JOHN R. BROWN, Chief Judge:
This appeal is taken from a judgment rendered for the defendant, General Motors Corporation, in a suit alleging racial discrimination in employment practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2.
The Trial Court, sitting without a jury, determined that Employees individually, and the class represented in this suit had not in fact been the victims of racial discrimination.
At the outset it is appropriate to point out that until 1962 GMAD was wholly segregated with Blacks being limited to the few custodial jobs. In 1962 GM opened up all jobs to Blacks.
There are three distinct production activities at GMAD;
There are two methods by which an hourly employee can secure transfer/promotion from his hourly job to a salaried job. The first requires no action on his part while the second can be called "employee initiated".
By whomsoever initiated the foreman is the key. In one the process never gets started, in the other it stops in its tracks unless the foreman puts his blessings on the prospect. This recommendation is based in part on the foreman's subjective evaluation of the hourly employee's "ability, merit and capacity."
Shortly before the trial of this case GMAD began notifying hourly workers of vacancies in the salaried division by posting notices of such vacancies in conspicuous places in the plant. Before this procedure was adopted, however, hourly employees were unaware of possible salaried job openings and were equally unaware of the qualifications necessary to obtain such jobs.
Each of the three plaintiff employees sought promotion/transfer from their hourly jobs on the production lines to salaried jobs by utilizing the "employee initiated" method. Among other things they base their charge of racial discrimination
Discriminatory Employment Practices
Title VII of the Civil Rights Act prohibits all forms of racial discrimination in all aspects of employment. Local 189, United Papermakers and Paperworkers, A.F.L.-C.I.O., C.L.C. v. United States, 5 Cir., 1969, 416 F.2d 980, 982, cert. denied, 1970, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100. The degree of discrimination practiced by an employer is unimportant under Title VII. Discriminations come in all sizes and all such discriminations are prohibited by the Act. Hodgson v. American Bank of Commerce, 5 Cir., 1971, 447 F.2d 416, 420.
This Court has continuously given a wide scope to the act in order to remedy, as much as possible, the plight of persons who have suffered from discrimination in employment opportunities.
It is now well settled that any form of discrimination in employment opportunities based upon race, color, religion, sex or national origin can no longer be tolerated. It is equally clear that any employment practices which operate to prejudice minority employees must be eliminated and their consequences eradicated by appropriate adjustments. The only justification for standards and procedures which may, even inadvertently, eliminate or prejudice minority group employees is that such standards or procedures arise from a non-discriminatory legitimate business necessity. Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Local 189, United Papermakers and Paperworkers, A.F.L.-C.I.O., C.L.C. v. United States, supra.
Since this "legitimate business necessity" is the one and only justification for standards or procedures which operate to deny Blacks promotional opportunities, it is important to consider factors which have been deemed essential for a determination that a certain standard or procedure did not arise from a legitimate business necessity. The Supreme
It is clearly not enough under Title VII that the procedures utilized by employers are fair in form. These procedures must in fact be fair in operation. Likewise, the intent of employers who utilize such discriminatory procedures is not controlling since "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation." Griggs v. Duke Power Co., supra, 401 U.S. at 432, 91 S. Ct. at 854, 28 L.Ed.2d at 165.
It is therefore clear that employment practices which operate to discriminate against people because of their race, color, religion, sex or national origin, violate Title VII, even though the practices are fair on their face and even though the employer had no subjective intention to discriminate.
GM's Affirmative Policies of Nondiscrimination
Although we hold that GM has discriminated, we wish to make clear that this is not the case, typical of so many, in which an employer has had a deliberate purpose to maintain or continue practices which discriminate in fact under a facade of apparent neutrality and employment goodwill. Quite the opposite. But we think that it was the benign approach of GM which may unwittingly have led the Judge to his conclusions. As pointed out above, (see note 14, supra), as did the District Court in Griggs, he approached the case primarily in terms of purpose and motive, not in terms of consequence. But the problem is not whether the employer has willingly—yea, even enthusiastically—taken steps to eliminate what it recognizes to be traces or consequences of its prior pre-Act segregation practices. Rather, the question is whether on this record—and despite the efforts toward conscientious fulfillment—the employer still has practices which violate the Act. In this sense, the question is whether the employer has done enough. Of course, under an Act which is essentially enforced through private parties shouldering the burdens of private attorneys general, Jenkins v. United Gas Corp., supra; Miller v. Amusement Enterprises, Inc., 5 Cir., 1970, 426 F.2d 534, this court has the duty of directing appropriate legal action to the extent the employer's beneficent practices fall short.
But with this caveat it is appropriate to recognize the record of the General Motors Corporation and that of the Atlanta plant in recruiting and affirmative policies of nondiscrimination instituted by GM on a national scale and also at the GMAD Lakewood plant. This paraphrase of GM's brief is a fair statement of these efforts:
This record of the General Motors Corporation and that of the Atlanta plant in recruiting and hiring Blacks and other minority employees is commendable. But it bears emphasis again that this suit does not deal with racial discrimination in hiring practices. This suit pertains to how the system of promotion/transfer from hourly jobs to salaried positions of existing employees at the GMAD Lakewood plant is handled. Despite efforts and attitudes all should applaud, this Court must look to the actual employment practices at GMAD to determine if those practices operate as a barrier against the promotion/transfer of qualified workers from hourly jobs to salaried jobs. United States v. Jacksonville Terminal Co., supra, 451 F.2d at 450. As stated in Griggs, supra, 401 U.S. at 429-430, 91 S.Ct. at 853, 26 L.Ed.2d at 163,
Discrimination in Promotional Opportunities at GMAD
It is frankly admitted by GM that prior to 1962 Blacks were not hired on the production lines at GMAD. This Court has determined that the promotion/transfer standards and procedures complained of have operated to "freeze" in this past discrimination to a significant extent. We accordingly disagree with the Trial Court's finding that the promotion/transfer procedures were not discriminatory.
Actually GM cannot—does not—contest these raw statistics. Their extenuation is in (i) percentages
As with Jacksonville Terminal, supra, figures of this kind, while not necessarily satisfying the whole case, have critical, if not decisive, significance—certainly, at least in putting on the employer the operational burden of demonstrating why, on acceptable reasons, the apparent disparity is not the real one. See, e. g., Jacksonville Terminal, supra, 451 F.2d at 450, 458. Here GM undertakes to do this by emphasizing the "ebb and flow" in production levels in GMAD as strikes or economic conditions caused fluctuations in vehicle production and consequent lay-offs and hirings.
We agree that this factor was appropriate for proof and evaluation. Jacksonville Terminal, supra, 451 F.2d 449. But a number of reasons compel us to reject it either as decisive or an adequate undergirding to findings which otherwise lack the F.R.Civ.P. 52(a) bolster. (See note 15, supra). Foremost is the fact that, starting with 1962 plant segregation and the policy of lay-offs and rehirings on some sort of "seniority" basis,
Akin to this is the contention that "experience" was essential and only the long-employed Whites—and conversely, not the recently hired Blacks—had the "experience". Without gainsaying, as Griggs, supra, makes so plain, that qualifications are an employer's prerogative, the standards cannot be automatically applied to freeze out newly freed Blacks because for the years of its segregated policy GM hired no Blacks to afford them an opportunity to acquire experience. And on this GM—apart from its incantation of "experience" needs—made no effort to show that in these ebb and flow lay-offs and rehirings, that none of the affected Blacks was job-disqualified.
With this background—which is either uncontradicted or based upon credible evidence which the Judge did not under controlling legal principles (see note 15, supra) discredit—we think it clear that the promotion/transfer procedures as applied violate Title VII in several particulars which can be briefly capsulated:
(i) The foreman's recommendation is the indispensable single most important factor in the promotion process.
(ii) Foremen are given no written instructions pertaining to the qualifications necessary for promotion. (They are given nothing in writing telling them what to look for in making their recommendations.)
(iii) Those standards which were determined to be controlling are vague and subjective.
(iv) Hourly employees are not notified of promotion opportunities nor are they
(v) There are no safeguards in the procedure designed to avert discriminatory practices.
A brief consideration of some of the testimony of employees strengthens these conclusions. For example, Mr. Griswold, a foreman at GMAD, testified that he did not know what management was looking for in candidates for salaried jobs other than the job of foreman. Mr. Farnim, the GMAD Salaried Personnel Administrator, had to acknowledge that the methods for promotion/transfer at GMAD would enable an individual foreman, if he were so inclined, to exercise racial discrimination in his selection of candidates for promotion/transfer, and that, under the social structure of the times and place, Blacks may very well have been hindered in obtaining recommendations from their foremen since there is no familial or social association between these two groups.
The Class Action
Although GMAD has voluntarily changed some of those procedures which formed the basis of Appellants' complaints, this Court still deems it necessary to render a Declaratory Judgment and also an injunction for the class. These voluntary changes do not render moot the questions presented in this litigation or make judicial sanctions inappropriate. See, Jenkins v. United Gas Corp., supra. In Cypress v. Newport News General & Nonsectarian Hosp. Assn., supra, 375 F.2d at 658, the Court stated, "protestations or repentance and reform timed to anticipate or blunt the force of a lawsuit offer insufficient assurance that the practices sought to be enjoined will not be repeated."
We therefore hold that GMAD has discriminated against Blacks in promotion/transfer in violation of the Act and a suitable injunction should issue. Although § 706(g) provides for injunctions of this type only where the employer has intentionally engaged in unlawful employment practices, this Court has held that "intentional" means only that
Individual Plaintiff Employees
Since we determine in the class action, see Jenkins v. United Gas Corp., supra, that the system of promotion/transfer at GMAD discriminates against Blacks and in reaching that result we conclude that the District Judge misapprehended the significant legal principles and did not evaluate properly the marked historic disparity in treatment (pre-Act carried forward to post-Act) as to which GM failed to make an adequate explanation, we cannot fairly determine the individual cases. These must be remanded for reconsideration (on the present record or as expanded under the additional directions of the District Judge) in the light of this decision. This will, of course, include the appropriate remedy, backpay, limited or full, etc., as needed to effectuate the Act. And it will include for the successful class action (including this appeal) and any successful individual claim on remand, an allowance for attorneys fees.
Reversed and remanded.
It is ordered, adjudged and decreed that the defendant shall continue to take certain affirmative action as hereinafter set forth designated, to implement defendant's policy of equal employment opportunity at its GM Assembly Division Lakewood Plant, Atlanta, Georgia, and to discharge defendant's obligations under law not to discriminate on the basis of race or color in the promotion or transfer of employees.
Defendant shall continue its practice of periodically posting on bulletin boards in conspicuous places throughout its Lakewood plant notices announcing the formation of pre-foreman training classes or other training programs generally designed to equip employees with necessary skills for advancement to supervisory or other salaried jobs or to skilled trades work. Such notices shall remain posted for reasonable periods and will set forth information indicating how interested employees can make application for participation in such training programs.
Defendant shall periodically post on bulletin boards in conspicuous places throughout its Lakewood plant notices which shall contain information with respect
Defendant shall continue its practice that no hourly rate employees and/or applicants for salaried employment at the Lakewood Plant shall be denied review or consideration for salaried employment by the Management Development Committee solely for the reason that they are not supported by the recommendation of their immediate supervisor.
Department Clerk Hired From Hired From Classification White Black Hourly Roll Street05-Production Mgr. 1 1 1 11-Body Shop 1 1 1 15-Paint 2 2 2 17-Trim 2 1 1 2 25-Chassis 2 2 2 28-Truck 2 2 2 30-Tooling 2 1 1 2 40-Engineering 2 2 2 50-Material 27 27 26* 1 51-Purchasing 3 3 3 60-Scheduling 27 23 4 24* 3 65-Traffic 15 15 9 6 70-Inspection 7 7 0 5 2 75-Work Stds. 1 1 1 80-Personnel 10 8 2 0 10 82-Plant Protection 1 1 1 90-Accounting 64 60 4 2 62 =========================================================================== TOTAL 169 157 12 78 91 [A5607] Foreman White Black- - - 16 16 - 27 27 - 32 30 2 31 30 1 29 28 1 5 5 - 26 24 2 36 35 1 1 1 - - - - 2 2 - 19 16 3 - - - - - - - - - - - - ============================ 224 214 10 * Majority of these were Non-Bargaining Hourly Clerks and were made salary 2-1-69. Fisher Body carried all clerks as salary while Chevrolet carried material and scheduling clerks as hourly employees. When the two merged on February 1, 1969, the Chevrolet clerks in material and scheduling were transferred to salary as a group.
The stipulation includes this explanatory note:
From March 23, 1963, the date upon which Rowe started working, to February 22, 1967, GM promoted or transferred a total of 114 employees from the hourly rated jobs to the salaried division. Of this total, only eight of them were Blacks. Since February 1, 1967 to February 28, 1969, GMAD had and exercised 370 promotional opportunities to advance 344 whites and 26 Blacks. On the date of the trial, only 27 Blacks were employed in the salaried division of a total of 702 salaried employees.
In 1965, GMAD promoted approximately 41 or 42 employees from the hourly rated division to salaried jobs. Only one Black was promoted in 1965. Before July 2, 1965, GM promoted 12 whites, including three who were promoted on July 1, 1965. After July 2, 1965, thirty whites were promoted. Almost a year after Title VII became effective the first Black, C. S. Boyd, was elevated to timekeeper on June 1, 1966.
In 1966, the year in which the plaintiff employees last sought promotion without resorting to Title VII remedies, GM promoted a total of 29 employees. Two of them were Blacks. Before May 1966, GM promoted ten whites and afterwards 17 whites. Five whites were promoted to the position of Senior Clerk; two to clerk positions, and one to tabulator punch machine operator after May 1966.
In 1967, although promoting two Blacks, GM promoted 50 whites. The promotions were to varied job classifications.
After the merger on November 1, 1968 (see note 4, supra), there were approximately 148 promotions or intra-divisional transfers. Of these, only 11 went to Black employees. The balance of such promotions/transfers were awarded white employees. Prior to the merger GM promoted or transferred approximately 132 employees. Of this number, only six were Blacks. During the first two months of 1969, GMAD had promoted a total of 35 employees. Of these, eight were Blacks.
March 1, 1966 2929 employees 318 nonwhites December, 1966 2354 employees 231 nonwhites March, 1968 2452 employees 295 nonwhites January, 1969 5239 employees 741 nonwhites