William J. Kilberg and Thomas G. Hungar, Gibson, Dunn & Crutcher, Washington, DC, for the defendant-appellant-cross-appellee.

Barbara L. Sloan, Equal Employment Opportunity Commission, Washington, DC, for the plaintiff-appellee-cross-appellant.

John J. Mavredakis, Santa Rosa, CA, for the intervenors-appellees-cross-appellants.

Laura M. Franze, Akin, Gump, Strauss, Hauer & Feld, Dallas, TX, for the amicus curiae.

Appeal from the United States District Court for the Northern District of California; William H. Alsup, District Judge, Presiding. D.C. No. CV-97-00961-WHA.

Before: CANBY and RYMER, Circuit Judges, and BERTELSMAN, Senior District Judge.*

The opinion filed September 20, 2002, is amended as follows:

Slip opinion at 14626 [306 F.3d 794], first full paragraph, line 16, delete "so we affirm the judgment as to them."

With this amendment, the panel has voted to deny the petition for rehearing. Judge Rymer voted to deny the petition for rehearing en banc and Judges Canby and Bertelsman so recommended.

The full court was advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed.R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.