KERNER, Circuit Judge.
Plaintiffs are present and/or former female employees of defendant Colgate-Palmolive Company (Colgate) who were represented, for collective bargaining purposes, by defendant International Chemical Workers Union, Local No. 15 (Union) at Colgate's Jeffersonville, Indiana, plant. Plaintiffs sued Colgate and the Union under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. charging that they were intentionally discriminated against by a system of job classification which deprived them of various opportunities in the plant and that they were subjected to discriminatory layoffs under a segregated plant seniority system based on the employees' sex.
Prior to trial, the court below required plaintiffs to elect whether they would proceed in this action or whether they would seek remedy under the collective bargaining agreement through arbitration. The court also refused to consider the claims of certain plaintiffs who had not filed charges with the Equal Employment Opportunity Commission (EEOC) and had not received notice of the right to sue from the EEOC, having determined that this action could not be maintained as a class action for purposes of applying a back pay remedy for the layoffs. After trial by the court without a jury, a memorandum opinion was filed which found for the Union in full, and for Colgate on all issues on the merits except as to certain layoffs under the segregated seniority lists in November, 1965. The crux of the lower court's opinion on the merits is its holding that Colgate acted reasonably in imposing a 35-pound weight-lifting limit on jobs which were open to females, thus foreclosing them from competing for jobs requiring lifting of more than 35 pounds. The facts are carefully set out in Bowe v. Colgate-Palmolive Co., 272 F.Supp. 332, esp. 340-360 (S.D. Ind.1967). Except for portions of the partial relief granted below, we reverse.
1. ELECTION OF REMEDIES
The first major issue for our consideration is whether the trial court acted properly in requiring plaintiffs to elect whether they would pursue their statutory remedy in this action or seek arbitration of grievances under the collective bargaining contract. Thus, the court required an election of remedies prior to any decision on the merits in either of the available fora.
The situation facing the trial court was one in which there exists concurrent jurisdiction under the statutory scheme and under the grievance and arbitration process for the resolution of claims against an employer and a union. The analogy to labor disputes involving concurrent jurisdiction of the N.L.R.B. and the arbitration process is not merely compelling, we hold it conclusive.
Moreover, in an action brought under Title VII, the charging party and suing plaintiff acts as a private attorney general who "takes on the mantel of the sovereign." Jenkins v. United Gas Corp., 400 F.2d 28, 32 (5th Cir. 1968). See also Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968).
Accordingly, we hold that it was error not to permit the plaintiffs to utilize dual or parallel prosecution both in court and through arbitration so long as election of remedy was made after adjudication so as to preclude duplicate relief which would result in an unjust enrichment or windfall to the plaintiffs. American Int'l Aluminum, supra at 152 of 334 F.2d. Cf. N.L.R.B. v. Geo. E. Light Boat Storage, Inc., 373 F.2d 762, 767-768 (5th Cir. 1967).
2. WEIGHT-LIFTING RESTRICTION
Colgate uses an unusual system of plant-wide seniority due to the uncertainty from week to week as to which jobs in the plant will operate. Each week, every employee completes a job preference sheet for the following week with job assignments being made on the basis of seniority. The seniority system is bifurcated into separate eligibility lists for men and women. While men may bid for jobs plant wide, women are restricted to jobs which do not require lifting more than 35 pounds. The history and mechanics of this unusual system are fully set out at 272 F.Supp. 340-347. The Union also bears responsibility for this system since it continued to abide by it as enshrined in the contract in force on the effective date of Title VII and since it preserved some parts of the system in its 1966 contract with Colgate. However, as shown below, there is no liability on the part of the Union due to the failure of any of the plaintiffs to comply with the jurisdictional requisites for filing a suit against the Union.
The trial court carefully analyzed the various facts relating to the weight-lifting restriction and concluded that Colgate had acted reasonably and in the interest of the safety of its female employees in imposing the 35-pound restriction. 272 F.Supp. at 353-357, and 363-366. While this was a carefully reasoned and conscientious approach, we hold it error as it is based on a misconception of the requirements of Title VII's anti-discrimination provisions.
The trial court relied on 42 U.S.C. § 2000e-2(e) which permits discrimination in hiring by sex where sex "is a bona fide occupational qualification reasonably
By way of further interpretation of its guidelines especially § 1604.1 (a) (3) (c) relating to weight-lifting limits, the EEOC has, in three separate cases, indicated that this guideline is not to be read as an approval of general weight-limits by sex in any state or even in a particular industry, but that consideration must be given on a highly individualized basis. It views such broad limitation as violative of its prohibition against the use of broad class stereotypes including those in which sex is the stereotyping factor.
If anything is certain in this controversial area, it is that there is no general agreement as to what is a maximum permissible weight which can be safely lifted by women in the course of their employment. The states which have limits vary considerably. Most of the state limits were enacted many years ago and most, if not all, would be considered clearly unreasonable in light of the average physical development, strength and stamina of most modern American women who participate in the industrial work force. Almost all state limits are below the 33 to 44.1 pounds recommended by an investigatory committee
We agree with the Secretary of Labor insofar as he stated that it is best to consider individual qualifications and conditions, such as the physical capability and physiological makeup of an individual, climatic conditions, and the manner in which the weight is to be lifted.
Accordingly, we hold that Colgate may, if it so desires, retain its 35-pound weight-lifting limit as a general guideline for all of its employees, male and female. However, it must notify all of its workers that each of them who desires to do so will be afforded a reasonable opportunity to demonstrate his or her ability to perform more strenuous jobs on a regular basis. Each employee who is able to so demonstrate must be permitted to bid on and fill any position to which his or her seniority may entitle him or her. On remand, the court shall study the problem together with the parties and devise and adopt a system which will afford this opportunity to each employee desiring it.
3. PROCEDURAL ISSUES
Colgate has raised some procedural issues which it urges would preclude recovery by at least some of the plaintiffs. The first issue related to the time sequence involved in filing suit and various formalities regarding the EEOC charge. Subsequently, this Court decided this issue in another Title VII case, Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968). We accept Colgate's concession that Choate disposes
Colgate also argued that there was a failure of necessary joinder in the actions below as none of its male employees were made parties to the action. The issue is frivolous. The Union was made a party and its duty was to represent the male employees as well as the female employees.
Colgate also argued that the trial court was correct in deciding not to issue a preliminary injunction against it to compel discontinuance of the discriminatory practices. We believe that this was error, in part. Had the court correctly perceived the meaning of BFOQ, it would have issued an injunction. However, it could not issue one against the discriminatory layoffs as the determination of this issue was dependent on the type of careful proofs adduced at trial and therefore not appropriate for preliminary injunctive relief under the peculiar facts of this case.
It is a jurisdictional prerequisite to the filing of a suit under Title VII that a charge be filed with the EEOC against the party sought to be sued. 42 U.S.C. § 2000e-5(e). This provision serves two important purposes. First, it notifies the charged party of the asserted violation. Secondly, it brings the charged party before the EEOC and permits effectuation of the Act's primary goal, the securing of voluntary compliance with the law. While we believe that the Union was not entirely blameless in permitting discrimination to exist and could have worked harder to eliminate the residual and continuing effects of the blatant prior discrimination, it is undisputed that at no time was the Union ever charged before the EEOC as a party in violation of Title VII. Accordingly, the Union cannot be held liable for any of the damages resulting from the discrimination and the trial court's determination in favor of the Union is affirmed.
4. CLASS ACTION AND REMEDY
Having determined that the court below erred in holding the weight-limit to be a BFOQ, the decision that the November layoffs were discriminatory is now more strongly supported. For the reasons stated below, and in this opinion as to the BFOQ, that part of the trial court's decision is affirmed.
However, the court committed error in determining that only those plaintiffs who filed a charge with the EEOC were permitted to recover back pay. It should have permitted recovery by the intervening plaintiffs and required the posting of a notice allowing any other similarly situated employee to apply to the court for appropriate relief.
A suit for violation of Title VII is necessarily a class action as the evil sought to be ended is discrimination on the basis of a class characteristic, i. e., race, sex, religion or national origin. In our view, it is indistinguishable on this point from actions under Title II relating to discrimination in public accommodations. In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), the court held that since vindication of the public interest is dependent upon private suits, the suits are private in form only and a plaintiff who obtains an injunction does so "as a `private attorney genvindicating
We are also unable to perceive any justification for treating such a suit as a class action for injunctive purposes, but not treat it so for purposes of other relief. The clear purpose of Title VII is to bring an end to the proscribed discriminatory practices and to make whole, in a pecuniary fashion, those who have suffered by it. To permit only injunctive relief in the class action would frustrate the implementation of the strong Congressional purpose expressed in the Civil Rights Act of 1964. To require that each employee file a charge with the EEOC and then join in the suit would have a deleterious effect on the purpose of the Act and impose an unnecessary hurdle to recovery for the wrong inflicted. We agree with the holding in Oatis, supra at 498, that:
To the extent that any dicta in Hall v. Werthan Bag Corp., 251 F.Supp. 184 (M.D.Tenn. 1966), holds contra, we reject it.
Colgate argues that the language of 42 U.S.C. § 2000e-5(e) requires that each person seeking recovery must first file a charge with the EEOC and then formally join in or institute suit for recovery. This is not required in order to serve the policy behind that section. The purpose of the section (as observed above in discussing the Union) is to provide for notice to the charged party and to bring to bear the voluntary compliance and conciliation functions of the EEOC. Also, as noted by this court in Choate v. Caterpillar Tractor Corp., 402 F.2d 357, 360 (7th Cir. 1968), and in Cox v. United States Gypsum Co., 409 F.2d 289, 291 (7th Cir. 1969), another important function of filing the charge is to permit the EEOC to determine whether the charge is adequate. Finally, the charge determines the scope of the alleged violation and thereby serves to narrow the issues for prompt adjudication and decision.
It is apparent that each of these purposes is served when any charge is filed and a proper suit follows which fairly asserts grievances common to the class to be afforded relief in the court. There can be no claim of surprise in such a situation. Also, as held in Miller v. Int'l Paper Co., 408 F.2d 283, 285 (5th Cir. 1969): "* * * no procedural purpose could be served by requiring scores of substantially identical grievances to be processed through EEOC when a single charge would be sufficient to effectuate both the letter and spirit of Title VII." Wherefore we reverse the decision below on this point and hold that this suit may properly be treated as a class action under Title VII as to all forms of relief to which any and all members of the class may be entitled by
42 U.S.C. § 2000e-5(g) requires that if the court finds an intentional unlawful employment practice, it may enjoin the practice "and order such affirmative action as may be appropriate." This grant of authority should be broadly read and applied so as to effectively terminate the practice and make its victims whole. This was not done here. As held in Jenkins, supra at 33-35 of 400 F.2d, the District Court when applying Title VII should, after a finding of an unlawful employment practice which is plant-wide in nature, actively make the court available to all those members of the injured class who may be entitled to relief. Cf. Fibreboard Paper Prods. Corp., 138 N.L.R.B. 500, 554-56 (1962), enforced, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). The full remedial powers of the court must be brought to bear and all appropriate relief given.
In the instant case, this requires that all those who were discriminatorially laid off be compensated at the highest rate of pay for such jobs as they would have bid on/and qualified for if a non-discriminatory seniority scheme would have been in existence. This relief should be made available to all who were so damaged whether or not they filed charges and whether or not they joined in the suit.
We have considered the few remaining lesser points and find no determinative issues among them. On the issue of proof of damage, we affirm the lower court's determination that sufficient proof was adduced to support the relief. The deduction of unemployment compensation was proper, being a valid exercise of the trial judge's discretion pursuant to 42 U.S.C. § 2000e-5(g).
The case is remanded to the District Court for the Southern District of Indiana for further proceedings in conformity with this opinion.
Affirmed in part, reversed in part, modified and remanded.