  necessary          _____          premise of  the disparate impact approach is that some employment          practices,  adopted without a deliberately discriminatory motive,          may  in  operation  be  functionally  equivalent  to  intentional          discrimination").  Beyond this abecedarian premise,  however, the          nature  and allocation of the  relevant burdens of  proof must be          clearly understood.5                                        ____________________               5The  Civil Rights  Act of  1991, Pub.  L. No.  102-166, 105          Stat. 1071 (1991), altered  these burdens in some respects.   See                                                                        ___          id.    105 (codified at 42  U.S.C.   2000e-2(k) (Supp. III 1991))          ___          (specifically addressing the allocation  and nature of burdens in          disparate  impact cases); see generally Rosemary Alito, Disparate                                    ___ _________                 _________          Impact Discrimination Under the 1991 Civil Rights Act, 45 Rutgers          _____________________________________________________          L. Rev. 1011 (1993).  Here, however, because the EEOC sued before          the  Act  became  law,  the boggard  of  retroactive  application          hovers.  See  Rivers v. Roadway  Express, Inc., 114 S.  Ct. 1510,                   ___  ______    ______________________          1519-20 (1994) (holding that   101 of the Act is nonretroactive);          Landsgraf  v. USI  Film  Prods., 114  S.  Ct. 1483,  1508  (1994)          _________     _________________                                          8                    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 (1975);  McDonnell Douglas          _________    _____                              _________________          Corp. v.  Green, 411  U.S. 792,  802 (1973);  Johnson v.  Allyn &          _____     _____                               _______     _______          Bacon,  Inc., 731 F.2d 64, 69  (1st Cir.), cert. denied, 469 U.S.          ____________                               _____ ______          1018 (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 Cove Packing Co. v. Atonio,  490 U.S. 642, 656                   ___ ______________________    ______          (1989).6   Second,  the  plaintiff must  demonstrate a  disparate          impact on a group characteristic, such as race, that falls within          the protective ambit of Title VII.  See  generally id. at 650-55.                                              ___  _________ ___          Third,  the  plaintiff  must demonstrate  a  causal  relationship          between the identified  practice and the  disparate impact.   See                                                                        ___                                        ____________________          (holding  that     102  is nonretroactive);  see  also  Mozee  v.                                                       ___  ____  _____          American Commercial  Marine  Serv. Co.,  963 F.2d  929, 932  (7th          ______________________________________          Cir.)  (holding that the 1991 Act does not apply retroactively to          a disparate impact claim),  cert. denied, 113 S. Ct.  207 (1992).                                      _____ ______          We need not probe this point, for, although the Union  alluded to          the  1991 Act  in its  appellate brief,  neither party  sought to          invoke  it either  in  the court  below  or on  appeal.   It  is,          therefore, not properly before  us.  See United States  v. Slade,                                               ___ _____________     _____          980 F.2d 27, 30 (1st Cir. 1992); Clauson v. Smith,  823 F.2d 660,                                           _______    _____          666  (1st  Cir. 1987)  (collecting  cases).   Thus,  our  ensuing          discussion  reflects the  legal framework  as it  existed without          regard to the 1991 Act.               6While Congress passed the  1991 Act partly in an  effort to          nullify certain aspects of the Court's opinion in Wards Cove, see                                                            __________  ___          Landsgraf v.  USI Film Prods., 114 S.  Ct. 1483, 1489 (1994), our          _________     _______________          reliance  on Wards Cove is limited to portions of the opinion not                       __________          affected by this legislative backlash.                                          9          id. at 656-57; Watson, 487 U.S. at 994.          ___            ______                    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 court.  At          that point, the  defendant has  several options.   First, it  may          attack the plaintiff's  proof head-on, debunking  its sufficiency          or  attempting to  rebut it  by adducing  countervailing evidence          addressed  to one or more  of the three  constituent strands from          which  the prima facie case  is woven, see  Dothard v. Rawlinson,                                                 ___  _______    _________          433 U.S. 321,  331 (1977), asserting,  say, that no  identifiable          policy exists,  or that  the policy's implementation  produces no          disparate impact, or that the plaintiff's empirical claims   such          as the claim of causation   are insupportable.                    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;  see also Albemarle Paper, 422 U.S.  at 425, or that                        ___ ____ _______________          it fits within one  or more of the explicit  statutory exceptions          covering  bona fide seniority systems, veterans' preferences, and          the like.7   See  42 U.S.C.     2000e-2(h), 2000e-11; see  also 1                       ___                                      ___  ____          Charles A. Sullivan et  al., Employment Discrimination    4.5-4.8                                       _________________________          (2d ed. 1988).  In all events, however, a defendant's good  faith          is not  a defense to a  disparate impact claim.   See Griggs, 401                                                            ___ ______                                        ____________________               7Because  the Union has  never suggested that  the MSP comes          within any such exception, we do not pursue this alternative.                                          10          U.S.   at  432   (holding  that  "good   intent  or   absence  of          discriminatory intent  does not  redeem employment  procedures or          testing  mechanisms  that  operate  as `built-in  headwinds'  for          minority groups and are unrelated to measuring job capability").                    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, 113  S. Ct. 2742, 2748-50  (1993)   to enter  judgment for          _____          the  plaintiff.  See, e.g.,  Cabrera v. Jakabovitz,  24 F.3d 372,                           ___  ____   _______    __________          381 (2d Cir.), cert. denied, 115 S. Ct. 205 (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; Johnson, 731                           ___ __________                      _______          F.2d at 69-70; see also McDonnell Douglas, 411 U.S. at  804.  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;                                     ___ ___________          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  (quoting McDonnell Douglas,  411 U.S. at          _____                             _________________          804-05).                               B.  Standards of Review.                               B.  Standards of Review.                                   ___________________                                          11                    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, ___                  ___ ____ _________________________    ______________          F.3d  ___, ___  (1st  Cir. 1995)  [No. 94-1176,  slip op.  at 5].          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, ___  F.3d at ___ [slip op. at  5].  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 ___ [slip op.                                                       ___          at  5-6] (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. Osco  Drug, Inc., 895 F.2d  46, 48 (1st                     ___ _______    ________________          Cir. 1990).                    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                                          12          constructed  its case.8   It  gave no  indication either  that it          intended to  introduce any additional  evidence or that  any such          evidence existed.  To the exact contrary, the Union's contentions          centered entirely  around the  ultimate legal significance  to be          accorded  to  conceded  facts.    In  effect, then,  the  parties          submitted their dispute to the district court as a case stated.                    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                                        ____________________               8Of   course,  the   mere   fact  that   all  parties   move          simultaneously for  summary judgment neither unties  the district          court's  hands  nor  renders  the customary  standard  of  review          obsolete.   Barring special  circumstances, the nisi  prius court                                                          ____  _____          must consider  each motion separately, drawing inferences against          each  movant in turn, and the court  of appeals must engage in de                                                                         __          novo review.  See El Dia,  Inc. v. Hernandez Colon, 963 F.2d 488,          ____          ___ _____________    _______________          492  n.4 (1st Cir. 1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115                                    ___________    _____          (1st Cir. 1990).                                          13          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.9  Nonetheless, the  court's          legal  conclusions  engender plenary  review.    See McCarthy  v.                                                           ___ ________          Azure, 22 F.3d 351, 354 (1st Cir. 1994).          _____                             C.  Application of the Law.                             C.  Application of the Law.                                 ______________________                    In this  case, the district court  adroitly applied the          substantive law and concluded that the Union's  sponsorship-based                                        ____________________               9Our conclusion concerning the applicable standard of review          is reinforced by  the Union's brief on appeal.   In it, the Union          neither  promotes the conventions of Rule 56 nor asserts that the          district court  should  have  left the  matter  for  trial,  but,          rather,  argues that  the court  entered judgment  for the  wrong          party because the EEOC failed to present a prima facie case; and,          alternatively, that even if a prima facie case emerged, the Union          successfully rebutted it.   This scenario not only is  consistent          with  the submission  of the  matter as  a case  stated but  also          amounts  to  a waiver  of any  contrary  contention.   See United                                                                 ___ ______          States v. Zannino,  895 U.S.  1, 17 (1st  Cir.) (explaining  that          ______    _______          theories which  are  not briefed  or  argued are  waived),  cert.                                                                      _____          denied, 494 U.S. 1082 (1990).          ______                                          14          membership  policy  constituted disparate  impact discrimination.          See Costello, 850 F. Supp. at 77.  We descry no error.          ___ ________                    1.  The Prima Facie  Case.  We agree with the  district                    1.  The Prima Facie  Case.                        _____________________          court,  see id.  at 76-77,  that the EEOC  carried its  burden of                  ___ ___          producing facts  sufficient to limn the  three elements essential          to its  prima facie case.   The first element    identification            requires  no  elaboration.10    We  start,  therefore,  with  the          element of disparate impact and then  move to causation.  In both          instances, the relevant facts are not disputed.                                          a.                                          a.                                          __                    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                                        ____________________               10It is  transparently clear that  the EEOC singled  out the          MSP,  identified it  as the  challenged employment  practice, and          linked it to the Union.                                          15          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, 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                                          16          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.11                    The utility of statistical  evidence "depends on all of          the surrounding facts and circumstances."  Teamsters, 431 U.S. at                                                     _________          340.  In  this instance,  the sample, though  small, is  telling.          Given  the  unique  factual  mosaic from  which  the  statistical                                        ____________________               11Furthermore, even  if we were to  overlook these important          distinctions  and apply Fudge wholesale  to the case  at hand, we                                  _____          would  endorse the trial court's meticulous  explanation of why a          finding  of  disparate  impact  discrimination  would  still   be          appropriate.  See Costello, 850 F. Supp. at 77 n.7.                        ___ ________                                          17          scaffolding hangs,  and the logical force of  the conclusion that          the  numbers suggest, it would  blink reality to  conclude that a          serious "sample size" problem  lurks here.  In our  judgment, the          lower court did  not err in considering the available statistical          evidence, and drawing founded  inferences from it, en route  to a          disparate  impact determination.    See, e.g.,  United States  v.                                              ___  ____   _____________          Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.) ("On the basis          ____________________          that a showing of an absence or a small black union membership in          a  demographic  area containing  a  substantial  number of  black          workers raises  an inference  that  the racial  imbalance is  the          result of discrimination,  the burden of going  forward . . .  is          shifted to the accused, for such a showing is enough to establish          a  prima facie case."), cert. denied, 404 U.S. 984 (1971); accord             _____ _____          _____ ______                       ______          United  States v. United Bhd.  of Carpenters &  Joiners, 457 F.2d          ______________    _____________________________________          210, 214 (7th Cir.), cert. denied, 409 U.S. 851 (1972).                               _____ ______                                          b.                                          b.                                          __                    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                                          18          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  (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                                          19          existing  members      renders  the  district court's  conclusion          irresistible notwithstanding the lack  of a specific unsuccessful          minority applicant.12                    If bolstering is needed   and we do not believe that it          is    we would add only that the cases and the commentators teach          that evidence involving the rejection of actual applicants is not          always necessary to prove causation.  See, e.g., United States v.                                                ___  ____  _____________          Sheet Metal Workers  Int'l Ass'n,  Local Union No.  36, 416  F.2d          ______________________________________________________          123,   127  (8th   Cir.   1969)  (holding,   in  an   intentional          discrimination  case,   that  it  was  not   "necessary  for  the          government to prove  that the Locals have  refused membership" to          actual black applicants); 1  Sullivan et al., supra,    4.3.1, at                                                        _____          186  (enunciating similar view).   The Court's opinion in Dothard                                                                    _______          bears stout  witness  to this  principle.   There, the  plaintiff          alleged  that  Alabama's  height   and  weight  requirements  for          correctional  counselors   had  a  disparate  impact   on  female                                        ____________________               12None of  the three cases brandished by the Union is to the          contrary.  Two of them    Johnson v. Uncle Ben's, Inc.,  965 F.2d                                    _______    _________________          1363 (5th Cir.  1992), cert. denied, 114 S. Ct.  1641 (1994), and                                 _____ ______          Walls v. City  of Petersburg, 895 F.2d 188 (4th  Cir. 1990)   are          _____    ___________________          reminiscent of Fudge  inasmuch as both involved  challenges to an                         _____          employment-related testing practice, such as an examination, that          had  no  inherently  obvious  tendency  to  discriminate  against          protected  classes of  individuals.   Here,  by contrast,  we are          dealing with a  union consisting exclusively of whites which only          accepts applicants who  have already been sponsored  by a member.          Under such  highly suggestive circumstances, far  less additional          proof is necessary to establish causation.  Similarly, in EEOC v.                                                                    ____          Chicago Miniature Lamp Works,  947 F.2d 292 (7th Cir.  1991), the          ____________________________          court  rejected  the  EEOC's  theory  of  causation  because  its          statistical  analysis totally  omitted  several  key  explanatory          variables,  thereby potentially skewing the results.   See id. at                                                                 ___ ___          301.  Here, by contrast, there is nothing to indicate any omitted          variable or to cast doubt upon the apparent outcome.                                          20          applicants.  In upholding  the challenge, the Justices explicitly          disavowed   any    rule   "that   a   statistical    showing   of          disproportionate  impact must always be based  on analysis of the          characteristics of actual  applicants."  Dothard, 433 U.S. at 330                                                   _______          (citing Griggs, 401 U.S. at  430).  In a passage that  has marked                  ______          relevance  to the  instant case,  the Court reasoned  that "[t]he          application  process itself  might  not  adequately  reflect  the          actual potential applicant pool, since otherwise qualified people          might be  discouraged from applying because  of a self-recognized          inability  to  meet  the   very  standards  challenged  as  being          discriminatory."  Id.  In this case, as in Dothard, we think that                            ___                      _______          the court below could have inferred causation, despite the dearth          of actual  applicants,  in  part because  the  MSP  would  itself          naturally have discouraged potential minority candidates.                    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                                          21          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),                                          22          cert.  denied,  464 U.S.  937 (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 its  face, proximately caused the  exclusion of          minorities between 1980 and 1986.13                    2.  The Union's Response.  Once the EEOC demonstrated a                    2.  The Union's Response.                        ____________________          prima  facie case  of  discrimination, the  burden of  production          shifted.  In  the absence of any  applicable statutory exemption,          see supra note 7,  it became incumbent  upon the Union either  to          ___ _____          mount  a  satisfactory empirical  rebuttal  or to  show  that the          challenged practice  was job-related and consistent with business          necessity.   For all intents and purposes, the Union travels only          the second path.  Its sojourn is unavailing.                    The  Union suggests  that  the MSP  is job-related  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                                        ____________________               13We add  one further note.   Though it is  perhaps true, as          the Union claims, that  no court has ever invalidated  a facially          valid  sponsorship-based membership  policy under  Title  VII, it          seems equally true that no such policy has ever been  upheld.  It          would be  a peculiar rule of construction  if a statute could not          be applied in a certain manner unless it had already been applied          in that manner in a previous case.                                          23          evaluating this  rationale mindful that the meaning  and scope of          the  "business necessity"  concept  are blurred  at the  edges.14          See  1 Sullivan  et al., supra,    4.3.2.   In  the case  at bar,          ___                      _____          however, such  potential indeterminacy is of  no consequence, for          the Union's  "family tradition" thesis falls  hopelessly short of          limning a business necessity,  and, thus, does not require  us to          explore terra incognita.                  _____ _________                    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                                        ____________________               14The 1991 Act  did little to sharpen the  focus.  See Note,                                                                  ___          The Civil Rights Act  of 1991:  The Business  Necessity Standard,          _____________________________   ________________________________          106  Harv. L. Rev. 896, 903-06 (1993)  ("On the issue of business          necessity, the Act merely  returns the courts to where  they were          just  prior to Wards Cove, and appears to provide little guidance                         __________          as to what direction they should take from there.  The courts are          saddled, instead,  with a rich but  uncertain legislative history          arising from two years of complicated political maneuvering.").                                          24          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.15   See                                                                        ___          Wards Cove, 490 U.S. at 659 (warning that courts must not "permit          __________          discrimination  to  be practiced  through  the  use of  spurious,          seemingly neutral employment practices").                    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.          III.  RELIEF          III.  RELIEF                    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,          entered  a  judgment  that  awarded several  items  of  permanent          equitable relief.  See supra  p. 5.  The court acted  entirely on                             ___ _____          its  own  initiative, without  convening  a  hearing and  without          affording the  litigants any warning that it  intended to resolve          the matter of remediation.                                        ____________________               15The Union  attempts to profit from  the "family tradition"          gambit  in another  way as  well.   Though offering  no empirical          rebuttal to the EEOC's prima facie case, the Union posits that no          African-Americans  or  Hispanics  joined between  1980  and  1986          because of "the  stark economic reality"  of membership dues  and          the lack of any  guaranteed employment.  It then seeks to explain          the 30 new  recruits on the basis of family  tradition.  Although          this twist, if believed, might conceivably furnish an alternative          theory of  causation, it is  unsupported by any  cogent evidence,          and, in all  events, did  not foreclose the  district court  from          making a contrary, inference-based determination of causation.                                          25                    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.16                    The  question  of  whether  notice  is  required  is  a          question of  law and  is, therefore,  subject to plenary  review.                                        ____________________               16Of  course,  the  district  court  plainly  possessed  the          authority,  without further  proceedings, to  order the  Union to          cease  using the  MSP.   This  portion of  the  decree may  stand          because  it  flows  ineluctably   from  the  court's  finding  of          disparate  impact discrimination.   Hence,  our comments  and our          instructions for  vacatur are  confined to the  remainder of  the          equitable relief ordered sua sponte by the trial court.                                   ___ ______                                          26          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., ___ F.3d ___, ___ (1st Cir. 1995) [No. 94-          _____________________          1498, slip  op. at 21] (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, ___  F.3d ___ (1st Cir. 1994)  [No. 94-1653].  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                                          27          affording [the adversely affected party] an opportunity to submit          argument   explaining   his   objections   to   the   Secretary's          determination . . .  ."  Id. at ___  [slip op. at 2].   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  ___ [slip  op. at  6] (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.17   Thus, absent          exigent or other extraordinary circumstances   and there are none          reflected  in this  record    a  court  generally may  not  award          equitable  relief without  first providing  all  affected parties          actual  notice  that  it  is contemplating  remedial  action  and          affording them  a meaningful chance  to be  heard.  Nor  does the          fact  that the judge enjoys broad discretion in shaping solutions          relieve him from the obligation  to afford procedural due process          to  all parties  in  interest.   The rights  of  due process  are          constitutional and  inviolable;  hence,  once  a  district  court          chooses to exercise its discretion, its conduct must comport with                                        ____________________               17We exempt from this discussion provisional remedies,  such          as temporary  restraining orders and ex  parte attachments, which                                               __  _____          may from time to time be justified to preserve the  status quo in          a   given  case  despite  the  absence  of  either  notice  or  a          predeprivation  hearing.   See,  e.g.,  Fed.  R. Civ.  P.  65(b);                                     ___   ____          Carroll  v. President & Comm'rs  of Princess Anne,  393 U.S. 175,          _______     _____________________________________          180  (1968)  (recognizing  that  "[t]here  is  a  place   in  our          jurisprudence for ex parte issuance, without notice, of temporary                            __ _____          restraining orders of short duration").                                          28          the promise of the Constitution.  Discretion ensures the  judge's          right to  choose rather freely among  plausible remedial options;          it does  not  insulate him  from  listening to    or,  at  least,          reading   the parties' importunings.                    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                     ___ _________ _________     ______          (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                                          29          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;18  and the  district          court's March 24 rescript  sounded no warning bells.   The Union,          then,  had no reason  to marshal its  arguments on relief-related                                        ____________________               18Indeed, the trial court stated then that the case was "not          yet at the remedy stage."  In its rescript of March 24, 1994, the          court   noted  explicitly   that   "[t]he  EEOC   is  seeking   a          determination  as to liability.   It has not  as yet suggested an          appropriate remedy."  Costello, 850 F. Supp. at 75 n.2.                                ________                                          30          issues, and no opportunity to make its case to the decisionmaker.          Viewed in that light, the remedial rulings cannot endure.19          IV.  CONCLUSION          IV.  CONCLUSION                    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                                        ____________________               19In a vain attempt to salvage the court's remedial rulings,          the EEOC  speculates that the  Union was  on constructive  notice          because  the   EEOC  had  requested  injunctive   relief  in  its          complaint.     Relatedly,  it   theorizes  that  a   hearing  was          unnecessary because, no matter what the Union's input, injunctive          relief  was warranted.  These arguments are jejune, and we reject          them out  of hand.  The EEOC's insistence that its transmittal of          March 24 placed the  Union on notice that the court was pondering          remediation is  equally meritless.   There  is nothing  about the          EEOC's  discussion  of  possible anodynes  in  the  context of  a                                                     ______________________          proposed consent decree that would have alerted the most vigilant          _______________________          litigant  to   array  its  relief-related   arguments,  or   risk          preclusion.                                          31          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.20  In so  doing, we take          no view as to what forms  of relief, apart from barring continued          use of the MSP itself, would, or would not, appear proper; and we          specifically decline to address the parties' substantive concerns          as to the remedies granted and withheld.                      Affirmed in part, vacated in part, and remanded.  Costs                    Affirmed in part, vacated in part, and remanded.  Costs                    _______________________________________________   _____          in favor of plaintiff.          in favor of plaintiff.          _____________________                                        ____________________               20Notwithstanding the foregoing,  the unappealed judgment in          the Union's favor on  the record-keeping count, see supra  note 4                                                          ___ _____          and accompanying text, endures.                                          32
