Mary R. CHRISNER, Plaintiff-Appellee, v. COMPLETE AUTO TRANSIT, INC., Defendant-Appellant

CHRISNER, Plaintiff-Appellee, Mary R.

v TRANSIT, INC.,

COMPLETE AUTO

Defendant-Appellant.

No. 78-1337. Appeals,

United States

Sixth Circuit.

Argued June 1980.

Decided March adjacent Terminal is

The Willow Run to a manufacturing Motors automobile General As cars come off the plant. new G.M. lines, the vehicles are driven to assembly terminal, yard Auto’s where em- gate crew” ployees working on the “release vehicles, inspect assign receive and numbers, and special them identification marshalling yard them to a area. transport taken to subsequently The new vehicles large onto tractor- a dock area and loaded These trucks then de- trailer combinations. automobiles, completing and after liver the operating procedure the standard delivery, empty his trac- deposit is for the driver Bieneman, Cone, Matheson, Parr, A. Read terminal for reload- tor-trailer Hills, Ewald, Mich., Bloomfield Schuler & great ing. sufficiently The volume Stewart, Weber, Roger A. John Frank H. trucks can accumu- many eight empty Taft, Hollister, Cin- Campion, Stettinius & first beginning late shift. before cinnati, Ohio, defendant-appellant. loading operations com- In order Muth, Hamilton Egnor, Egnor, Ronald & fashion, orderly in an the trucks mence Mich., Ypsilanti, plaintiff-appellee. for and, yard about the when jockeyed must be MERRITT, KEITH and Circuit Before lot. necessary, driven to an' overflow Rear- CELEBREZZE, Judges, Senior Circuit driving in ranging yard the trucks Judge. important, the overflow lot is an them to minor, yard em- responsibility albeit CELEBREZZE, Judge. Senior Circuit ployees. Complete appeals Auto Transit from a produc- In General Motors increased in violation of judgment finding it Sec. the Willow Run plants by tion served at 703(a)(2) VII Civil of Title of Complete to an extent that Auto's terminal seq. 2000e et Act, Rights U.S.C. Sec. were facilities unable to accommo- existent re- Complete held Auto The district court production. In an at- discrimination sponsible illegal stepped-up for sex date the when it against plaintiff Mary overflow, Chrisner Complete tempt handle a position yard failed to hire her for the Willow Run space at acquired Auto Complete It Auto’s employee. ruled is, high- Airport, using public which hiring concerning truck-driving policies mile the terminal. one ways, about from of employees were violative Title VII. yard airport of acquisition space Complete was brought against The action would have to yard employees meant in by Mary Auto Transit Ms. Chrisner from the ter- the tractor-trailers transport East- District Court United States using high- public the overflow lot minal to Michigan. Complete of Auto is ern District were confined ways. operations When Michigan busi- corporation engaged large trucks driving the terminal by transporting new automobiles ness yard employees was also restricted by point from the tractor-trailer combinations that area. across the coun- of manufacture to dealers change operating response To the transfer the new facilitate try. regard- pressure as well union procedure, automobiles, operates Auto termi- Complete who employees ing periodic layoffs yard Only its Wil- throughout the nation. nals driving be truck not transferred could Ypsilanti, Michigan low Run terminal they qualified, were not because present position case. involved in the gender. After a implemented ly a new on her trial before Auto Complete yard employees: to merit Magistrate, the District United States prospective yard employee consideration the record and concluded examined years to have two driving needed truck prima had established a or have completed a course of discrimina- disparate impact facie case of driving pre- at a truck study school. These not suc- and that the defendant had pon were not requisites retroactively imposed on establishing cessfully rebutted that case employees working in in 1973 be- n abusiness Specifically, defense. provisions cause in the bargaining collective year the two the district court found agreement change. would not allow such a “grand- as a requirement acted ¡experience 11, 1976, February ap- On Chrisner the exclusion Mary perpetuating father clause” plied position yard employee trucking for a as a industry. .of females from the the Willow Run had terminal. She were court also concluded that alternatives attended or completed driving truck school Auto which would Complete available to and did not have requisite years Complete Auto’s stated accomplished have driving experience. Complete truck Auto minimizing the goals discriminatory while rejected application Chrisner’s because she In its final job requirements. of its failed to meet job requirement.1 either order, judgment the court ordered Com- $35,742.18 Ms. plete pay Auto to Chrisner the Willow Run terminal August, $6,000.00 in fees and pay, attorneys’ experienced a wildcat strike an estimat- .back $417.62; Complete Auto was also employees. pressures ed 80 or 90 Economic jcosts discriminatory action generated by this wildcat strike forced ordered to cease Chrisner, temporarily against Auto to abandon Ms. to offer her a as a requiring policy applicants possess ei- yard employee seniority with retroactive years experience appropriate ther two fringe according and all benefits to a se- schooling gain in order to as a April date of niority yard employee. decided that would, strike, during duration I. train the in the employees operation of VII is the goal The ultimate Title

tractor-trailers. Nine new persons, includ- Chrisner, “discriminatory practices elimination of and ing Ms. were hired to work in the which have strati yard during racially the strike. Ms. Chrisner’s em- devices fostered ployment, together job disadvantage with that of seven other fied environments to the temporary employees, was terminated at minority Douglas citizens.” McDonnell remaining the end of the strike. The tem- Green, 792, 800, 411 Corp. U.S. 93 S.Ct. porary employee was released one week la- 1817, 1823, (1973). ter. goal equally applicable same is to sex dis Rawlinson, crimination. Dothard v. After the strike had ended the company 2720, 53 L.Ed.2d U.S. S.Ct. stringent did not revert to the more qualifi- VII, (1977). enacting Congress In Title re Instead, yard cations for employees. Com- artificial, quired arbitrary, “the removal Auto plete required only a chauffeur’s unnecessary employment barriers and a physical license examination. If nec- operate invidiously when the barriers new essary, yard employees received on-the- discriminate on the basis of racial or other job training from the to drive the impermissible classification.” tractor-trailers. Co., 424, 431, Duke Power S.Ct. April, In Ms. filed the Chrisner 849, 853, 28 L.Ed.2d alleging action present comprise tripartite initial refusal to hire her for the life Auto’s Title VII cases employee was a decision based sole- on a Title VII cycle. The initial burden stipulated parties prerequi- that the sole basis for 1. The that she failed to have either fact plaintiffs job application rejection required Complete Auto. site prima case to both of liabili- facie Central theories establish plaintiff is to The burden is alleged discrimination. discrimination is ty where sex employment to prove to the defendant or shifts employment then existence of an identifiable apparent dis- a defense demonstrate affects practice policy demonstrably or successfully If the defendant crimination. substantially in a all members of class case, facie the burden then prima rebuts similar, if manner. dis- not an identical plaintiff back to the show that shifts cases, is pattern parate treatment available selection de- there alternative employer’s regu- or followed as practice discriminatory effect vices without similar operating procedure lar which or standard legit- would also the employer’s which serve relatively unfavorable treats women in trustworthy imate interest efficient and justifies it a rebuttable infer- ways so that workmanship. from an proceeds ence that it intention law Under the current surround differently simply because of treat them VII, separate Title two but related the ing Teamsters, supra, at their sex. See prove prima ories are facie available cases, impact In disparate at 1855. it dispa discrimination: case of which, policy although is or practice impact disparate treatment. “Dis rate benign neutral or a sex re- theoretically parate easily ... is the most treatment context, a dispropor- nevertheless has lated The em type of discrimination. understood upon with- impact tionate adverse females people treats some less favor ployer simply justification of business any out race, color, their than others because of ably analysis is Disparate impact properly ap- sex, origin. or Proof of religion, national results not plied where the discrimination critical, although discriminatory motive challenged employ a from the decision to can in be inferred from the some situations practice, but from its effect. the instant Un mere fact of differences in treatment. challenge Com- case the does doubtedly, disparate was the treatment plete implementing Auto’s decision Congress most obvious evil had in mind requirements. schooling experience or it enacted Title VII.” Teamsters v. when Rather, the focus is on the effect those States, 335 n. United U.S. requirements. 1843, 1854 n. 52 L.Ed.2d 396. disparate treatment be dis may Claims of the claim that The thrust tinguished disparate from claims that stress require schooling year em impact. Disparate cases involve women against does not ments discriminate facially that are neutral ployment practices purposeful discrimi involve an assertion groups their treatment of different but does What Ms. Chrisner natory motive. harshly group that in fact fall more one pre facially these neutral contend justified by than another and cannot be disproportionately to ex requisites operate discriminatory Proof of eligibility employ from for clude women motive, held, Supreme has the not Complete yard employees ment as disparate impact a required theory. under case, prima a facie she To establish Auto. 430-32, Compare Griggs, supra, 401 U.S. at only employment show that these need Douglas, 91 at 853-54 with McDonnell S.Ct. for hire in applicants a standards select 802-806,93 411 U.S. at S.Ct. at 1824- pattern. Do significantly discriminatory course, may, ap 1826. Either be theory a, 329, thard, supra, 433 at 97 S.Ct. at U.S. plied particular to set of facts. Team 432, 2726; 401 at 91 .States, 335-36, Griggs, supra, U.S. v. United sters New York 15, City n. 97 15. at 854.2 See also 1854-55 n. S.Ct. impact disparate aggregate 2. a character both The correct focus is on the have show job Troy- aspects qualifications. of the selection scheme in order to the combined Smith v. dispa- an, 492, 1975), policy had a 520 498 Cir. 2646, cert. demonstrate the overall instance, denied, 934, impact if on For the U.S. 96 49 rate women. 426 L.Ed.2d course, roughly equal (1976). numbers of 385 Of the does not selected 1258 568, Beazer, Complete argues that Authority v. Auto U.S.

Transit by women in 1355, showing participation of scant 1365, 59 L.Ed.2d 99 S.Ct. generalized on trucking based industry the (1979). prima statistics does not establish national experience the re year case of The the record indi facie evidence in impact on quirement’s disproportionate Truck study by that a American cated the particular, points In to Chris women. data ing Association based on 1970 Census as to how failure adduce statistics ner’s only percent showed that one one half of percentage of females could many or what (.5%) of all truck drivers were female.3 or as qualification, satisfied this not have expe considering year the effect of the two were excluded percentage what of males court con requirement, rience the district on in the based employment from ex perpetuate it served to cluded that Hazelwood School Dis requirement. See trucking indus clusion of females from the S., 97 S.Ct. trict v. U. U.S. determining try. proper focus when Hazelwood, the Su L.Ed.2d 768 require is on those excluded compara approved the use preme Court Laboratories, Payne ment. Travenol pool labor showing a narrow tive statistics Inc., 1978).4 565 F.2d qualified employment those for defined automatically dis requirement experience jobs The Court ex particular available. all not accumu qualifies people who have qualifications that “when plained special driving years experience lated two jobs, compari fill required particular truck, would be a vast of whom (rather general than population sons to given gross underrepresenta females their of individuals who group to the smaller ex trucking industry tion in the when the may possess necessary qualifications) requirement implemented in perience was probative little value.” U.S. at have testi Complete 1973. Auto’s representative 13. On n. 97 S.Ct. at 2742 n. company’s for female fied that statistics hand, question where skills paralleled figures, national employment possess kind that “many persons are the noting Complete that he could recollect popula fairly readily acquire,” general can they non-office because Auto’s females proved acceptable. has Hazel- tion data “unique,” few and far be meaning wood, were at 2742 n. supra, at n. 97 S.Ct. Indeed, Teamsters, supra. tween. also 13. See vitality pool” applicants “experience complains from the and the Auto that the pool,” “experience pool” sapped by passage were “school statistic was disproportionately up large time, rendering figure made number too unreliable men, pool” have to then “school would prima facie we have use in a case. While some disproportionately be for the thoughts female order second about the use policy disparate impact. as a whole to have eight years information which old at the was Here, Magistrate disparate found that the trial, pro- particularly time of in view effect of the “partly tempered by was prac- changes society’s found attitudes and require- the alternative 1970’s, evidence, during tices we think the person from ment that a with a certificate gross sufficiently pro- given disparity, was driving truck school would also be considered here. bative so as allow its use Therefore, employment.” Magistrate policy company’s found over- selection Employee EEOC’s Uniform Guidelines effect, disparate was no all had a because there (1978) indicate that se- Selection Procedures dispro- pool” reason to believe the “school any group rate for identifiable i.e. lection (women) portionately female. (80%) which is four fifths of less than gen- (men) group highest will with the rate gross disparity longlasting 3. “Evidence of and erally regarded of adverse be evidence im- as composition between the of a work force and 1607.4(D). pact. aFor 29 C.F.R. Sec. valuable general population may that of the thus be guidelines, discussion of these see Guardians significant though 703(j) even makes clear Sec. Comm., 79, 630 F.2d Service Assn. v. Civil imposes requirement Title VII that a no (2d 1980). 90-106 Cir. population.” general force mirror work 20, Teamsters, supra, 431 n. 97 U.S. at 339-40 1856-57 n. S.Ct. at 20.

1259 present Auto was free to evidence plete that truck driv- Court noted Hazelwood in question Teamsters and was not entry hiring policy in its level ing, the skill acquired, and here, readily there- was one in- supporting the circumstance distinctive general population data was of fore use did offer of It not ference discrimination. Accordingly, prima facie acceptable.5 countervailing Under such evidence. may without evidence case be established review, we standard of “clearly erroneous” where the inference of dis- qualifications disturbing the district see no basis for by is supported crimination findings which led to court’s factual underrepresentation in a level of female re- experience two year conclusion that the v. g., sizeable work force. e. Fisher See on discriminatory impact quirement had a Co., 527, F.2d Mfg. 613 Procter & Gamble applicants. female (5th 1980).6 concerning 544 Statistics Cir. industry may in an participation low female to access to upon unequal

be relied show II. setting up prima facie industry. appellant’s We now turn to case, required provide was Chrisner not challenged hiring prac contention that to the figures percentage statistical as upon are founded tices female, male and which would applicants, a busi hiring requirements justify To automatically by the disqualified be show necessity, Complete Auto must ness light experience requirement year bear relation practices a manifest that its presented. evidence alternative statistical ship employment— to the workers’ The 1970 statistical imbalance between job practices are related their that the participation in the male and female indus- Dothard, at supra, 433 U.S. performance. allow sufficiently probative an try 329, 2726,quoting Griggs, supra, 97 S.Ct. at a substantially greater per- inference that 854; 432, at Albemarle 401 91 S.Ct. at U.S. be centage of females would not able to 425, 405, 95 Paper Moody, v. Co. was criterion. It experience meet the 2362, 2375, (1975); S.Ct. court in the first instance to district 801, supra, 411 at Douglas, McDonnell U.S. permit- whether these statistics determine 1823; Pontiac, City 93 at Horace v. the experi- ted inference as to whether (6th 1980). job If the 624 768 Cir. F.2d disparate impact ence had fide, they are bona qualifications related Although the in- females.7 district court’s and person job may “measure the not compelled by ference was the data Dothard, person not in the abstract. plaintiff, we are unable to presented by 2728 97 S.Ct. at U.S. respect finding conclude that its 436, 91 Griggs, supra, 401 U.S. at quoting g.e. v. clearly erroneous. See Marsh Eaton 1981). 856. Corp., (6th F.2d Cir. Com- ments, including requirement necessary qualifica- existence of 5. Where the men, readily apparent, jobs recently open tions not the burden is on absence job posi- systematic description sys- that “the defendant demonstrate and evaluation special qualifications require tem, by policy vesting managers tions in fact do possessed acquired readily gener- degree unsupervised large discretion in mat- population.” Specialty al v. Radiator personnel selection); Thompson EEOC ters of (4th 1979); Corp., 610 F.2d Cir. Ka- (D.D.C.1980) (court F.Supp. Boyle, 499 plan v. International Alliance of Theatrical and concerning rejects argument low that statistics Stage Employees, 1358 n. 1 525 F.2d program participation female bookbinder 1975); Hayes United States v. Internation- unequal upon may access not be relied show Corp., 1972). al 456 F.2d program). to the Greenspan v. Automobile of Michi- 6. Cf. Club may prima establish a Statistical evidence (E.D.Mich.1980) gan, F.Supp. (em- discrimination in an facie case ployer disproportionately has low number well in a class action. individual action as technical, employees professional, of female Califano, (D.C. 962-63 Davis among by, VII violated Title sales 1980). require- things, on unvalidated reliance solely reading company

A close the record because he believed that the unavailability had not shown the of alterna- reveals that the district court misconceived hiring procedures tive which would have necessity the nature of the business defense impact appli- less of an adverse on female corresponding quantum proof and the This misconstrues analysis cants. truncated necessary to corroborate defense. The shifting burdens of dis- court below stated: cases, disparate impact crimination law. “Now, certainly it is not the function of bear a Title VII defendant does not suggest the court to or to minimize the showing practice policy burden of that its suggestion anyone who takes a truck concept embodies the of least discrimina- the public highway ought out on to be Auto should not ting Complete alternative. completely qualified and in mind the bear compelled disprove have been the exist- company economic feasible, ence of alternative methods for result of accidents and so forth that hiring yard employees. contrary, To the company would be entitled to we say Ms. Chrisner bears the burden of affirma- don’t want our trucks taken out tively proving the existence of an alterna- highway being qualified without there disparate impact. a lesser tive with driver at the certainly compel- wheel is col- analysis unjustifiably district court’s However, ling business necessity. test lapsed three-step employed case, terms of this I don’t find that there two-step into a examination compelling necessity was a business defendant, which the in order to successful- that term is described Duke Power and defense, ly establish the other cases that would override this proving was burdened with to the court’s appro- otherwise neutral and otherwise requirements satisfaction priate company requirement ... so there disparate impact would have the least of all is a disparate impact and the requirements conceivable which satisfacto- in my opinion does not —is not for suffi- rily applicants employment. measure cient compelling reason. There were al- placing great too of a burden on the By ternatives available to the ...” defendant, analysis renders the third words, rejected Judge District step inquiry superfluous.8 of the Title VII Complete Auto’s business necessity requires defense the de- approach The correct Sweeney, Burdine, Dept. Community 8. In Board of Trustees v. Texas Affairs v. (1978), -, 58 L.Ed.2d 216 the Su -U.S. 101 S.Ct. 67 L.Ed.2d 207 preme Court vacated and remanded the First disparate Circuit’s decision in a treatment case Sweeney suggests that a remand for recon- appeared Appeals because it that the sideration of Auto’s business necessi- imposed employer had a heavier burden on the ty might appropriate defense be because the Waters, Corp. than Fumco Construction district court condensed the relevant three (1978) U.S. required 98 S.Ct. stage analysis imposing awry by steps into two and went respect meeting employ employer the burden on the to dis- prima ee’s though clear, facie case of discrimination. Al prove the existence of an available alternative Appeal’s analysis the Court of was un requiring prove instead of an ever, such apparently employer had burdened the error, option was within reach. That how- proving discriminatory with motive instead of tion of some the absence of a belies the for a remand on this simply requiring the articula point. having tainly specifically The district court found that legitimate, non-discriminatory rea qualified “a driver at the wheel is cer- employee’s rejection. son for the This con necessity,” super struction was erroneous because it made availability policy that but for the of a site of a with less step fluous the third in the Fumco-McDonneil disparate experience prerequi- impact, Douglas analysis; place it would on the em an “otherwise neutral and otherwise ployer stage at the second the burden of show appropriate company requirement.” These ing rejection that the reason for was not a proof findings persuade us that the district court pretext, requiring rather than such from company’s hiring policy employee part step. found the festly was mani- the cause ferent, as a of the third Be job requirements. proof distinctly related to On these burdens of dif Sweeney, supra, Supreme record before us we cannot characterize these findings necessary Court believed it to remand the case as erroneous. And the failure of the light judge findings precise reconsideration of Fumco. See also in the trial to couch his of Misunderstanding facie this bifur prima rebut attempt fendant engendered by well be by approach may show- of discrimination cated case defense itself. Liter is re- hiring policy “manifestly appellation ing that construed, unreasonable it would not be ally If the man- requirements. lated” to the “business neces of a shown, proof then the business to conclude that is ifest relation showing that requires a complete sity” and the bur- defense is necessity defense or inherent absolutely necessary practice to show that plaintiff to the den then shifts of the busin operation to the devices with- essential ly alternative selection there are however, standard, would effect which Such discriminatory ess.9 out a similar scrutiny strict legitimate needs of the direct unwarranted serve the would also justifications and has asserted defendant’s employer. by approach. language Griggs the dissent’s a re- invited does not necessitate the result unsatisfactory Newspaper Agency Corp., equally result accrues when An See James mand. 591 F.2d 579, (10th 1979). possibility If an em- Cir. is considered. ployer prove the absence of alterna- does example, requiring that there exist For equivalent policies, tive that would be purpose adhering a business to a more than are, affirmatively establishing there presence practice, courts have demanded the fact, The burden of estab- viable alternatives. overriding compelling purpose. an alternatives, lishing presence of available Co., Colony Kirby Fum. 613 F.2d 696 however, belongs only plaintiff to the and must 1980) (“The proper standard is ... wheth stage analysis. be sustained in the third employer for the er there is a need Such allocation of the burden of an erroneous practice the em to maintain that and whether rejected by exactly practice proof is Swee- ployer prove alternative to the can there is no ney. challenged practice.”); Parson v. Kaiser Alumi puts the dissent illustrates the dilemma This Corp., 575 F.2d num & Chemical (5th necessary by arguing that a remand is itself Bearing 1978). Timken Roller Head v. Sweeney the trial court col- under lapsed because Co., 1973). Camp 486 F.2d inquiry step steps, into two the three (E.D.Ark. Ramsey, F.Supp. bell v. relying Tim- Head v. the same time and at appears 1980). genesis approach of this two-step Bearing commands Co., which ken Roller 444 F.2d be Robinson v. Lorillard language analysis. full The dissent omits the (4th Cir.), cert. dismissed Head, which reads: arose from its failure The court’s error Sweeney, argues The dissent that the force necessary element of take into account one because the dis- necessitates a remand test consists of two discrete the test. The requisite findings trict court did not make the parts in Robinson v. Lorillard as set forth necessity defense when it con- on the business Co., 444 F.2d at 798: analysis steps. the Title VII into two densed whether there exists an overrid- test is Nevertheless, proceeds it to assert that under purpose ing legitimate such that the Bearing, supra, Head v. Timken Roller the em- necessary practice safe and efficient to the necessity ployer has not established a business Thus, operation the busi- business. company subsequently defense because the sufficiently compelling purpose must be ness The dissent used alternative selection devices. challenged any impact; to override racial by analysis ignoring the flaw in its concedes practice effectively carry out the busi- by must Sweeney. Decided the full force serve; alleged purpose Head, it is and there Sweeney ness years Supreme five after acceptable alternative three-part available no proposition must be for the stands practices policies ac- which would better analysis properly or VII cannot be conducted Title advanced, purpose complish stages. approach, the business only The dissent’s accomplish equally compels employer prove well with lesser dif- a business which (emphasis added). impact, necessity by showing ferential racial that there exist defense alternatives, is, any two-part discriminatory test is inconsistent in es- Insofar as no less analysis Griggs sence, three-part analysis outlined in two-stage with the since it renders Douglas employer and reinforced step superfluous. and McDonnell If an does third defense, is, Sweeney, prove it must be discarded. a business policies has been insistence that Head with a lesser The dissent’s there are no alternative discriminatory impact, “consistently withstand the plaintiff followed” cannot would there- City analysis. scrutiny attempting In Horace v. precluded of closer from to show that be Head, Pontiac, supra, this court did not cite available alternatives —the crucial there are part quoted analysis. Griggs test of stage rather the three does but third of Title VII Douglas. oppor- reference to denying and McDonnell not countenance quote appears of the district in a block tunity Head defense to rebut a business circumstances, opinion. precisely 624 F.2d at 768. Mitchell any court’s but that is under passed that the applicants ment to insure adopted by Supreme not been the Court. test, it, is “mani- a proper training as we see the Since flight program. officer fest enunciated in relationship” test responsible for ultimately is flight officer progeny its which looks to whether the and costly well as passengers the of as safety discriminatory practice is nec- employment paramount, aircraft, public the interest job essary perform- to safe efficient and An employment standards. high justifying Dothard, ance. 433 U.S. at 332 n. of man- primary with the function industry practice For a to be 97 S.Ct. at 2728 n. 14. pas- of of numbers safety large the aging however, not it need be the sine “necessary” latitude in be allowed more sengers must qua job indispensabili- non of performance; could requirements which structuring the Rather, prac- is not the touchstone. the ty primary a busi- of performance effect the substantially promote profi- the tice must Eastern Air- Burwell v. objective. ness See the business. operation cient of (en lines, (4th 1980) banc). 633 F.2d Cir. ne Application of the business spectrum, end of where At other defense considerations which cessity entails negligi- are public safety of considerations job’s function demands. In this are a ble, appropriate- are standards employment according evaluated regard, positions can be require- demanding. example, ly For less type spectrum of to their location on the sales motiva- sales and ments of Airlines, v. United Spurlock described in repre- into a sales entry tion for securities 1972): (10th Cir. 475 F.2d satisfy failed to training program sentative of job When a a small amount requires Kinsey v. necessity standard. the business consequences and and the training skill Inc., Securities, 557 F.2d Regional First applicant insig- are hiring unqualified 1977). (D.C.Cir. nificant, the courts should examine close- its Auto ex argues or crite- ly any pre-employment standard were reasonable criteria perience/schooling against minori- ria which discriminates insure that requirements to minimum case, employer In such should ties. qualified operate tractor were employees to demonstrate to have a burden heavy in a public highways safe trailers on the employ- court’s that his satisfaction yard employees manner. efficient job ment criteria are related. On tractor-trailers to upon are called drive hand, requires job clearly when the public highways. over the overflow lot high degree of skill and the economic in a of this task satisfac in an The performance and human involved risks degree great, requires the em- a certain unqualified tory manner applicant correspondingly lighter bears ployer operating skill the tractor-trailers. in cri- freight burden to show that his goal transporting company’s job teria are related. signifi efficient manner is in a safe truck hiring experienced served cantly agreed Tenth Circuit Spurlock, possesses ex An individual who operators. flight 500 hours of contention that United’s driving unwieldy vehicles large, require- perience was a minimum time reasonable Mills, Inc., Co., (6th in Palmer v. Spring And General 583 F.2d 275 v. Mid-Continent 1975), (6th 1978), only the court divided proposi- Cir. F.2d 1040 Head was cited step sub-parts, equal employment into hold- Head’s second three have tion that females must ing finding essential was that se- opportunities. at 281. In EEOC v. 583 F.2d Service, Inc., Broadcasting niority practice at issue was not New York Times business, importance 1976), company’s two-step to the F.2d 356 Head’s effectively was, practice fact, carried out a process whether followed. F.2d at 361. however, true, purpose was irrelevant because the not v. Detroit That was EEOC facially pol- Co., 1975), challenge neutral was directed at a where 515 F.2d 301 Edison icy, availability solely principle alternatives was for the and that court relied on Head remedy, liability. minority pertinent seniority system to the when locks subsequent “long opportunity This line of employees at 1044. into low areas black hardly litany work, of faithful protecting constitutes the status of those decisions” while suggested way. dissent. give to Head majority, F.2d at adherence must failed to obviously separate stage a more rational choice for the consider as a person case, is a who not have than does framework of job analytical we ability to drive such vehicles. demonstrated remand the case for the court to conduct a respect, In this the experience hearing this issue. In determining accurately capacity appli reflects the of an plaintiff whether the has sustained her bur cant to do the for which he is applying. proving den the existence a viable public safety, There is some risk to the hiring procedure, alternative the court truck, well as to the driver and in the should consider evidence that the of an unqualified employ might introduce on a of factors. variety interest in important public safety ee. Certainly any subsequent practices adopted highways, Mackey on the roads and see v. by the would be relevant. The 1, 18, 2612,2621, Montrym, U.S. 99 S.Ct. comparable businesses hiring policies (1979); Love, Dixson v. 431 might light also shed some on what consti 105, 114, 97 1723, 1728,52 U.S. S.Ct. L.Ed.2d course, tutes a feasible alternative. Of the (1977), sufficiently weighty to con marginal hiring cost of another and policy Complete vince that Auto’s us implications public safety for are factors yard employees for is mani which should not be omitted from consider related to the and efficient festly oper safe event, any ation. the initial determina transporting ation of its business of auto tion must rest with the trial court.10 public highways. mobiles over the The decision of the district court is af- part firmed in and vacated and remanded in III. part.

Once the defendant in a Title VII has disparate impact case rebutted the KEITH, Judge, concurring part Circuit plaintiff’s prima a by proving facie case dissenting part. and challenged business defense the join I I and III of deci- Parts the court’s practice, the burden shifts back to the sion, join but I am unable to Part II for two plaintiff. liability To at establish first, the majority reasons: misconstrues point, plaintiff the must demonstrate that language opinion, in the trial court and there is an alternative selection device with second, legal a stan- majority applies the disparate impact a less than that of the contrary dard which is Circuit Sixth challenged practice which would still serve precedent. employer’s legitimate the interests in effi ciency trustworthy and workmanship. A. Griggs, supra, 401 U.S.

854; Albemarle, II, supra, 422 U.S. at In Part majority examines S.Ct. at 2375. Because the district court concept Griggs of business under legitimate Auto relies on the recent decision demonstration of such a criminatory non-dis- Fumco, supra, proposition plaintiff may for the that reason. The then prac- proffered justification courts should not restructure business tices unless mandated show that the was mere- by Congress ly pretext disparate a do so. for discrimination. The Supreme regard analysis imply Court stated with to the that treatment Fumco does employer’s articulating legitimate “pretext” by burden a cannot establish a non-discriminatory rejection showing procedures reason for the that alternative that, plaintiff, prove Thus, the prove that “to he need not more parate in dis- minorities were available. pursued that he the course which would cases it is courts treatment true that practices enable him both to achieve his own business should not restructure business un- goal and allow him to consider the less a violation of VII well most em- Title established. hand, ployment applications. prohibits disparate impact VII Title him On in a case a having goal plaintiff may employ- from any proscribed discriminatory as a a work force selected still establish a case of by demonstrating practice, but it ment discrimination there were alternative selection devices availa- that impose duty adopt hiring proce- does not hiring minority disparate employ- dure that maximizes ble that would have less of a 577-78, hiring procedures employed by ees.” 438 U.S. at 98 S.Ct. at 2949-50. than the terminated, however, inquiry company. is not Power, It did tend to freeze disparate effect. Duke U.S. grappling L.Ed.2d 158 Before excluded ... there previously out the So issue, require- the trial court

with this notes that and that disparate impact is a correctly apply below failed to both the not for my opinion does not —is ment necessity and discriminato- were business the less reason. There compelling sufficient ry concepts alternatives second company. alternatives available —the anal- stages respectively third added). (Emphasis Nevertheless, ysis. majority concludes In order to the conclusion reach “[Tjhe eight opinion at footnote finding of court a factual district made ‘having specifically district court found interprets necessity, qualified certainly driver at the wheel is compa- as follows: language above but necessity,' appro- ny’s selection device was “otherwise availability policy of a less of for the “alterna- absent existence of priate” disparate experience prerequi- impact, This con- company.” tives available and other- site an ‘otherwise neutral ap- phrase takes the “otherwise struction ” requirement.’ wise appropriate company out of context. The sentences propriate” view, my majority the misreads the dis- follow the in the immediately phrase which portion trict The relevant of the court. opinion of the district court discuss text opinion more fully: district court reads do impact. They not discuss disparate case, in ... of this I don’t find that terms They do make clear available alternatives. necessity there was a business sought convey to that the trial court as that is described in Duke Power term device “otherwise the selection was that and the other cases that would override disparate impact appropriate” absent its ap- this and otherwise otherwise neutral words, women. other the trial upon propriate company requirement. In oth- opinion in the that merely court observed words, in company er the decision of the company’s the device was neutral selection 1973 was not motivated consideration adoption of the device its face that discrimination; ac- it was motivated dis- by consideration of “was not motivated factors, cording two testimony by it is crimination.” Therefore unreasonable one, that employees the idea the ... por- court construe relevant this are required required were to drive meaning opinion the trial court tion of public these these over the rigs, trucks “no that there was anything than also highway company that necessity the term is compelling business thought, after some discussion with the in Duke Power.”1 used union, appropriate that it would be majority should first, follows then that prior, or It whereby have a system compa- the merits of the jobs given be not have reviewed the —for other could The ma- ny’s necessity contention. employees place in the business company first deci- explanations offers for its going jority rather out on the street and two than implic- re- so: the district court fresh But that sion to do that employees. and, necessity at foot- quirement my judgment itly in did not have found business general speaking was terms and trial court did state: court trial was not referring specifically case before certainly Now it is function of fact, opinion in the it—in next sentence suggest suggestion court to or minimize the “[Hjowever, begins terms of this case ... anyone who a truck out on the takes (2) trial and plete court never stated that Com- public ought highway completely quali- to be Auto Transit’s selective device fied the in mind and bear the economic criterion it had mind in order kind of driver to as a so result accidents and any- qualified.” “completely be If company. forth to the subsequent thing, language opinion indi- interprets majority language result, language cates quoted As a undergird otherwise. manner would its conclusion support finding the notion that above cannot that the trial court made a finding However, ne- necessity. points plainly court of business the trial made evi- cessity. concerning language: (1) dent above eight, (1st 1979), that “the failure of the trial College, note Keene 604 F.2d 106 findings precise denied, 1045, 100 to couch his in the judge cert. (1980); Young, does not necessitate

language a L.Ed.2d 731 DPOA 1979) explanations (remanding remand.” These do not with- 692-98 First, discussed, analysis. as I have case where stand reverse discrimination trial proper reading opinion legal the district court an incorrect standard as applied court Instead, the trial actually issues).3 reveals that court made no the constitutional Second, finding of business necessity. such went on to “affirm” district majority problem we do not have before us the of a in its view the court as to this issue because court simply failing precise trial to use the was not “finding” terminology Griggs, as was the case in erroneous.4 The thus af clearly Newspaper Agency Corp., finding James F.2d firms a that was never made. 1978).2 terminology is a red point herring. The real reason this B. court should have remanded the business In further support of its ruling, the ma- issue for reconsideration jority opines proof of business necessi- collapsed the trial court the second and ty does not require a showing that Be- stages Griggs analysis. third practice is “absolutely necessary or inher- cause of this error it is to deter- impossible ently essential to the operation of the busi- properly mine if the district court reasoned ness ... For a practice to be ‘necessary’ finding before as to busi- making factual ... it need not be the sine qua non of joba ness performance ...” Going further, the ma- situation, analogous In a the Su closely jority endorses approach taken by the reconsideration preme Court remanded for Tenth Circuit in Spurlock v. United Air- finding liability. a lower court’s of Title VII lines, 475 F.2d (10th 216 1972), and Sweeney, Board of Trustees v. 439 See U.S. concludes that because of important “[T]he 295, 24, (1978) (The 99 58 216 S.Ct. L.Ed.2d public interest in safety on the roads and Court remanded the case because the court highways” the company’s hiring require- the second and third appeals collapsed of ments were manifestly related to the safe stages Douglas of the McDonnell Title VII and efficient operation of its business. This rationale, analysis). Sweeney Under a -like analysis of business necessity is contrary to this court should have remanded the busi long-established precedent in this circuit. necessity ness issue to the trial court for of De Dept. reconsideration. See Grano v. As observes, the majority correctly the 637 1082 n.8 velopment, F.2d 1073 at appeals courts of have taken two ap- 1980); v. Board of Trustees of Sweeney proaches in providing description of the majority Newspaper 2. The cited James v. the court remanded the less discrimi- clear that Agency Corp., supra, support natory of its decision issue because the district alternatives necessity not to remand the business issue. district court defense stages court the second and third consolidated James, In the Tenth Circuit held that the my Griggs equation. of the It is view that the “substantially guide- followed the necessity have business issue should been han- ” Douglas lines of McDonnell fact couched in the v. and “the Green way. dled the same The district court should judge’s findings the trial are not have been ordered to reconsider the business necessity precise language of McDonnell issue, and to reconsider the less dis- Douglas, Furnco and Rich does not necessitate criminatory alternatives issue if it found that 591 a reversal.” case, however, F.2d at 579. the instant necessity made out a business the precise the district court used defense. Griggs -type terminology, g. “disparate e. im- etc., pact,” necessity,” support in “business of twist, company, 4. In an ironic the which had Therefore, ruling against company. its the appeal showing that the the burden on dis- applicability has no here. James necessity trict court’s refusal to find business error, Moreover, in clear now finds itself the benefi- majority’s was ciary decision to review 3. “clearly necessity of the erroneous” standard the business issue is inconsistent misreading by review virtue of this court’s to remand the less with its decision tory discrimina- opinion. the trial court alternatives issue for further considera- majority opinion III tion. Part makes 1266 Co., 870, 879 Bearing Roller 486 Gríggs equation stage of

second Tenth after 1973), year more than a conveyed by meaning beyond goes Spurlock.6 in necessity” and its rendered decision “business Circuit phrases conclusory Co., Judge Miller Bearing Roller se- In Timken This circuit relationship.”5 “manifest v. Timken in Head court: wrote for approach its lected 911, Co., (1979), and both 219 n.48 U. of Chi.L.Rev. Griggs the Su- v. Power 5. Duke among supporters commenta preme prohibits VII selec- have their held that Title Court form, See, (broad “practices g., in dis- view of fair but e. id. at 933^1 tion criminatory that are tors. history operation,” required legislative be- cor in the “touchstone” and defense 431, necessity.” authority); ing Supreme reading at “business U.S. Court rect Blumrosen, Strangers However, Griggs the Court in that case v. S.Ct. 853. in Paradise: judicial Concept Employ standard for deter- did not establish a and the Duke Power Co. protected 59, mining practices Discrimination, specific when 71 Mich.L.Rev. ment defense, necessity required since Duke (narrow (1972); business view the defense concededly adopted law); the selection de- history Power by Ledvinka, and legislative case Jain and meaningful study of vices at issue “without Inequality and the Con Economic relationship performance.” Discrimination, their Id. at Employment cept 26 Lab. 425-6, 431, 851, 853. by legis (1975) (narrow required view L.J. Note, Supreme Necessity history); next addressed the busi- Court Business lative Paper Approach, ness Moody, issue Albemarle Co. under Title VII: A No Alternative (1974) (citing L.Ed.2d narrow view U.S. Yale L.J. 101-2 (1975), ap support that EEOC which the court held cases in of its “no alternative” “great defense). proach Guidelines are entitled to deference” determining prac- score selection whether test Bearing By listing foot- Co. at Timken Roller manifestly job York tices are related. In New requiring an of the cases note nine one Beazer, City Authority Transit pur- employer to show more than a business (1979), the 99 S.Ct. pose make necessi- in order to out the business showing plaintiffs’ held that statistical defense, ty majority implicitly recognizes disparate impact. failed tion, In addi- to establish approach defin- that ing circuit selected Beazer, majority noted dicta equation stage second relation- the selection device bore a “manifest ship” that decision. safety goals employer’s nine, efficiency. post- asserts that At In neither of the Court’s footnote Co., Bearing Griggs decisions, no explication given adherence to Timken Roller was further longer approach “which in order since an on the nature of the defense such compels employer prove respect objective business ne- kind of non-scored by Complete cessity by showing employed no that there exist selection criteria here defense is, discriminatory less essence Auto Transit. alternatives two-stage analysis Griggs appeals it the third Since the courts of have had since renders view, majority step my superfluous.” opportunity In to further define business basically goes way necessity They improperly out of its construe defense. have taken Bearing approaches. in a manner that A courts have Timken Roller Co. few of the Griggs. adopted a broad view of business would violate See, States, two-stage supra. disparate g., Spurlock agree e. v. A I that a United courts, however, Griggs. majority with How is not in accord construe formula ever, way Bearing See, Colony narrowly. g., Kirby v. Timken Roller no e. v. Head defense Co., 1980); (8th adopted This in Timken formula. court 696 Blake such a Furn. 613 F.2d Cir. analysis 1367, simply adopted City (9th Bearing Angeles, v. Los F.2d 1377 Roller Co. 595 1979) (the v. Lorillard is Circuit’s Robinson Cir. defense of the Fourth business 1971), “very narrow”); Corp., (4th still the 444 791 Cir. Parson v. Kaiser Aluminum & F.2d 1374, (5th Corp., leading 8 infra. specifically in the area. See note Chemical 1975); 575 F.2d 1389 Cir. case R., decision, F.2d the Fourth Circuit Missouri Pac. R. 523 Green v. 1290, (8th 1975) (business necessity strict view of business 1298 stated that its Cir. by Griggs demand”); v. Duke Power Co. an United commanded “connotes irresistable 301, Ry., It stated See 444 F.2d at 798 n.6. also States v. St. 464 F.2d 308 Louis-S.F. poli denied, acceptable 1972) (8th (en banc), no alternative U.S. “there must be Cir. cert. 409 majority 1116, employer. (the (1973); cies” available to 700 L.Ed.2d need”); upon “compelling in order to aver this statement test whether there is seizes Bearing Corp., misal and Timken Roller Co. Lorillard and United States v. Bethlehem Steel respect proof (2d 1971) (“compelling to less burdens of with 446 F.2d locate the discriminatory Cir. decisions, need”). These approaches alternatives. These two are inconsist however, ent, Note, Necessity the issue of who did not even address see The Business Defense discriminatory VII, proving Liability Impact less Dispute Title has the burden Under necessity] opinion is wheth the majority might suggest. The test business [for Bearing Timken overriding legitimate fact, Roller Co. er there exists has been such that purpose practice business consistently long followed line of subse- See, opera to the safe and efficient necessary g., City e. Horace v. quent decisions. Thus, tion of the business. business Pontiac, (6th 1980); 624 F.2d 765 Cir. purpose sufficiently must be Spring Mitchell v. Mid-Continent Co. of any impact; to override racial the chal Kentucky, 583 F.2d 275 (6th 1978); Cir. lenged practice effectively carry must out Equal Employment Opportunity Commis- purpose alleged the business it is to serve Broadcasting sion v. New York Times Ser- v. Id. at 879. Robinson (quoting ... vice, Inc., 1976); (6th 542 F.2d 356 Cir. Co., Lorrillard (4th Cir.), 444 F.2d Employment Opportunity Commis- Equal pursuant to Rule cert. dismissed Co., Detroit Edison sion v. (6th 515 F.2d 301 U.S. Mills, Inc., 1975); Palmer v. General Afro-Ameri- 1975); 513 F.2d 1040 Duck, League can Patrolmens ruling anomaly This is not an as the 503 F.2d 1974).7 Yet, in footnote nine of majority reference to decision alternatives, three-part correctly compress proving less allocated the burden of much less two-part decision, test into a In Loril discriminatory test. alternatives in that be- lard, merely the Fourth listed Circuit the fol lying majority’s point that Loriilard and lowing being required by Griggs: (1) com Bearing necessarily Timken Roller in- Co. are pelling practice purpose; (2) challenged business Griggs. consistent with At footnote See 624 768-9. effectivelycarry must out the business nine, majority asserts that (3) purpose; and “there must be available no “litany there has not been a of faithful adher- acceptable policies practices alternative or the business fact, however, ence to Head.” In no decision of accomplish which would better questioned this court has heretofore even validity advanced, purpose accomplish equally Bearing g. of Timken Roller Co. See e. impact.” well with a lesser differential racial Mills, Inc., supra (“we Palmer General find nothing 444 F.2d at 798. There is about this seniority system provided helpful that the but per set of considerations se that would contra absolutely training essential Griggs. vene It is one assumes that when say system ... we cannot that the does not place the court meant to the burden on the effectively carry alleged pur- out the employer analysis proving the last issue that the pose, we consider this conclusion to be of com- being can be read inconsistent paratively significance little in this case .. . Griggs. makes this unwarranted for ... available alternatives it does not [A]s assumption and then casts aside the Lor entire any appear proof point was offered analysis. Bearing illard In Timken Roller Co. Therefore, trial.) majority’s sugges- point we did out that defendants have the bur authority tion—that circuit is somehow divided proving necessity, den but there we on the issue of whether the test for business did not address the issue of who has the burden necessity is a strict one—is erroneous. proving of 870. able available alternatives. 486 F.2d at policy It has been the this circuit that one Thus, it is clear to me that a more reason panel cannot overrule the decision of another interpretation of Lorillard and Timken panel authority intervening Supreme absent either Bearing simply Roller Co. is that the decisions contrary to the or other circumstanc- require showing compelling a of need and a precedent clearly wrong. es which render the employer “close fit” in order for an to rebut a States, See Timmreck v. United 577 F.2d prima facie case. Since the decisions failed to (6th 1978) 377 n.15 reversed on other Cir. proving discuss the burden of ry less discriminato grounds, 441 U.S. alternatives, logical the conclusion is that Here, (1979). majority departs L.Ed.2d634 the plaintiffs would have the burden —even under n policy by purporting from this to overrule in a Bearing Lorillard and Timken Roller Un Co. Bearing footnote Head v. It Timken Roller Co. reading, der this the decisions are consistent my hope majority’s disregard Paper that both the and with Albemarle Co. v. 405, 425, 2362, 2375, precedent misanalysis Moody, for circuit and its of the 95 necessity regarded panel issue will be This business aberrational. 45 L.Ed.2d should have adopted reading applied this and the Timken Bearing here. Roller Co. standard 7. circuits have also found Timken Roller Other In most in the the circuit’s recent decision See, Bearing authority. g., area, Pontiac, persuasive City Co. e. Horace v. of this Corp., specifically adopted Donnell v. 576 F.2d 1292 General Motors court invocation of the Loriilard/Timken Roller Bear- the district court’s (8th 1978); Corp., Smith v. Olin Chemical ing 1977)(en banc). Incidently, Co. standard. the court also 555 F.2d 1283 yard employees that at most ny, estimated ignore well established circuit chose utiliz- day rule favor of the of their work precedent spent percent order to four controversial developed and to endorse the in over-the-road truck company ing skills em- interpretation necessity of business training. also noted that some of driver He join trucks; I in this Spurlock8 cannot ployed never drove the yard employees the disregard proper for circuit The precedent. entirely gate. on the release worked they recognized in here is the one standard addition, clearly the indicates evidence Co., the narrow con- Bearing Timken Roller employees Transit can Auto that necessity business defense. struction the over-the-road truck performed have and for- efficiently without driving safely and preceding As in the section stated schooling years experience. mal dissent, I do it was appropriate not think hired be- employees out 16 of the Nine whether the for this court to have decided they training yet no fore 1973 had such necessity out company made its business job yard employee performed have the However, majority goes the defense. since satisfaction. The evidence company’s issue, I compelled decide this am were ade- employees these indicates express company failed to my view that the job em- quately prepared establishing meet business ne- its burden a minimal amount undergoing after ployee Roller cessity Bearing under Timken on-the-job training.8 Corp. Co. or Robinson Lorrillard stan- dard. rejecting most reason for The company’s conten-

The driv- evidence trial indicated that however, tion, is that after the wildcat ing part a of the total very trucks was small company terminated its employees. activities of the strike of 1976 the company’s yard compa- experience-school requirement.10 com- Thompson, vice-president Mr. supra. Spurlock, the business defense. It does 8. note Tenth strue See sliding Circuit held: the Tenth Circuit’s scale not endorse approach to the allocation of burdens under the job requires a small amount of of “[W]hen training consequences defense. skill and hiring insignifi- unqualified applicant an are addition, Appellee Mary 9. In Chrisner satisfac- employer heavy cant burden should ... have torily yard employee during worked as a demonstrate ... ... [the] At the time she met nei- 1976 wildcat strike. hand, job criteria are when the related. On the other company’s require- prong of the selections ther ments. degree job clearly requires high of skill and the economic and human risks unqualified applicant involved in an Although experi- 10. instituted great, employer correspond- bears requirement in it hired no ence-school ingly lighter employ- burden to show that his yard employees April 1976. Four until ment criteria are related. 475 later, company dropped months quirement the re- during a wildcat strike. This re- cites the recent Fourth Circuit quirement was never reinstituted. Airlines, en banc decision Burwell v. Eastern trial, 1980) adoption apparently company alleged At F.2d 361 as a experience-school following Spurlock case rationale. In Bur- the vated port quired moti- well, yard employees to the court did hold that the airline’s inter- the need for trans- passenger safety maintaining est in was rele- trucks to an overflow lot. This task re- public highway. vant to determination of business short drive over the however, However, company, explained why per court never made clear cu- opinion experience-school requirement was riam ty test for necessi- the necessary overriding legiti- Apparently, the there after 1976. task “is whether exists purpose practice transporting trucks to the overflow lot re- mate business such that responsi- operation part employee necessary to mained a the safe and efficient small strike, bility, company began after the Id. at 371. At Note but business.” accepting applicants specifically who had a chauf- court establishing stated that criteria for “[T]he physical license and a examination. the defense has been no where feur’s Therefore, rebutting evidence in the absence of better stated than in Robinson (citations Lorillard.” Therefore, logical omitted). contrary I would think the conclusion requirement experience-school majority suggests, was not “neces- what the it is evident that sary” narrowly either. before strike Fourth con- Circuit continues no to ex- pany absolutely offered evidence America, Appellee, requirement “necessary” STATES

plain why UNITED operation it was in during the four months unnecessary when the apparently and then GILLISS, Appellant. Louis company requirement. terminated No. 80-1329. it presented, appears From the evidence Appeals, United States operat- Inc. has Complete Auto Transit Eighth Circuit. safely efficiently ed without the selec- Therefore, tion device. it is erroneous Sept. 1980. Submitted majority baldly conclude that Feb. 1981. Decided proved that its selection device company considerations of safe- compelled by was so

ty efficiency as to override the device’s Ac- disparate impact on women.11

grossly below, view, my the evidence in

cordingly, finding

cannot a adequately support Airlines, Spurlock majority performance if v. United states: “The Even satisfactory requires applicable provide this task in a manner standard for this did not, degree circuit, operating clearly certain of skill the tractor- does which goal company’s transporting finding Complete trailers. The was still incorrect freight showing a safe and efficient manner is made a of business ne- Auto Transit significantly by hiring experienced cessity enough served truck below. It is not to state that possesses experi- An important public drivers. individual who safety is an inter- on the roads driving large, unwieldly ence in vehicles is ob- certainly Griggs, est. That is true. But under viously a more rational choice for the than proving company has the burden of that the person ability who has not demonstrated manifestly related to the selection device was observations, drive such vehicles.” These ever, how- protection public interest. support finding are not sufficient to words, employer a selection must validate company in this case. The device, by introducing Spurlock, even under validating expe- never introduced evidence that without the evidence which demonstrates appropriate rience-school as an public would be harmed. selection device the “degree measure of the operate of skill” needed to showing made no such Auto Transit satisfactory trucks over-the- Indeed, appar- company on its own here. majority engages road manner. The in trouble- ently wildcat strike that the concluded after the appellate factfinding some when it states that public adequately served select- interest was applicant an ously who meets the criteria is “obvi- possessed only ing yard employees who job” a more rational choice for the than a given and who had been chauffeur’s license person who does not meet them. This kind of physical examination. speculation inappropriate, particularly longer view of the fact that the no policy. subscribes

Case Details

Case Name: Mary R. CHRISNER, Plaintiff-Appellee, v. COMPLETE AUTO TRANSIT, INC., Defendant-Appellant

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 19, 1981

Citation: 645 F.2d 1251

Docket Number: 78-1337

Court Abbreviation: 6th Cir.