Rush Pettway, Etc. v. American Cast Iron Pipe Company, United States Equal Employment Opportunity Commission, Intervenor

al., etc., Plaintiffs- et Rush PETTWAY spe- Judge, concurred Bell, Circuit Appellants, opinion. cially filed PIPE COMPA- IRON CAST AMERICAN Defendant-Appellee, NY, Oppor- Employment Equal

United Commission, tunity Intervenor. 73-1163.

No. Appeals, States Court Circuit. Fifth

April Rehearing Banc

Rehearing En May Denied Birmingham, Jr., Adams, Oscar W. C., Charlotte,

Ala., Belton, N. Robert Goldstein, Greenberg, Barry L. Jack City, plaintiffs-appellants. for New York Letwin, C., Gerald D. E. Operatives, O. Wash- E. Board of Board ington, C.,D. amicus employees, curiae. and to disestablish separate Auxiliary Board. Jr., Burr, Forman, H. J. R. Samuel adopted reorgani- the defendant’s Birmingham, Ala., defendant-appel- plan, overruling objections zation lee. plaintiffs. filed F.Supp. (N.D.Ala.1970). TUTTLE, Before BELL and GOLD- Judges. BERG, Circuit When the discrimination charges October, 1971, were tried in Judge: TUTTLE, Circuit district court held that the con ducted pass . complex, did not This class action Griggs May 13, muster under v. Duke discrimination suit was filed on Power Company, provisions 401 U.S. of Title VII S.Ct. Rights (1971), L.Ed.2d 158 and had an adverse the Civil Act of U.S. impact employment opportunities seq., C.A. 2000e et and 42 U.S.C.A. § § charges employees. court, The racial discrimination nevertheless, complaints requested then are derived from filed on No- denied all relief, except Equal Employ- attorney’s for an vember award of Opportunity fees and costs. ment Commission. plaintiffs-appellants appeal from Introduction following these two decisions on the grounds: (1) enjoin refusal to the com- Although path of this law suit is pany requiring improper test corpses strewn with the of intermediate requirements, (2) educational failure to decisions,1 posture present require restructuring departmen- appeal hopefully cases on will allow final seniority system posting tal and the accomplish resolution. order to bidding procedure vacancies opinion long unfortunately must departmental seniority sys- based on the tem, (3) complex. circling failure to order red July 22, plaintiffs requested On restraining entry discriminatees,2 and advance prevent order to the de- (4) changes ap- require refusal in the vacating fendant from the offices of prenticeship training on-the-job and Auxiliary several black Board, on the programs, (5) the crafts refusal to rem- company governing board com- edy unlawful from exclusion of blacks posed employees, of black and a declara- supervisory positions, (6) granting inad- tory judgment segregation of black equate desegregating relief in the com- governing and white on two pany’s management board, VII, boards inis violation of Title (7) pay. and failure to award back seq. U.S.C.A. 2000e et The district § agreed plaintiffs court with the and di- Defendant-appellee, American Cast prepare plan rected the Pipe Co., defendant incorporated the Iron Georgia to eliminate the racial on restrictions its laws the State of discussion, 1. In addition suits under After the district court denied relief to this following plaintiff, reversed, directing actions dis have evolved. The we the district complaint plaintiff trict court dismissed the initial on to order that be reinstat- ed, any awarded, necessary March because had EEOC back be and attempt protective Pettway failed to conciliation the fil orders be issued. and Pipe Co., of the case with the district court. On Wrenn American Cast Iron appeal actions, 1969). with several other we re F.2d 998 versed. Dent v. St. Francisco Louis-San Railway Co., (5tli 1969). circling” F.2d 399 The terms en- “red and “advance During pendency appeal, try” the defend will be defined the discussion infra. discharged plaintiffs. ant one named Birming- I. COMPANY ORGANIZATION AND place principle of business produc- Alabama, engaged ham, in the EMPLOYMENT PRACTICES ironpipe ductile iron and tion of cast fittings other miscella- and various Company Organization and A. products. As steel neous iron and cast op- Departments. company’s company em- August 12, 1971, the organized erations are into de- various 2,551 persons ployed of whom partments. primary pro- There are five black.3 having sepa- departments, duction each and from-the oth- rate distinct functions ^ brought Plaintiffs-appellants (1) They er. consist of: mono-cast and own behalf on their action containing shops department pipe three similarly persons sit of other behalf production iron duc- for the of cast Civil pursuant Rules of to Federal uated fittings foundry pipe; (2) iron tile per 23(b)(2).4 class Procedure 35,000 40,000 produces which between by plaintiffs-appellants represented sons complement the different accessories to negro employees of defendant are “those (3) produced shops; pipe pipe in the negro May employed 1966 and as of foundry produces the steel which steel employed persons subse who have been castings alloys tubes and of various been, May quent who have melting shapes; (4) department be, in the future will continued to required which by all of the hot metal melts opportunities equal denied department, fit- the mono-cast ground of race on the defendant foundry; tings foundry, and the steel color.” foundry pro- (5) pipe the steel which pipe skelp. In ad- duces steel dition, from steel appellants re- As discussed shop there is a machine questing relief from the extensive performs required on items all labor present impact past intentional dis- produced foundry, fit- steel illegal testing edu- crimination and tings foundry, depart- and the mono-cast requirements utilized cational ment, replacement mainte- as well as December, company-defendant from machinery. Four these nance on all 25, 1971, until certain March relief from pipe except departments the steel —all present discriminatory practices, foundry shop machine —have majority employed of black em- granted remedy inadequate lief ployees within the between desegregating the district court 1963 and 1971. employee management The dis- boards. requests. trict court We denied depart- has service also part, part, reverse affirm general yards consisting of the ments department, remand.6 stores, shipping the central company 1,792 employed persons complaint allege The a Rule amended their 23(b) 1965, approximately equally presented (2) divided between class action and a list of class, blacks and whites. The total names of the members of company enjoyed knowledge, continual increase to the district best their up to 1970. The number em- of blacks court. ployed, however, until decreased 1969 and in plaintiffs’ 5. From this statement from August, only slightly exceeded the 1965 complaint defining repre- amended the class level, while the number of white sented, are not it is clear that we concerned bad almost doubled. procedures discriminatory hiring and with original complaint, plaintiffs remedy. their had pursuant filed their class action to Rule holdings are 6. Our and relief directed 23(b)(3). Under an order district granted under Title VII and section botli requiring alleged court that the class be de- 1981 unless otherwise stated. clearly particularly, plaintiffs fined and department, group department, secondary main- supervi- electrical includes the depart- inspection sory, department, group 15, primary supervi- and tenance department. sory ment, positions (leadmen foremen). and the construction and departments perform services The These found “the that over- ship- materials, whelming receipt majority rawof the black em- products, ployees various historically and ment finished were and continue company’s employed groups jobs in the maintenance functions 1—8 departments, operations. departments particu- these Of various general yards, shipping, larly and construc- 1, 2, 3, in the mono-cast departments foundry.” added).9 (Emphasis tion have had substantial employees.7 The ma- numbers black

chine, maintenance, electrical, Employment B. Practices principal- inspection departments consist ly jobs higher and craft skilled 1. Intentional discrimination. per- positions a small turnover with company Until formally 1961 the main- em- sonnel. blacks have been Fewer exclusively jobs tained black and exclu- ployed departments.8 in these sively jobs.10 Departments white Wage progression and advance- totally segregated, but there were ment. The method of advancement predominantly predominantly black and wage departments pro- within these departments. When Presidential gression schedule, a ladder of Executive Order made No. 10925 such jobs. groups, embracing one more policy 1961, company unlawful alleges job- The that these resulting practice. terminated this employment segregated profile, however, to-job sequences functional rela- tionship. argue appellants preserved until economic formal, no func- admitted that requiring lay-offs conditions and subse- job progressions have tional lines of quent rehiring of laid-off workers. ever been maintained. Until 1968 process lay-off rehiring meant twenty-three pay company maintained any movement February groups, but into traditional white would come fifteen structure was consolidated into lay-offs occurred, to an end. As the em- pay groups: (a) groups 1-8 include ployees departmental with the least sen- functions; unskilled and semi-skilled g. iority, newly promoted, hired, e. (b) groups the more 10 contain employees, or transferred black would be positions; (c) group semi-skilled 11 is newly furloughed, hired, (1) either if non-craft, cleri- skilled technical and department positions; (d) (2) dropped groups cal 12 and 13 are back into the jobs; (e) the skilled craft and technical they transferred, employment practices See chart B § infra. to 1965 may Secondly, spe- be examined. this court 8. See chart B infra. explained cifically in United v. Jack- 9. Plaintiffs’ exhibit “total number of em- (5th Terminal, sonville ployees by pay group cert, race within each as of 1971), denied, 92 S. U.S. August 15, (two trial), 1971” months before (1972), Ct. 31 L.Ed.2d 815 and af- pay group along indicates ra- stratification Corp., firmed in Burns v. Thiokol Chemical company’s cial lines. Over pre-act 1973), 95% 483 F.2d 300 employees' pay groups jobs, work 1-8 discriminatory highly relevant, conduct es- only employees while of white hold pecially, considering practices 30% when neutral positions. these See chart alleged carry infra. under Title VII to forward past discriminatory effects. Bee United prior 10. Discrimination to effective date Supply Co., States v. Dillon 429 F.2d 800 July VII, 2, 1965, of Title can be considered (4th 1970). appellant’s two theories. Since allegations are also made under 42 U.S.C.A. m the seniority in the decrease departmental 1965 and former

tained plant employees in the lay-off purposes.11 number of black department for number of while and from 869 to production increased As normally employees might from to white increased re-employment of blacks 2,162.13 company increase, in- expected be to illegal testing and education- stituted its In De- Promotion transfer. em- requirements. As of 1963 al cember, 1964, company a initiated work ployees half the constituted about testing promotion requirement with- for company, three but force any groups pay in or between pro- any earned more than white blacks departments.14 for between transfer jobs any workers, if and few staffing. duction scores) (test cut-off Achievement levels racially mixed had using the California were established Hiring. to Survey Maturity Sometime To of Mental Tests. hiring re- company a eligible position particular had instituted for high quirement school education pay group, employee obtain had to applicants. equivalent white corresponding specified for all its to the test score By applicants re- also company were 1960 white deter- achievement level. The screening battery quired pass to test na- mined that the tests’ recommended ap- physical high Black and a examination. for the com- tional norms were too plicants employed prior compa- were to 1964 pany’s purposes. Therefore, the pass physical only required exami- ny in an its own effort to establish compliance re- average In after a nation. standards of norm selected 100 De- view under Order No. 10925 partment performers from its take Army of Federal and Office determine the test. This was used to company Compliance, was assign Contract to var- what achievement levels to eligible informed for federal that to be company’s ious within the longer maintain contracts it could no grades. Ninety-eight of 100 selected hiring for black and different standards Seventy-five employees took the test. company applicants. The at that black; twenty-three were white. testing education time extended the testing program promotion This was applicants. criteria to black These Depart- Dr. reviewed Brimm hiring in effect standards for remained Army ment of and Office of Federal However, until elim- Compliance praised as one Contracts requirements systems companies inated as he test as well of the best compliance had visited on reviews. high criterion of a school education hiring groups equivalent its into February 19, 1968, the On July 14, 1-8 The failure 1969.12 testing pro- criterion for eliminated successfully quali- to hurdle these blacks eight pay motion first within fying resulted, grades.15 had between barriers com- In addition C., program promotion 11. We note that v. M. Rowe G. 14. The 1972), carefully explained employees. 357-358 all It was rejected ameliorating solely voluntary. this as an varia- were al- And seniority justifying system -which, every ble dur- test twelve lowed to retake lay-offs attempt improve the “ebb and flow” of and rehir- their achieve- months to ing, required again testing, to once de- ment level. addition to the “go partmental foot the line.” was a factor deter- mining promotion. company thought 12. in a it would be position, participant better as a in the na- company, however, continued to program, employ persons among tional quire testing pay groups for new Mrees unemployed. the hard core July 14, 1969, 1-8 until as the re- well quirement just high 13. The ratio school educational or went un- blaek/white equivalent. der to about its 50/50 25/75. testing require- plaints Supreme facing high concerning these The Court ments, testing requirement determined that school education and ability Griggs perform of func- v. Duke Power U.S. grades tions in these could be estab- 91 S.Ct. 28 L.Ed.2d 158 by on-the-job (1971), lished without observation stated: company. Requisite detriment to the pro- . . VII] . Act [Title hiring achievement for and for levels scribes not discrimination overt promotion or transfer within or without' practices but also that are fair department positions pay groups discriminatory form, operation. but retained, 9-15 however. The com- were necessity. The touchstone is business pany testing March, eliminated all employment oper- practice If an company simply Currently, 1971. Negroes ates to exclude cannot be person, tries under the bid- selected job perform- shown to be related to ding depart- procedure on basis ance, practice prohibited. is plant seniority mental ability, or us, On the record neither the before per- on the and evaluates his high completion requirement school determining promotion. formance in general intelligence nor the test shown bear a demonstrable rela- Testing require- 4. and educational performance tionship to successful testing prerequisite ments. A was re-' for it Both which was used. promotion quired hiring, and trans- Appeals adopted, were as the Court of fer, entry apprentice into the noted, meaningful study of without on-the-job training high programs. A relationship job-performance equivalent school education or its was a ability. criterion, being well, as hired or en- * * -x- * * * try apprentice program. into the good intent or ab- [B]ut Concerning testing conducted discriminatory sence of intent does company, the district court conclud- employment procedures not redeem testing ed: operate mechanisms that as minority “built-in headwinds” for history testing, they ex- groups and are unrelated to measur- isted were administered de- ing job capability. July 2, 1965,16 fendant from to March Company’s lack discrimina- 25, 1971, findings recorded in the tory suggested by special intent is ef- fact, supra, convincing help forts to em- undereducated discriminatorily applied not financing ployees through Company employees. defendant black Their ad- high two-thirds the cost tuition for impact employment op- verse on the training. Congress school But direct- portunities equally blacks is clear. ed the thrust of the Act to the conse- Judged by the standard established quences employment practices, Griggs Company, v. Duke Power simply the motivation. More than U.S. S.Ct. 28 L.Ed.2d 158 Congress that, placed the em- has (1971), they pass could not muster. ployer any showing the burden of added).17 (Emphasis given requirement must have mani- although note that We the district court It is unclear whether specifies July 2, 1965, testing it also stated that meant both the educational testing promotion purposes began quirements just testing. in De- The EEOC cember, Discriminatory guidelines define to include an educa- practices prior requirement. effective date Title tional § 29 C.F.R. 1607.2. VII, July 2, 1965, are in determin- relevant allegedly present past effect dis- 10, supra crimination. note See showing inadequate Griggs. employment in under relationship this to the fest question. at 431-432. We concur. U.S. Georgia Power In United States challenge appellees not do The Co., 1973), this F.2d 906 under court’s conclusions district the proper specifically passed on the Court testing. concerning Griggs af We employment procedure for validation fully the more and firm will discuss recognizing Although test that “a tests. grounds supporting decision. the court’s per se, valid or but must invalid testimony appellants’ wit The both setting in it is be evaluated in the company’s indi witnesses and the nesses (Id. 912), the used” at note that we educational that and cated time-,.attempted company has no at requirements in fewer resulted had guide tests under the EEOC validate its being employed between lines, Employment 29 C.F.R. CCH fewer black em and 1969 and man Practices which we found being promoted

ployees between 1965 Georgia datory compa Power20 The these and 1971. statistics ny’s lev efforts to achievement establish depict prima pat periods the same facie job relationship per els which have a tern, support district court’s and acceptable formance than the are less dis adverse effect.18 This conclusion of procedure Georgia inadequate held applicants proportionate impact on black Power21 Id. at 912-918. of dem and shifts the burden onstrating compa job-relatedness Although it unclear whether ny Griggs. high ruled on the school hiring attempt purpos- company to vali- education made no standard for any tests es,22 date number think that this we education- utilized,19 except Test the California requirement “pass al un- muster” cannot Maturity. The trial court found Griggs, Mental der v. Good- either.23 Johnson extensively testimony 18. We discuss hold absent we should be followed A, B, C, D, showing cogent the statistics Charts exists that reason some infra. E, noncompliance.” should be examined. at F.2d for infra promotion purposes, proce- recognize be- and transfer For the validation We that ginning found that the district court Mental Matu- Test of dure of the California rity company Test utilized the California set trial forth Maturity. Griggs Mental The record indicates conducted before or excerpt Georgia However, or a from it was test shortened Power decisions. primary proce- also used as one of the determi- asserted at trial hiring entry appren- approval for into the nants Dr. dure and the Brimm on-the-job training programs. Compliance An tice and of Federal satis- Office Contract additionally aptitude required legal test was test- standard fied ing. groups 13) equiva- (pay Georgia Griggs rate 12 and or craft Power are agree Since on-the-job job, g. apprentice legal standards, lent e. we cannot programs. training they have been met. education, high 20. This Court stated : its school Since requirement guidelines entry ap- equivalent, “This treat into the criterion expressing Congressional prentice program open intent ob- is an issue on this viously appeal, postpone analysis was intended as answer to II we will until question Griggs (A). can (B)(1) issue III —When tests, which are have discrimina- shown to Griggs Supreme tory results, stated: . . Never- Court be used? . examples theless, undeniably provide “History guidelines men these is filled determining highly who rendered effective valid and women framework for wheth- performance study par- conventional er without a validation manifests that a badges accomplishment predicts in terms cer- ticular reasonable test suita- Diplomas tificates, diplomas, degrees. guidance bility. Their value is such that year on-the-job training programs, Tire & Rubber as well as 1974]; hiring 73-1712 March [No. the educational criterion for Georgia Compa Power terminated on March 1971. We have ny, 918-919; holding 474 F.2d at United States affirmed the district court’s Copper Co., testing, v. Consolidated 6 EPD that and have ¶ ourselves (D.Ariz.1973). criterion, found that the educational fail Griggs. under the standards We effect, company Given the adverse agree with the district that these court job showing had the burden of related- discriminatory practices had an “adverse Georgia ness. we stated in Power: As impact employment opportunities on the of blacks.” The issues are now three- Griggs], explic There the court [in (1) fold: Did the district err in itly high held that use of a school denying injunction against the future requirement dispropor which has a imposition testing and educational impact tionate racial and has not been (2) present standards? If there is ef- proven predictor to be a of ultimate employ- fect company’s neutral job congres success controverts practices ment past aas result of the sional mandate of Title VII.14 As discrimination, required? what relief is Georgia testing pro-. Power’s (3) and continuing, present Are there gram, supra, the issue here whether discriminatory practices ? company or not the has made a suffi showing cient to manifest a relation ship require between its educational II. PRESENT ADVERSE EFFECT ment and its characteristics. AND PRESENT DISCRIM- F.2d at 918.24 INATION company offered no evidence to sat- Appellants consequence assert that the isfy this burden. past intentional exclusion and of illegal testing and educational stand- Lastly, point here, we wish to as out currently by: ards is carried forward Georgia true also in Power25 (1) practices depart- the neutral large percentage em of the current seniority bidding mental and the and ployees (August 12, 1971), 56% posting procedure pro- which determine and of the white 12% ; age (2) requirement motion for en- employees, enjoying job success try apprentice program, into the high diploma.26 without school See who were denied this Griggs v. Duke Power 401 U.S. at opportunity past in cannot now 431-432. meet; departmental bidding (3) and policy ended its formal on-the-job utilized for the selection of segregation of black and white addition, In trainees. the continued ed- 1961, although in lingered its immediate effect prerequisite entry ucational into the improper until 1963. The test- apprentice program purely and the hiring, promotion transfer, and subjective applied by criteria to be all- apprentice admittance into the department superintendents white servants, and tests requires are useful but Con- similar validation. 29 C.F.R. gress 1607.2, has mandated commonsense §§ 1607.4. proposition are not to become 25. 474 F.2d at 918-919. reality.” masters of U.S. example, seventy-five 26. For there are pointed note completion the Court high out who without of a requirement, also, such an educational ran school education make $4.00 over an hour. Equal Employment Opportunity afoul of infra, indicates, As E chart $4.00 an hour is guidelines. Commission’s average pay The EEOC defines well above the rate in de- most “testing” partments. to include an educational criterion personnel supervisory are ment to for eventual enhance his chances selection discriminatory higher advancement, pay, challenged present or better working usually conditions will practices.

quired a loss of endure wage cut as a condition of transfer. System Seniority Promotion —The A. Bidding Posting Procedure Appellants dis- invidious assert prac present neutral illegal Effect and the crimination January 1, Beginning tices. requirements and educational policy posting instituted through 1971, resulted adopted pay group 3 and vacancies above depart- in racial stratification between filling bidding procedure for these a (and departments ments and within job first vacancies are vacancies.27 salary). consequently in This stratifica- bidding days posted within for for three past a these tion is manifestation of department. qualifications, i. Basic practices (1) have which excluded ability, departmental seniority e. and posi- majority of workers from black from the bidders. control the selection depart- predominantly tions white qualified employee the de no within If thereby preventing absolutely ments posts partment bids, then there; obtaining seniority and their of transferring- vacancy plant-wide. A (2) excluded, not initial en- if deferred seniority employee retains his former try thereby departments, cur- into these returning purposes former for of to his tailing seniority of black lay-off department of within ease departments hampering in these and carry department. he new does But posi- higher paying promotion their to seniority any over of his accumulated argument appellants’ Therefore, tions. promotion purposes departmental for of em- black is that stratification n —-a basic unit or seniority type.28 job paying depart- ployees lower into the Note, VII, Seniority Discrimi See Title by past jobs, and caused discrim- ments nation, Negro, 80 and the Incumbent inatory presently is effectuat- practices, (1967). Harv.L.Rev. 1263-66 through seniority departmental ed wage pro- company’s proce- system bidding posting Because of the and and gression transferring structure, em- a dure. may higher ployee low- move from a to a system seniority departmental has paying fact, position.29 er an em- locking-in black effect because substantially ployee progressed who has to seniori- forfeit have transferee would department pay groups within in one ty pay transfer in order to depart- rate and then a transfers to different at 223. 29. See note Before did not a infra systematic filling procedure va- for written wage progression purposes rate 30. For department cancies. within a Promotions year’s only, cred- allowed one a is transferee department employee in went to senior promotion, lay-offs, reductions or it. For immediately group lev- lower force, de- is treated within a transferee Departmental superintendents, who were el. partment man.” a “new as got white, employee which all determined year’s for one credit The retention of promotion. Evidently, company discour- substantially purposes group not reduce does depart- aged transfers between different this class transfer deterrence department ments. within a Promotions employees because their black above, pay group transfers 9 or long period company extends over a course, subject still example, class of 623 list of time. For 25,1971. standards until March to the district members was submitted ago, then, years these transfer- in 1969. Even 28. The district court stated that four plant-wide year’s seniori- ring employee given had substantial one credit ty. every also, per- Further, wage purposes, and, to serve progression has period being probation past expe- eli- any training before six month mitted credit gible promotion. pay group higher for a rience for within the he now obtained. has workers, who, although to a because the transferee those black de- department predominantly race, would white terred because their have ob- promo- compete equally predominantly unable tained a foothold in seniority departmental department compete equally tion based on white cannot depart- employee, departmental with a white the basis of transfer, employees, ment the time of the with white who were able to gain seniority. plant department equal Black em- entrance to the less earlier. ployees predominantly de- white within Therefore, appellants, conclude the de- gain partments, en- who were unable partmental seniority system deters black try department into the transferring because race, swiftly as because of losing seniority the inhibitors workers, be harmed white would also pay grade bidding posting while the greater proportion by lay-offs or reduc- procedure prevents most often even the tions in force.31 majority consideration of black bidding proce- posting Under the position predomi- workers for a within a dure, only qualified employee if no with- nantly department. And both days department in a after three practices bids operate handicap em- vacancy proc- posted plant-wide. This ployees intra-departmental promotion ess freeze in the stratifica- continues to higher paying, jobs.32 skilled ways. First, tion in em- agree two those black appellants past We if with ployees previously excluded from discriminatory employment practices higher paying departments of because have resulted in racial stratification promotion denied race will be these pay, jobs, departments, present and opportunities em- favor those white in, above, effect is to lock as discussed department. ployees Secondly, employees.33 black 31. The court v. Bethlehem United States seniority purposes promo- or unit Corp., (2d 1971), F.2d department Steel 446 652 Cir. formerly tion in the ‘white’ aptly described these hurts : continued the effect of the earlier discrim- formerly “In order transfer inatory practice.” Id. at 658. department employees ‘white’ these Industries, Inc., N. See United States v. L. required penalty, to suffer economic (8th 1973) 354, ; 479 F.2d 358-366 Cir. seniority rights forfeiture and lev- Co., United States v. Jacksonville Terminal department. els earned in the ‘black’ supra, 451 F.2d at 453. departmen- former was due to the use of nature, seniority system, by 32. A al- unit its seniority, tal the latter fact advantages lows the with most paid the transferee’s new was at low greatest seniority. Cooper and unit See entry department. Thus, level in the new Sobol, Seniority Testing Fair and Under opportunity to obtain an been de- that had Employment Approach to Laws: A General race, nied them because these em- Objective Hiring Promotion, Criteria of ployees up willing give had to be what (1969). 1598, 82 Harv.L.Rev. 1603 already was theirs because Second, service in plant. Goodyear Co., a transferee to a 33. Johnson v. Rubber Tire & department supra, Roadway ‘white’ 1364; Bing would never be able to 491 F.2d Ex v. employee press, Inc., (5th 1973) ; reach the level of a al- white 485 441 F.2d Cir. ready example, Bearing Co., there. For if a black Head v. Timken 486 F. Roller 870, (6th 1973); 875-876, had been hired at 2d n. Cir. Unit a. 7 same Industries, Inc., time and the latter had been as- ed States v. N. L. signed 358-366; to the more desirable ‘white’ de- 479 F.2d at v. United States Geor partment, gia Co., supra, 906, but the black had not been so Power F.2d 926- 474 assigned, 927; the white started to accumulate United v. States Jacksonville Terminal department seniority Georgia 418; Long unit in that de- 451 F.2d v. partment (5th 1971) Co., ; but the black did Even if not. Kraft 450 F.2d 557 Cir. given years Corp., 791, was the chance later Robinson v. Lorillard cert, department, (4th 1971), dismissed, to transfer into the ‘white’ 795-800 Cir. 404 discriminatory job assignment 1006, 573, earlier U.S. 92 S.Ct. 30 L.Ed.2d 655 (1971) had ; 189, Papermakers denied him the chance to earn seniori- Local United & ty up depart- Paperworkers to that States, time in the ‘white’ v. United 416 F.2d 980 Therefore, departmental (5th ment. 1969) Stamps ; the use of Cir. v. Detroit Edison

225 past pay groups. discrimina non-skilled statistical This Effect step tory practices. is to de The next pattern past light considered in segre racial whether there was termine illegal intentional discrimination and the department gation along pay, job, and coupled requirement, with viva there sübstantial While lines. presented hurdles to black impact issue of the voce evidence on the departmental system ap discriminatory practices, past bidding handicaps proce pellants primarily relied on statistical present prima dure, case of facie Introducing com evidence. black/white present past effect discrimination parative statistics company’s promotion and transfer dealing 1971, 1969, 1963, 1965, process.34 Douglas Corp. McDonnell appel salary, jobs, departments, Cf. 800-807, Green, 792, v. pattern 93 S.Ct. 411 U.S. of racial lants demonstrated relying 1817, (1973). departments L.Ed.2d 668 36 stratification between derogation proof, departments within we this method of statistical paying, lower into the em- first examine the total black/white F.Supp. (E.D.Mich.1973); Co., denied, 87 Unit 365 cert. 406 U.S. 92 S.Ct. 32 Virginia (1972) ; Electric and Power v. v. ed States L.Ed.2d States Iron 338 United (E.D.Va.1971) ; F.Supp. Company, (9th workers Local cert, F.Supp. Morris, Philip Inc., Cir.), denied, Quarles 404 U.S. 92 S.Ct. (E.D.Va.1968). (1971) ; 30 L.Ed.2d (8th v. National Lead F.2d 935 1971) ; Parham Southwestern Bell Tele cases has evidence in Title VII 34. Statistical phone weight given Co. 433 F.2d in this Cir been ex-itical often cuit, 1970) Way Freight, ; Goodyear v. Lee Rubber Jones Motor Tire & Johnson (10th Inc., cert, 245, 1970), 1371-1373; 431 F.2d 247 Cir. Ochoa v. F.2d at 491 972, denied, 954, (S.D.Tex. F.Supp. Co., 91 28 401 U.S. S.Ct. 53 335 Monsanto (1971). see, 318, 1971), per curiam, L.Ed.2d But Heard v. 237 319 473 F.2d aff’d (6 1972) ; Co., (5th 1973) (“Accord Mueller 464 F.2d 190 Cir. evidence statistical Cir. ; Co., weight”) great v. Russell Rowe American Tobacco F. and oft-times decisive 374 Supp. 286, supra, (M.D.N.C.1973). Corporation, 457 5 EPD ¶ 8447 v. General Motors generally, Fiss, Theory “critical, (statistics See Fair Em A of if have F.2d at 356-358 ployment 235, Laws, decisive, significance certainly 38 268-81 U.Chi.L.Rev. least — (1971). putting employer” burden of in disparity) ; justifying The courts have most often utilized v. United States proof hiring empirical discriminatory Corp., 112, Hayes in situ F.2d 456 International finding (5th 1972) (“these lopsided ations. The have based a of courts ratios 120 Cir. impact showing percent proof past present adverse on data are not of or conclusive compared ages discriminatory however, hiring practices; of and whites hired as blacks percentages present case.”); in prima the available each a Unit do facie population. disparity Co., is held The statistical su Terminal ed States v. Jacksonville pra, showing prima (5th discrimi 424-436, to create 441-442 Cir. facie impact require natory 1971) (“although and thus invokes do not estab the statistics discrimination, prima overall ment that relatedness of the lish a case facie process g., explanatory E. Unit selection be established. . . . absent evidence tes Corp., Hayes timony, ed v. su States International officials the statistics indicated that pra, 120; impliedly equated job qualifications v. 456 F.2d at Iron- 86, supra. race.”) Hayes ; courts have workers Local Some Inter United States Eighth gone step (5th Corp., further. The statistical 415 F.2d national gross 1969) Parham, supra, (“the employment ruled that Circuit Cir. statistics dis minority disparity cussed, amply between the number of . . . demonstrated (less employer's preliminary company’s showing work force workers 2%), hiring practice VII.”). overall than number violated Title Other population) population (21% County agree, state circuits Brown v. Gaston Dyeing prove "per Machine se.” See Rios can discrimination cert, (4th denied, 1972), Enterprise Steamfitters, U.S. Local Association ; (1972) F.Supp. (S.D.N.Y.3971). Carter 93 S.Ct. 34 L.Ed.2d Gallagher, 1971), 452 F.2d 315 highly weighing ployment figures years cants is its for the relevant impact promotional op- through 1965 and adverse on the Between 1965 1969, testing portunities employees. period when black prerequi- requirements were educational Hiring statistics indicate black pay groups, the number sites for all applicants substantially fared worse approxi- decreased from black workers testing. applicants white than on the So mately the com- one-half to one-third of too the actual achievement pany’s force, correspondingly the work maturity workers on the mental test employees increased. number of white scoring employees lower veal than white company admitted and the district company September, of the court35 found decrease resulted that this example, depart- For in the five 37 containing ments 80% workers, employees’ the black averaged 0-9, 10-19,

scores percentile employees’ 20-29 while white averaged scores in either the 40-49 percentile every department. 50-100 Having observed that black performed well on less the tests than employees, we must make a com- parison of the black/white testing impact and edu- from by departments depart- data and within requirements.36 It not un- cational was by pay ments rate to discover if the im- dropped 1969-70, til when pact illegal testing (scoring low- requirements its and educational er) was to lock black into workers lower pay groups, in the 1-8 paying, departments non-skill and lower percentage for the of black paying jobs departments. in all began By to increase. statistics 1965 indicate al- again company’s 1971 the work force complete most stratification of black approximately black. 50% depart- within the non-craft Testimony by company officials and a ments, fittings foundry mono-cast, melt- finding by the court establish ing, bolt, shipping, foundry, steel clearly reveals, empirical proof what general yards, disparity in the a substantial number of oriented, highly more craft skilled and 1969 hired blacks between departments, maintenance, machine testing and educational standards when shop, electrical, inspection, and steel grades. pay required for were all Since pipe. departments, Within black em- of Mental test, the same California Test ployees occupied predominantly the 1-8 Maturity, employed de- both hiring groups promo- termination for and white the 9- tion, impact appli- its adverse black groups.38 County, 35. The district stated: tiou of Jefferson Alabama and Bir- ap- “During period, mingham, compa- the 1964-69 when all Alabama from whence the plicants subject ny were to the educational draws most of its work force. testing standards, more than whites departments (370 37. These were mono-cast emidoyed greater blacks because were black, white), foundry (245 black, percentage applicants unable (77 white), melting black, white), ma- requirements.” to meet these (50 shop black, white), chine steel foundry (36 black, white). allegation 36. There was no this resulted judi- applicants. findings from fewer black take We 38. See the district court’s infra popula- cial notice substantial employee predominant previously indi- white Between and the data stratification, positions. Rather, total cates less but black/white hiring figures indicated, found this was black/white by hiring into increased due to advancement black whites decrease place- against employees (1) assign- led to number of blacks black — previous ment of paying whites depart- into the lower ment to lower non-skill paying, predominantly depart- assignment pay- black ments (2) to lower positions. departments. jobs ments and The district court within all As of pointed August 15, predomi- further ployees during the black out em- the traditional period nantly departments, monocast, could not black fit- testing tings qualify foundry, melting, shipping, bolt, transfer or promotion. general yards, steel foundry, and con- approximately tained of the black 81% Between 1969 and statistics company.40 higher workers of the The demonstrate a rise the number of paying, traditionally departments, white employees pay groups black 1-8. maintenance, electrical, shop, machine February, It was 1968 that the test- inspection, pipe, and steel contained ing requirement positions these employees although of the black 37.- ranges removed; 7% March, was of the total white work force was purposes 6% employed for all was halted departments. in these by company. by While the extreme stratification showings These statistical are corrob- along rate racial lines of 1963 was testimony Phelps, orated of Mr. large blurred the influx of number of Manager Employment Adminis- employees traditionally white into the tests, trator who stated: paying positions lower black from 1965 Q. you I said are familiar with the sign there no was movement taking fact the tests higher paying jobs.42 blacks into favorably blacks less than score findings district court’s reflect this fact. whites ? eight key district court examined A. Yes. departments to demonstrate that Q. departments, In is that cor- all types segregated were with blacks oc rect? cupying paying positions. the lower positively. A. I can’t answer that court concluded: jobs The number of all black Q. judgment de- your ? What is best through creased 1969 as the number A. Yes. of mixed increased due to the historical, summary This statistical paying movement of whites into lower discriminatory pattern indicates through jobs. From 1963 Every other official testi- who employees work, of 869 black no black em- fied, Manager Vice-President Works ployee per hour, earned $2.65 over no while Superintendants Pipe and ry, of the Found- per white earned less than $2.65 agreed Shop, Foundry, Machine and Steel fittings foundry, only hour. In the three of that black less than scored well per the 234 blacks earned above $2.31 hour employees. white paid any while the lowest rate of the 185 per white $2.65 was hour. In 1963 when racial stratification shop, every employee (201 machine tal) to- present discriminatory because formal high- $.41 earned at least more than the policy these thirty-nine est of the blacks. The other de- departments also contained of the com- 81% partments pattern. reflected the same pany’s employees. While this can be comparative earnings 42. The charts submit- explained newly somewhat hired by appellee appellants’ ted to contradict em- blacks between 1969 and this does not pirical assertions that black explain high- the absence blacks derogated pay groups to the lower suffers paying departments higher paying er newly from this variable. hired white jobs. . period during placed were jobs departments seg- In paying previously jobs. all were into the lower black regated holding on a racial basis with whites salaries, Since low annual received higher paying jobs greater earnings and blacks hold- white than ing only jobs. paying comparable lower For exam- black was ple, department, in the mono-cast where 359 masked. the number of all white remained from data 1969 indicates that there approximately fifty-five Promotion racially constant. positions were mixed higher paying blacks positions. 177 all white or all black suggested jobs, pertinent reasons above But the peri- indicium for the [testing require- educational od previous 1965-1969 is that all being ments], accomplished. positions was being black integrated by were personnel influx of white rather up by The chart drawn the court reflects any upward than movement black em- single type not a ployees. eighty-six any eight there were departments key jobs; all employees; held both 1969 these were re- white and positions totally segregated. sixty jobs.43 were duced to thirty- A total missing computation because figures shop eliminated The machine 1965 data. pointed during integrated had earlier district court positions four were twenty-six words, placed employees period. In were other that out black integrated jobs thirty-four were paid groups: of the positions lower into employees white the movement of Although were and continued there jobs. applicants previously all black into substantially all de- blacks be fifty-nine 1971, only of 232 As late as majority overwhelming partments, the jobs integrated only were — 25% historically employees of the black total. employed parisons, employees were and continued black 95.35% Group Pay 1-8 various white were 36.03% departments particularly 1-8, groups while 63.94% 3, Foundry. Mono-Cast 4.65% pay groups 9- finding coupled plaintiff’s This with average comparing wage chart average wage agree court, blacks whites in all while firmly departments appellants’ establish statistics revealed stratification, forced workers were into racial found lower re paying positions company. past sulted from within than factors other dis just gross criminatory example, practices.44 For in terms of com- platitude: problem 44. The district court stated: ‘In the of racial dis- “Understandably, plaintiffs rely heavily much, crimination, statistics often tell upon support listen,’ States, an statistics inference courts Alabama v. United 1962), invidious discrimination. But this is not Oir. registration, jury selection, evidentiary unmitigated voter or school windfall. desegregation employment, complex- case. the area of its Thus familiar oppor- with limited out future advancement court sifted The district Also, employees following held tunities. which were who had variables seniority, empirical appellants’ con- substantial and had conse- to undermine employees quently top reached the were of their that black clusions groups, promotion paying jobs involving and transfer in the lower locked higher paying department to departments:45 would re- beginning sult in a cut in and as a training op- Voluntary (1) refusal of department. new man in the See prerequisite portunities which are Industries, supra, States N. L. 479 F. promotion; 2d at 362. (2) Voluntary promotions; refusal of For the court to state that the black requisite (3) qualifications; Lack of employees unqualified is inconsist- (4) request promo- failure to ent with its conclusion that the ; illegal Griggs. tions was For the test- ing only objective were the (5) job performances which Poor promotion criterion utilized for promotion have defeated or re- January (the transfer. Before demotion; sulted in date of the posting initiation of the job (6) Voluntary transfers to lower bidding procedure), department su- classifications; perintendents subjective utilized their job Availability judgment va- determining or a lack quali- ; (testing cancies and departmental fied seniori- ty) employees job filled vacancies. We (8) of motivation. Lack supervisory positions note that these suggested by the dis- The variables employees. held all-white light court, examined trict when appellants’ critical anal- our own and the type subjective We considered this heavily weigh however, ysis, not, do evaluation in v. General Rowe' Motors empiri- enough appellants’ lessen Corp., 359, stating: 457 F.2d at The district cal conclusions. recognize today All we do points em- the refusal promotion/transfer procedures which accept promotions ployees from 1965 depend entirely upon the almost employees ac- But 554 black subjective evaluation and favorable In addi- cepted promotions.46 offered recommendation of the immediate pro- concerning testimony tion, ready foreman are a mechanism po- that these offered indicated motions against Blacks. for discrimination often less desirable than sitions were being employee’s position, more have ex- others current We and paying physically little more per- menial and pressed skepticism that Black variables, ana- pay group. must be job higher ities and statistics in a form sup- lyzed both to replete with careful attention of black with evidence record is portive opposing promotions, employees facts.” refused who reject training op- conclu demotions, While we court’s requested declined a lesser role em sion that statistics have portunities, to bid on failed or refused ployment voluntarily than these discrimination cases higher paying jobs, freez- thus (see supra types litigation paying note other ones.” in the lower themselves complexities 225) agree we do scrutiny require em During period and variables close white pirical proof. Goodyear Tire & accepted promotions. Johnson There no infor- pro- many Rubber 491 F.2d 1364. refused on how mation breakdown motions. percentage -Specifically regard locking-in is- information Without refusing promotions sue, and the declared : district court white promotions types em- “Black offered cannot be heard to com- plain they particular ployees, court’s statis- think the district' were locked we qualified per- when were not tic inconclusive. dependent any employee) request promotion.47 directly on sons decisive could During period, was, promotion can ex- recommendations Whites pect effect, supervis- determined non-diseriminatory action. all white ; practice ors a we noted in which Rowe A the trial court’s was similar view to emphasis. par- could have racial This is put by in forward the district ticularly importance considering of the v. Terminal United States Jacksonville testimony reflecting promo- number had re- 451 F.2d which requests by employees tion black which jected government’s be- statistics upon by were never acted the white com- cause of their failure to evaluate department superintend- foremen and peting upon employees black and white Moreover, appropriate ents. we deem accepted qualifications individual and holding the court’s in United States by employer unadorned statements Industries, Inc., supra, L.N. 479 F.2d they promoted best hired 354: qualified persons available. stated: We production pipe department positions cal conclusion is that black workers were excluded 227). steel employees. ers, sion. foundry, who particular becomes valid or union cannot function as a one as pipe) It objective Since there employee n by discriminatory is the in this trial steel “best but has compared job (See evidentially department highest paying primary foundry, melting, criteria judge’s only qualified.” are also belies this conclu- make department, very are chart when the only thirty-five general up few black work- pertinent determinants pronouncement B, demonstrates of the steel practices. (mono-cast, Id. few supra employer rule. at white craft logi- and It 416 F.2d ommendation were Sheet Metal Metal Workers knowledge of the nominal number of discriminatory record indicates that white man could In pra, black ed moted to rent reason National Lead’s contention willingness cause meaningless any case, 452 F.2d at practice required without they foremen, black supervisory positions ^[123] hardly did Workers], to be employees of an incumbent a black to make such a merit. not request policies, promotion 331; [United “ask” to be promoted. 132; Carter, expected Company’s past see Nothing supra employee indicating were not and the cur- Parham, via the rec- States [8 to make request. promot- was Cir.], Sheet fore- pro- his be- su- su- pra, 433 F.2d at Id. at 369. requests The court cites a lack of for promotions, yet, January and Further, until testimony by there was at trial posting department 1971 when the formal superintendent48 and bid- that aft- ding procedure initiated, passage there was Rights er the of the Civil Act of by employees (or no method (Title which black VII) company received a procedures 47. Courts condemned mouth. When are as classifications promotion job assignment segregated which are not company, this objective g., delay learning uniform. E. Brown v. vacancy Gas about in an all County Dyeing Corp., ton Machine category may white in itself discriminate 1377; Sup against Dillon a black who hears it ply Corp., 1970). only F.2d 800 practice after it has been filled. This In Brown the court stated : resembles the lack of a formal transfer “Here, objective system in the absence of crite- which we criticized Dillon. applied alike, ria to all workers the statis- F.2d at 804.” 457 F.2d at 1383. tics indicate that race is the identifia- explaining disparity ble factor superintendent between 48. The of the mono-cast de- jobs by partment gave held testimony. The mono- by employees. those department held largest compa- . . . cast is the “Moreover, ny’s departments employees. the record discloses that no- It with 651 posted, ticss always majority vacancies are not has contained the of black passed along by plant (currently 40.3%). news of them is word of in pointed requests from black em- out “flood” that between 1965 and 1970 positions. ployees Of for more skilled at the increased 1,444 jobs, including course, fail- most rebuffed were turnovers. Ad- testing. illegal opportunities qualify under the vancement ure to corre- during addition, during spondingly period first months ten increased bidding rapid posting development. economic formal procedure operated, and edu- ground The sole having requirements been ter- cational court’s conclusion lack of motivation months, six of these minated the last part appears on the of black workers (107) for de- of the 251 bid 41% be lack enrollment classes plant-wide partmentally were won conducted aid by employees.49 black achieving higher testing.52 in the scores single foundation the district employees court’s conclusion that black job performing poorly on the the were is through figures July 5, that from seventy-six em- black October during

ployees But the demoted. were employees period

same were 143 white addition, testimony at In

demoted.50

trial indicates demotions were often that poor cut rather than

due to work backs

job performance.51 This demotion sta- concerning employees at tistic black nega- and the most least nebulous But the statistics for indi- these classes support tive in court’s conclusion. of the that cate it until was not 1967 that black only of a mention record began light In enrollment to off. fall of voluntary job lower to classi- transfer a discriminatory illegal impact of this physical to dis- fication was reference - testing, simply may it be blacks that employee required the to abilities which alized that was stacked wearing job. request physically It a less against them. This lack of motivation stated, however, was that in the face conclusion also comes of the allowing practice had older em- a of testimony management ployees, white, accept by a lower black and demanding paying, posi- concerning physically employee less “flood” of black pay a rate. tions without reduction in jobs applicants after the skilled for more Further, in- passage of Title VII. unavailability As vacan- to the employees53 organization of tense black contention, court, itself, cies the district seven- many in the total number of included were how are no There totals ty-six employees. demoted. 1,854 blacks were bidders black also court composed approximately employees 52. This conclusion 50. Black finding initiative on employees with just conflicts total over one-third of the employees. part The court black period. company during some this employees stated, who failed black “Some depart- melting superintendent of the 51. The initiative the test exercised well on score black, employees ment, and 101 118 white training the defendant’s with further take July, and October that between stated improved subsequently assistance, and twenty-nine twenty-five 1, 1971, white and higher paying into advanced scores and test employees demoted because jobs.” depart- operations. Under curtailment Many employees in the class seniority system, with mental Equal plaintiffs, here, are members laid of time would amount smallest Opportunity Employment This dropped Committee. above him off and the majority af twenty-nine formed position. committee was These his down into past closed that these variables have no interest this sub- continued validity.56 litigation54 that the black demonstrates stantial company are interested concerning promo- 3. Conclusion opportunities and more for better procedure. picture tion The statistical highly jobs. skilled drawn here is similar brief, held that the district persuasive Court found in United States dero- demonstration of the statistical Terminal, supra, v. Jacksonville F.2d gation pay- lower of black government 418. Under attack departments resulted promotion system there was a promotion employees’ refusal of bidding procedure rigid based on a craft training quali- opportunities, lack of bidding seniority or class similar promotions, request fications, failure to systems departmental poor job performance, transfer lower issue here.57 job vacancies, groups, lack of This Court stated: find that lack We of motivation. [T]hey prove do [statistics] holding “clearly Hum- erroneous.” facility ap- at the phrey Cement Portland v. Southwestern proximately equally divided between Cir., Not [1974]. blacks, gener- whites and numerally whites these variable too ally occupy higher paying posi- dispari- diminutive rebut the distinct to tions, and data,55 that blacks hold the lower ty in the black/white paying jobs. Id. at 441. analysis dis- evidence have but 54. witnesses.” 1966) define the roneous,’ trial court aptly phrased dure: aside gard 52(a) to make 473 F.2d numbers tion, not And been filed with the portunity findings order for conviction port without mitted. when, evidence City This is the Of. “ plaintiffs to F.2d compelled correct shall . we 718 : unless reviewing it, set “Findings Ochoa . although ” are demonstrates the Federal Commission. charges Galveston, be meaning . is left . A (United finding to jury, Although Judge Learned Hand 320 have been before bound clearly train . given fact a workable reviewing to allow such reviewing v. Monsanto third stating, judge . the trial finding (“But of the it must there of fact with a (2d from class members the usual by It to the by mistake Equal Employment erroneous, time is well settled Buies of Civil Proce preference a trial court that “It is evidence court on formula phrase opportunity in court’s definite v. Aluminum credibility 1945)) shall not be set standard of Buie clearly is idle to Company, smallness statistical presumptions us. has been five clearly ‘clearly Court thereon.”). this Court determina years the entire erroneous set aside and firm in 1965. due Chaney demon- sitting try of the of the supra, show- .com- have sup- that Co., was Op- er re Id. at 427. job vacancy primarily transfers. Vacancies particular were broken down fered tive seniority acquired cases, issue is the mined that that the district court was mistaken. the trial court’s “left with a definite and firm conviction” iority quate evidentiary support” and therefore are nesses v. M. S. Oriental Federal Practice 863, Ct. conclusions based on the ican Bank of Co., (5th Cir.), (5th (1948) The See the one or were induced equate evidentiary support strafed bargaining agreements precluded 333 865 Cir. United craft rosters. law, findings findings ; Baggett giving conflicting testimony. Terminal maintained U.S. 27 L.Ed (5th that 1971). craft or determined the attacking cert, and the these same was and function. States v. United States weight on another 364, Cir. Commerce, such reviewed here are denied, .2d 140 H findings. findings on one roster See 68 S.Ct. 1973) class, 52.03 by Inventor, clearly findings into classes burden of Within each them.” were of evidence Richardson, generally, an erroneous view of true ; ^[1] (1970). 447 F.2d credibility roster. Hodgson posted 525, Ordinarily winning erroneous is on We have deter- U.S. are without ad- thirty-five Id. (2d do craft 426 F.2d 977 in “without showing 92 5A Moore’s not involve which within at 776. Ed. roster supporting Bather at L.Ed. 746 473 F.2d interclass bid In some v. Amer Gypsum of wit- bidder. use of record, 1969). collec- Dillon for a sen- jobs ade- that dif- S. Similarly, approx- support the work'force here is contention [the that black em- ployees imately em- the black black with even were not considered for 50% jobs paying ployees occupying jobs promoted lower to which whites were Likewise, jobs departments. or for which were hired].” F.Supp. departments judge’s pro- here and Jackson- trial segregated gen- ville both Terminal have been nouncement cannot as function by prior formal discrimination eral rule. It becomes valid when present employer evidentially effect. or union objective demonstrates pertinent criteria show that almost statistics also particular job or the exclusively jobs

all held Terminal quali- determinants of who is “best before either July whites or blacks fied.” Id. at 442. division and that Court This then went to strike down continued, exceptions, has few seniority system the craft and it because after that date. . . . Terminal promotion restricted the “transfer and persistence records disclosed that opportunities of incumbent black em- jobs and “white” “black” —what ployees.” Id. at 453. formal ever their denotation—has been personnel. new caused failure hire promotion We have condemned similar Moreover, . . . systems job seniority op based on during earlier, noted all blacks hired perpetuate past erated discrimination period, have become Porters. Goodyear in Johnson v. Tire & Rubber too occurred. Blacks Promotions have supra, Co., 1373-1374; 491 F.2d at Unit posi gained supervisory a few Georgia ed States v. Power Depart Baggage tions in the and Mail 906; Long Georgia 474 F.2d Kraft Helper de ment partments. in other and two 557; Local “In discrimination racial Papermakers Paperworkers & v. United cases, statistics often demonstrate States, Likewise, supra, F.2d 416 testimony many more wit than the of depart other courts found have tainted given prop nesses, and should be job-type seniority systems, mental or Lee er effect v. courts.” Jones promotion purposes, utilized for Way Freight, Inc., supra, 431 Motor effectuated discrimination. United 247; accord, Roadway Bing F.2d at v. Industries, Inc., supra, States v. N. L. Inc., Express, 1971, F.2d 5 444 Cir. 358-360; 479 at United States Corp., [1971]; Lea v. Cone Mills 687 M.D.N.C.1969, Corp., (2d Bethlehem 652 Steel 446 F.2d F.Supp. 97, 102 301 1971); Corp., Robinson Lorillard aff’d., 4 Cir. 438 F.2d Id. supra, 795-800; Griggs 444 F.2d Duke Power 1236- 1970), on 1237 rev’d other rejected court there also grounds, 28 U.S. S.Ct. finding showing, em- statistical ployer that the (1971); L.Ed.2d 158 Virginia United States v. simply promoted had “hired or Company, Electric and Power qualified persons best available 1037; F.Supp. Ameri Clark v. particular jobs.” This Court (E. Corp., F.Supp. can Marine versed : D.La.1969). assumption accept We cannot appellants made have no statistics Government’s company strong showing (1) e., probative force: i. Govern- “[t]he policy discrimination had formal of failure refusal to undertake ment’s 1963; lingered prior to until 1961 which comparative enti- of the evaluation illegal (2) company maintained job competing tlement vacancies requirements Negroes upon and educational whites, and the basis 1971; (3) that and qualifications, from 1964 to individual leaves until from probative statistics record without evidence Papermak- 927; employees have that black reflect Local. States, Paperworkers paying, v. United ers & supra, derogated the lower been F.2d at lower 990-991.58 departments and non-skill departments be- paying positions in all Apprentice Program and B. discriminatory em- past these cause Training On-The-Job demonstrat- practices. we ployment As by the provides employees cited variables these its ed above statistics, highly do explain the opportunity train for the trial court an skilled, higher paying large through analysis, not, jobs undermine on craft disparity on-the-job apprentice program between statistical black/white positions, employees’ departments, and training (journeymen). The de- that the programs observed follow- rate. We have for the maintains these seniority system ing machinist, partmental mechanic, deters black electri- crafts: maker, employees, by cian, carpenter, molder, pattern loss transferring pay rate, welder, mechanic, layer, that the from brick scale bidding procedure, requir- posting depart- plumber, and tinsmith. The persons jobs with- initial consideration the craft ments which most of prevent department, may shop, often electri- are located are the machine majority application department, department, even the cal construction vacancy employees department. black for a and maintenance higher paying, predominantly de- Apprenticeship. Only incumbent partments. addition, practices both eligible apprentice are for the operate handicap program. Applicants required to intradepartmental promotion because following (1) qualifications: have the past impediment discrimination was an high equivalent, school or its education employees acquisition to black of senior- (2) employment department in the same ity Therefore, departments. in these trade for minimum of six and/or months, (3) prior practices departmental the neutral to March seniority system posting and the percentile achievement of the fiftieth bidding procedure carry into forward Maturity California Test of Mental present the stratification passing aptitude and a score on tests all paying, into lower non-skill particular craft, (4) for the un- skill or departments resulting twenty-six years age der or under past employ- discrimination. Neutral thirty years age applicants for those practices perpetuating past ment dis- having military. served the se- Once crimination condemned the Su- were apprenticeship, lected for an trainee the preme Griggs Court in Duke Power v. complete 8,000 course, has to an hour Co., 401 U.S. Affirmative relief at 430. approximately three and four one-half to is mandated our in Co., supra, decisions Johnson years. During time, employee the this Goodyear Tire Rubber & starting salary pay receives a at a rate 34; 491 F.2d at n. v. 3, United States up higher but works to rate of 11. Georgia Co., supra, Power finishing F.2d at apprenticeship 474 After enjoyment rights Cir., 58. “Full 112], of Title VII [5 some and affirmative ac requires remedy seniority system times that the court tion to alter a which is present past discriminatory effects discrimination. on its face. If present States, system operates See Louisiana v. United 380 U.S. in fact 145, 154, past 85 S.Ct. 13 L.Ed.2d 709 to lock in the effects of discrimina (1965). redressing tion, subject judicial This includes both it is alteration un continuing discriminatory effects of sen der Title VII. Local International As iority systems, Paper Local United sociation of Heat and Frost Insulators States, Vogler, workers v. United 416 F.2d 980 and Asbestos Workers v. (5th 1969) ; 1969) ; United States v. Jack su Local supra; pra, sonville Terminal United at 991 of 416 F.2d.” F.2d at Hayes Corp., supra States v. International position, being equivalent requirement ucation or placed craft into a after entry eligible apprentice program employee for a rate into the is is “job Griggs related.” or v. Duke Power Co., supra; Georgia United States (1) the contin Appellants that assert Co., supra; Power v. In United States equiva high or its education ued school spirational supra.61 Copper, Consolidated present requirement constitutes lent company’s response that (2) discriminatory practice their educational was not a standard em past of black exclusion intentional high diploma equivalent, school or its illegal jobs ployees from craft appli rather a used to select criterion impact continuing adverse has a cants who had obtained a sufficient edu practices. Con neutral current successfully complete cational level cerning dis apprentice program, Correspondence the International cours has “Defendant trict court declared: relating es to the craft for which practiced discrimina no invidious racial entering apprenticeship. appren of its tion in the administration finding high district court’s programs.” ticeship journeyman equivalent school education its was a “clearly finding as We reverse prerequisite apprentice program for the erroneous.” Moreover, rebuts this assertion. appellants that agree We with defining company’s policy own statement requirement not neu the educational apprentice program as a states present itself, standard, is a tral. This graduate qualification “high school — discriminatory practice dis if it has a equivalent.” do, however, construe We appli impact proportionate on black argument attempt as both an Griggs Co., su Power cants. v. Duke “job show relatedness” and “business Georgia pra; Power United necessity.” 918-919; F.2d at relatedness, In order to show Cop Inspirational Consolidated States v. Griggs requirement stated must that a per Co., supra, 6 EPD ¶ relationship “bear a demonstrable performance jobs From until the time of successful trial, only ever one black had which it at 431. was used.” 401 U.S. program, Here, participated apprentice we understand reading while have done so. mean that a certain level and fa 208 white miliarity study Moreover, techniques neces from the to with 1915 until sary participate work of tal the course exclusion of black poli apprentice program. culpable company craft This cannot was a equated high cy. requirement previously for a We have discussed large equivalent. finding school This education or its district court’s Court, fact, majority affirmed histor ically court’s condemnation of similar ration and continue to be within the low high ale for a school educational criteri groups, est 1-8. This educational Georgia Power: on criterion must continue to have an ad impact justification employees verse on for because offered at trial high requirement very diploma.60 As do not a school the weak. 56% disproportionate Because of this im the court observed: pact, company the burden shifts to the justification best, only “At the high to demonstrate ed- school requirement even- the obvious this 56, supra 59. guide- See requirement note at 234. validate this these Georgia Power, lines which we mandated employees, 60. Of the white do not have 12% F.2d at 913. high diploma. school postpone analysis 62. business We will our guidelines, necessity (A), dealing Under the EEOC § 29 C.F.R. until III with the re- 1607.2, requirement quired changes apprentice an educational is defined remedial the company attempt program. as a test. The made no above-average ability high proficiency tual electricians. The level need increasingly only comprehend by read and established this not standard precludes manuals, qualified employees maintenance technical but also training bulletins, operating sufficiently instruc- refined to measure tions, ability sought by company. forms and the like demanded As Supreme industry. Griggs sophisticated promulgated Court context, high Georgia Power, In edu- such a school this Court stated requirement high requirement cation cannot be said “the use of a school reasonably job perform- disproportionate related to im has racial say pact proven not to such ance. This is has not been to be predictor quirements job not desirable . are ultimate contro success simply ‘diploma congressional it test’ means that the verts the Title mandate of quali- cannot measure VII.” be used at 918. Many high need- ties. school courses Assuming past discrimination diploma (history, literature, ed for a illegally present employees has denied physical education, etc.) are not neces- training opportunities, question be sary for these abilities. A new read- present prerequisites comes: do neutral ing comprehension test . ap entry completion into and of the might legitimately for this be used prentice program deny continue to these job need.” injured employees rightful benefits. just Georgia Power, as in there Here challenged by prerequisites The neutral employees are who have had substantial appellants age requirement are success and without advancement length Ap apprenticeship.66 high example, school education.63 For pellants argue application of the that the seventy-five employees,64 there are age requirement consequence of has the high education, without a school receiv continuing appren to exclude from the approxi over an hour. Of $4.00 program employees tice all black who fifty fifty forty mate foremen and employed age are and reached the plant, leadmen in the twelve foremen twenty-five twenty-nine eight before among leadmen seven are this ty-five. segregation group ma Sixteen of this are ceased its official highly shop, chinists the machine Additionally in 1961. excluded are those skilled, department; craft and two program, blacks barred observed; Georgia Power we objective this criterion is and acts automati- “Many employees high without school di- cally non-liigh graduates, to eliminate school plomas have mastered the technical litera- coupled large percentage with the of blacks many per- highest-ranking ture and of tlie high without a school and the im- education pass sonnel in the did not plication high that white without ‘diploma test,’ including of 100 fore- respon- school educations have advanced into men, supervisors, opera- and chief division positions departments, sible and skilled in all operating tors in the Atlanta and Macon objection. are sufficient to refute this division.” F.2d at 918-919. Appellants challenge also the six month 64. There is one black prerequisite depart- service within the craft plant whole whose rate $4.00 exceeds They argue long ment. that because of the hour. exclusion craft de- question 65. The whether the educational cri- partments, perpetu- selection criterion operated, independently terion with the test- past agree ates discrimination. We ing, produce disparity can be answer- However, this conclusion. the record and ed in the affirmative. The inferences finding of fact the district reflect question this issue are unlike the of the con- throughout are selected from sequences, independent testing, plant and then evaluated for six months subjective department discretion of the white job department; on the within a craft rath- superintendents selecting who did all being only employees er than selected from supervisory personnel The fact that department. infra. within the craft age twenty-five procedure or who reached this bids are taken within twenty-nine department quali- ceased craft before the senior and the Therefore, testing program Only fied man is its 1971. selected. if no bids age qualified re appellants conclude from men that are received from present perpetuates quirement departments into the within the are past is department and from outside the effects discrimination allowed compete. In either unlawful.67 ease the final selec- by tion is determined the all-white su- impact Appellants that deduce pervisory group. After the trainee has ap- past discriminatory practices in the years’ experience had six if de- and his program prentice blatant from partmental superintendent recommends showing, recit- historical and statistical apprentice committee, him to the point addition, appellants ed above. eligible trainee is for the intermediate officials, testimony by company salary craft rate. After an additional stating tests and effect year’s experience, eligible the trainee is requirement to screen educational group 13). (pay for the craft rate program. apprentice out from the blacks Appellants argue present and the The historical formal exclusion bid system ding length dem- and evidence statistical testimonial and the train onstrating disproportionate program exclusion lock in der ogated by paying, jobs by educational blacks to lower unskilled past quirements, court, when combined discrimination. The district high continuing quoted above, use of the school educa- as the defendant held that equivalent or its tion standard had not violated Title VII section ap- lengthy present age requirement administering journeyman its merely prenticeship term, program. holding constitutes We reverse prima case, “clearly conclusive but erroneous.”70 facie past proof68 present from effect supra accepted, 11(A), the court’s We discrimination.69 appellants’ conclusion that statistical training. On-the-job restricted to Prior had been 2. departments on-the-job and in the March, qualify non-craft for containing pay groups training craft or journeyman in a no 1-8 for status (1) positions, first the for- position, applicant craft related had craft testing requirements, and then specified mal exclusion to 1961 meet the testing requirement apti- 1964 until maturity the same mental test and required apprentice further on this To focus even test 1971. tude finding, year’s experi- appellants program, (2) cite have three pay groups encom- department 12 and craft or related data ence positions. passing job, (3) and technical craft craft be selected compiled group (all-white) months before supervisory This data two blacks, program. for the current- trial indicated seven .76% ly system entry employees, into reached relies on of black had a bid 12; group on-the-job training group program. had Under none obtained a 127; Corp., accompanying text, supra M.D.N. note 33 Lea v. Cone Mills See C.1969, Title In a VII at 224. implications important. case, such proof holding 68. That of conclusive evidence and combined with other When warranted, (Em testimony, they may we cite our statement conclusive.” added). phasis Jacksonville Terminal 442: 451 F.2d at proposition that some note for the See explanatory “Absent and testi- evidence may held alone courts have statistics mony, the statistics indicate that officials proof discrimina- demonstrate conclusive impliedly equated qualification tion. with race. See id. v. Sheet [United States supra 36, supra, F.2d] Metal Workers Local See note at 234. employees continue exclude time, em- will black position. At positions occupied total, for an unnecessari- from craft ployees, of 28.4% longer ly period. Appellants twenty-four, have group jobs, and 1.5% presented prima jobs. evidence group An addi- total, held facie discrimination, present past by appellants is effect of relied on tional factor requiring relief.73 Cf. subjective thus affirmative evaluation on the the selection Green, Douglas Corp. v. su- force, McDonnell supervisory both the all-white pra, 411 prerequisite to en- U.S. at 800-807. past present a and a training program. try Rowe into the Supervisory Positions C. at Corp., Motors General question appellants expressed The ab a (“we have and others super dependent employees from the persons sence black skepticism that Black visory positions and foremen. of leadmen directly recommendations on decisive following The made district court expect non-discrimina- from can Whites finding concerning this absence: tory action.”)71 of fact fifty leadmen, approximately Out of by the intentional discrimination The only three been black. Defend have totally ex- until from 1915 ant never had a black foreman. has employees the on-the- from cluded black However, specific con the court drew no job training program. until From 1964 clusion of law on the issue of discrimi testing to restrict continued general nation, other than recital a departments employees black from craft plain opinion74 the end its that the craft related and from positions. craft any re tiffs were not entitled to other recognize dis- alsoWe lief. subjective criminatory potential eval- supervi- The is the worker sets of blacks the all-white leadman who uation sory groups.72 Therefore, pace com- we are for his unit of workers. general again practice pelled past discrimi- the foreman to find that is to choose upon impact from the leadmen. Prior nation has had an adverse ranks opportuni- March, employees’ employment qualifica- there black were two neutral, positions ties carried forward tions for the of leadmen and which is bidding proce- practices. First, foremen. had to current the candidate require requisite presently dure in effect would obtained long Secondly, department this train- denied achievement. superintendents, past, always opportunity suffer a been who have salary white, qualified” loss of and cut in then selected the “best participation in this admittance and of these was individuals. This selection training program. requirement subjective judgment based on their rath- depart- objective from within the craft er than bids criteria. The testimo- given initial, primary ny ap- consider- ments be at trial that there indicated light proof proximately forty leadmen, fifty ation must fail large majority demonstrating approxi- which one black. Of the fifty mate foremen none were black. from have been excluded addition, departments. presented these disparity The statistical illegal training years lengthy program this case test- of six combined with subjective supra challenge Ajjpellants 73. See note do judgment by supervisory group as all-white finding by the district The statistical present prac- independent, discriminatory an as leadmen court of three black tice. it a factor used bolster Rather as and the the record overstatement impact of neutral their conclusion as to the appeal parties all indicate briefs on only practices resulting past discrimination. advanced has been one black position supervisory leadman. into the use of detailed discussion of For subjective judgment, text and criteria see accompanying at 240-242. footnotes infra

241 by applied pend entirely upon the subjective almost standard and a subjective supervisors favorable department would evaluation and all-white showing of normally present recommendation immediate a conclusive ready company, foreman are present The a mechanism discrimination. against testing re- discrimination however, their Blacks much terminated March, covertly and, positions which can be in concealed quirement for these matter, really for that known to 1971, months was six which management. October, question for We and others have ex- in trial pressed skepticism per- that Black basis on the is whether selection us dependent super- directly sons subjective judgment on decisive of all-white independently recommendations from ex- operates Whites can intendents pect non-discriminatory pro- helped action. 457 to discriminate and F.2d at 359. disparity. duce this past, In the Corp., Court has su- ordered Motors In Rowe v. General objective development of in or criteria pra, admon- 457 F.2d Court possible allowing possible der to eliminate the discrimina employer for ished an subjective by employ tion inherent discriminatory subjective within evaluation ment promotion determinations.75 Local supervisors 53 in the all-white International Association Heat and employees. This cautioned: Court Frost Insulators and Asbestos Workers acknowledge that . [H]ad Vogler, (5th 1969). v. F.2d 407 1047 promotion/transfer at the methods for involving similarly alleged In cases ra an individual GMAD would enable promotions cial discrimination to su foreman, inclined, ex- if he so pervisory positions, on courts acted in his ercise racial discrimination showing by equal ap to that made promo- selection of candidates pellants here.76 In United States v. N. tion/transfer, that, Industries, supra, L. 479 social the times structure court stated: place, very may have been Blacks well pro- The inference of discrimination obtaining in hindered recommenda- by vided the statistics is reinforced tions from their foremen since there selecting Company’s method of is no be- familial social association Company’s promotional foremen. The groups. tween these All we two plan very is similar to used today recognize promo- do Rowe, Corporation Motors General procedures de- tion/transfer objective thereby appellants criteria. County Dyeing 75. See Brown v. Gaston Ma- prima jury made out facie case of dis- Co., supra, chine F.2d at 457 1382-1383 crimination, ap- fell and the burden on the (“Elusive, purely subjective standards must pellees to overcome it.” Id. at 360. give way objectivity if statistical indicia jury This Court had earlier found commis- refuted.”) ; of discrimination are to be Unit- subjective judgment failing sioners’ in Pul- supra, Corp., ed Bethlehem Steel Greene, lum v. 257 446 F.2d at 655. 1968). generally, Jury See Discrimination Subjective supervi- discretion all-white Remedy?, In the South: A 8 Colum.J. sory personnel comparable found to that (1972). L.Soc.Prob. 589 suspicious jury discrimination In suits. Fouche, Turner 90 herein, U.S. S.Ct. In addition to the cases discussed Supreme (1970), 24 L.Ed.2d 567 Stamps see v. Detroit Edison Court concluded: F.Supp. 112-113; Young Edgcomb at sum, appellants “In F.Supp. demonstrated 969-970, Steel disparity percent- substantial (M.D.N.C.1973). between the Equal Employment ages Negro county residents Opportunity as a Commission has entered find- Negroes newly whole and of on ings super- consti- promotion of discrimination in jury They tuted list. visory positions subjective further highly demonstrat- where disparity originated, ed that promotion system disproportional least has had a past, point the one impact minority group employees. selection CCH process jury where (1973). commissioners invoked EEOC Decisions H H subjective judgment rather than vague there were no foreman’s dispensible, ployees no ment man has partment vent discrimination. tional unit, that one of are out of white sired; promoted men are foremen as We ^[*] safeguards black, think opportunities; employees in this about 100 standards were ^[*] employees, to foreman recommendation that these never been F.2d 348. single charge subjective; evidence ^[*] in the written promotional thirty-six that most foremen notified ^[*] qualifications de- that a black procedure three black In that and there since 1965 indicating that instructions were set were important hourly em- ^[*] bargaining only three charge of Labor employees process; plan the promo- to ^[*] fore- fore- were pre- was ele- de- in- this ures would chafed the point, only demonstrated. foremen. ployees Even blacks are passed. Leaf EPD 8447 at 7191-92. fore, guidelines and written criteria are same supervisors (76 are Out of some indicia of discrimination. Leaf supervisors. Court, fully fl (60 figures figuring are not per instant operation Of regular, Only 3.9 blacks, even if supervisors. cent of all 63 white use, for per it out to one decimal regular, This lack of case, supervisors. which has not been blacks, In 3 seasonal), cent of the can regular objective are considering regular hardly conscience figures there are 3 supervisors. There white em- seasonal). objective criteria regular be sur- whites There- fig- pool qualified black, that least evidence of at record reveals exist, white em- employees and that who, prior to employees two black qualifications have ployees with less requisite qualifica- March, 1971, had the positions promoted foreman been presents had foremen but for leadmen or tions prima racial case of addition, facie promotion.77 In been denied has not been many discrimination that while the record reflects Company. by the butted appointed “relief as had been whites leadmen,”78 no at 368. Id. Testimony by opportunity. an had such Tobacco American Russell v. inAnd however, department supervisors, two pointed 8447, the court supra, EPD5 ¶ testing qualifi- that since indicated holdings v. Gaston of Brown employees in dropped, black cation was Company, su Dyeing County Machine foundry departments, steel these Rowe General pra, F.2d mono-cast, qualified and are are 348, con Corp., supra, Motors posi- supervisory these consideration for objective demning criteria the lack whether tions. are uncertain We disparity in a statistical face of employees since of black consideration court promotion as discrimination. terminated, stems concluded: then Evidently, by company highest al- officials. fied had made the Powell T. 77. Booker point, confusing test, though qualifying on this had a possible the record on score years pressure col- white high and one-half from both and one school concerning employees, supervisors education, for the and black lege had worked experience upgrading, a mental breakdown. his caused had extensive since .and (the pension. cleaning medical many shed He now Moreover, department). he had mono-cast training is no formal there 78. While requested leadman for a even consideration testimony positions, supervisory dem- these position. that, de- mono-cast least onstrates temporary partment, implied because testimony vacancies occur Willie also Further sickness, vacation, rea- and other qualified. business had obtained He Dunn was ap- every are taught leadmen “Relief” scores, sons week. prerequisite the com- had metallurgy pointed under consideration from those school, pany’s night attended had positions. permanent promotion quali- these hours, deemed and was on off courses March, time. Fi- other 1971 and since awareness, this and stimulated nally, possible le- obtain court should suits, evidence law operation subjective illegal stand- test- of this gal sanctions, or whether supervisors applied by since ard discrimina- created alone had the trial.81 qualified black tory barrier, now There- being considered. issue, remanding fore, we are RELIEF III. subjective evalua- independent effect fashioning appropriate remedy superintendents, tion all-white Congress employment discrimination, district court.79 granted plenary equitable has courts indicia, point remand, out three On we VII, power under both Title 42 U.S.C.A. others, among the district 2000e-5(g) (Supp.1973),82 and section § First, whether should examine. courts, expecially 1981.83 Most our examples em- of black are more there Circuit, equitable applied have this ille- the ployees to hurdle who were able “right- lief within the of framework supervisory gal testing to these barriers Georgia place” theory.84 Power, ful positions, disqualified un- then were but explained: courts, “Most in Court subjective der criteria utilized molding appropriate remedies, ad- have department superintendents.80 Sec- ‘rightful place’ theory, hered to the ac- ondly, less note whether court should cording ap- qualified to which are blacks assured have been pointed opportunity or foremen both leadmen first move next into the By remanding, ployment practice), any equitable 79. close we do mean to not other any pay appropriate. off em- award a black back relief as the court deems Back might ployee, Powell, liability be T. like Booker who not accrue shall from a date put years prior filing able to a back forward claim more than two to the position. supervisory charge with the Commission.” 189, Papermakers Paperwork See Local & 80. AArenote that because of the nature States, supra, ers v. United 416 996- F.2d at supervisory positions these is a slow there Consequently, only turnover. a few cases always recognized This Court im has may discretionary passover suffi constitute portance granting full relief in Title VII proof dispar considering cient the statistical g., Georgia E. cases. United States Power ity already existing. Co., supra, 927; Vogler 474 F.2d at v. Mc specific 81. The district court make should Carty, (5th 451 F.2d Cir. 1238-1239 findings appellee’s brief, on the in assertion 1971). stating: Rouge 83. See Boudreaux v. Baton Marine Company record, “AVliile outside the Contracting Company, (5th F.2d 1011 437 appropriate feels it Court advise the 1971) ; Inc., Houses, Sanders v. Dobbs currently Company has two cert, 1970), denied, 431 F.2d 1097 foremen and five black leadmen.” Appellee’s U.S. 28 L.Ed.2d 231 Response S.Ct. to the Brief of United (1971) ; Boeing Company, Lazard v. Equal Employment Opportunity Com- F.Supp. 343, (E.D.La.1971); 345-346 Tol mission as Amicus at Curiae Electric, v. Western 115- bert 56 F.R.D. provision states, part: 82. This in (N.D.Ga.1972). “ (g) respondent If the court finds that the intentionally engaged theory employment has inten- in or is 84. This relief for dis tionally engaging employ- explicated in an Note, VII, unlawful crimination was in Title practice charged complaint, Seniority ment in Discrimination and the Incumbent enjoin may respondent Negro, en- (1967), 80 Harv.L.Rev. 1260 first gaging employment prac- applied in such unlawful our Circuit United States tice, Papermakers and order as Paperwork such affirmative action & Local ers, may may include, appropriate, aff’d., be F.Supp. (E.D.La.1969), which to, but is recently hir- limited reinstatement at endorsed employees, Bing Roadway Express, Inc., supra, with or without back pay (payable by employer, 450-451; F.2d and United States v. agency, organization, Georgia or labor the case as Power 474 F.2d at 926- may be, responsible em- for the unlawful they Enjoining Testing positions which would A. vacancies wrongful Requirements occupied discrimi- Educational but for have qualified nation recognized The district court Seniority Note, VII, Discrim- fill. Title testing and educational criteria Negro, 80 ination the Incumbent impact appli had a detrimental on black (1967).” n. 2 Harv.L.Rev. in cants and as class. An agree “This 474 F.2d at We that: against resumption junction such applied theory is the which should compa practices was denied because the Id. here.” hiring ny had eliminated the educational March, requirement and all necessary moving ^Before no find abuse discretion 1971. We measures, to de- is need there corrective grant refusal to such the district court’s employees to whom fine the class injunction. South Parham v. Cf. applicable. The dis- remedies are these Telephone Co., supra, 433 western Bell approved court, trial, trict before 429-430. within Rule suit 23(b)(2).85 action class includes This class high However, edu school unnamed, employees, named both admittance cational criterion for complaints who filed or not filed use. It apprentice program remains Employment Equal Opportunity with the Title VII held violative of was earlier v. National Commission. Caldwell point we re 1981.86 At that and section Brewing (5th Co., Cir. 443 F.2d 1044 of the “business served the discussion cert, denied, 1971), 916, 92 S. 405 U.S. necessity” justification. doctrine This employ (section 931, (1972) except Ct. those few 30 L.Ed.2d 785 has evolved to practices, which are non-intention Corpora- ment 1981); v. Jenkins United Gas neutral, per ally discriminatory or but 1968) (Title (5th tion, 400 F.2d 28 Cir. past consequences dis petuate Corp., VII); v. Crown Zellerbach Oatis overriding crimination, because of their (Title 1968) (5th 398 F.2d 496 Cir. Griggs necessity.87 v. See business VII). Specifically, is com- this class Co., supra, at U.S. Duke Power 401 company posed 431-432; L. Indus v. N. United States 8, 1971, employed termi- to March 364-366; tries, Rob supra, at F.2d 479 education- nation date and supra, Corp., F.2d 444 inson v. Lorillard 9-16, groups requirements al discriminatory re at Once 797-798. a and those black also embraces demonstrated, has defendant sult is 8, harmed hired after March 1971 practice justify under a a the burden to present discriminatory practices. necessity.”88 The nature “business text, supra safety efficiency, accompanying es 85. but must be note See ter 4 goal. v. States that sential 652, Corp., 662 446 F.2d Bethlehem Steel 11(C)(1), supra. appellants are The See 1971) (2d ; v. Jackson United States challenging job-relatedness of tlie course not (5th Co., F.2d 418 Terminal ville only program, required by apprentice work cert, denied, 1971), 92 S.Ct. 406 U.S. equivalent high re- or educational school (1972). In other 31 L.Ed.2d 815 Goodyear quirement. v. Tire Buckner See acceptable words, alter must be no there F.Supp. 1108, Co., 1122-1125 and Rubber goal accomplish that will native that (N.D.Ala.1972). ‘equally ra lesser differential with a well Corp., v. Francis- impact.’ St. Louis-San United States Robinson Lorillard cial cert, Railway Cir.), co dis F.2d banc, Eighth Appeals, missed, en Circuit Court of L. 404 U.S. S.Ct. explained: ; (1971) United States Ed .2d 655 accord “However, Corp., supra, this doctrine of business neces- F.2d at Bethlehem Steel sity exception which has arisen as Id. 662.” at 308. discriminatory prac- amenability C., supra, tices, F.2d at 355 v. M. Rowe G. an irresistible demand.’ ‘connotes 14; system question Termi- v. Jacksonville n. United States must The not fos- Restructuring B. and Promotion were cor- requirements burden rectly v. Lorillard in Robinson Procedures outlined Corp., supra, 444 at 798:89 necessity. 1. Business conclusively Collectively cases these necessity” argues “business applicable test is that establish promo- justify the continued use of its merely there exists whether posting practices seniority tion and the — procedures. adhering purpose to a business bidding challenged practice. test functionally insists that its overriding le- there exists an whether position lated, service each so gitimate purpose such business training provides necessary next for the necessary practice to the safe higher job progression line of with- operation of the busi- and efficient department. In United purpose Thus, ness. the business 451 F. Jacksonville Terminal sufficiently compelling to must be heavy explained 2d this Court any impact; chal- override racial jus- nature of the defendant’s burden carry lenged effectively practice must system: tify discriminatory alleged purpose it is out the business . We have no doubt serve; available and there must be seniority systems and restrictions cur- policies acceptable alternative no rently the Terminal con- enforced practices better accom- which would oper- tributed to its safe and efficient advanced, purpose plish the business Nevertheless, ation. as the Second accomplish equally less- it well with recently explained, Circuit most “the impact. er differential racial necessity’ ‘business doctrine must mean more than that transfer holding supra makes our As legitimate seniority policy man- serve equiva clear, high diploma or school agement Otherwise, but functions. all effectively mea lent does not criterion blatantly discriminatory the most reading study neces skills sure plans if would be excused even required sary work for the course perpetuated past the effects of dis- apprenticeship. * * * There also alterna are Necessity con- crimination. methods, validated read tive such as a To an irresistible demand. be Corp., See Robinson v. Lorillard job assuring ex- means of perience. sufficient F.2d at 799-800. may only to It six months take necessity job qualified for learn a well 94. have refused the business and become Courts employ vagaries carry chance of advancement. may the of rationale and ordered over Yet seniority job present opportunity seniority of where an for advance- ment instead only six a certain ment in six weeks or not blacks have been excluded from jobs years. prior experi been have line of and where their When some disoriminatorily entry ence, they qualified positions. de- the are for these denied to Bing Roadway Inc., supra, promotion system Express, partment, g., E. alternate 689-691; ; employee been 444 F.2d at could advance has at 449-452 the who against great- Francisco discriminated if he has the United States Railway St. Louis-San seniority at est and served 308-309. has present necessary Railway, in black train the Ms In the court allowed minimum time job seniority satisfactorily porters carry into his established to over or has formerly positions job. capacity be alter- brakemen Such an all white to handle the braking training performing plan accomplish in nate would the business cause of their ‘equally porters. purpose This occurred even a differ- functions with lesser as well " training separate impact.' though line of a at there ential racial Id. 799-800. progression Id. brakemen. depart- pointing inability In 93. out of system seniority 92, supra, at meet note mental to the business See progression func of crafts and classes but do not lines are ascertain technical plaintiffs tionally them whether these are the The individuals related. positions require qualified qualified” or the admit that craft “best to selves training expe positions specific prerequisite and hold in crafts those and court’s But read the district classes. Id. rience. we findings96 providing and record97 as essence, our we believe instructions showing by other that no to the district court and infra functionally progression are lines of ability shape appropriate equi- court’s to Corp., Lorillard related.98 Robinson v. comparable table relief to the situa- supra, 444 F.2d Papermak. tion in Local & United attempts Paperwork, States, supra, v. United

The here what job place in F.2d at where: “In of found unsuccessful se- Court curity su- Terminal the court ordered the institution Jacksonville seniority system carefully pra, a mill F.2d at There tai- 451-453. finding sought that lored no would terminal to use a “a to assure that right job Company provide jobs train- to could not that few he perform properly.” jobs,” func- to establish for other legalize progression tional lines Injunctive ap- relief. neces- under the business unit pellants ask court di- that the district sity rationale. This Court stated: post- require vacancies be rected that seniority] sys- . The [craft bidding initially plant-wide and ed promotion their concomitant tems and qualified employee with the filled protect those and transfer restrictions seniority. greatest plant-wide In addi- particular experience in work president testimony findings appear and 97. The vice to be 96. The court’s superin- manager department finding and the works states at inconsistent. The court that in the mono- trial indicates tendents at #13: foundry jobs progres- pipe within cast and “. . in the lines of . freely department department practiced moved are without in each sion as functionally related, mono-cast, progression; other, lines of one departments foundry pipe experience inspection, training in- afford jumping positions perform necessary there is often advance cumbent mono-cast, progression; proficiently higher jobs, are rated lines foundry, fittings inspection, pipe foundry, performance functionally related to the foundry departments department there and steel a whole.” positions finding #34, within are similar which the court states: But then at operator, departments (e. g., forklift maintain formal other “The defendant does not welder) depart- operator, any skills progression its crane lines training progression Pay groups wage without can be transferred ments. progression; departments’ govern lines of of em- other schedules the advancement very posi- shop few ployees.” machine lias apparent in other learned is the able to utilize skills riddle tions The answer to this plaintiffs’ expert plant. parts the district conclusion of law drawn examples necessity: of where more noted even witness on the issue of business department acquired “Alternately, question could be skills other [busi- second department, record, necessity], deserv- another transferred to ness ing on this specific prerequisite positions no The effi- where answer. an affirmative places necessary training operations ciency where is was of defendant’s progression requires, jumping promoted only by, line of within the it also but Lastly, possible. job qualification indicated as a evidence service in a lower put only progression higher, down promotion had been lines of to a condition to -func- added). (Emphasis paper tionally to trial. two months related one.” only clearly to marks out that We think this jobs progression remand the com- mean that on 98. do not shown We in lines of those T)e precluded presenting pany further functionally from does is to related specific pre- requiring positions necessity finding evidence of attach. of business training. requisite clearly reveals that The record thus far functionally positions related. the craft are 248 place circling entry100 give

tion, theory red and advance dictates that we transferring requested. discriminatee are sufficient seniority carryover permit the ad- “rightful place theory” Under the we enjoyed, vancement he would have agree: give against protection lay- him the [rightful theory place Under had, offs would have in the he absence theory] first are assured blacks “the Bing Roadway of discrimination. v. opportunity va- move the next into Express, Inc., supra, 485 F.2d at 450. they positions cancies wrongful occupied Therefore, but would have the district court should issue for injunction requiring: (1) post are discrimination and which (2) qualified plant-wide;101 v. to fill.” United States vacancies Georgia Co., “qualified” personnel 5 Cir. selection of Power plant-wide F.2d 906. Thus blacks confined vacancies on the basis of positions seniority;102 transferring (3) discrimination to certain members given opportunity plant-wide must class shall retain their formerly po- purposes including pro transfer into the “white” for all motion, lay-off, reduction-in-force, in order to sitions as vacancies occur “rightful place.” recall;103 (4) entry jobs A assume advance into complete give enough employee decree must for which an in the class is “qualified” lief specific to insure that the transferred dis- which no training necessary;104 to maintain their criminatees able (5) cir red rightful place. rightful cling class;105 (6) Thus of members of the remedy circling 99. (N.D.Ga.1970), grounds, Red is a standard rev’d on other eliminating past pre 559; Lorillard, discrimination which 450 F.2d at F.Supp. Robinson v. higher reaching vented (N.D.N.C.1970), part, aff’d. in recognized necessary and is since other- 444 F.2d 791. wise could not afford to take testimony 103. This Court is conscious of the training jobs wages. paying lower Where part plant to the effect that was to job employee from which the transfers update company’s be reconstructed to pays job, more than the new the new where pipe production, method of and that department top wage is in a where the changes, especially would cause substantial greater job, rate is than the rate of the old department, resulting in the mono-cast employee paid wage rate laying-off employees. observed We have job, job jmying old until he advances to a past may penalize that employees discrimination voluntarily more than rate or until he situation, in a reduction-in-force job. freezes himself at the new necessary and think that affirmative relief is entry transferring remedy Advance would allow a to Hayes such effects. v. United States by-pass entry Corp., level International 456 F.2d at 119. positions department position Cf., take a United v. States Jacksonville Terminal higher progression Co., supra, 445-446, the line of either 451 F.2d at 449-450. require special training which does not Corp., See Williams v. Bethlehem Steel cert, experience depart- (2d 1972), denied, for which his in another F.2d 1201 qualifies ment him. U.S. 93 S.Ct. 36 L.Ed.2d 390 (1973) fn ; United v. States Bethlehem Steel Corp., supra 446 F.2d at dis Bearing Co., 101. See Head v. Timken Roller trict court should be mindful of this consid supra, 878-879; Stamps 486 F.2d at v. De granting complete eration in re affirmative Co., F.Supp. supra, troit Edison lief. 116-117. Hayes 104. United International Bing Roadway Inc,., Express, su See Corp., supra, 116-119; Long 456 F.2d at pra 451; 485 F.2d at United States v. Geor Georgia Co., supra, 562; Kraft 450 F.2d at gia 926-927; Power 474 F.2d at Papermak. Paperwork, Local & Co., United States v. Jacksonville Terminal States, F.Supp. aff’d., v. United 451-453; Griggs 451 F.2d at v. Duke 416 F.2d 980. Power 1236-1237 1970), grounds, Corp., rev’d on other 401 U.S. Bethlehem United States v. Steel 424, 849, (1971) ; supra, 660, 665; 91 S.Ct. 28 L.Ed.2d 158 446 F.2d at United States Long Georgia Co., F.Supp. 681, v. Industries, supra, Kraft 328 v. N. L. 479 F.2d at 375-

249 residency specific peri pered. of For those the establishment members of class entry progression the who obtained denied in lines of where but were ods ac- seniority higher prerequisite cumulation of a has within established necessity.”106 seniority training paying department, plant-wide as “business a ability equalize competition promotion. By “qualified” will for mean term we the restructuring bidding solely by This is not to be determined which systems seniority experience and the of allowance to in the reference line entry g. for em- progression transfers black department, e. advance of a injured ployees will class operator de assure the in the mono-cast forklift opportunity the move into members “to partment to a be should able to transfer positions fittings position next vacancies and operator forklift in the wrong- occupied would have for department, but foundry or an or other some 107 ful discrimination.” grinder employee position in a transfer ring inspection department. However, This mem- not aid this does specific application training advance has class and ac- bers denied entry higher paying positions situation. a member Assume cess to because circling requests non-qualification. for bids the class transfer or The red is position department designed purpose. above another remedial entry progression. level earlier line of Black who were prior experience no If his because de- blocked but' now desire transfer training qualified, grade ad necessary, partment top pay he is where the up opportunities greater entry level the line vancement advancement are progression by-passed department, in or should be in their than former “rightful training employee handicapped der to insure his lack of 106a place.” positions department. new job Therefore, where a from which eliminating preference By the initial pays more than transfers given employees department within the job department in a the new where posting procedure by re- under the grade greater top pay than the rate seniority, quiring plant-wide selection job, shall a member of class the old denied discrimination which wage job un- paid old rate of the be accumulation of entrance and paying position he advances til paying departments in the better he voluntar- than that rate or until more job. tem- majority ily will be freezes himself at new Paper job 189, Papermak Negroes 376; & for the United had Local wbo worked F.Supp. period presumed States, supra, designated 301 be work. v. could United 980; necessary 923, aff’d., acquired 917, Robinson F.2d at 416 skills 839, F.Supp. Lorillard, supra, eligible vacancy in follow- for the next v. job.” 791; Seniority part, Note, VII, v. Dis- aff’d. 444 F.2d Clark Title F.Supp. Negro, Corp., American Marine crimination and the Incumbent (E.D.La.1969). (1967). Harv.L.Rev. 92, supra at 246. note See Paper Papermak 106. As the author of article commented: one & Local See pro- hand, F.Supp. line where the States, supra, “On the other work. v. United technique adopted gression 990; sim- 925-930, aff’d., has been F.2d at at job ply move- to channel and rationalize Corp., supra, 444 F.2d v. Robinson Lorillard techniques departments, ments in a other at 799-800. demonstrating qualifications such Inc., Bing Roadway Express, su- 106a. See periods’ ‘probation the use of pra, 449-452, at 689- 485 F.2d at place’ ‘rightful could be utilized and the 691; Francis- Louis-San United States St. approach applied. trans- Even where the Co., Railway 308-309. co Negroes ferring estab- must follow the supra See note pro- line of oursus lished honorum of occupancy Georgia period gression, su- Power a minimum United States defined, pra, so that F.2d at 927. for each should be 250 and, Changes Apprentice by agreement remand, On either the

C. in the Programs Training parties order of the On-The-Job or after a hearing, necessary, length if the the promotion restructuring the While apprenticeship should be shortened with substantially procedures aid ad- will the varying according periods allowed previously excluded class vancement of requirements, each craft’s the three departments and non-craft into members years qualifying experience on craft re- a on-the-job progression jobs, necessary line of the job length lated and the of the delay obtaining training will continue to training, itself, should be shortened110 employees. positions black craft addition, In should be consideration changes necessary are reason For that given broadening qualifying expe- programs, apprenticeship and in the on rience a craft related to include designed provide journeyman, train- comparable experience on outside positions. for craft departments. craft The court should ex- age twenty-five requirement, impact amine adverse for the use of having twenty-nine years those for subjective criteria, selection since entry military, in the for into served trial, program. journeyman unnecessary apprentice program an is company remand, company may On dilatory does not advance barrier. The reasoning present length impact attempt racial its that of the overcome necessity” apprenticeship are, journeyman a rationale.108 under “business for training Therefore, purposes, should en- the district court necessi- “business age ty.” pre- However, join the continuance the district court should program. Moody requisite apprentice heed to the for the conclusions Paper remand, present 134, company may Albemarle 474 F.2d On (4th 1973). case, than limit com- evidence that another other years pany thirty-five plain- pool. hired all endorsed into pool employees established, expert From but moved should be tiffs’ progression require compelling into interest as vacancies oc- this would lines company.109 curred. Since the did not vacancy know line advance which training periods Likewise, for occur, required employees in would it all on-the-job training, apprenticeship and pool qualified to be all lines. for employees, given exclusion of considering court, ne- long. a business unnecessarily are cessity showing argument, no that the three held that: has made years apprenticeship four for one-half to hiring has not shown that Albemarle peri- journeymen years for or seven necessary pool all into is necessity.” required “business ods operation of for the safe efficient Papermakers & Cf., Local business, has it nor shown States, supra, Paperworkers hiring employees specific v. United lines progression alter- aff’d, acceptable not an F.Supp. age company argues L.Ed.2d 338 U.S. 92 S.Ct. 108. The (1972) (employment qualifications discrimination little no had educational age raised to limit section maximum be- effect detrimental Employment Opportuni- Equal thirty-five). on-the-job training was available cause age ty sup- prerequisites. found maximum Commission has Instead without these apprenticeship quirements argument be tainted porting, the com- undermines past perpetuate position. pany’s where discrimination. neces- the “business Under sity” acceptable Decisions alternative CCH EEOC standard If If (1973) age requirement prima proof . that such facie necessary and efficient is not effective Engineers, Operating United States plant operation. (N.D.Calif.1972). EPD at 6507-08 ¶ 7944 Gallagher, 109. Carter cert, denied, 1972) (en banc), they required to Phelps native. This anee Dodge Corpo- therewith. justify prove policies NLRB, under to ration v. 177, 313 U.S. 61 S.Ct. necessity 845, (1941). the business test. Id. L.Ed. 85 1271 Similarly, the here reveals that a record improper These denying bases shop for the machine craft-trainee pay. back The district court should profi- quired operate all machines to pay structure back decree to conform might ciently. An be to re- alternative analysis with the below. training quire period and to a shorter operate particu- train an to 1. Abuse discretion. recognize, however, lar machine. We appellate The standard review for an shop” “jobbing machine differ- determining that court in whether a district factory. paper The ent from a business by court has abused its discretion fail necessity into ac- rationale exists take fully employment remedy discrim count such situational differences. by denying pay sug ination back was gested by Supreme Court New Pay D. Back Piggie Enterprises, man v. Park 390 U. appellants request back 400, 964, S. 88 S.Ct. 19 L.Ed.2d 1263 arguing pay class, members (1968). there, The statute II Title the district abused its discre Rights the Civil Act 42 U.S.C. refusing tion in an such award. provided 2000a-3(b), pre A. that “the § 111 district court had ruled: vailing party” is entitled to a “reason attorney’s fee” Alternately, able “dis court’s exercise of dis Supreme cretion.” cretion, Court deter LeBlanc v. Bell T & Southern Congress’s purpose mined ing (5th for enact Company, T F.2d 460 1228 Cir. provision scope Georgia High limited the 1972), v. and Johnson discretion way Express, (5th which court had in district 417 F.2d 1122 Cir. denying attorney’s Likewise, 1969) fees.112 , the Court declined to award parameters discretion, within pay in view of demonstrated back good compliance may deny a district court back by defendant faith pay VII, cases, discrimination Title LeBlanc v. Southern purpose are defined for which Company, supra, TBell T and Par & Congress enacted, and the courts have Telephone v. ham Bell Southwestern interpreted, statutory pay (8th Company, back 433 F.2d 421 Cir. 1970), provisions113 Congress authorizing an such award is because necessary compli- to insure future expressly courts, Title VII114 and under court, secondarily, 111. The (Supp. relied on 2000e-5(g) 114. See 42 U.S.C.A. § finding 1973). that a back award would inequitable. This will Although speaks be discussed provision infra. in terms of relief awarded because of “intentional” dis Supreme 112. The Court outlined how this crimination, consistently this has been con discretion should be exercised: strued this Court and others to read that “It follows that one who succeeds ob- did, “the defendant meant do he what taining injunction that Title is, employment practice his ac was not ordinarily attorney’s should recover an fee Papermakers cidental.” Local United & special unless circumstances render would Paperworkers States, supra, F. United 416 unjust.” such an award 390 at 402. U.S. Diego 2d at See Schaeffer v. Yel San applying Cabs, (9th 113. In the standard of review mod low 462 F.2d 1006 Cir. Piggie Parle, Moody 1972) ; eled after the court United States v. Jacksonville Termi Paper Co., supra, Co., supra, v. Albemarle 442-143; 474 F.2d nal 451 F.2d at Robin Corp., supra, stated: “Where a district court fails to son Lorillard 444 F.2d at eye pur 796-797; Sprogis Lines, exercise discretion with an Air cert, poses Act, (7th 1971), it must be reversed. de Cir. (5th nied, Wirtz v. B. B. Saxon 365 F.2d 457 L.Ed.2d U.S. S.Ct. 1966) ; Parke, (1971) ; May Shultz v. 413 F.2d 1364 Jones v. Lee Motor 1969).” Freight, Inc., supra, Id. at 141. 431 F.2d at But impliedly 1981,115 grant year under section Tire & Rubber equitable persons 1375; Georgia Highway relief harmed Johnson v. employment discrimination, Express, included the F.2d 1122. Under pay. discretion injured award back This Title VII section 1981 the Court116 and commentators have not workers must be restored to the econom provision position ed that for back in Ti ic in which would have pro tle VII modeled on similar but been the discrimination —their “rightful place.”119 vision in the National Labor Relations Because of Act, object 160(c), 29 U.S.C.A. compensatory pay whose § nature120 of a back “designed public poli is “rightful vindicate award and of because cy making employees, place” of a statute theory, adopted by courts, and whole for losses on of suffered account strong congressional policy, em practice.”118 an unfair labor Nathan remedying bodied VII, in Title em NLRB, 27, son 25, v. 344 U.S. 73 S.Ct. ployment discrimination, scope of a award, 80, (1952). L.Ed. 97 23 An deny pay court’s discretion to back is recognized pay back has been Bearing narrow. Head Timken v. Roller adjunct Court as not a “mere of some Co., supra, 876; Moody 486 F.2d at v. “integral equity” basic an more but as Co., Paper supra, Albemarle F.2d at 474 part seeks, of the whole relief which not 141-142. Once a court has determined punish respondents to com but plaintiff complaining that a class has pensate the victim of discrimination.” sustained Georgia economic loss discrim Co., States v. su United Power pra, employment inatory practice, pay 474 F.2d at 921. Johnson v. Good- back Dewey Bearing see, Reynolds Co., Co., supra, Head v. Timken v. 429 Roller Metals F.2d 324, (6th per 1970), curiam, 486 F.2d at 331 874-875. aff’d. 689, 2186, 402 U.S. 91 29 L.Ed.2d S.Ct. 267 pay compen 119. (1971) (equally This rationale that back is court). divided satory necessary in nature and in order to Goodyear Co., 115. Johnson v. Tire & Rubber grant full relief discrimina supra, 1375-1380; 491 F.2d at Head v. Tim recognized by tion suits has been other Bearing Co., supra, ken Roller 486 F.2d 874- courts, also. Head v. Timken Roller See 875; Dyeing County Brown v. Gaston Ma Bearing Co., supra, 876-878; 486 F.2d at Co., supra, 1377; chine v. 457 Caldwell Moody Paper Co., supra, v. Albemarle 474 Brewing Co., supra, 1044; National 443 F.2d 141-142; Colgate-Palmolive F.2d at Co., Bowe v. Houses, supra, Sanders v. Dobbs 431 F.2d at 711, 1969) ; 720 1101; Boeing Co., supra, Lazard v. F. 322 Stamps F. v. Detroit Edison Supp. Hunt 345-346. Sullivan v. Little Cf. Supp. 119, 121-122; at Tidwell American ing Park, supra, 396 U.S. 238-240. Co., F.Supp. 424, (D.Utah Oil Goodyear 1971). Co., Johnson Tire & Rubber supra, 37, 1380, 491 F.2d at n. nn. 52- employer’s viewpoint pay 120. From the back 53; Co., Georgia Power may just punishment. be a But as the Na- 921, F.2d at n. 19. Act, tional Title Labor Relations VII was Davidson, Pay” Ti “Back Awards Under protect employee. Not written to Rights tle VII of the Civil Act of strong public has the policy against violated (1973) (herein Rutgers L.Rev. 741-42 here, racial discrimination but Pay) Comment, ; Devel after cited as Back substantially injured it has this class of opments Employment Discrimi Law— obviously black workers. “As between Rights nation and Title Act VII Civil employer innocent discriminatee and the who 1259 n. 349 Harv.L.Rev. may equities [good his side some on (1971). employ- faith], require it seems fairer pay usually superior un er The rationale for a award with his resources back similar, but, course, generous approach der section 1981 is bear the loss. This with might emphasis damages possi compensation types be the em- other also on Boeing ployee ble 1981. Lazard v. is cases and in under section found the NLRA Company, supra, F.Supp. noteworthy at 345-346. several Title VII decisions.” Hunting Park, supra, Pay, S3, supra v. Little Back note nn. Sullivan Cf. 386; 400, 24 L.Ed.2d 396 U.S. 90 S.Ct. normally spe- specific [good should unless awarded intent to dis faith] present.121 argument corollary cial circumstances are criminate. A is improper light the award was deny- reasons for district court’s of the unsettled state of law. The pay next back must be examined principal points answer to both is that f “special circumstances.”122 evidence pay penalty back imposed not a as a primary contentions relied turpitude; sanction for moral it (1) the court had that the compensation tangible for the econom good compliance faith demonstrated resulting ic loss from an unlawful em (2) Title VII back award that a ployment ; practice. Under Title VII necessary was not future com- insure plaintiff class is entitled to com- pliance by expounded company. j As pensation loss, for that be- however j earlier raison d’etre of a back imposi-' nevolent the motives for its1 compensate award is to victims dis- Id. tion. at 804. loss, crimination for economic punish discriminating employer Bearing See Head v. Timken Roller compliance. future insure Neither supra, 877; Moody 486 F.2d at v. Albe- good past faith of the nor the Paper Co., supra, marle 474 F.2d at 141. possibility of future violations of Title see, But United Louis-San States v. St. VII is relevant. Whether black workers Railway Co., supra, Francisco F.2d injured economically unlawful 311, 313; Sugar at Baxter v. Savannah require pay discrimination and a back Refining supra, Corp., F.Supp. 146. award make them issue. is the whole Compare United States St. Louis-San v. good faith, As to an assertion of Railway Co., supra, Francisco with Unit- Supreme Griggs pointed to con- Court Industries, ed States v. N. L. supra, 479 sequences not motives. 401 at 432. U.S. F.2d at 378-380. Likewise, specifically this Court has jected good a faith a defense to back as compliance The issue future is pay Goodyear award in Tire Johnson v. pertinent deciding course whether or supra, Co., & Rubber 491 F.2d at 1375- provide against equitable not relief good rejecting n. In faith as discriminatory practices, g. future e. proper legal denying pay back basis permanent injunction. pay, Back how- here, reasoning adopt we of the court ever, equitable past an eco- is award for Lorillard, supra, in Robinson v. injury. nomic 791:123 court, secondarily, argued relied pay The district

Next it is that back finding124 should be awarded “inequity” not in the absence on a to the as pay awarded, 121. Both the Fourth Circuit and Sixth Cir is to be United which back Appeal adopted Railway cuit Courts of have States St. Louis-San Francisco Bearing Co., supra. standard. Head v. Timken Roller 876; Moody 486 F.2d at v. Albe GMC, supra, 123. This in Rowe v. Court Paper Co., supra, marle 474 F.2d at 142. particularity good set out with Courts, past, pay have denied back Id. faith Nevertheless, Motors. at 355-356. General variety (1) for a of reasons: unsettled the case was remanded with concerning particular nature of the lav? to, instructions the district court “of practice, compare States St. appropriate remedy, course back include Railway supra, Louis-San Francisco pay, full, etc., limited or as needed to effec- 311, 313, F.2d at with United L. N. Compare Id. at tuate Act.” Industries, 378-380; (2) 479 F.2d at good employer Griggs. intent of the good employer, faith of an United States U.S. at 432. Railway Co., v. St. Louis-San Francisco su pra; Sugar Refining finding #31, Baxter v. Savannah In the court stated: Corp., supra, F.Supp. 146; (3) “Any penalize pay a state award of back would conflicting (see employees, statute with Title VII those black as white well ; (4) 254) employees, improve cases cited at note who strove them- infra impossibility determining period job performance during selves and their granting pay. Bowles, back The discretion house Co. v. 321 U.S. “special court has circum- (1944). 64 S.Ct. 88 L.Ed. 635 encompasses However, stances” standard pay appropri- a denial a back decree is grounds pay of back on the of substan- ate in those cases where a limitation is injustice. Moody imposed tial Pa- v. Albemarle a state statute but per Co., supra, employer,126 474 F.2d at 142. employer or where the Cf. Piggie Enterprises, put Newman v. su- judicial Park is on notice of a or defini- pra, 390 at 402. U.S. tive administrative determination invalidity of the state law.127 “special circumstances” where unjust prevented result ease, except has an award In this for the “ex pay compensation” plan back have been narrow. The most tra clearly numerous are sex discrimination suits regarding erred in its conclusions conflicting legislation, injustice where state company.128 to the Even the weight impose argument limit lift- work hours or distributions to em ployees (the limits or the like for women em- surplus out of earned extra ployees, practice require compensation in violation of plan) reduced, would be Title penalizing VII. these cases the courts employees, hyperbolic all properly misleading. declined to back award are, Since the workers statutes, because “state essence, like federal stockholders ones, presumption are entitled company,129 they, any stockholders, like constitutionality invalidity until help should bear the burden of a back judicially declared.”125 Davies Ware- Any injustice award. results period question. cert, per curiam, (5th Due to the lauda- Cir.), 460 F.2d 1228 compensation’ plan unique denied, ble whereby 990, 320, ‘extra 409 U.S. 93 S.Ct. 34 L.Ed. earnings paid (1972). no are outside 2d 257 employees, black both Colgate-Palmolive Co., supra, 126. Bowe v. alike, earnings and white share in (weight lifting limitation). 416 F.2d 711 defendant, any pay of back award Compare earnings 127. would Rosenfeld v. reduce the Pacific of the Southern Co., (9th employees, 1971) 444 F.2d available 1219 Cir. with for distribution to the penalize Diego employees Cabs, supra, Schaeffer v. and would all San Yellow company. pay 462 An F.2d 1002. award of back to black Supreme employees passed Since the who were Court indicated in over for bet- jobs Origgs (401 443-444) appropriate ter for a lack U.S. at that adminis test interpretations score, by EEOC, trative when there em- as the were also white ployees enforcing agency, great promoted who were entitled to defer not for ence, reason, inequitable ruling a same definitive would be an administrative on a conflicting may unconscionable state statute be result. An sufficient award of back pay employees passed 1604.1(b), 1604.2(b). notice. to black 29 C.F.R. §§ who were Diego Cabs, appro- over See pra, for better Schaeffer v. a lack San Yellow su priate scores, 1007-1008; Manning job vacancy test 462 F.2d at In when the Union, supra, ternational awarded a black 466 F.2d at 816. with the appropriate 2000e-12(b). 42 § test U.S.C.A. score would likewise be Cf. inequitable result, an and unconscionable promotion 128. Since continues to be deter- and unauthorized Title VII since ra- no plant-wide ability, mined and they improved no cial overtone can be attributed employees are hurt because selection of one black over another black.” position during period their this of discrimi- discriminatory nation. The a had ef- g., Westinghouse E. Kober v. Electric employees compared fect on black as Corp., 240, (3rd 246-250 Cir. words, white workers. In other these tests 1973) ; America, United Steel Workers of probably measuring were accurate devices as Corp., Local 1104 v. United States Steel , applied employees ap- to white but as not (6th 1973) ; Manning F.2d 1255 v. In plied employees. to black Qualified Union, (6th ternational 466 F.2d 812 promoted being were workers with cert, 1972), denied, 410 U.S. 93 S.Ct. employees white co-workers or fellow black (1973) ; 35 L.Ed.2d 613 Weeks v. improper testing. able to hurdle the Co., Southern Bell T T& 408 F.2d 228 1969) ; Cir. Co., LeBlanc v. explanation Southern Bell T T company’s & 129. See the un- F.Supp. (E.D.La.1971), organization, aff’d. usual at IV. infra pra, (back pay the fact this class of black workers 457 F.2d 1377 ordered again economically. penalized 1981). will be 1961 to 1962 under section Moreover, majority Circuit, private of white practices enjoyed have swifter advancement were not held violative of sec consequential salary be- tion increases 1981 until 1970 in Sanders Dobbs House, qualified supra, although been cause black workers 431 F.2d at competi- Supreme discriminatorily hampered Court laid the foundation holding promotion. tion for time At same in 1968 in Jones v. majority Meyer Co., Alfred H. endured 392 U.S. (1968).131 To assert S.Ct. substantial economic losses. 20 L.Ed.2d 1189 question now that distribution reductions becomes whether back pay surplus peri from earned all award under section 1981 for a prior (or will od 1965) suffer can defeat somehow 1968 or con peculiarly unper- injustice award of stitutes back a substantial because suasive. lack of employers notice to statu tory prohibiting discriminatory scheme present offers an addi suit employment practices.132 falling “special tional situation within specific prohibitions of Title VII plaintiffs circumstances.” al Since adequate employers post notice to lege violations U.S.C.A. § July 2, Goodyear Johnson v. Tire VII, well as Title a back award & Rubber F.2d might thought period to extend to a Diego In Schaeffer v. Yel- San July 2, 1965, the effective date Cabs, 1007-1008, supra, low 462 F.2d at VII, 1981, subject of Title under section pay applicable found back applicable statute of limitations.130 employer from the time the had notice Bearing Co., Head v. Timken Roller conflicting statute, 874-875; state with Ti- 486 F.2d at Brown County Dyeing VII, Gaston Machine su- tle Similarly, was invalid. here the Rouge scrutiny. This so, Court Boudreaux v. Baton tivities under If the Courts Contracting Co., supra, appellate Marine —trial together to so declare —were 1017 n. indicated that the state statute with such remedial sanctions as governing spe claims, appropriate. limitations contract But the actions of Fun cifically wages, controlling subject pre- back is Fair on a back Park became to the pay judicial claim under section 1981. See Green v. scribed relief not because the Douglas Corporation, so, McDonnell 337, 463 F.2d Court said but rather because the (8th 1972) ; Young perhaps 340-341 Cir. Court said—even v. In for the first Co., supra, Congress ternational T. & T. 438 F.2d at time —that said so.” Id. at Boudreaux, In it was also established the statute of limitations is tolled when intimating 132. We are not the unsettled plaintiff relief, filing seeks such as a com concerning particular nature of the law plaint, through Culpepper the EEOC. See practice pay can defeat a back claim. There Reynolds Co., Metal 421 F.2d 891- is substantial difference between lack of no- (5th 1970) ; 893 Henderson v. First statutory prohibiting, tice of a scheme Montgomery, F.Supp. National Bank of 344 time, discriminatory employment the first all (M.D.Ala.1972). 1376-1377 practices practice and lack of notice that a applying 131. It is clear that hiring promo- section 1981 to which excludes blacks from private employment practices tion, in statutory effect violates such a scheme. Mill- question to these decisions is Enterprises, supra, not a of retro- er v. Amusement 426 F. activity. Enterpris- In Miller v. defense, Amusement 2d at 536. This the unsettled na- es, 1970), 426 F.2d 534 law, specifically reject- this Court ture of the has been stated: by Goodyear ed in Court Johnson v. “In our former Co., supra, decision we were not deal- Tire & Rubber 491 F.2d at ing change with by retroactive effect Appeals in n. the Court of law, dealing we were Moody with the effect the Fourth Circuit in v. Albe- of a statute Paper in which was force supra, 141; marle 474 F.2d at Appellee’s racially discriminatory time of Corp., supra, and Robinson v. Lorillard question actions. The Contra, was whether F.2d at 804. v. N. United States L. Rights Industries, Civil supra, Act of 1964 covered the ac- 479 F.2d at 378-380. by guard represent whose put EEOC to a class on sufficient found members have not filed134 and have of Title VII be all the enactment non-filing approved pay the intervention of under section liable for back following the July 2, However, class these members.135 The basis for opportunity reasoning for in- decision decisions is that the of this Court’s Co., vestigation Goodyear Rubber Johnson v. Tire & conciliation 1378, 1379, adequately we fil- EEOC is fulfilled F.2d at pay charge of one of discrimination conclude that back awards against filing any period employer, fur- not cover an so that section 1981 should superfluous. employment prior ther Fur- to the effective claims would be thermore, of insufficient even if date of Title because Title restricted VII VII County Dyeing membership pay purposes class notice. Brown v. back Gaston persons Co., supra, F.2d at 1385- named filed a Machine who had charge (Dupree, dissenting part). EEOC, with the section independently support would unre- an to back entitled 2. Persons pay.136 stricted class award of back pay. Georgia Poiuer, ex- this Court pay A is class-wide back award pressly question of left undecided the limited Rule the extent pay availability to non- “the of back might that the class not maintainable be 2000e-5(g) named class members § (b)(2).137 under subdivision This actions.” 919 n. 16. (b)(2) requires: Subdivision Court, ques- recently most answered affirmatively (2) party opposing tion v. Good- Johnson class year grounds has Tire & acted or refused to act on Rubber generally applicable class, there- by making appropriate injunc- final members, who Whether unnamed class corresponding tive relief or declarato- EEOC, charges have not filed may ry respect relief with class as included in a award be back whole. private question Title suit is a VII language “injunctive re- crucial light that must considered both “corresponding declaratory lief” or requirements Title VII and section 1981 lief.” The issue is whether award of imposed by and of the limits Fed.R.Civ. pay qualifies back in- as such or can be 23, pertaining P. Ti- to class actions.133 (b)(2) cluded as relief in a class action. tle VII does not exclude unnamed or non- filing de- “keyed class members a back (b) (2) Subdivision cree because reme- prag- of failure to exhaust sought, effect the relief and the dies, 2000e-5(a)-(e) 42 U.S.C.A. adjudication in § matic ramifications (1972), any with the situation, special EEOC. Courts each rather than allowed filed with who have 3B attributes of the class involved.” subject thoroughly Georgia Highway Express, supra, This is treated Johnson v. Comment, Pay 1125; Back In Class Actions 417 F.2d v. at Miller International Paper Co., (5th Pattern 283, or Practice Suits Under Title VII 408 F.2d 288-291 Rights Emory 1964, 1969). of the Civil Act of 23 163, (1974), Pay, L.J. 165-78 su- Back g., Colgate-Palmolive Co., E. v. su- Bowe pra, 117, note at 747-51. pra, 416 F.2d at 719-721. g., Bearing 134. E. Head v. Timken Roller Brewing Co., supra, 136. Caldwell v. National Co., supra, 9; Moody 486 F.2d at n. v. 1044; Young 443 F.2d v. International T & Paper 134; Co., supra, Albemarle 474 F.2d Co., supra, 757; T F.2d Henderson v. 438 Corp., supra, Robinson v. Lorillard 444 F.2d Montgomery, supra, First National Bank of 801-802; Sprogis Lines, at v. United Air su F.Supp. 344 at 1376-1377. pra, 1201-1202; 444 F.2d at Oatis v. Crown Corp., supra, 496; Only (b) (2) alleged Zellerbach 398 F.2d subdivision is Stamps plaintiffs’ (b) (3) complaint. v. Detroit Edison 365 F. is Subdivision Supp. Roadway Bing at 120-122. v. Ex- United States also available. See Cf. Georgia Power, supra, 925; press, supra, 474 F.2d at 485 F.2d at 447. Moore’s Federal Practice corresponding declaratory propriate,’ 703 language, (2d Ed. ” “ ‘final 1969). describes the situation injunctive In other if relief’ is 23.45 words, relief or ^[1] ‘ap- at result propriate ciding class-wide decision that back entitled to what amounts. Robinson v. which members of the class are can be discerned disproportional earnings, without pay is ap- de- recognized, one Corp., supra, which a class can be as Lorillard 444 F.2d at 802 type appropri- in which of relief is n. 14. This is no different than affirm- saying injunctive ate. This “thereby making relief, is not to be-'read as ative in the form of appropriate circling final entry, red or advance injunctive corresponding relief de- applied particular or remand will be in- claratory de- relief.” All that need be dividuals and not the whole class. Cf. that, party op- Bing Roadway termined is conduct of the Express, supra, 485 F. posing is such suggested class as makes such 2d at n. 5. No one has equitable appropriate. no relief This is that this violates the dictates subdivi- power limitation on the (b)(2). problem sion Likewise; the grant other relief to the established binding may unidentified class members by especially class, required it where particularizing be overcome the class Sprogis Title VII section 1981. point members litigation140 at some a^ Cf. Lines, swpra, Air F.2d at utilizing pro- the notice granted pay 1201-1202. Back been has (d)(2).141 vision of subdivision (b)(2) courts in where class actions essence, we think: a case “This injunctive declaratory relief has also injunctive appro in which final relief is requested,138 been and even where priate liability and the defendants’ injunctive need ob- relief has been grounds pay applicable back is rooted viated defendant’s before trial to all members of the defined class. Un own actions.139 der these circumstances the award of objection pay vary that back will pay, equitable back one element of the from class to class member member is remedy, way conflicts in no with 142 overriding. not Once class-wide dis- 23(b) (2).” Rule Rob- limitations of crimination has been demonstrated to Goodyear (d) (2). Co., v. Public Rosen Johnson v. Tire & Rubber subdivision See Co., supra supra, 1375; F.2d and Gas 491 F.2d Electric at Robinson v. Loril Service Corp., supra, 801-802; lard 444 F.2d at at 96 n. 11. Colgate-Palmolive Co., supra, Bowe v. appropriateness treatment 142. The 720; Sugar Re at Baxter v. Savannah manner, in a class-wide back claims fining Corp., supra, F.Supp. at 141. Pay, supra note Back outlined Bearing Co., See Head v. Timken su Roller 750: pra, 9; Stamps 486 F.2d at n. v. De permits (c) (4) Rule 23 “Subdivision Co., F.Supp. troit Edison questions member of the each individual see, City 120-122. But Walker v. of Hous class action from the omitted class ton, F.Supp. 1124, (S.D.Tex. 1131-1132 Practical actions. individual and left 1971) ; Publishing Co., Muller v. Curtis suggests individual consideration (E.D.Pa.1973) ; F.R.D. 3B Moore’s questions actions should class in back (Supp.1972). Federal Practice 23.40 U questions as to handled. be so While may pay period iden- not be and rate 139. Arkansas v. Board Education Association back respect Education, members of all tical with 767-768 may 1971). class, Contra, be determined Baham T & v. Southern evidentiary em- (N.D.La. data: T source of 55 F.R.D. 480-481 same practices. 1972) ployer’s personnel records . to con- be economical It would doubtless Roadway Bing Express, supra, 140. In v. 485 respect questions all these sider 446-449, Sprogis F.2d at v. Ai United Fur- time. the same members class r Lines, supra, 1201-1202, 444 F.2d at the separate thermore, requiring for actions class was not defined until the trial. after pay counsel courts and burden would back repetitive duplicative Roadway Bing tasks alike with v. 141. Our recent decision Finally, of- paperwork. are discriminatees Express, 446-449, supra, il- 485 F.2d at Pol- fear. of may sue because reluctant under ten be used lustrative of how notice 258 limiting provision, Al- Corp., of Alabama Code inson v. Lorillard abama, (I960),146 Goodyear 26(1) & VII, Tire Tit. v. at 802. Johnson § Cf. pay Title VII and section back both 1364. Rubber year no 1981 sets out one limit. Since award. the Determination of may period prior claim extend to a Having the court district decided July 2, either VII or 1965 under Title pay of grant members back should begin- 1981, section date marks the questions class, arise of a multitude ning pay period. of the back concerning period encom- of time by pay, passed the burden the back pay The termination date of the back computa-

proof, and the mechanics period will be most claimants guidelines district for the tion. Some imple- of the court’s date district decree be court will set forth. menting may, depend- decision, our but ing situation, employee’s on the be Initially, approve we testing 31, 1971, the date was March referring the back intention court’s be mem- will those ended. First there Master, Special Fed.R. pay claims to a currently class, situat- bers of the either Wood, Wire 53. United States Civ.P. 1971, present ed or to March Union, Local Int. Metal Lathers & predominantly depart- within (S.D.N.Y.1971). F.Supp. They eligible pay ments. for back may parties However, and the period for the to 1971 because agreement. negotiating consider also of the the restrictive effect discrimina- Goodyear g., Rub- Tire & E. Johnson v. testing tory intra-department their on (S.D.Tex. F.Supp. ber inter-department An advancement. 1972), March 491 F.2d 1364 holding employee currently position in Wood, 27, 1974); Wire United States departments these would also have been Union, Lathers, Int. Local Metal & injured up until the date of the decree supra An al- F.Supp. n. 3. bidding by posting effect expertise is to utilize the ternative system. members, For cur- those class intervening Employment Oppor- Equal rently past, positioned or in the within supervise tunity settle- Commission departments, predominantly negotiations to aid in determin- ment pay appropri- back from 1965 to 1971 is amount of award. testing ad- ate because the limited their period for department. which back Back vancement within the July begin pay should is determined may granted be from 1971 to limitations, 2, 1965 or the statute date decree to those be- charges, on whichever is later. cause were inhibited predicated, filed which this suit transferring departments to these Equal November 1965 with the thereby handicapping time, earlier at an Employment Opportunity promotion denying op- Commission. them the point applicable At that state statute portunity departmental to accrue senior- of limitations for Title VII143 and sec ity. Finally, in the class those workers proper tion 1981144 tolled.145 The supervisory positions denied entrance Georgia Power, icies of the effectuated Act would best be su- Cf. plaintiff repre- pra, if tbe bold could occasional 474 F.2d at 925. Thus, sent bis Title fellow workers. VII provision 146. This : states ordinarily actions should treated recovery “All suits and actions for the pay purposes.” class actions for back wages, overtime, damages, penal- fees or accruing respecting ties laws under Georgia Power, 143. In determined Court payment wages, overtime, damages, fees concern- state statute limitations specifically penalties, ing wages apply to a claim. was to back congress act of as the Fair Labor known F.2d at . shall be Standards Act of . . brought year within 'one after the accrual 130, supra at 255. See note ” action, of such cause of . . . . on-the-job presumption Power apprenticeship that the favor into pay. training eligible a member of a class discriminated for back against per entitle em- does not se an recently ad has This Court ployee pay to back without some individ- proof of the burden the issue dressed ual F.2d at 921-922. clarification. 474 Good pay in Johnson v. claims on back Goodyear, This Court then went on year Tire & Rubber employer: to detail the burden on the pointed once out that This Court “. It will be incumbent prima discrimination case of a against facie upon Goodyear convincing by to show out, alleged made is the class evidence that other factors would have pay in favor presumption arises for back prevented regardless his transfer pre However, this members. of class discriminatory employment prac- tempered by sumption found to be Goodyear tices. If wishes to show em on the individual an initial burden ployee department employee that a labor bring the class himself within qualified any would not be other of the effect and to describe the harmful job proof then its must be clear and employ his individual discrimination on convincing. Any proof doubts in position: ment should be resolved favor of the dis- represented “Therefore, the class giving adequate criminatee full and having prima Johnson, established a applicable equitable consideration to employment discrimina- facie case of tion, principles.” Id. at presumptively back entitled to is just There, case, as in this our de- Since, pay. the same . . . Cooper Allen, supra, cision in 467 F. placed time, now the initial burden Cooper, 2d at was instructive. department on labor the individual placed the district court had the burden employee that he is a member to show plaintiff show, disregarding on the recognized subject of the class to em- discriminatory testing, that he was ployment discrimination, it we think qualified job the most for the for which appropriate prelimi- is nary to offer some seeking pay. he was back This Court concerning observations the man- reversed: presumption ner in in favor City prove by and the initial burden “On remand the must class placed upon convincing that, employee clear and evidence individual may light qualifica- reconciled the district enumerated tions, Cooper court. would not have en- been teria which further posed ^[*] “The district court’s task will be court to be invalid for transfer have been found complicated ^[*] Goodyear previously im- ^[*] since ^{[*] [*]} under Title ^[*] cri- was on the whole show that no titled to the Otis test. That requirement job.” Id. at 840. person actually even had better is, take qualified City there been pass hired must VII. If an that he can show Reading togeth these earlier decisions department was hired into the labor er, proof it is clear that the burden of April 22, before was subse- by this Court formulated conceives an quently department frozen into that lighter initial burden on the back discriminatory employ- because of the weight claimant with a heavier of rebut practices here, ment then established employer. Therefore, tal on the we think the individual discriminatee placed maximum burden that could be proof has met initial his burden the individual claimant in this case is apparent countervail- unless there are ing posi require a statement of his current present.” factors Id. pay rate, tion and de he was holding entirely with, This consistent nied of discrimination and because Georgia rates, flows from our decision in a record of his history computing evi pay with the and other of chanics back are quali qualified figures might dence would have difficult and alternative positions, an fied him for the denied and have been used the trial court in requested fashioning remedy, estimation of the amount of whatever diffi- pay. employer’s records, culty back as of ascertainment exists was due employer’s aid, discriminatory wage well would be structure plaintiffs made to the maintained available the defendant. In such purpose. cases, then to the The burden shifts it suffices for the trial court to challenge particular wages class determine the amount of back pay.147 just members’ entitlement to “as a back matter of and reasonable inference.” Anderson v. Mt. Clemens calculating of The method Pottery Co., 680, 687-688, 328 U.S. pay back award must not be class-wide 1187, 1192, S.Ct. 90 L.Ed. 1515 rigid. impossibili from the This results (1946). “Difficulty of ascertainment ty calculating precise of amount longer right is no confused with of re- pay. way back There no of determin covery.” Mitchell v. Mitchell Truck jobs the class members would Line, Inc., 286 F.2d 721 at 725-726 have bid on and have obtained if dis (5th 1961) Hodgson Ricky and criminatory testing, seniority, posting Fashions, Inc., 434 F.2d 1261 at bidding system, apprentice and and and (5th Cir., 1970). 1262-1263 no Since on-the-job training programs not had single wage scale could ascertained be out been existence. Class members Loveman’s, women or men at vacancies; promotion number because the formula used the trial period become available time; over a reasonably court was calculated to enjoy pay different vacancies compensate the discriminatees rates; and a determination of was who losses, require we decline to vacancy entitled to the would have to be precise more calculation in this case. judgment determined on a Id. at 242. ability process at that time. This Colgate-Palmolive Likewise, in Bowe v. quagmire hypothetical judg creates a Co., supra, 416 F.2d faced Goodyear ments. Johnson Tire and impossibility determining rate of Co., supra, Rubber 491 F.2d at 1379. pay plaintiffs because of the com- pay plexities It does not follow back job bidding procedure, promotions claims based on cannot be pay court ordered back awards at awarded. exactitude Unrealistic plaintiff maximum rate which the required. princi- This Court made this could have earned. 416 F.2d at 721. ple City Stores, Inc., clear in Brennan v. Therefore, computing pay a back 1973), 479 F.2d volving in- principles award two (1) are lucid: un- Equal Pay Act: realistic required,148 exactitude is not objection (2) defendant’s determining uncertainties what compute formula used to back would have earned but for numerous. . . While the me- . discrimination, should resolved 147. In Peters v. Missouri-Pacific Railroad Co., Bowe v. Palmolive 489 F.2d 902; City Court stat- Stores, Inc., supra, Brennan ed : (Equal Pay case); F.2d at Act Ev “The Railroad claims that the back Hotel, ans v. Sheraton Park 5 EPD ¶ damages plaintiff dupli- awarded Placide (D.D.C.1972). Pay, at 6922-23 See Back part damages previously cate in supra awarded 151, 152, 153; note at 764-67 nn. wages him for loss Cooper in an Sobol, Seniority earlier suit Testing un against personal injuries Employment Ap Railroad for der Fair A Laws: General job. proach suffered Objective The burden Hiring Criteria of upon plea Promotion, Railroad to establish its 82 Harv.L.Rev. at 1634-35. estoppel by judgment.” state discriminating against employer.149 type involved, one the class was variables, v. Goodyear small, pay period Rubber and the Tire & back Johnson pay rate, readily definable; 491 F.2d at n. 53. individual-by- court was able to take an computation a of will be method approach. v. individual Johnson Good- complexity the the case. function of of year Co., supra, Tire & 491 F.2d Rubber period small, or time If the is the class short, the the of discrimination or effect fairly straightforward, precise However, deter- the size or the a when class posi- ambiguity hiring prac- promotion of each claimant’s of mination what or been, multiple dis- but the of tion would have tices or the effects discrim- type illegal crimination, possible. inatory practices practices of This is or the period individual-by-individual of determination continued over an extended Roadway Bing quagmire hypo- Ex- v. of was utilized in time calls forth the earlier, press, Inc., judgment 452-455. a supra, F.2d at 485 thetical discussed Initially employer approach of had burden measure of the the class-wide notifying city drivers, pay in order its back is It be necessitated.150 should class, emphasized determine the members this is not a choice be- approach precise had been of their members tween than some one more discriminatorily Any simply proc- road excluded another. method a is only positions. conjectures.151 driving was is there ess Since of When court Colgate-Palmolive pragmatic cal- v. method of Bowe search for more F.Supp. (S.D.Ind.1967), 272 365-366 : culation (Because preciseness rev’d., F.2d in- 416 at 721 must also “The trial decision court’s possible, pay computing weighing back was not as limita- clude a of issues fully (discussed the minimum which district court awarded more be- tions and laches Ap reality (i. e., low), of been The Court could have earned. factors of economic maximum.) peals reversed, ordering ; expense relative of accurate determination Hotel, rights Park 5 the amounts Evans Sheraton individual vis-a-vis involved) and, assuredly, physical EPD at 6922-23. 8079 most ¶ pay prop- La- In under the National back cases court to and fiscal limitations of the erly grant Act, supervise-selief. has consistent- bor Relations this Court This list- and against wrong- ly not resolved uncertainties be illustrative is intended to injured employer than em- ful rather leave exhaustive. It is our intention to ployee. open altogether International Union of In NLRB v. for reconsidera- the issue Operating Engineers, Local the court below.” tion decision (5th 1972), summarized: 599 we F.2d at job of Lu- been instead “Had Ross cas, on individuals whether Doubts about which just might easily have been se- he as promoted all would have been class members certain, lected. We will never know approach on reme- a class have called forth uncertainty but think should be we this pay. dial issues other than back against respondents not resolved Corp., supra, 446 v. Bethlehem Steel against held in Ross. As this court had 660; Mo- (W. v. Central F.2d at United States analogous an situation: Lines, Inc., F.Supp. tors employer’s an discrimina- ‘when unlawful D.N.C.1971). impossible makes to determine tion it * * * whether would computation process and burden backpay in the absence of have earned discrimination, approach. proof “either, In or” not uncertainty should Wood, & Metal Lath- Wire United States against employer.’ resolved Union, supra, 328 Local ers International Bottling Co., 5 v. Miami “NLRB Coca-Cola 443-445, F.Supp. the court had found Cir., also F.2d at 572-573. See “substantially exclusion less than total Inc., Casting Co., East Texas Steel by the union. referrals nonwhites” from (1956), enforced particular NLRB 1339-1340 pay grant back In order to Castings Co., 5 NLRB v. East Texas Steel specified. had to be workmen entitled (5 1958).” Cir., objective was An criteria used: “ eligible cogni- Georgia Power, will be . . . claimant [A] this was 150. In Court during any ei- difficulties, he month back and modified zable of these hiring (a) shaped proof quoted hall for five or language above ther on burden shaped days (b) implication hall more that a court should with the and/or persons seniority” like with situation similar faced —to entry plaintiffs.153 case, start class In Bowe where Colgate-Palmolive progress jobs department level 489 F.2d 896 fifty- 1973), myriad positions involving de- Cir. into of other class women, ap- approved partments four on the basis time, proach ability period of : over an extended individual exact of each reconstruction problem each case to de- history, if discrimi- as claimant’s work termine some fashion reasonable occurred, im-

nation had not highest “the rate of for such precise impractical.152 but employee] have bid would [the reconciled, qualified in a class-wide for if non-discrimina- Courts have a computing complexities tory seniority approach, would have been the scheme periods pay pay approximate As rates and existence.” 416 F.2d at 721. already Stamps ways. observed, v. Detroit In exact reconstruction in several F.Supp. history employee Co., supra, the of each Edison work system and deter- the class had the no discrim- court had defined contained inatory pay period, impossible, has been as element mined the back period In order to determine court a test so as done here. district chose experi- pay the class of determine basis of rate of each member on the jobs jobs employee had excluded from ence each would who been containing performed pay groups dis- the five in the absence of jobs” high opportunity period crimination. “skilled trades The selected averaged pay through May rates five from March 1970, the court pay beginning back and awarded each claimant twelve weeks averaged computed shortly preliminary injunc- after on this rate based grade purposes pay opening jobs progression ac- tion all to women. for cording years em- of of to the number better Women who obtained the ployment, of interim less amount general jobs during paid the test labor earnings. period were awarded difference pay time between actual computation of can Another method July 2, an amount com- since 1965 and categorized compara- as a formula puted period for the on the basis same employee bility representative earn- during hourly of their individual rate ings Approximations are formula. period, adjustments for the test less group employees, not in- based on a contractual increases. comparable discrimination, jured by the Id. at 902. length employ- size, ability, Wood, Likewise, “adjacent persons on the ment—such as seniority average job progress Union, Metal Int. Local or the Wire & Lathers list actually employee case, job a for a total of to assume worked on promoted eight days.” in three would have been or more #242 years present em instead of to such-and-such An individual claimant had to some unfairly qualified ployee speculative is so as to he these crite- evidence that #354 penalize Stamps employee See ria. actual #354. order determine F.Supp. Co., supra, pay, however, at Edison Detroit amount of back Many realizing courts, approach. 121-122. a switched class-wide negotiate parties earnings problem, average have ordered of a com- court utilized the pay. approach parable group an back determination of white members union Georgia Power, period g., E. C.A. United States discrimination. (N.D.Ga. Nos. Jan. granting key a 152. The is to avoid both 1974) ; Goodyear Tire & Rubber Johnson v. employer’s ex- windfall the class at F.Supp. at 18. pense claimants and the unfair exclusion of Pay, supra defining at 764- determinants Back note the class or the See narrowly. instance the amount too For 443-445, 46, supra, F.Supp. comparable group where of discriminated against) individual-by-individu- computing the back than the court was injured approach. discrimina- al black tory lathers “represen- system, union referral ingredients Finally, the of back earnings tative formula” was pay “straight should include more than employed: salary.” Interest, overtime, differ shift eligibility any For month of entials, fringe such vaca benefits difference, claimant is to receive the among tion and sick the items average earnings any, if between pay.155 which should be included in back performing out- white union members Adjustment pension plan permit hold- . side work . . during members who retired class performing ers non-union lather [a this time should considered also be hand, one on the outside work] remand.156 amount the claimant lesser Id. earned or should have earned. Conclusion declaratory and affirma Opportunity Employment Equal injunctive tive relief should alleviate the comparability urges for- Commission perpetuated company’s of the in effects mula for this case: testing tentional and and discrimination appropriate formula should the While requirements. educational Back by a hear the Master after be decided ing, compensate should for economic losses the instruct this Court should during period suffered the of should Master that such formula implementation and before the of this upon of whites which a class based Nevertheless, decision. additional two comparable the members would be necessary. elements of relief the dis of class but for the effective district court should establish a com By de formula a such a crimination. plaint procedure by of which a member gross can be of the award termination interpretation may question .the class the prohibitive ex established without implementation of the court’s district pense physical fiscal and within the Georgia decree. See United v. States See, United limitations of the Court. 11723, Power, supra, 12355, C.A. Nos. Co., supra, Georgia 5 v. Power States procedure 12185. The should include p. for the Brief FEP cases at filing per complaint the of a curiae, amicus United EEOC as States department company and sonnel of the at 47.154 proper of committee of the Board limited to court is not Finally, While district Operatives (described infra). alternative, particular it has more retain this case shoud reality (i. e. actual advancement basis on the time docket a reasonable words, 154. In for the Colgate-Palmolive, other the total award supra 155. See Bowe v. At pay, entire class be determined. (vacation, would 489 F.2d at 903-904 sick point, bonus) ; calculated Georgia Power, individual claims would be United States v. pro (travel of supra, expenses) ; on rata shares those workers 474 F.2d at 922 claiming ability Employment similar Schattman v. Texas Commis position, eliminating possibly sion, F.Supp. same the ne (W.D.Tex.1971), rev’d cessity many deciding grounds, which one of em on other 459 F.2d 32 cert, ployees position 1972) , denied, would have obtained the but 409 U.S. 93 S.Ct. (1973) (sick dissatisfied discrimination. Claimants 34 L.Ed.2d 688 and vacation portion ave) ; Pettway with their be al of the award could le v. American Cast Iron opt prove Pipe Co., F.Supp. (N.D.Ala.1970) lowed to out order to larger portion. (holiday pay). entitled to a and vacation Cf. (d) (2) ; Fed.R.Civ.P. Protective Commit 156. Rosen v. Public Electric & Gas Service Anderson, 414, 435, tee v. n. 390 U.S. (3rd 95-96 (1968). S.Ct. 20 L.Ed.2d 1973) ; Georgia Co., Power supra, 12355,11723, C.A. Nos. implementation employed insure continued non- in a equal . opportunities.156a supervisory capacity for three or more County Dyeing years. Ma Brown Gaston The racial restriction continued Co., 1383; Eagan’s supra, Par chine after death. The district court Eagan Telephone ham found Southwestern Bell had intended that re- sult, although 433 F.2d at 429. codicil to his will did membership its terms restrict whites.157 IV. OF BOARD OPERATIVES adjunct As an to the Board Man- appellants appeal the also agement Operatives, and the Board of granted by relief disestablishing the district court an all black board of evolved separate em to advise the two on mat- other boards ployees management board, the Auxilia affecting ters the interest of Board, integrating ry the all-white employees. Voting membership employee board, Opera the Board of the Board of Directors the ACIPCO understanding complete For tives. successor, Colored YMCA and its explanation organi issue, an Auxiliary Board, created was company, zation of the as established restricted employees. to black The dis- Eagan, founder, neces John J. its Mr. Auxiliary trict court found that sary. originated except Board would not have for the racial restriction on the member- Participation Employee A. Plan ship Operatives. Board Corporate Management From 1922 until January, organized in 1922 Operatives Auxiliary Board of and the “Eagan Plan,” envisioning separately Board functioned under the cooperation ideal between labor and provisions Eagan Plan and management. plan The called for the by-laws corporation. of the A codicil to policies control of be vested business to Eagan’s bequeathed will had out- all the by board the of directors elected standing company common stock of the Management, A Board of stockholders. Manage- to the members of the Board of corporate composed of officers elected ment and the members of the of Board Directors, by the Board conducted the of Operatives, jointly, to and their succes- day day company. the to unique business of sors office. The Boards acted as Eagan feature of the Plan employees trustees for the benefit of the Operatives, composedof Board the of employees company and future of the personnel non-supervisory by em- elected and their families. Similar status was ployees company. of main the A function not conferred the members of the Operatives of the Board ad- of has been to Auxiliary Board. Management vise the Board of affecting on matters employees the welfare of the Desegregation B. provide the and to of channel communica- Employee management Boards tion between em- ployees. finding segregation of black employees and white During into two il- boards Eagan, the lifetime candi- legal, the district court stated: Opera- dates election to Board of had to white tives males over twen- passage However, the of Title ofVII ty-one years age, citizens, American Rights presents, the Civil ofAct particularly appropriate may 156a. We feel it to well be a model other trial courts call attention to final decree the three appropriate to use with modifications Georgia Upon named Power Co. cases. back cases. court, mand of this dis- permitted parties prepare trict employees, regard race, All without judg- effectuating eligible Opera- suitable means of vote in Board resulting ment of this Court. The decree tives elections. judgment Court, Operatives. of this a novel serve on Board Assuming impression. contrary case of first This would be to the propriety spirit original Eagan of the lawfulness letter of the operation Eagan Acipco Trust, Plan at provi- of the July Plan and but also to the issue prevailing sions of Title VII and the concerning presented arrangement the effect on the law. Such of election overriding Eagan genuine geo- new and Plan districts must be on legislative policy operational which graphical, of Title VII functional employment practices grounds contemplated now controls the in the manner corporations private Eagan of all covered employees Plan so that prohibits, throughout plant the Act. Title now op- VII will have the terms, electing any no uncertain discrimina- portunity fellow employer respect working tion in their own areas or dis- terms, compensation, Operatives conditions or tricts to the Board of aon privileges F.Supp. because fair basis. 332 at 817. an individual’s race color. The plan submitted a right Court believes that the to serve enlarged the number of electoral dis- Opera- on the Board of a member rep- tricts from five to with one twelve been, Acipco in- tives at has since the resentative elected each district. Eagan ception Plan, a valuable approved plan The district court term, condition, privilege of em- finding the districts “had been or- ployment Acipco and therefore falls ganized genuine geo- and are based on express coverage of Title within operational graphical, and functional VII, 2000e-2(a). U.S.C.A. § grounds any pur- without intention or F.Supp. at 815. pose gerrymander be- districts of racial cause considerations.” 332 F. The court then declared the racial re- Supp. at 819. Black membership striction on on the Board of boycotted each election Operatives unlawful, but directed it subsequently held because consider functions, joint continue its as a stock- company’s pursuant the elections management holder, co-trustee, ad- plan illegally unfair and constituted. visor, representing both The black submit their now employees with no racial restriction on objections plan to this to this Court on Auxiliary membership. its Board appeal. We affirm the district court’s was ordered to abolished simultane- order. ously with the elimination of the racial membership restriction on the the of Appellants maintain that district remedy the Operatives. court, Board of district The inadequate court’s order is however, was conscious of the fact that em- the unlawful exclusion of black employees the ratio of black to white segment ployees of man- from this the employees approximately one to two agement point They structure. voting polarize along and that if should racially discriminatory record of the racial lines no black would be practices by employed the under Operatives elected to the Board of management. The its all-white district present the districts, electoral estab- of black court’s notation of the ratio low Therefore, in lished the or- employees employees, which up dered the new elec- to draw votes, is claimed to be a less black means toral districts. The added: court also practices condoned the result of the caveat, points management As a the company’s Court out that should not arrangement penalize employees. the election district continue black gerryman- pri- appellants point should not be or Second, drawn that a out purpose depriv- Operatives mary purpose dered for the of either of Board of the guaranteeing any employee of is to act as a channel of communication particular right employees. They postulate color the race or that 33% company’s force, of of work all the the think it has abused its discretion go unrepresented granting employees,will if black relief. employees majority the clear of white gerrymandering There is no racial Finally, assuming allowed to rule. appellants.160 claimed Since the Operatives Board of will have date of order, the district court’s responsibility monitoring substantial of number has increased compliance VII, appellants with Title to approximately company’s 50% addition, challenge persons bona of who fides work In force. in the first have condoned been the benefi- order, election after the court’s district company’s ciaries of the discrimi- statistics reveal that black natory practices. rely Appellants majority were in a in three of the elec- precedent ordering equal Fifth Circuit toral districts and constituted a substan- representation black and white in elec- percentage tial in two others.161 To al- merging tive offices and committees voting low cumulative would defeat the previously segregated g., E. unions. company policy valid alloting repre- Long Georgia Co., supra, Kraft along geographical sentation and func- 331; United States v. Jacksonville voting tional lines. Cumulative would Terminal F.2d at 457- at-large also result elections. Courts voting plant-wide on a 458. Cumulative reapportionment area have voting require- basis two-thirds upon at-large frowned the use of dis- Operatives ment for the Board is re- endorsing single tricts while electoral quested. Regester, districts. White v. 755, 412 U.S. 765-770, 93 S.Ct. 37 L.Ed.2d appellants’ position several has (1973); Johnson, Connor v. 402 U. strengths. Operatives, as Board S. 690, 91 S.Ct. 29 L.Ed.2d 268 company, co-trustees of the stock (1971). Finally, at-large elections jointly, Managers, with the Board encourage polarization by would voter Directors,158 elects who the Board of seeking apply race. areWe a law ultimately company’s responsible purpose whose is to resolve policies of Man- and who elect the Board inequalities resulting from racial dis- agers, day operators day emphasize crimination rather than race company’s Board, there- business. employment, voting criterion. fore, responsibility for shares company’s past employment practices. affirming However, in order of Operatives addition, the Board will court, the district we are mindful any recipient complaints be the responsibility Operatives main Board concerning compliance aiding with the relief implementation will bear granted by input Therefore, the court. of the affirmative trial relief that However, vital. possible court will To the order. extent applied correctly procedure court has with the which the district case,159 the law in this do not remand, we court will direct on we think it clearly gated Rights 158. The record indicates that before tlie Act of 1964.” Civil Eagan the death two of Mr. of the members The issue district court did not reach this Operatives (332 F.Supp. 3), the of rectly Board of were elected di- n. at 815 nor do we. to the Board The of Directors. Rail Steele v. Louisville Nashville & Cf. record, however, does state whether this not L. road 323 U.S. S.Ct. practice the continued after death of Mr. (1944) (racial gerrymandering Ed. and Eagan. majority representation unfair the union). of the firemen’s Equal Employment Opportunity 159. The evidently Commission determined that the these other The data indicates eligible more, plus 2000e- black § had violated U.S.C.A. three two districts 2(a) by “maintaining segregated Board of the votes received voters outnumbered total Operatives performs the which functions of the because of the successful candidate organization may segre- light voting. be labor not turnout of of the class. The erreach the members Georgia appropriate committee bi-raeial Company agency operating of the Power order referred as an employees, 156(a) majority opinion appointed to in of Operatives, Fn. the of be Board example an of Ellis such a consent decree. matter. deal with this Cf. Orange of of Public Instruction Board holding perceive of the I do not the County, n. 4 going majority beyond what the court 1970). committee The members of Goodyear in Johnson & said Tire Rub- of from the ranks should drawn be Company, Cir., ber 491 F.2d 1364. Equal Operatives Em- of Board court held that each There ployment The Opportunity Committee. class, member to receive be available committee would employee complaints April 22, 1971, hired before had compli- and aid discriminatory been victim of test- report It could with ance Title VII. diploma requirements and trans- Operatives and to the Board of both to policies. placed The fer court bur- long court, as it retains so the jurisdiction, claiming pay den on those back estab- prob- equal employment on membership in The lish bur- class. lems. employer den was then to shift to judgment the case is reversed and particular show that the claimant would for fur- court to the trial is remanded regardless transferred never have proceedings with not inconsistent ther discriminatory employment practices. opinion. say: went holding necessarily “Our does not Judge (specially BELL, con- Circuit every mean that member class curring) : pay. back Individual entitled reached in the result I concur vary and all mem- circumstances opinion majority extent extended automatically bers the class en- as- errors relates to that the result recovery. titled to There should be a signed. with the accord The result is separate determination on an individ- previous Supreme Court decisions of ual as to is entitled to basis who is, respect to and of this Court and with covery the amount of such recov- assignment error, each consonant ery. It all is clear that members of within the interstices which well subject the class been to unlaw- upon to fill courts have been called practices. discriminatory ful racial giving administering VII, and in Title Therefore, those have suffered a who Congress remedial aim of effect practices pay loss of such because enacting expressed in Title which compensa- appropriate are entitled to VII. . tion. . .” advisory por- join in those I do not Goodyear ratio decidendi of 260-264), (pp. opinion hav- tions of problem which avoids the constitutional determining ing to do with back approach, in an for exam- would inhere prefer a con- I to wait for the class. involving comparing of back ple, case award the total remuneration crete sug- deciding before whether class, another one class gested approaches in law. are valid white, g., e. versus They may employed. may not period simply discrimination Damage be individualized awards must amongst allocating the difference problems to avoid constitutional suffering class the discrimination re- taking property of would arise gardless financial loss. individual showing of one for another without a controlling principle recipient. deter- particular The for This loss to the mining course, preclude pay on the a settle- is set out not, back here would prin- majority page opinion The 259. on ment consent decree terms suit- ciple parties with the do not ov- stated does conflict able to the and which not Goodyear proof rule but is burden the same a more definitive statement of greater gives

principle assurance

individualizing majori- claim. The each

ty as follows: statement is maximum burden ". . . placed individual could be require claimant in this case is position and of his current statement rate, denied be- he was

cause of discrimination and

rates, his his- a record of

tory other evi- with qualified or would

dence that positions,

qualified him for the denied amount of

and an estimation employer’s pay. requested back aid, records, employer’s well as the as plain- would be made available Minn., Heffernan, Paul, Donald J. St. purpose. tiffs for this The burden appellant. for to chal- then shifts lenge particular Atty., class members’ enti- Scott, Daniel U. M. Asst. S. pay.” Minneapolis, Minn., appellee. tlement to back for Before GIBSON, BRIGHT STE-

PHENSON, Judges. Circuit Judge. STEPHENSON, Circuit sufficiency questions appeal This support trial of the evidence to finding appellant not was court’s process by his draft denied due local America, Appellee, board. We affirm. UNITED STATES regis- undisputed appellant It Ramsey Local Appellant. tered with Board No. KRUMWIEDE, John Edward County, and was Minnesota classified No. 73-1909. April when II-S I-Y until Appeals, United States Court of he was classified I-A. selective Eighth Circuit. request service file no contains Submitted March 1974. appeal. personal appearance or notice April 3, appellant Decided or- 1974. The local board issued report No- induction dated der appear requiring him to vember He failed to on December charging port Indictment ordered. report failing appellant returned Janu- induction was submit to appellant ary was Because fugitive until appellant tried Jury trial was waived October to the court. tried the case was' finding guilt by the court1 After Judge. Devitt, Chief Edward J. Honorable notes suggested by court the district test preserved, seniority and transfer Georgia Power,90 system only directly a have foster which would must not safety efficiency plant, but and of a Moreover, impact. since lesser racial goals. also be essential to those large of suc there is a demonstration * * * legitimate If ends without a cessful achievement safety efficiency can be served discriminatory high diploma, a school sys- reasonably a available alternative standard, by definition, be a cannot discriminatory effect, tem with less We, therefore, necessity.” “business present policies may not then the conclude that the district court should continued.” United v. Bethle- States high enjoin school use of a continued Corp., hem Steel 2d 446 F. requirement entrance for educational words, 2d In other [1971]. apprentice program. into the management convenience and business Long Co., supra, 451; nal 451 F.2d at Court, wording, dressed in different Georgia 562; Kraft 450 F.2d at United States v. Terminal Jacksonville Bing Roadway Inc., supra, Express, 451; supra, 451 F.2d at and Local Paper- 690-691; F.2d at Local United Papermak. Paperwork, United & v. United Paperwork, States, mak. & v. United States, supra, F.2d at 989. 416 F.2d at 989-990. 89. The determinants for- the Rolinson 90. 474 F.2d at 918. applied by essentially mulation been necessity synonymous. system seniority Thus are not mental effective and is required prove only program Terminal efficient as an instruction systems only seniority pro- positions not that as those line in a promote gression ef- jobs safe and restrictions where the below them training operation also that prerequisite ficient but the ladder serve as goals. steps.92 departmental at Thus, to these Id. essential line progression 451.' positions where the not do specific require training93 on- or where prongs of Under the three the Robin- the-job experience depart- in another standard,91 purpose, son the business employee,94 qualifies depart- ment training insure and efficient safe seniority system mental not efficient “sufficiently plant operation, must be training certainly and it is best any compelling im- to override racial method.95 system pact;” department seniority carry effectively efficiently must company has evidence training purpose; significant out there portions its of its record that acceptable practice operations require must be no alternate skillful craftsmen- training. accomplishing In an ship, but failed demonstrate it has involving industry sophisticated every plant position machin- is so that ing processes many opera- complex specialized require, such or as training job company, step by step pro em- exception, tions of this without ployees positions gression department. neces- skilled is a each within sary proof economic function for the continued record discloses no depart- However, positions life of the than business. in other craft necessity 91. 444 F.2d at n. 6 and 7. it ineffective test because was by ability furthering promotion inefficient Corp., supra, 92. In Robinson Lorillard jobs specific training, requiring into no justified departmental seniori- Industries, L. v. N. system ty by asserting employees will “that supra, 479 F.2d at observed: perform job efficiently they have if more regard alleged need for “In prior experience in other within experience department, again within a we department.” rejecting same Id. at 799. point no out National Lead maintains it, following made the court caveat: departments progression lines of within “Finally, imagine how it is difficult to job progression departments. between The sole determi- necessity even the seniority nant selection is necessity could constitute the business ability. Thus, as in St. —not departmental justify senior- would Railway, supra, 464 Francisco Louis-San ity system perpetuated the effects ‘length service becomes prior discriminatory practices. For, after ” synonymous qualified.’ all, seniority necessarily an inefficient

Case Details

Case Name: Rush Pettway, Etc. v. American Cast Iron Pipe Company, United States Equal Employment Opportunity Commission, Intervenor

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 22, 1974

Citation: 494 F.2d 211

Docket Number: 73-1163

Court Abbreviation: 5th Cir.