This is an appeal by defendant Navajo Refining Company (Navajo) from a finding of civil liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., after trial on a complaint filed by the Equal Employment Opportunity Commission (EEOC).
The issues on appeal are: 1) whether injunctions were properly granted which disallow Navajo’s use of a high school diploma (or GED equivalent) and a passing grade on a certain test as a prerequisite to employment until such requirements are *990 validated by the EEOC; and 2) whether back pay awards to Cruz Acosta, Blas Salgado, Jr., and Henry L. Lopez were justified.
Navajo is a partnership formed in 1969 for the specific purpose of acquiring from Continental Oil Company (Conoco) a refinery located at Artesia, New Mexico. The partnership — made up of Holly Corporation and Navajo Corporation — assumed full control of the refinery and its operations in May, 1969.
From the time of acquisition until the trial court’s judgment, Navajo had two mаndatory prerequisites for employment at entry level positions in its refinery department: an applicant had to have a high school education (or GED equivalent) and receive a satisfactory score on an aptitude test. From 1969 through July, 1973, the test used was one developed and administered by the New Mexico Employment Security Commission (ESC). During this period, Navajo believed that the test complied with EEOC and Office of Contract Compliance (OFCC) requirements and was an acceptable means of screening new employee?). Also during this time, ESC acted аlmost exclusively as the source of applicant referrals to Navajo for new employees in the refinery department.
In July, 1973, however, the ESC notified Navajo that the test was not сonsidered by the EEOC to be valid, and that ESC would no longer administer it. As a result, Navajo obtained another aptitude test from Conoco’s Lake Charles, Louisiana testing program and itself administered that to prospective entry level employees of the refinery department. Navajo’s evidence was that this second test had been submitted to t íe OFCC for approval, but had ' neither teen validated nor rejected by that office. Since 1975, statistical adjustments have been made to equalize the raw scores of Spanish surnamed Americans (SSA) and Anglo applicants. Navajo uses a score conversion table to make these adjustments, and the result is less than a one per cent difference in the average scores of Anglo and SSA aрplicants, which insures neutrality in the impact of the test on Anglo as compared with SSA applicants. The trial court found that with the score adjustments there was no disparate impact оn minorities, but issued the injunctions and made the back pay awards because of its views as to the disparate impact of the test and education requirements in excluding SSA’s from consideratiоn for hiring. We do not agree.
To carry its burden of proof in a Title VII case, a complaining party must first make a prima facie showing of discrimination. This is established when it is demonstrated that a dеfendant’s employee selection practices, while perhaps facially neutral and lacking in intent to discriminate, have a discriminatory effect or disparate impact on minority hiring.
See
42 U.S.C. § 2000e-2(h);
Albemarle Paper Co. v. Moody,
The Supreme Court has considеred the problem of a seemingly neutral testing program “freezing in” racially discriminatory hiring practices of prior years,
Griggs v. Duke Power Co., supra,
and those testing procedures which serve as artificial barriеrs to employment,
Albemarle Paper Co. v. Moody, supra.
Most recently, in
Dothard v. Rawlinson,
In Griggs v. Duke Power Co.,401 U.S. 424 ,91 S.Ct. 849 ,28 L.Ed.2d 158 (1971), this Court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unlеss the employer meets “the burden of showing that any given requirement [has] a manifest relationship to the employment in question.” Id., at 432,91 S.Ct. 849 . This burden arises, oí course, only after the complaining party оr class has made out a prima facie case of discrimination, i. e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significаntly different from that of the pool of applicants. See McDonnell Douglas Corp. v. Green,411 U.S. 792 , 802,93 S.Ct. 1817 ,36 L.Ed.2d 668 (1973). (Footnote omitted.) (Emphasis supplied.)
Albemarle Paper Co. v. Moody,
We start from the proposition that Title VII does not impose on an employer the duty to favor a minority, discriminated agаinst in the past, in order to correct preAct racial imbalances. 42 U.S.C. § 2000e— 2(j). The assumption is that non-discriminatory hiring practices will eventually rectify racial disparities in the employеe population.
International Brotherhood of Teamsters v. United States,
Navajo’s hiring record for Spanish surnamed Americans as compared to Anglos who have applied for employment at the refinery department has been good. Of the 267 who applied for entry level employment from 1969-1973, 80 (30%) were SSA’s and 187 (70%) were Anglo. During that time, of the 21 new entry level employees hired, 8 (or 38%) were SSA’s. 1 Chaves and Eddy counties in New Mexico supply most of the work force. The percentage of SSA’s hired during the period at issue exсeeded significantly the percentage of SSA’s in the available work force, found to be 23.2% by the Court (ESC’s estimate was 19%).
There is a disparity between SSA’s and Anglos in these counties as to numbers who hаve a high school education or the GED equivalent, and with respect to the pass rate on the tests before the racial factor adjustment is made. But we do not get to that point unlеss there is discrimination in fact in actual numbers hired. As stated in
Hester v. Southern Ry.,
[N]onvalidated tests and subjective hiring procedures are not violative of Title VII per se. Title VII comes into play only when such practices result in discrimina *992 tion. At that point, the burden of producing evidence shifts to the employer, who must offer satisfactory justification for his procedures. .
The missing ingredient in the proof here was the nеcessary showing of discrimination. Without such proof the district court lacked authority to enjoin the further use of the testing and interviewing procedures by Southern for selection of Data Typists. .
See
also,
Smith v. Troyan,
Thе high school education requirement and the tests are racially neutral on their face, although they have not been shown to be job related. “But Congress directed the thrust of the Act to thе
consequences
of employment practices, . .”
Griggs v. Duke Power Co.,
Salgado, Acosta and Lopez all applied for employment in 1971. Salgado and Acosta failed the test and were not offerеd employment. Lopez was not permitted to take the test because the New Mexico Employment Security Commission mistakenly thought he had not graduated from high school. A clerk had indicаted he was “in school,” but that was a computer course he was taking after graduation. We note that in 1971 Navajo hired only three people of whom two were SSA’s, 66%%. In the face of this аnd our holding above that no discrimination against SSA’s was shown on the part of Navajo, the back pay awards cannot stand.
The case is reversed and remanded with instructions to dismiss the injunctions against Navajo’s use of the test and the high school education requirement, and to vacate the back pay awards.
Notes
. During 1969 of five hired, two were SSA (40%)
1970 of four hired, one was SSA (25%) 1971 of three hired, two were SSA (66%)
1972 of one hired, none was SSA (0%)
1973 of eight hired, three were SSA (38%)