Lead Opinion
The Equal Employment Opportunity Commission (EEOC) instituted this action on a complaint charging that defendant American National Bank (ANB or Bank) had engaged in a pattern or practice of
We agree with the district court’s ruling that the EEOC’s statistical proof made out a prima facie case of discrimination, but, with the exception of one employment category, we conclude that the court erred in holding that defendant’s rebuttal evidence was sufficient to overcome the prima facie case. Because the proof of a pattern or practice of discrimination thus stands unre-butted as to all but the one category on a proper legal analysis of the total evidence, we reverse and remand for the determination of appropriate relief.
I
This case began with a charge of discrimination filed with the EEOC in 1969 by a rejected black applicant, Sandra Holland. Ms. Holland alleged that she had been refused employment at ANB’s Suffolk branch. The EEOC conducted an investigation in 1970, and found that Ms. Holland’s application at the Suffolk branch could not be located, though it did find an earlier application at the Portsmouth branch. The EEOC issued its formal “determination” in March 1974, finding reasonable cause to believe that ANB had engaged in discriminatory hiring practices. The determination discussed hiring figures only for ANB’s Suffolk branch, and in a footnote rejected information about the hiring of blacks in ANB’s Portsmouth branches as “irrelevant to employment at its Suffolk branch.” App. 1523. Conciliation efforts were unsuccessful, and Ms. Holland was issued a right-to-sue notice in August 1974, but declined to file suit. The EEOC then instituted this action in January of 1976, charging a pattern or practice of discrimination in both the Suffolk and Portsmouth branches.
In August of 1976, the district court granted defendant’s motion for summary judgment and dismissed the action for laches. This court vacated and remanded the case, in EEOC v. American National Bank,
The case was tried over a four-day period in December 1978. The EEOC presented
The EEOC’s statistical evidence, presented in the form of stipulated exhibits, compared on a static basis the racial composition of ANB’s work force in its Suffolk and Portsmouth branches from 1968-75 to that of the general available work force in the relevant market areas.
The evidence as to the Bank s hiring procedures
Bank officials testified that when a vacancy developed, they would review the most recent applications first, and usually would not reach applications submitted more than 30 days previously. In a few cases, when they did not find a qualified applicant on file, they would advertise the vacancy. After reviewing applications, officials would select a few applicants to interview. There were no written job descriptions or criteria for hiring. The interviewers, all of whom were white, would evaluate the applicant’s ability to communicate, maturity, personality, and physical appearance. The interviewer’s decision to accept or reject an applicant was generally controlling. When ANB became particularly interested in hiring an applicant, prior employers were contacted, and character references were sometimes checked. Prior to 1975, ANB occasionally made retail credit checks on final applicants. Nearly half of the hires during this period had listed friends or relatives among bank employees.
As part of its nonstatistical evidence, the EEOC presented the testimony and written statements of 31 black applicants who had been rejected for positions at ANB. The EEOC stipulated that its case as to individual examples of discrimination would be limited to those 31 applicants who were able to testify. Twenty-one additional applicants were identified by the EEOC as having been discriminated against. Although these particular cases were not submitted to the court on the pattern or practice of discrimination issue, the court considered them in deciding the attorney’s fees issue.
The Bank, in rebuttal, submitted applicant flow data purporting to compare the number of blacks and whites hired with those who submitted an application during 1969-1975.
Before ruling on the substantive issues under Title VII, the court considered the preliminary issue whether it had jurisdiction to hear the claims. Although finding that the initial charge by Ms. Holland was valid and the EEOC’s broader investigation of the general policies and practices of ANB’s Suffolk branches relevant to the initial charge, the court concluded that the activities of the Portsmouth branches were not the subject of the EEOC investigation nor were they included in the reasonable cause determination of March 11, 1974. Consequently, the court ruled that it lacked jurisdiction to hear that part of the case concerning the allegedly discriminatory practices and the individual claims of discriminatory hiring at the Portsmouth branches. Anticipating that the case would be appealed, the court nevertheless included the Portsmouth branches in its analysis of the merits.
Addressing the merits, the court first considered the static work force statistics presented by the EEOC, comparing the percentage of blacks in defendant’s work force with the percentage of blacks available in the population, using both general work force and special qualifications work force figures. From each set of figures, the
The court then evaluated ANB’s rebuttal evidence consisting of its applicant flow data for the charged period, and the EEOC’s nonstatistical evidence related to ANB’s screening and hiring practices, and the 31 cases of unsuccessful black applicants who testified at trial. The applicant-flow data and a standard deviation analysis of the static work force statistics were found sufficient in combination to rebut the EEOC’s prima facie case. Alternatively, though without discussion, the court found that too few hiring decisions were made to justify an interference of discrimination. After an extensive analysis of each of the hiring practices shown by the EEOC, the court concluded that neither separately nor together were these practices discriminatory but rather served legitimate business purposes. Finally, the court found that none of the 31 unsuccessful black applicants were victims of racial discrimination in hiring. On balance, then, the court concluded that the EEOC’s statistical evidence of a prima facie case was substantially rebutted. Conceding that ANB’s work force was virtually all white prior to 1969 and racially imbalanced from 1969-1975, the court concluded that the imbalance was a product of pre-1969 activities and therefore not viola-tive of Title VII. For reasons that follow, we find error requiring reversal in the court’s legal and factual analysis of the evidence.
II
Initially we consider and reject the district court’s conclusion that it had no jurisdiction over that part of the suit concerning ANB’s Portsmouth branches.
The 1972 amendments to Title VII gave the EEOC broad enforcement powers. Section 706 enabled the EEOC, after a charge alleging discrimination had been filed with the EEOC and conciliation efforts with the respondent had failed, to bring suit in its own name. 42 U.S.C. § 2000e-5(f)(l). Although Congress declined to expand the EEOC’s powers to the extent exercised by the NLRB, broad litigation powers were added to preexisting powers to enable the EEOC “to vindicate the public interest.” EEOC v. Kimberly-Clark Corp.,
The EEOC’s new role as an enforcer, however, was not intended to diminish its role as conciliator. Title VII establishes a comprehensive administrative procedure whereby the parties involved, including the EEOC, have the fullest opportunity to resolve charges of discrimination without resorting to the courts. See 42 U.S.C.
The 1972 amendments, while enlarging the powers of the EEOC to include enforcement, retained the previous emphasis on administrative resolution and conciliation of charges. Interpretations of the 1972 amendments emphasize the sequential nature of the process. “[E]ach step in the Commission’s administrative process is designed to be a prerequisite to the following step and, ultimately, to suit.” EEOC v. E. I. DuPont de Nemours & Co.,
The law on the question of the permissible scope of a complaint filed by the EEOC pursuant to the 1972 amendments has focused on the role of the EEOC as investigator and the statutory preference for administrative resolution of charges of discrimination. Proper investigation and conciliation of charges are characterized as jurisdictional prerequisites to a suit by the EEOC on a particular claim. But see EEOC v. Westvaco Corp.,
The district court in this case dismissed the EEOC action insofar as it related to the Portsmouth branches of ANB and the individuals allegedly discriminated against at those branches. Characterizing the Portsmouth charges as “new discrimination” not included in the original charge by Sandra Holland, the court analyzed whether or not these charges could be included in the EEOC civil complaint under the test set forth in General Electric. Finding that the EEOC investigation and reasonable cause determination concerned only the allegations of discrimination at the Suffolk branches, the court concluded it was without jurisdiction to hear the Portsmouth charges.
We disagree with the district court’s analysis and conclusion on this issue. The question was not whether the court had jurisdiction over “new” charges of discrimination brought for the first time by the EEOC in its civil complaint. The crucial issue was instead whether the district court had jurisdiction over the same charges of discrimination against a single defendant, expanded to include the same practices at all its branch offices when the original charge and investigation focused on one city but where there was common ownership and control over branches in both that city and a nearby city, аnd where the challenged hiring practices for all branches were similar. We conclude that jurisdiction over charges pertaining to all branches of ANB was proper in this case because there was, through the EEOC’s investigation and attempted conciliation with regard to Suffolk, adequate notice to the defendant of the practices under investigation and ample opportunity for conciliation concerning those practices. Had the conciliation effort been successful, given the common control over and similar practices at the two cities’ branches, whatever changes were to be instituted at the Suffolk branches would no doubt logically and necessarily have been made at the Portsmouth branches as well.
Our resolution of this issue does not disturb the rule announced in General Electric
This case, however, does not present such a situation. There is but a single charge of race discrimination in hiring. ANB is a single employer with operations at multiple locations, all subject to unified supervision and control and using similar hiring practices. 21 F.E.P. Cases at 1541. But cf. Stastny v. Southern Bell Telephone & Telegraph Co.,
We conclude, therefore, that the district court did have jurisdiction over the Portsmouth claims and should have considered proof related to them.
Ill
We turn now to the district court’s analysis on the merits. As indicated in our gen
[T]he fact [is] that from 1969 to 1975, blaсks were underrepresented in defendant’s work force, not only in the work force generally but also in the specific categories of officials and managers and office and clerical personnel. The Court cannot agree with defendant that these comparisons are “irrelevant.” Hazelwood School District v. United States,433 U.S. 299 , [97 S.Ct. 2736 ,53 L.Ed.2d 768 ] 15 F.E.P. Cases 1 (1977), held that comparative statistics showing gross statistical disparities are prima facie proof of a pattern or practice of discrimination. Id. at 308-09 [97 S.Ct. at 2741-42 ], The Court finds, therefore, that the statistical evidence presented here by the EEOC is prima facie statistical proof of a pattern or practice of discrimination.
21 F.E.P. Cases at 1552 (footnote omitted). The court then concluded, however, after analyzing the defendant’s applicant flow data and applying a standard deviation analysis to both the static work force statistics and the applicant flow data, that the inference of a pattern or practice of race discrimination had been neutralized. Id. at 1560. Having thus concluded that the statistically based prima facie case had been effectively rebutted, the court then turned to independent consideration of the EEOC’s nonstatistical evidence offered to show a discriminatory pattern or practice. Concluding that this evidence would not support an inference of discrimination, the court was led inexorably to the ultimate conclusion that the EEOC had failed to carry its burden of proof. 21 F.E.P. Cases at 1584.
For reasons that follow, we conclude that in a number of critical respects the district court’s analysis of the evidence was flawed by specific failures correctly to apprehend or to apply controlling legal principles developed by the Supreme Court for analyzing the evidence in this type case. These misapprehensions and misapplications constituted errors of law which invalidate with one exception the court’s ultimate conclusion that the EEOC failed to prove the pattern or practice of discrimination as charged and properly under consideration. We further conclude that under a legally correct analysis of the essentially undisputed historical facts in evidence, a prima facie case was established and except with respect to managerial employees in the Suffolk branches not rebutted or avoided, and that in consequence a pattern or practice of racial discrimination in hiring was proved.
Specifically we find errors of law in the weight apparently assigned by the court to a standard deviation analysis of certain of the statistical evidence; in the significance which the court assigned to ANB’s applicant flow statistics as rebutting evidence; and in the way in which the court treated the relationship between the statistical and nonstatistical evidence offered to prove the discriminatory pattern or practice charged. To show why, we briefly summarize the controlling principles for analysis of proof in this case, and then indicate wherein we think the district court so far misapprehended or misapplied these as to make erroneous its ultimate conclusion that the EEOC had failed to prove a pattern or practice of discrimination violative of Title VII.
The controlling principles are those embodied in the proof scheme developed by the Supreme Court for assessing claims of patterns or practices of disparate treatment, principally in International Brotherhood of Teamsters v. United States,
In the instant case, the EEOC sought within this scheme of proof to make out a prima facie case by a combination of static work force statistical evidence covering the charge period, evidence of specific hiring practices followed by ANB during that period, and evidence of specific instances of individual discriminatory actions during the period. In attempted rebuttal of the statistical evidence, ANB sought to establish its “insignificance,” rather than its “inaccuracy” in any computational or objective fact sense. Its chosen means of showing probative insignificance was two-fold: by subjecting it to a standard deviation analysis, to reveal its weakness as proof of a regular operating policy of purposeful discrimination; and by showing, through applicant flow statistical data, that its post-Act decisions were manifestly nondiscriminatory when considered in relation to its hiring opportunities during that period, particularly when subjected to a standard deviation analysis.
It is with respect to the evidence offered by the parties to support these positions that the district judge committed the specific legal errors of analysis that we now address.
First off, the court’s analysis reveals a basic misapprehension of the relationship between statistical and nonstatistical evidence offered to establish a prima facie case, of the relationship between these and evidence tending to rebut any prima facie case established, and of the appropriate mode of analysis under the disparate treatment proof scheme. This appears in the following way.
Although the court concluded that the EEOC had proved a prima facie case of a pattern of racial discrimination in hiring by ANB between 1969 and 1975, 21 F.E.P. Cases at 1552, it then found that “[t]he available hiring statistics, [a standard deviation] analysis, the evidence concerning the hiring practices of defendant, and the 31
While, as indicated, the suggested disparate treatment proof scheme is not ironclad and rigid, the mode of analysis used by the district court so completely skews its substantive underpinnings that the resulting conclusion of a failure of proof is simply not supportable. Under a proper analysis, all of the evidence, statistical and nonstatistical, tending to establish a prima facie case should first have been assessed on a cumulative basis. If that assessment showed a prima facie case made out, inquiry should then have turned to whether, by any of the suggested means, the prima facie case — the inference of discrimination — had been effectively dispelled. Under such an analysis, and with the statistical data correctly assessed, we conclude, for reasons that follow, that on the evidence before the district court, the EEOC with one exception did prove a pattern or practice of discrimination in the respects charged.
A.
We commence in agreement with the district court’s specific conclusion that looking alone to the EEOC’s static work force statistics,
The statistical data in respect of officers and managers, using qualified labor pool figures,
The Portsmouth figures are equally compelling. For four of seven years there were no black officials and managers; for the remaining three years there was one black employed in that category (2.7-2.8%). The percentage of blacks in the available work force was 4.8-6.9%. In the office and clerical workers category, the percentage of blacks ranged from 0.0-6.5% for six of the years, with a high of 9.3% in 1975, while the available work force was 13.9-21.5% black. As in Suffolk, the service workers were 80.0-100.0% black while the available work force was only 45.3-59.2% black.
These statistical disparities are substantial, in some cases reaching the “inexorable zero” point. Teamsters,
We turn now in detail to the process of analysis by which, starting from this point, the district court ultimately determined that this prima facie statistical case was defeated. One neutralizing factor for the district court was the perceived effect of a standard deviation analysis
The district court’s assumption was presumably drawn from general observations made by the Supreme Court in the course of footnote discussions of standard deviation analysis as a means of testing statistical proof in Castaneda v. Partida,
If a legal rule of analysis can properly be derived from the Castaneda footnote, it can only be that standard deviations greater than two or three necessarily exclude chance as a cause of underrepresentation. The converse of this — that standard deviations of not “more than two or three” necessarily exclude discriminatory design as the cause — is nowhere implied. Nor could it be, as we shall now attempt to show.
The Castaneda Court had no need to ex-plpre the levels of probability that exist in the range of “two or three” standard deviations, being content to note that beyond this range social scientists would find “suspect” for scientific purposes the hypothesis of random choice. When this range is explored, however, it appears that well short of three standard deviations the probability levels for chance as explanation have already dropped far below the point at which courts of law — concerned with proof by the “greater weight” or “preponderance” of the evidence — would presumably have discarded the hypothesis of chance. Just short of two standard deviations — specifically at 1.96 — the probability of chance is only 5 in 100; at just over two and one half, it is only 1 in 100; by three it is less than 1 in 100. W. Hays & R. Winkler, Statistics: Probability, Inference and Decision 218-19, 381-82 (1971). For this reason, authority can be found for the proposition that most social scientists, applying laboratory rigor to rule out chance as even a theoretical possibility rather than the law’s rougher gauge of the “preponderance of the evidence,” are prepared to discard chance as an hypothesis when its probability level is no more than 5%, i. e. at approximately two standard deviations. Id. at 394.
From all this we conclude that courts of law should be extremely cautious in drawing any conclusions from standard deviations in the range of one to three. Above this range, with standard deviations of more than three, the analysis may perhaps safely be used absolutely tо exclude chance as a hypothesis, hence absolutely to confirm the legitimacy of an inference of discrimination based upon judicial appraisals that disparities are, to the legally trained eye, “gross.” This we conclude is all that the Supreme Court has ever directly approved by its own use of the process.
B.
We turn now to the district court’s assessment of the defendant’s applicant flow data
We address these in reverse order, looking first to the conclusion that the number of hiring decisions was insufficient to support a conclusion of discrimination in their making. Because the prima facie statistical proof of discrimination was keyed to different employment categories based upon qualifications, hence involved different labor pools for base data, analysis of the sufficiency of rebuttal proof in these two respects must similarly be separately assessed.
ANB’s rebuttal applicant flow evidence showed that in Suffolk ANB hired 35 clerical employees and 2 managers over the seven year period 1969-1975, while in Portsmouth during the single year 1975 it hired a total of 23 clerical employees and 2 managers. 21 F.E.P. Cases at 1556 n.51. These are, in absolute terms, concededly small samples from which to attempt straight comparisons with applicant pools or general labor pools as sources of base data. Samples too small are suspect as a basis upon which to infer any pattern of discrimination in making employment decisions. See May- or of Philadelphia v. Educational Equality League,
There are two conflicting considerations to be kept in mind in exercising that judgment. The danger of unfairness to the employer in resting inferеnces of discriminatory employment practices on proof involving small total members of employment decisions is obvious. But there is the countervailing consideration that, given the difficulties of proving discriminatory motive under any circumstances, see Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1382 (4th Cir. 1972); United States v. Jacksonville Terminal Co.,
Guided by these general considerations, we cannot find error in the district court’s conclusion that the total number of hiring decisions affecting managers in the Suffolk branches — on ANB’s undisputed evidence but two over a seven year period— was too small fairly to support any inference of a discriminatory pattern of hiring. On this basis we agree that the prima facie case was rebutted with respect to this category of employee notwithstanding the proof pro and con with respect to other categories.
With respect to the numbers of decisions affecting both managers and office/clerical employees in the Portsmouth branches, we find error in the district court’s apparent conclusion that those numbers were also insufficient for inferential purposes. They were limited in ANB’s proof to those for just one year, 1975. For reasons more fully developed in our later discussion of the sufficiency of the applicant flow data affirmatively to rebut the prima facie case, we do not consider this omission of proof running to the whole record excusable on ANB’s part. Accordingly, we conclude that as to these categories, the prima facie statistical case is not rebutted by this obviously incomplete showing of the total number of hiring decisions made over the charged period.
With respect to the number of hiring decisions affecting office/clerical positions in Suffolk over the charged period— thirty-five on ANB’s proof — we think it quite sufficient as a basis for inferring the pattern of discrimination prima facie established. Accordingly, we find error in the district court’s contrary conclusion as to this category.
More fundamentally, the district court concluded that ANB’s applicant flow data in any event sufficed affirmatively to rebut the statistically based prima facie case by showing that its hiring decisions during the charge period were not discriminatorily motivated. Hazelwood has of course established that a prima facie statistical case can be so rebutted.
Over the EEOC’s objections the district court found ANB’s applicant flow data sufficiently reliable to consider in rebuttal of the work force statistics. When the court then assessed the data it concluded that because it did not give rise to an inference of discrimination, it sufficed to rebut the prima facie case made out by the static work force statistics. 21 F.E.P. Cases at 1555-56. We think the district court erred in its conclusion that the data was sufficiently reliable to be considered as rebutting evidence. Its reliability is suspect on three separate bases which in conjunction undercut its probative force for the intended purpose.
First, the applicant flow data for the Portsmouth branches is limited to only one of the charged years, 1975. Applicant flow data limited to one out of seven relevant years cannot be held to rebut a prima facie case based upon gross disparities revealed in static work force statistics over the period. It simply has not that probative force. The district court recognized its unreliability because of incompleteness, but excused the incompleteness because of what it considered the EEOC’s bad faith in failing to notify ANB until commencing action that the Portsmouth branches were to be included in the charges.
In consequence ANB had destroyed its pre-1975 records for Portsmouth, a decision which the district court concluded was reasonable and which accordingly should not be allowed to prejudice ANB in presenting its rebuttal evidence. We find nothing in Title VII, EEOC regulations, or Supreme Court interpretations of Title VII that would operate to relieve employers of the normal consequences of such a deficiency of proof.
The district court found sufficient excuse by negative implication from the EEOC’s requirement that all applications for employment be routinely preserved for six months, and that after a charge has been filed all relevant records be maintained until final disposition. 29 C.F.R. § 1602.14(a) (1976). From this the court concluded that ANB was reasonably entitled to decide, after the reasonable cause determination which did not include Portsmouth had been made, that preservation of relevant application forms for those branches were not necessary. 21 F.E.P. Cases at 1555.
Leaving aside all questions of the reasonableness of such a business decision, we disagree with the consequence given it by the district court. The affirmative obligation imposed by § 1602.14(a) to preserve records was clearly designed to protect Title VII plaintiffs from an employer’s destruction of possibly damaging evidence. This being its purpose, it cannot sensibly be interpreted as being intended also to protect employers against the consequences of their voluntary destruction of such records just because the affirmative obligation to preserve them has expired. So to interpret it would license a self-serving destruction of records by avoiding the normal factual inferencе of self-serving that arises from the destruction of evidence. This we think could not accord with the broad remedial purposes of Title VII. See EEOC v. Cook Paint & Varnish Co., 24 F.E.P. Cases 51, 55 (W.D.Mo.1980). Employers have been on notice since the earliest days of Title VII’s enforcement of the critical importance of
Next, the data’s reliability is open to serious question because it apparently reflected less than half — the EEOC contended only 46% — of the actual applicants from 1969-1975. The district court dismissed the EEOC’s contention of its unreliability on this score, finding that the contention was based upon a confused reference to the proportion of the available applications requested by the EEOC during discovery. 21 F.E.P. Cases at 1554. Whether or not the EEOC confused its references, it seems highly unlikely on the record we review that this data represents substantially all the applicant flow data for the years in question. As the district court noted, the total number of applications reflected in the data offered the court varied widely from year to year, from a low of sixteen in 1972 to a high of ninety-seven in 1974. Id. at 1554 n.42.
Finally, the data considered by the district court included service workers.
Suffolk Branches
Suffolk Branches
These figures translate into the following percentages:
Percentage of
Portsmouth Branches
C.
We turn next to the way in which the district court assessed the EEOC’s nonsta-tistical evidence of specific hiring practices. Specifically the EEOC alleged and introduсed evidence to prove that between 1969 and 1975 ANB failed to use objective, job related standards, used inconsistent standards and perpetuated the predominantly white work force through a preference for friends and relatives of employees and word-of-mouth recruiting (including walk-in hiring), and by maintaining an all-white interviewer staff.
The district court concluded that all these practices, individually and collectively assessed, were lawful and created no inference of discrimination.
While we are not prepared to say that attempted proof of this sort may never, by reason of its intrinsic weakness, have such a negative effect upon a prima facie statistical case, this evidence could not properly be given such an effect. The district court’s legal analysis leading to its contrary conclusion is flawed in two ways.
First, it failed to assess the evidence in the light of, and colored by, the gross underrepresentation of blacks in ANB’s work force already statistically demonstrated to the district court’s satisfaction. This was at odds with the teaching of such cases as Barnett v. W.T. Grant Co.,
This general approach obviously colored the district court’s overall analysis of the specific hiring practices challenged by the EEOC. In addition, we think the assessment of certain of the specific practices was further tainted by faulty analysis of the evidence addressed to those practices. To show why, we briefly summarize the pertinent evidence and the district court’s assessment.
The uncontradicted evidence showed that ANB relied almost exclusively upon walk-ins as a primary source of new employees, never advertising a vacancy unless it had exhausted the file without filling the position. Applicants were required to list on their applications friends or relatives employed by the bank. Thirty-two of sixty-five applicants hired in Suffolk from 1969-1975 and in Portsmouth in 1975-49.2% — had listed friends or relatives on their applications. Further, the applicants were screened and interviewed by an all-white interviewer staff whose evaluations of their attractiveness and neatness were very important factors in hiring. The EEOC contended that this evidence was probative of one of the traditional “badges of discrimination”: word-of-mouth recruiting rather than general advertising through established public channels to fill vacancies. Specifically, this was said to be established as the standard hiring practice by the facts that (1) friends and relatives of employees were demonstrably preferred, (2) vacancies were not advertised until after on-file applications were depleted, and (3) no notices of
The court’s finding that there was no preference for friends and relatives was crucial to the conclusion that word-of-mouth recruiting was not shown to be the primary means for filling vacancies. The evidence showed that thirty-two of the sixty-five hires — 49.2%—at Suffolk in 1969-1975 and Portsmouth in 1975 had listed friends or relatives on their applications. From this the court concluded that “[i]f anything, the . . . statistics show[ed] that the listing of friends and relatives was a minor factor; a majority of the hires had no ‘contacts’ working for defendants.” Id. at 1565.
Without ascribing controlling significance to this particular factor in the overall assessment of ANB’s hiring practices, we observe that if anything, this data implies that the listing of friends and relatives did indeed tend to perpetuate the underrepre-sentation of blacks in non-service jobs and their concentration in service jobs.
In similar fashion, the district court essentially rejected out of hand any significance for the fact that throughout the charged period, ANB used an all-white interviewing staff. We cannot quarrel with the court’s related conclusions that the criteria used for selection were for the most part objective and consistently applied, and that the subjective evaluations of attractiveness and neatness were business-justi
D.
We now briefly consider the district court’s analysis of the EEOC’s evidence of individual instances of discrimination. As earlier indicated, 31 of 52 black persons identified by the EEOC as victims of individual acts of discrimination in hiring gave testimony, and the district court found on the evidence presented that none was a specific victim of discrimination. In consequence, as with the hiring practice evidence, the district court dismissed this evidence as having no probative force in respect of the pattern or practice issue, or possibly treated it as having a negative impact for that purpose.
Because we conclude that the EEOC’s prima facie case was otherwise established and not rebutted without reference to this evidence, we find it unnecessary to review the district court’s findings and conclusions which led to its out of hand rejection. We observe only that the evidence was not offered at this stage to establish entitlement to individual relief, but merely as corroborating or buttressing evidence of a general pattern of racial discrimination in hiring. Assuming for purposes of this appeal that its cumulative impact for this purpose was rightly assessed by the district court as not buttressing the EEOC’s other evidence, we hold that neither could its cumulative impact be properly adjudged to rebut the EEOC’s case. Given the basis of our disposition, it may simply be set aside as a neutral factor in the overall assessment of the evidence.
E.
Looking now to the whole body of evidence before the district court, we hold, in concluding summary, that (1) the district court correctly determined that the EEOC’s static work force statistics established a prima facie case of discriminatory pattern or practice of hiring during the charged period; (2) except with respect to the Officials/Managers category in Suffolk, the district court erred as a matter of law in holding that this prima facie case was rebutted by the combined force of the standard deviation analysis applied to the static work force statistics, the applicant flow data for the charged period as tested by a standard deviation analysis, and the weakness or negative impact of the EEOC’s non-statistical evidence of hiring practices and individual instances of discrimination. Analyzed free of the identified errors of misapprehension and misapplication of controlling legal principle, we conclude that the evidence before the district court established a prima facie case based upon the statistically revealed gross disparities in the work force; that this was buttressed to some degree by evidence of hiring practices which tended to perpetuate the undisputed racial imbalance; and that this prima facie case — except in one respect — was never rebutted by legally sufficient evidence.
IV
Upon remand the EEOC is entitled to án injunctive decree . appropriately shaped to remedy the consequences of the discriminatory hiring policy we find conclusively established upon the record, and to further proceedings in which individual persons claiming to have suffered the consequences of that pattern or practice during the charged period may have their individual claims adjudicated. In these Stage II proceedings, an individual claimant is entitled, upon proving only that he or she was a black who applied unsuccessfully for a job with the defendant during the relevant period, Sledge v. J.P. Stevens & Co.,
As earlier noted, the district court has made findings and conclusions in respect of some persons who may present claims in the Stage II proceedings. Those findings and conclusions, made in connection with the general issue of the existence of a discriminatory pattern or policy and under different burdens of proof, have no preclusive effect in Stage II proceedings.
Consistent with the result we reach on the merits, we vacate the district court’s award of attorney’s fees in favor of ANB.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
APPENDIX A
APPENDIX B
APPENDIX C
Portsmouth Branches
These figures translate to the following percentages:
Notes
. The EEOC offered two different definitions of the relevant market area; ANB neither challenged the EEOC’s approaches nor offered its own definition. The district court found the relevant labor market area for ANB’s Portsmouth branches to be the City of Portsmouth and the Norfolk-Portsmouth SMSA; for the Suffolk branches, it defined the relevant area as the city of Suffolk and Nansemond County.
The court used the data set out in Appendix A for general work force comparisons for the years 1968-1975, comparing for each year the number and percentage of blacks employed by ANB with the percentage of blacks in the relevant market area.
The data employed here are of course subject to the general limitation implicit in the term “static.” They only depict the work force as it existed on specific days at intervals of a year during the charged period. They do not therefore purport to reflect all employment decisions occurring during those intervals, and may “miss” significant hirings occurring during those intervals.
It is this general limitation rather than any specific inaccuracy in the data here used by the district court that the dissent has pointed up. Slip op. at 93-95. While this limitation can of course give a distorted picture on the ultimate issue of post-Act discrimination, the means for correcting it are provided by the same Supreme Court decisions that authorize use of static work force statistics to make a prima facie case. See generally note 7 infra.
. The court used the data set out in Appendix B for special qualifications work force comparisons for the years 1968-1975, comparing for each year the number and percentage of blacks employed by the defendant in Suffolk and Portsmouth in each category with the percentage of qualified blacks in the available work force.
. Hiring procedures were similar at the Portsmouth and Suffolk branches.
. See Appendix C.
. The situation is similar to one that occasionally occurs in the private suit where the plaintiff names a defendant not named in the original charge filed with the EEOC. The general rule is that “[i]t is a jurisdictional prerequisite to the filing of a suit under Title VII that a charge be filed with the EEOC against the party sought to be sued.” Bowe v. Colgate-Palmolive Co.,
. The district court apparently concluded alternatively that, applying this principle, ANB’s hiring decisions during the relevant period, as revealed in its applicant flow data, were too few in number (39 in Suffolk from 1968 to 1975 and 27 in Portsmouth in 1975) to justify an inference of discrimination. 21 F.E.P. Cases at 1556.
. Section 703(j) of Title VII “imposes no requirement that a work force mirror the general population.” Teamsters v. United States,
. The district court analyzed, as well, general work force figures. See Appendix A. We recognize that in EEOC v. United Virginia Bank/Seaboard National,
. The district court included 1968 in its charts, but the charge years included only 1969-1975. The practices apparent in 1968 are consistent with the pattern in later years. Even so, in finding an inference of discrimination we have considered only 1969-1975.
. The district court applied the standard deviation analysis to the specialized work force figures, recording generalized values for the number of standard deviations revealed, as follows:
. In Hazelwood the Court used a standard deviation analysis to emphasize the importance of choosing the right labor pool from which to derive base data for showing statistical disparities. The Court was careful to emphasize that this was the sole purpose and that its “observations were not intended to suggest that precise calculations of statistical significance are necessary in employing statistical proof .... ”
. Another factor suggesting great caution in making fine-tuned use of standard deviation analysis in these cases is that its reliability diminishes in ways probably not susceptible of precise handling by courts as the binomial distribution sample diminishes in size. See W. Hays & R. Winkler, Statistics: Probability, Inference and Decision 222 — 26 (1971). The Supreme Court has not indicated the size samples reliably susceptible to this analysis. Castaneda, dealing with an observed figure of more than 300 in a sample of 870, referred in its discussion to the general rule “for such large samples.”
. See Appendix C.
. We do not consider still another possible basis of unreliability because of a lack of factual basis for assessing it. In some cases the comparison of hires to the relevant applicant pool for rebuttal may be entirely inappropriate because the employer’s discriminatory hiring practices are so well known throughout the community that blacks may be reluctant to apply because such an effort would be futile. See, e. g., Lea v. Cone Mills Corp.,
. ANB contests the EEOC’s assertion that the district court “lumped” together managerial, clerical and janitorial categories for its analysis of the applicant flow data. Brief for Appellee 31 n.15. Both parties are correct. The court combined all hires in its general analysis of the statistical disparities, 21 F.E.P. Cases at 1555-56, but separated out janitorial and managerial hires for its standard deviation analysis of the figures. Id. at 1559-60. However, in assessing the correctness of the district court’s general evaluation of the applicant flow data, we note that for that purpose all employees were “lumped” together.
. Th\s clerical category in Suffolk is all we consider here, given our conclusion that the prima facie case with respect to managers had been rebutted. Further, consistent with our position that where special qualifications are required the rebuttal data must also be so categorized, we approach the Portsmouth data by category and consider only the clerical hires due to the small number of managerial hires. The district court noted that two management trainees and two black service workers were hired in Suffolk during 1969-1975 and in Portsmouth in 1975. 21 F.E.P. Cases at 1559 n.57, 1560. Removing these hires and all service-worker applicants from the data, we are left with:
. The district court applied a standard deviation analysis to the office and clerical worker segments of the applicant flow figures, correctly finding the officials and managers categories of hires too small for such analysis. 21 F.E.P. Cases at 1559-60. In doing so, although the statistical and numerical comparisons were between the annual applicant pools and hires, the court analyzed the hires in relation to the qualified labor pool statistics for each city rather than the applicant pool. The court found this comparison mandated by Hazelwood and Castaneda. Id. at 1556 n.53. We find no such rule emanating from either case, noting that Hazel-wood’s discussion was merely collateral given that the Court ordered a remand to the district court for further findings on that data,
. The district cоurt also examined a number of specific practices “which the EEOC, before and at trial, suggested were discriminatory.” 21 F.E.P. Cases at 1560. Many of these allegations were made in the reasonable cause determination but were apparently not actively pursued at trial. The district court stated repeatedly in evaluating these claims that the EEOC put on no evidence to support them. We find no error in the resulting findings and conclusions regarding the discriminatory effect of retail credit checks, the requirement for a high school diploma, the requirement for character and employment references, testing, the failure to correspond with applicants or college education as a negative factor. To the extent the EEOC’s failure to follow up charges with attempted proof reflected irresponsible broadside charging — a conclusion apparently drawn by the district court — we obviously do not condone the practice and indeed approve the district court’s implicit condemnation of it. This does not, however, relieve either that court or this one of the obligation to subject evidence actually adduced of other hiring practices to independent, objective evaluation.
. The district court concluded at one point that the only word-of-mouth recruiting shown was that involving some affirmative efforts made by ANB to recruit qualified black employees, and that this obviously did not tend to prove discriminatory motive in hiring. While the court did consider and reject other suggestions of word-of-mouth recruiting, its apparent perception that this was the only direct evidence on the issue in the record clearly influenced the ultimate conclusion that the EEOC had failed to establish word-of-mouth recruiting as its primary hiring procedure. This completely warps the meaning and significance of the term in the context of Title VII litigation. As developed in this context, the term connotes a passive dependence for applicants upon informal advertising of vacancies through employees’ communications to friends, relatives and acquaintances and upon walk-in applicants, rather than upon systematic public advertising designed to reach the qualified available labor pool. There was of course substantial direct evidence in the record of word-of-mouth recruiting so understood.
Significantly, the court did not find and ANB does not contend that the affirmative action recruiting effort upon which the court focused in assessing the claim of word-of-mouth recruiting produced any results. Properly assessed this evidence simply shows one episodic means of recruiting used by ANB within an unmistakable general pattern of word-of-mouth recruiting assuredly not aimed specifically at blacks whether or not deliberately aimed to exclude them.
. Of the sixty-five hires, ten were black. Of these, two, or 20%, had listed friends or relatives on their applications. 21 F.E.P. Cases at 1565. Of the ten blacks hired, four were hired as service workers, including the two who listed friends on their applications. Comparing proportions of white and black hires listing friends, and noticing the percentage of black service workers who listed friends, we must eliminate the hypothesis that listing friends was a minor factor:
Dissenting Opinion
dissenting:
I dissent.
My difference with the majority opinion begins with its reversal of the district court’s determination that it (the district court) was without jurisdiction in this proceeding to consider a claim of discrimination in hiring at the Portsmouth branch of the defendant Bank. The district сourt based its conclusion that hiring practices at the Portsmouth branch were not a proper subject of suit in this litigation because such practices had not been included in the initiating charge on which the Equal Employment Opportunity Commission (hereinafter EEOC) acted, or in the investigation conducted by the EEOC in connection with that charge, or in the reasonable cause determination of discrimination as made by the EEOC, or had been a subject of conciliation between the EEOC and the defendant.
All of the factual findings on which the district court rested this determination are clearly supported by the record. The charge of Ms. Holland filed with the EEOC in June, 1969, which provided the basis for this proceeding, related solely to a refusal of employment by officials at the Suffolk branch of the defendant. In her charge she made no reference whatsoever to the Portsmouth branch. When the EEOC undertook
In short, from the filing of the original charge in June, 1969, up to the filing of this action by the EEOC (in default of any action by Ms. Holland) in January, 1976, the EEOC had confined its investigations, its determinations of discrimination (dated March 11, 1974) and its conciliation efforts (held in July and August, 1974) exclusively and wholly to the employment practices of the defendant at the Suffolk branch for a period of time terminating on January 13, 1970, and, in refusing to consider any employment figures at the Portsmouth branch, had firmly rejected as “irrelevant” any inquiry into the defendant’s employment practices at the defendant’s Portsmouth branch.
Whether, under the circumstances detailed, the district court’s jurisdiction in this case was confined to inquiry into hiring activities of the defendant at its Suffolk branch is a question controlled by our decision in EEOC v. General Elec. Co.,
If the rule enunciated in General Electric is applied in this case, it cannot be disputed that the scope of the action filed by the EEOC in this case should be restricted to the employment practices at the Suffolk branch. That was the activity covered by the charge filed by the complainant. The EEOC itself strictly confined its investigations to employment practices for the relevant time period at that branch alone. Even more significant is the fact that the EEOC refused to consider or investigate any employment practices at the Portsmouth branch. And in its reasonable cause determination, it made it crystal clear that any action at the Portsmouth branch was “irrelevant” to its investigation and to its reasonable cause determination. It was against this background that the EEOC filed this civil action, seven years after the charge of discrimination was filed, six years after it began its investigation of the charge, and two years after it had issued its reasonable cause determination, raising for the first time the question of discrimination at the Portsmouth branch, without a charge being filed, without an EEOC investigation, without an EEOC reasonable cause determination, and without any effort at conciliation by the EEOC of hiring practices at Portsmouth. If each step in the administrative procedure in a Title VII proceeding 1. e., an EEOC investigation, an EEOC reasonable cause determination, and an effort by EEOC at conciliation, is an essential “prerequisite ... to suit,” as the majority opinion declares, it would seem beyond controversy that there was no authority for inclusion of the employment practices at the Portsmouth branch in the civil suit by the EEOC in this case. Moreover, apart from the constricting language of the Act itself on the proper scope of this action, it is difficult to perceive under what principle of fairness and due process the EEOC should be permitted to inject into this proceeding at this belated date a claim that it had not merely failed to raise earlier but one that it
The majority opinion, though declaring unequivocally that “we require that a particular charge of discrimination be the subject of the reasonable cause determination and conciliation before being subjeсt to suit by the EEOC,” proceeds to reverse the district court and to find jurisdiction in this action over hiring practices at the Portsmouth branch. It bases this ruling on the reasoning that (a) the charge filed and investigated by the EEOC in connection with the Suffolk branch involved hiring practices which, if found illegal at Suffolk, would support a like finding in connection with the Portsmouth branch, (b) “the EEOC’s investigation [in 1969-70] and attempted conciliation [in 1974] with regard to Suffolk [gave] adequate notice to the defendant of the practices under investigation and ample opportunity for conciliation concerning those practices,” and (c) “[h]ad the conciliation effort been successful, given the common control over the similar practices at the two cities’ branches, whatever changes were to be instituted at the Suffolk branch would no doubt logically and necessarily have been made at the Portsmouth branch as well.” I submit no one of those reasons is sound.
A finding of hiring discrimination at the Suffolk branch on the evidence in this case would not necessarily establish discrimination at the Portsmouth branch. Decisions on hiring were made separately at the two branches by the interviewing officer of the respective branch. The labor market from which the two branches drew their job applicants were different and the two labor markets varied markedly in their black constituency, measured both in numbers and in qualifications. So far as the EEOC’s case rests on bare statistics, a finding of discrimination at either branch would depend on a comparison of the percentage of black hi-rees at each branch with the percentage of qualified blacks in the applicable labor market. The percentage of hirees as well as the percentage of qualified blacks in the applicable labor market, varied substantially at the two branches. Proof that the comparison of black applicants and hirees may have been sufficient at one branch to support an assumption of discrimination, based as such assumption would be on statistical data unique to that branch, would not establish that a similar situation existed at the other branch. Thus, if the statistical comparison resulted in a standard deviation of one at Suffolk and five at Portsmouth — a result that could be possible because of the differences in the labor market and perhaps a difference in the attitude of the interviewing officers — it could well be that any assumption of discrimination in hiring at Suffolk could not be justified but could be justified at Portsmouth. And the EEOC, as does the majority opinion, recognized all this, for it prepared and filed for the record separate evidence and separate statistical data and reached different results in connection with the two branches. A fortiori, it would follow that, under this supposition, Portsmouth might be required to make changes but Suffolk would not. Accordingly, two of the grounds assigned by the majority for its conclusion will not stand analysis.
The third ground is equally untenable. I suggest it is inexplicable to assume that an investigation which the EEOC itself had expressly noticed the employer was absolutely limited to one branch of the employer’s business and where it had represented to the employer that any discussion or investigation of employment practices at another branch (Portsmouth) of the employer was “irrelevant” would be effective notice to the defendant that the EEOC would years later charge that the employment practices at such other branch (Portsmouth) were included within the investigation and conciliation which never touched that branch (Portsmouth) so as to provide a basis for a later civil suit involving that other branch. Such a doctrine, if accepted, would make meaningless and unimportant the statutory provision for a reasonable cause
The majority would find support for its conclusion in the opinions in Statsny v. Southern Bell Telephone & Telegraph Co.,
Hill did refer to and distinguish Patterson v. American Tobacco Co.,
“Neither the Act nor the EEOC regulations define the statutory term “employees who work in different locations,” and we deem it unwise to attempt to draft a definition for every situation. It is readily apparent, however, that the labor market is the most important criterion for determining whether a company’s employees work in different locations. If the labor for each plant is recruited from different geographical areas, or if one plant requires labor possessing different skills from the labor employed at another company plant, it is obvious that the company cannot draw from the same labor market to man its plants. Under these circumstances, it generally can be said that the employees work at different locations. In contrast, if a company can operate two or more of its plants with employees from the same geographical area who are unskilled or possess the same skills, an applicant for a job can be assigned to an entry level position in either plant. Therefore, these employees, having been hired from the same labor market, would not generally fall within the statutory class of ‘employees who work in different locations.’ ”
If the controlling factor is identity of labor market, as I deduce it is in the light of the decisions in Patterson and Russell, then it is improper to treat the two branches of Suffolk and Portsmouth as one and to find that a discrimination charge against a branch in one labor market may be considered a charge against another branch of the same employer in another labor market. That, however, is what the majority does in this case and what I think is not warranted.
There is another reason, grounded on fair dealings and the fundamentals of due process, for denying jurisdiction over Portsmouth hiring practices in this suit. From 1969 to 1976, the EEOC was in effect representing to the defendant that there was no claim of hiring discrimination against the Portsmouth branch. As a result of its investigation of the Suffolk branch, the EEOC knew of the defendant’s practice of discarding employment applications after six months. Thus it was in possession of the knowledge that when it told the defendant it had no interest in the Portsmouth records, the defendant would follow its routine practice of discarding all applications after six months, thereby destroying evidence of possible great value to it in establishing a rebuttal to any charges against it involving the Portsmouth branch by proof of applicant flow from 1969 to 1975. To permit the EEOC now, without a charge to investigate, without any investigation, without a reasonable cause determination, without notice and without an offer of conciliation, and after six years of implicit representation that it was making no claim of discrimination at the Portsmouth branch, and after the defendant had placed itself at a disadvantage in proof because of the EEOC’s own conduct, to attempt to piggybaсk Portsmouth onto Suffolk in a belated claim of hiring discrimination offends the purposes of Title VII as well as that element of fundamental fair dealings which is at the base of due process. And, though it is not discussed in the majority opinion, prejudice to the defendant arising out of what has all the appearances of a legal “ambush,” whether intended or not, was, as we see in a moment, one of the “triable issues” in this case. The very inclusion in the Act of the prerequisites to suit, to which I have already referred, was to prevent an “ambush” and to avoid the inevitable prejudice such an “ambush” would impose on an employer such as this defendant against whom the EEOC, after some seven years, unexpectedly and without prior notice, leveled the charges relating to the Portsmouth branch. Under the language and intent of the Act, as construed in General Electric and other like authorities, and under every principle of fundamental fairness, any inquiry into hiring practices of the Portsmouth branch should have been excluded from the case. The district court agreed. The majority reverses. I think the majority is wrong.
Turning from the jurisdictional issue to the consideration of the merits of the
Though offering the same types of employment, the two branches received separately any applications for employment at their separаte branch offices and made their own separate determination on hiring. The branches were located about twenty-five miles apart in an area of the State where access between cities is not especially easy. In their employment, the two branches drew from entirely different labor markets. The district court found, and the majority accepts the finding, that the Suffolk branch draws its employees from the Suffolk and Nansemond County labor market
When the trial actually began, the parties stated their respective claims either for relief or by way of defense. Counsel for the EEOC began his presentation of his claim by asking rhetorically “what are we required to do” to make out a prima facie case, and then answered his own inquiry by declaring that he (meaning the plaintiff EEOC) “was required to show that an individual who applied for a job was black . . . [was] qualified . . . that a vacancy existed and [was] rejected.” When that proof had been adduced and a prima facie case was thereby made out, EEOC counsel proceeded: “The burden then shifts to the defendant to come forth and show your Honor, based upon valid business reasons, why these individuals were not considered; in fact, were rejected.”
The EEOC’s proof at the trial followed precisely the scenario thus laid out by its counsel at the commencement of the trial. In its live testimony following this statement by its counsel of its theory of the case, the EEOC began by developing in painstaking fashion the procedure followed by it in its investigation of alleged discrimination on the part of the defendant. It first secured and reviewed all employment applications at the Suffolk branch for the entire relevant period (i. e., 1969 to 1975) and all employment applications at the Portsmouth branch for the years 1973-1975, inclusive. After identifying all the black applicants on these lists, the EEOC, through its representatives, sought to communicate with them suggesting that they might have a claim оf discrimination against the defendant and a right to backpay, and requesting information from them relative to their claims. The EEOC took the replies it received and proceeded to identify all those made within six months of any employment decision by the bank at the relevant branch. It did this because the undisputed and agreed practice of the bank, as we have seen, was to consider only applications filed within six months of the time when a vacancy arose. If a white was employed at any time when there was a qualified black applicant or applicants with an application pending within the preceding six months’ period, then that black applicant or those applicants were treated by the Commission as potential discriminatees. In this manner the 51 discriminatees asserted by the Commission were, according to the EEOC’s testimony, identified by the EEOC through its witness, a paralegal with seven years’ experience in this type of work. On the basis of this identification the EEOC stipulated that the 51 individuals so identified represented the only potential discriminatees in this action. The EEOC then proceeded to offer proof of its investigation to establish exactly the amount due each of such discrimi-natees by way of backpay and the result of this investigation was offered as proof of the amount of backpay due each claimant. The Commission followed up with the testimony of some 34 of the individual claimants. These claimants gave the circumstances on which they based their claims of discrimination.
Contrary to the expectations of the Commission’s counsel, the bank, not only impeached the statistical evidence of the Commission, but it did, at the conclusion of the Commission’s case, accept the burden of production, as declared in Texas Dept. of Community Affairs v. Burdine,
At this point it seems apprоpriate to mark out precisely the conclusions reached on this record in the district court’s opinion dismissing the action and the reasoning of the majority opinion reversing the district court and ordering exclusive relief in favor of the plaintiff, along with my own statement of my views which differ from those of the district court and those stated in the majority opinion. After finding that the action properly only embraced hiring decisions at the Suffolk branch, the district court proceeded, however, to consider the discrimination charge as it affected separately first the Suffolk branch and then the Portsmouth branch since the EEOC sought to present in this action its claim against the Portsmouth branch. It held at the outset that solely on the basis of the EEOC’s statistical evidence of hirings in the two agreed work-force categories at the two branches, compared both with the overall black work force and with the qualified black work force in the specific categories involved in the action, the EEOC had made out a prima facie case. It then undertook to determine whether the defendant had rebutted or overcome both the prima facie case resting on inferences drawn from the statistical evidence and the additional non-statistical evidence offered by the EEOC, which related to the 51 claims of individual discrimination and to the defendant’s hiring practices. It found that, when tested by the standard deviation test developed in Castaneda, the statistical evidence was not sufficient to support a reasonable hypothesis of discrimination and the prima facie finding, based on the raw statistical data, was thus neutralized as proof of discriminatory motive or intent. It then reviewed carefully the applicant flow evidence, found it reasonably reliable, and, after evaluating all the evidence on the 51 claims of individual discrimination identified by the EEOC, found as a fact that in no case did the evidence support a finding of discrimination. Finally, it reviewed the defendant’s hiring practices and found, again as a fact, that none was discriminatory. It accordingly dismissed the complaint. Thus, the district court found (a) that the statistical evidence was, when tested by the Castaneda standard, neutral in the probability of discrimination in hiring, (b) that there was, as a matter of fact, no discrimination on the part of the defendant in failure to hire any one of the 51 alleged discriminatees, who, by stipulation of the parties, were “the only [possible] potential discriminatees” out of the black applicants for employment at either branch of the defendant for the relevant time periods, and (c) that the defendant had engaged in no hiring practice that resulted in discrimination in the relevant time period.
The majority opinion agrees with “the district court’s ruling that the EEOC’s statistical proof made out a prima facie case of discrimination” but found that the district court “erred in holding that defendant’s rebuttal evidence was sufficient to over
At the outset, I differ with both the district court and the majority opinions in their conclusion that on the statistical evidence alone the EEOC had proved a prima facie case. I think that the application of the standard deviation test as declared in Castaneda, which was unquestionably required in evaluating the statistical evidence in considering whether the EEOC had made out a prima facie case on the basis of such statistical evidence alone,
I first address the finding by the district court and the majority that solely on the
As a matter of fact, these figures on employment as used by the majority as a basis for its concurrence in the district court’s finding of a prima facie case are inadequate in themselves to make out a prima facie case. In 1969 the EEOC’s own undisputed evidence shows that there were five persons hired at the Suffolk branch in the office/clerical category, one of whom was a black (Beulah Chambers, hired on November 17, 1969).
But, apart from the complete inadequacy of even the evidence on which the district court and the majority sought to ground their finding of a prima facie case of a “standard practice” of discrimination in hiring, I think that the majority sought to deduce a prima facie case from statistical evidence, which necessarily involves an element of intent, in the wrong way and by disregarding the test established by the Supreme Court and followed by us in United Bank for such deduction. Intent is an essential element in a disparate treatment case. Manifestly, whenever, as here, a court seeks to determine whether a hiring selection by an employer is racially tainted by a statistical comparison of hirings with available qualified work force in the labor market, it does not ordinarily do so on the basis of evidence of express intent or motive. Statistics do not provide expressly such evidence. One must resort to the law of probabilities in assessing such statistics for purposes of arriving at a possibly rea
In reaching their determination that the EEOC had established a prima facie case solely on the statistical evidence, both the district court erred and the majority departed from the rule established by Castaneda and adopted by us in United Bank for qualifying statistical evidence in this context. The district court did it is true later apply the Castaneda standard in determining whether the statistics, when tested by the Castaneda rule, rebutted the pri-ma facie finding. In so doing it determined that the deviations in this case, taken over the full period in both categories, were not “more than two or three.” It concluded that such determination “neutralized” the value of the statistics as proof of a tainted hiring practice and as a basis for a hypothesis of bias in the hiring process. I agree with the district court in its calculations under the Castaneda rule, as I assume the majority does at least, it does not express disagreement. My difference with the district court is its failure to use the Castaneda test in determining whether the EEOC had made out a prima facie case with statistical evidence which was “neutral” in providing authority for a hypothesis of intent. In taking this position, I am following precisely what the panel did in United Bank,
If, however, we are to apply the Castaneda test by way of rebuttal, as did the district court, I agree with the district court’s conclusion that the deviation in this case in the statistical evidence was not sufficient to render the hiring selections of the defendant “suspect” of bias. Under those circumstances, the district court correctly held that the statistical evidence was “neutralized ” as evidence of bias in the hiring selection and, if bias was an essential element of the plaintiff’s case, as the plaintiff itself concedes, it was necessary for the Commission to produce evidence of it elsewhere in the record, for, as we have seen, it is the Commission’s burden to persuade throughout the case under Burdine. The majority, however, takes issue with this conclusion. As I read it, the majority opinion does not find fault with the district court’s finding that the standard deviation reflected in the statistical evidence for the two pertinent employment categories was not “more than two or three.” It contends rather that the district court committed “legal error” in the neutral effect given by it to a finding that the standard deviation in the statistical evidence was no “more than two or three.”
The majority opinion faults the district court on this point because that Court held that, under Castaneda, “if standard deviations reflected in static work force statistics were not ‘more than two or three’ the disparities were necessarily shown to be statistically insignificant.” (Emphasis added) It asserts flatly that this statement “is simply incorrect.” The statement of the majority is not, however, a strictly accurate reading of the conclusion which the district court said should be drawn from a standard deviation of “not more than two or three.” What the district court did conclude was that, when the standard deviation in the employee selection was more than “two or three,” it was a fair hypothesis, based on accepted standards of mathematical probabilities, that the selection whereby blacks were not hired was “suspect” and not by chance but, conversely, that if the standard deviation in such a situation was no “more than two or three,” there was no.basis for a hypothesis that the selection was by design rather than by chance. In essence, the conclusion was that, if the deviation was no “more than two or three,” that fact would not permit a hypothesis of bias or design as distinguished from chance and would be purely a neutral indicator insufficient to satisfy the plaintiff’s burden of persuasion, which as Teamsters teaches, goes with the plaintiff in a discrimination case throughout the proceedings.
In my opinion, Castaneda begins with the premise — a premise reaffirmed recently in Burdine, supra — that the burden of persuasion in a discrimination case rests throughout the case, both in establishing a prima facie case and in sustaining a judgment оf final liability, upon him who asserts discrimination.
I would assume the majority does not suggest a court might hypothesize when the deviation is no “more than two or three” that the employer’s selection of hirees was by design, /. e., was discriminatory. To do that would be to give the same weight to a
The best evidence of discrimination or no discrimination in this case does not, however, consist of probability of inferences drawn from what are clearly neutral statistics but of the defendant’s actual employment decisions themselves, analyzed under a proper applicant flow standard. Statistics support inferences but only inferences which, under appropriate circumstances may support a judgment of discrimination if no attempt at rebuttal is made.
“Since the issue is whether Hazelwood discriminated against blacks in hiring after Title VII became applicable to it in 1972, perhaps the Government shouldhave looked initially to Hazelwood’s hiring practices in the 1972-1973 and 1973-1974 academic years with respect to the available applicant pool, rather than to history and to comparative work-force statistics from other school districts. Indeed, there is evidence in the record suggesting that Hazelwood, with a black enrollment of only 2%, hired a higher percentage of black applicants than of white applicants for these two years. The Court’s opinion of course permits Hazel-wood to introduce applicant pool data on remand in order to rebut the prima facie case of a discriminatory pattern or practice. This may be the only fair and realistic allocation of the evidence burden, but arguably the United States should have been required to adduce evidence as to the applicant pool before it was entitled to its prima facie presumption.” (Italics added)
And in New York Transit Authority v. Beazer,
“We do not know, however, how many of these persons ever worked or sought to work for TA. This statistic therefore reveals little if anything about the racial composition of the class of TA job applicants and еmployees receiving methadone treatment. More particularly, it tells us nothing about the class of otherwise-qualified applicants and employees who have participated in methadone maintenance programs for over a year — the only class improperly excluded by TA’s policy under the District Court’s analysis.”32
We followed the same rule of relying on applicant flow data as a refutation of any claim of discrimination in EEOC v. United Virginia Bank/Seaboard National,
Perhaps because it recognized the force of Justice White’s concurring opinion, the Commission in this case attempted to establish discrimination both prima facie and substantively by testimony of applicant flow data. The bank offered its rebutting testimony. On the basis of all the evidence, most of which consisted of live testimony, the district judge found that not a single hiring decision of the defendant during the relevant period was tainted by racial bias nor had a single one of the 51 persons who the Commission asserted were the “only potential” discriminatees among those who
The first objection raised by the majority opinion to the use of applicant flow data is its conclusion that the applicant flow figures for the Suffolk branch were incomplete. This same point was advanced in the district court by the EEOC and that court, after carefully reviewing the evidence, concluded that the figures were “reliable.” Though this was plainly a finding of fact by the trial court and though such finding was not clearly erroneous,
Ms. Stephens, a paralegal employed by the EEOC, was directed by the EEOC to determine whether any individual blacks had been discriminated against and who they were. To do this she obtained and reviewed all the applications for employment at the Suffolk branch for the years 1969-75. The majority, however, questions that Ms. Stephens had access to or reviewed all the applications for employment for such period. It points to the language in the stipulation of facts, which states that, “[ajfter a review of the available applications filed with American National Bank in Suffolk from 1969 through 1975 and in Portsmouth during 1975 . . . . ” It attaches special meaning to the adjective “available” and suggests that “it seems highly unlikely on the record we review that this data represents substantially all the applicant flow data for the years in question.” It offers as a basis for this only that the district court had noted that “the total number of applications reflected in the data offered the court varied widely from year to year, from a low of sixteen in 1972 to a high of ninety-seven in 1974.” From this single observation of the district court the majority made its finding that the employment applications were incomplete. And this is, I submit, contrary to the testimony of Ms. Stephens.
In its note 47, the district court discussed Ms. Stephens’ testimony. In the course of her testimony, she was interrogated on the applications she had reviewed for the Suffolk branch. The district court indicated its unwillingness to admit in evidence the EEOC’s exhibit prepared on the basis of her review unless it covered all the employment applications for the pertinent years at the Suffolk branch. After some sparring, the witness affirmed that her exhibit covered all the applications. Moreover, during the colloquy at that time, counsel for the EEOC stated: “We believe it [the proffered exhibit] reflects those applicants, the total applicants, and the percentage of black applicants for the years 1969 through 1975.” (Emphasis in text) The figures in the exhibit are consistent with the defendant’s compilation of the number of applications filed at the Suffolk branch for the pertinent
The second objection of the majority to the applicant flow data relates solely to the Portsmouth branch. That branch had employment applications for no years behind 1973. The uncontradicted evidence, as incorporated in the stipulation of the parties, was that as a general rule the defendant did not retain employment applications for more than six months. This was because of its practice that in filling a vacancy, it did not go back further than six months in its review of applications. The district court found this a reasonable practice, and one that the defendant generally followed, and, so far as I read it, the majority does not take issue with such finding. In 1970 the EEOC had told the defendant that, though it was investigating an employment claim involving the Suffolk branch, it was not interested in the Portsmouth branch and did not wish to review the records at such branch.
Not only had the Commission thus assured the bank that the Portsmouth branch was not involved in any charge of discrimination, but also there was another circumstance which was calculated to assure the bank that, with the possible exception of the dormant charges of Chambers against the Suffolk branch, the bank was in full compliance with the Act. In 1973, the Office of Federal Contract Compliance, Department of the Treasury, acting under the authority of Executive Order 11,246,
The injection of the Portsmouth branch into the action more than six years after the EEOC had notified the defendant it had no interest in employment at the Portsmouth branch undoubtedly came as a shock to the defendant. Until it was first notified that a charge of discrimination was being leveled against that branch, it had no particular reason to retain beyond six months any employment applications at the Portsmouth branch. I think the district court was fully justified in finding the action of the defendant in not retaining all its employment applications for the years 1969-75 at the Portsmouth branch was perfectly reasonable and in using the clear evidence of a want of discrimination in the years 1973-75 as a rebuttal of any claim of a practice of discrimination at the Portsmouth branch.
The majority, however, finds fault with this finding of the district court. It appears to suggest that the defendant may have destroyed the earlier records in order
The final conclusion by the majоrity that the defendant’s applicant flow figures are flawed because they included the category of janitors will not stand examination. Such inclusion, the majority suggests, inflates the number of black hirees used in the statistical comparison. Actually, though, if we exclude black janitorial employees in the statistical comparison, there is no real change in the standard deviation. Thus, in the office/clerical category, there were 35 persons employed at the Suffolk branch between 1969 and 1975. Of these 5 were black, excluding the 2 black janitorial employees. Applying the standard deviation test to these figures, I find that, using the qualified work force in Suffolk, a standard deviation of 1.80; if we use Nanse-mond County statistics, a standard deviation of 2.63; and if we combine Suffolk and Nansemond County, a standard deviation of 2.21. This claim of error in the use of the applicant flow figures, even if sound (which I do not concede), is thus groundless. When the black janitorial employees are clearly excluded, the standard deviation is still well below the level of “more than two or three.”
It is thus manifest beyond dispute that the district court was warranted in making its factual finding that the applicant flow data were “reliable” and, on the basis of such data, in finding that none of the bank’s hiring decisions in the relevant period was racially tainted. And this conclusion cannot, I submit, be impeached by any inference erroneously deduced from “neutral” statistical data. After all, the applicant flow data are evidence which could be neither rebutted nor given a discriminatory “coloring” by this neutral statistical evidence.
I think the majority improperly fails to give proper, if not controlling, weight to the district court’s finding of want of discrimination in the actual hiring decisions themselves in arriving at its conclusion that, on the entire record, the EEOC had made out factually a case of liability. I take it as well settled that a federal appellate court, such as we are, is a court of error whose function is limited to affirming, modifying, vacating, reversing or remanding for further proceedings upon a consideration of trial court error; it does not engage in equity review, giving right judgments upon the whole record, nor conduct de novo review with or without additional evidence. If, however, this view of our function is inaccurate and we may properly assume the fact-finding function of the trial court in what I submit is contrary to the proper scope of appellate review, then it is necessary to review all the evidence in reaching its findings of fact, and this would include the fact that not one black, identified by the EEOC, had been discriminated against by the defendant. The majority in effect disregards such evidence, particularly its complete refutation by the defendant, and never weighs it in reaching its conclusion.
All allegations of hiring practices are of the “boiler-plate” variety made by the Commission indiscriminately in all cases, irrespective of how relevant such allegations may be in the particular case. The district court found that this was the situation in this case. It proceeded to underscore the fact that the EEOC made no effort at trial to prove that any of these practices resulted in any discrimination. The majority seems — at least, in part — to agree with this finding. Thus it joins the district court in condemning the EEOC’s action in this case in making “irresponsible broadside” charges in its complaint and in failing “to follow up charges with attempted proof.” It agrees with the district court in dismissing out of hand the bulk of all these “irresponsible broadside” charges.
I shall first deal with the charge relating to white interviewing officers. The majority concedes that “it is clear that the use of an all-white interviewing staff standing' alone could not support a determination of liability”
The legal error which the district court committed and which faulted its findings of fact under the majority’s reasoning was that, in reviewing the charges with reference to practices (which the majority implicitly concedes standing alone would not support a judgment against the defendant) the district court failed “to assess the evidence in the light of, and colored by, the gross underrepresentation of blacks in ANB’s work force already statistically demonstrated” and confined its “inquiry ... to specific practices isolated from any inference of discrimination already established. It was in effect, as if the EEOC had sought to base its case solely upon the nonstatistical evidence relating to hiring.” The difficulty with all this reasoning is that there was no statistical evidence of discrimination in this case, I submit. Whether we look at the cold figures or measure the statistics by the standard deviation test established by Castaneda, the statistical evidence does not justify “any inference of discrimination;” the statistical evidence is at best neutral and, being neutral, it can give no “color” to the EEOC’s charge. The only basis for a finding by the majority of discrimination in this case is the nonstatistical evidence and even the majority implicitly recognizes, I submit, that this nonstatistical evidence is insufficient in and of itself to sustain a finding of discrimination. There is accordingly no warrant for diagnosing the district court’s finding on these nonstatistical matters as infected with legal error.
In summary, it is obvious that the statistical evidence was at best neutral and certainly was insufficient to support a prima facie finding of discrimination, when properly tested by the standard deviation test mandated by Castaneda,
There remains an ancillary point that deserves perhaps some comment, though I do not regard it as relevant under my analysis of the case. The majority opinion dismisses the finding of the district court on the individual claims and declares that such rulings had “no preclusive effect” on the right of these claimants to relitigate their individual claims on remand. It reaches this conclusion because, as it says, the evidence in connection with these claims “was not offered at this stage to establish entitlement to individual relief, but merely as corroborating or buttressing evidence of a general pattern of racial discrimination in hiring.” I submit this is contrary to the agreed triable issues and to the Commission’s own statement of its claim, as quoted by me supra. One of those issues was
Finally, I would add that this case and United Bank are in effect twins. Both involved bank branches located in the very same areas. The charges in both cases were roughly the same. The evidence submitted followed the same pattern. The district court reached a like conclusion in both cases. On appeal we sustained the dismissal in the earlier case (United Bank) but reverse it in this case. Such inconsistency in decision is unfortunate and properly raises doubts in the public mind about even-handedness. I am unable to see how we can decide one case in favor of the defendant and not do likewise here. The rights of parties when they are the same, as I submit they are in the two cases, should not vary with different panels of the same court. I fear that is the situation here.
I would affirm the dismissal of this action for the reasons stated above.
. General Electric was reaffirmed in EEOC v. Chesapeake & Ohio Ry.,
In Bridgesmith, Representing the Title VII Class Action: A Question of Degree, 26 Wayne L.Rev. 1413, 1417 (1980), the writer says:
“Although courts are not overly restrictive in interpreting the administrative prerequisites to suit, a clear circumvention of the administrative scheme will result in the dismissal of the initial complaint. In Jerome v. Viviano Food Co.,489 F.2d 965 (6th Cir. 1974), the plaintiff filed a charge of sex discrimination with the EEOC but did not obtain a right to sue notice from the EEOC before instituting suit in federal court. The court granted the defendant’s motion for dismissal, holding that an EEOC opportunity for investigation and conciliation is at the heart of the Title VII remedy and may not be avoided by a litigant in order to bring a judicial complaint. [Id. 966; accord, Troy v. Shell Oil Co.,378 F.Supp. 1042 (E.D.Mich.1974), appeal dismissed as moot,519 F.2d 403 (6th Cir. 1975)].
“An obvious problem exists when the Title VII litigant is empowered to bring a judicial complaint which differs materially from that which was brought with the EEOC. If continuity is lacking between the administrative relief afforded by Title VII and a subsequentjudicial proceeding, the administrative first step would be illusory. As a matter of due process to be afforded Title VII defendants, there should be some basic relationship between the judicial complaint and the EEOC charge which preceded it. There has never been a question that the EEOC charge and subsequent judicial complaint should somehow relate to one another. Much litigation has taken place, however, concerning the degree to which synonymy is required.
“One commentator stated that the applicable principle is one of affording the charged party with an opportunity for rebuttal. [See Smalls, supra, note 6, at 830, (28 S.C.L. Rev.)]. Therefore, if a substantially different issue arises late in the investigatory or conciliation procеss, the charged party has no opportunity to rebut. Rebuttal, in the nature of an opportunity to be heard, is necessary for the protection of due process. The question is clearly one of fact, and relatedness between an EEOC charge and a judicial complaint should be dependent upon adequate notice to the charged party and ample time to be heard.” (Emphasis in text)
. Quoting from EEOC v. E.I. DuPont de Ne-mours & Co.,
. In Patterson v. American Tobacco Co.,
. See Bridgesmith, supra, 26 Wayne L.Rev. 1413.
. This case later came before the court in
. Just as in EEOC v. United Bank/Seaboard National,
. The majority concedes that the evidence was insufficient to support a finding of discrimination in connection with hiring in the officer/manager category. We are thus only concerned with hirings in the office/clerical category.
. In this discussion of the merits of the claim, we deal with the Portsmouth branch as well as the Suffolk branch, though, under what I conceive to be the proper issue in the case, the Portsmouth branch operation should have no place in this discussion. Since, however, the majority has dealt with the Portsmouth branch as properly within the issues and since, as I view it, there is no basis for an action involving the Portsmouth branch, I have chosen to deal with the Portsmouth branch despite my firm opinion that the court in this case should never have considered the Portsmouth branch as a proper subject of inquiry here.
. See the language of Justice White in Hazelwood, quoted later,
. Stipulations 37 and 38.
. The use of Nansemond County as a labor source in establishing the relevant labor pool is, in my opinion contrary to recent precedent both of this and other circuits. The proper standard for establishing the labor market in this context is derived from an applicant flow analysis. We, in effect, held this in United States v. Fairfax County,
“At the outset, we note that applicant data are normally highly relevant evidence of an employer’s labor market. See, Hazelwood School District v. United States,433 U.S. at 308 n. 13,97 S.Ct. at 2741 n. 13. Those who apply constitute the pool from which employees are selected.”
The same rule was stated by the Fifth Circuit in Markey v. Tenneco Oil Co.,
“assign a statistical weight to the percentage of blacks in each parish [the employment area] based on that parish’s contribution to the applicant pool. Absent discriminatory recruiting practices, the percentage of applicants from a particular parish may be probative of the willingness of individuals in that parish to travel to the Tenneco plant and of the relative accessibility of the plant to residents of the parish, and thus be a more accurate measure of that parish’s contribution to Tenneco’s labor pool. The trial court should, of course, consider any evidence that helps define the areas from which Tenneco would normally be expected to draw its employees.” If we apply this standard, Nansemond Coun-
ty should be eliminated from the relevant labor pool and Suffolk should be treated as the sole source. Thus, the undisputed evidence establishes: Of the alleged discriminatees at the Suffolk branch, all were residents of Suffolk. Again, in the EEOC listing of black applicants denied employment discriminatorily in its answers to interrogatories, every applicant was at the time a resident of Suffolk. (See Appendix pp. 1660-1661) The record does not list a single applicant at Suffolk who lived in Nanse-mond County. The use of Nansemond County as a source of employment applicants is accordingly unsupported by the record and the proper labor pool, if we apply as we should applicant flow, in Suffolk.
. But two of the Portsmouth applicants identified by the EEOC as alleged discriminatees lived elsewhere than in Portsmouth at the time. One of these lived at Chesapeake; the other who lived at Virginia Beach applied for a job as a manager and was not interested in a office/clerical job. Thus, the use of the Norfolk area as a labor pool for employment by the bank at the Portsmouth branch, also, seems unjustified for the same reasons stated in Note 11.
. The burden in such a case is not one of “convincing” but only one to “produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.” Texas Dept. of Community Affairs v. Burdine,
For a recent restatement of this, as it applies particularly to statistical evidence, see the remand of Johnson v. Uncle Ben’s, Inc.,
. Counsel for the EEOC in this outline of his theory of the case was making a statement of the classical disparate treatment formula of McDonnell Douglas v. Green,
. Castaneda v. Partida,
. The majority, I submit, indicates in this sentence, fatal misunderstanding of the burdens on the respective parties in the McDonnell Douglas context. When the plaintiff in a McDonnell Douglas type case makes out a prima facie case, the burden on the defendant is merely to produce “evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons.” Texas Dept. of Community Affairs v. Burdine,
. See Hazelwood, supra,
“A precise method of measuring the significance of such statistical disparities [between qualified work force and hirings] was explained in Castaneda v. Partida,430 U.S. 482 , 496 — 497 n. 17,97 S.Ct. at 1281 n. 17 ... . It involves calculation of the ‘standard deviation’ as a measure of predicted fluctuations from the expected value of a sample.”
. For an interesting comment in this regard, see Lerner, Employment Discrimination: Adverse Impact, Validity, and Equality, Supreme Court Review (1979) 17 at 32-33:
“The inappropriateness of comparisons between the racial makeup of the general population and that of an employer’s work force is evidenced by the obvious fact that general population figures count children equally with adults, and few children have the strength, skill, and attention span needed to drive heavy trucks. In more general terms, as long as we have child labor laws, general . population figures will always produce gross overestimates in the labor force of any area. To dismiss this fact in making group comparisons as if the error were a constant one is simply wrong. We know that the ratio of . children to adults differs markedly in different groups at different times and places, as does the ratio of older, retired people to active adults. As a result, the overestimation will often be significantly greater for some groups than for others.”
. 1 confine my discussion to the office/clerical category because, as I have already noted, the majority concedes there is insufficient evidence to sustain a finding of hiring discrimination in the officer/manager classification for the relevant period.
. See EEOC’s Exhibit # 41, set forth at page 1561 of the Appendix. This fact is confirmed in EEOC’s report of investigation where it states 5 persons were employed in this category, one of whom was black. Incidentally, this was the only investigation, limited as it was basically to the year 1969, made by the EEOC before it filed its suit.
. See note 9.
. The black hiree in 1974 was Gwen Bethea and in 1975 Karen Estes.
. In looking at the Nansemond County figures, we must remember that it was the admitted policy of the bank to favor those applicants living near the branch (a practice which would work against employment from Nansemond County) and apparently Nansemond County individuals were not attracted to apply at the Suffolk branch. This latter fact is evident from the fact that, of the 51 discriminatees charged to have been discriminated against, not one who applied at the Suffolk branch was from Nansemond County. The use of Nansemond County statistics, in evaluating employment at the Suffolk branch, is at best of minimal value.
. Similarly there is no difference either between the district court and the majority, or between the majority and myself, over the agreed legal rule applicable to this claim. The EEOC must prove, in order to establish a claim of discriminatory practice in hiring, more than “the mere occurrence of isolated or. ‘accidental’ or sporadic discriminatory acts” in hiring; it must prove that racial discrimination in such hiring over the period in the two classifications in issue was “the standard operating procedure” of the defendant. International Brotherhood of Teamsters v. United States,
. See note 17.
.
. This accords with what was said in Teamsters, supra,
. See also Teamsters, supra,
. In Note, Title VII — Employment Discrimination — Use of Demographic Statistics as Prima Facie Evidence of Discrimination, 25 N.Y.L.S.L. Rev. 759, 578 (1980), the commentator said:
“In essence, the utility of statistics in Title VII actions is based upon the frequency theory of probability.”
See also, Braun, Statistics and the Law: Hypothesis Testing and Its Application to Title VII Cases, 32 Hastings L.J. 59, 69-70 (1980).
. Texas Dept. of Community Affairs v. Burdine, supra,
. The applicant flow can, of course, be tainted if the employer has, by its conduct, discouraged black applicants in the relevant labor market from applying. There is no contention by the Commission and no finding by either the district court or by the majority here that the defendant engaged in such conduct.
. For a comment on Beazer, see, Note, Title VII — Employment Discrimination — Use of Demographic Statistics as Prima Facie Evidence of Discrimination, 25 N.Y.L.S.L.Rev. 759 (1980).
. Such a factual finding by the trial court may only be reversed for clear error. Such was the standard followed in Burdine,
. The program under the Executive Order is described in Note, 31 A.L.R.Fed. 1800. The actual orders are set forth as a note to 42 U.S.C. § 2000e.
. EEOC’s witness Emile Cardiel testified that the report of the “Compliance Review of American National Bank,” dated September 27th, 1973, based on an investigation of the defendant’s hiring policies at its offices, “that the Government was satisfied with the bank’s affirmative program and with its hiring policies.” He later added, the report stated, “that everything was all right,” so far as the defendant’s hiring policies or practices were concerned.
. See note 18 majority opinion.
. This conclusion is in accord with the recent decision in Heagney v. University of Washington,