WILLIAM E. MILLER, Circuit Judge.
This is an appeal by the plaintiffs from an order by the district court in a civil rights case finding unlawful employment discrimination but denying relief. Thirteen named plaintiffs, twelve
The gravamen of the complaint is that Timken and the labor union had agreed on a system of seniority and transfer that effectively denied blacks the opportunity to obtain many jobs that prior to the effective date of the Civil Rights Act of 1964, had been assigned almost exclusively to whites. The suit was dismissed as to the labor union and no appeal is taken from such dismissal.
The court below divided the consideration of the case into two time periods, pre-1968 and post-1968. The significance of the demarcation is that in 1968 the Timken Company changed from a departmental seniority transfer system to a plant-wide seniority transfer system. Some limited bid occupations were exempt from the plant-wide system.
The court below denied the motion of the plaintiffs to amend their pleadings. It also declined to grant any relief to the plaintiffs despite its holding that Timken had violated the Civil Rights Act of 1964. The court thus refused to enter an injunction against Timken, or to award back pay or reasonable attorney's fees as prayed for. From that decision the plaintiffs have appealed.
Four issues are presented: (1) Whether the court below erred in denying the plaintiffs' motion for leave to amend; (2) Whether the court below erred in not awarding back pay to the plaintiffs despite its holding that prior to 1968 Timken had violated Title VII; (3) Whether the court erred in not enjoining Timken's limited bid system; and (4) Whether the court abused its discretion in not awarding reasonable attorney's fees to the plaintiffs.
Under Rule 15(b) of the Federal Rules of Civil Procedure,
Rule 15(b) is not a carte blanche, allowing parties to amend their pleadings at any time. Proper analysis is, as stated, to weigh the cause shown for the delay against the resulting prejudice to the opposing party.
Admittedly, the district court did find pre-1965 discrimination and the plaintiffs insist, therefore, that the issue whether the company discriminated in the past was actually litigated in the case. This argument presents two problems germane to appropriateness of the denial of leave to amend. First, there was more presented by the proposed amendment than an issue of pre-1965 discrimination. The issue of whether the defendants were liable under § 1981,
Was there good cause for the delay and if so, how does it weigh against the factors already noted? The plaintiffs insist that the discovery of "new" law justified the delay. This so-called new law was the case of Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972). The plaintiffs' view is that this case was a novel decision articulating a new theory of damages. Brown perhaps is the first case actually to hold that pre-Title VII acts of racial discrimination in employment may be remedied by back pay under § 1981. However, even the members of the court deciding Brown were in disagreement as to the novelty of the decision.
Did the district court err in not awarding back pay to the plaintiffs despite its holding that prior to 1968 Timken had violated Title VII? On this issue we are concerned only with a time period beginning July 2, 1965, the effective date of Title VII, and ending November 4, 1968, the termination date of Timken's unit or departmental seniority system.
The district court held that prior to the effective date of the Civil Rights Act of 1964, Timken hired along racial lines and that this coupled with the pre-1968 unit or departmental seniority system
Although the plaintiffs prayed for back pay as part of their relief, the district court did not directly meet the issue in its opinion. Back pay is clearly an appropriate remedy for Title VII violations.
In Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir.) cert. den. 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971), the Fourth Circuit, adopting the analysis in Bowe with respect to the nature of back pay awards under Title VII, stated:
In light of the congressional intent courts should extend
The finding of discrimination by the district court, in addition to the nature of the relief (compensatory as opposed to punitive), and the clear intent of Congress that the grant of authority under Title VII should be broadly read and applied mandate an award of back pay unless exceptional circumstances are present.
Congress evidently intended that the award of back pay should rest within the sound discretion of the trial judge. Although appellate courts are loathe to interfere with the exercise of such discretion by a trial court, it is recognized that it is not free from appellate scrutiny. In Moody v. Albemarle Paper Co., 474 F.2d 134, 141 (4th Cir. 1973), the Fourth Circuit said:
We find no reasonable basis for denial of such relief on the present record. The 1968 change in Timken's seniority system does not ameliorate the injury already suffered. Good faith by Timken either during the 1965-68 period or thereafter is not a valid defense to a claim for back pay.
In United States v. I. B. E. W., Local No. 38, 428 F.2d 144, 151 (6th Cir. 1970) (per Edwards, J.) this Court said:
This holding seems to refute the defendant's contention that business necessity was a consideration in the district court's failure to award back pay. However, the situation is made more complex by the High Production Plant Program (HPP) used by Timken during the 1965-68 period. The district court found that:
Timken urges this Court to accept two factual assumptions. First, that the HPP played a preeminent part in the district court's denial of relief; and second, that back pay was not awarded because the plaintiffs failed to show that transfers made outside of the HPP were discriminatory.
The district court did hold that the HPP was a "valid business policy and was non-discriminatory in its effect." The plaintiffs have not challenged this holding. They have asserted that the approximately 270 transfers made outside the HPP during the 1965-68 period were discriminatory and were not affected by the business necessity of the HPP. We agree with this conclusion. Timken stresses that every request for a transfer made by a black employee was granted. Even if this is accurate, (as to which the record is unclear) it is irrelevant. The question is not whether Timken prohibited blacks from advancing to better jobs, but whether it discouraged them. The district court found that the unit or departmental seniority transfer system did inhibit or discourage transfers.
We thus conclude that the district court erred in not awarding back pay to the plaintiffs for the period July 2, 1965 to November 4, 1968. Evidence as to specific damages may be presented at the hearing upon remand to assess the amounts of back pay for the employees entitled thereto. It should be noted that a back pay award is limited to damages that are actually suffered. Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971).
We consider now whether the district court erred in not enjoining Timken's limited bid system. In November, 1968 Timken introduced a new post and bid system based on plant-wide seniority. The plaintiffs have conceded the validity of this system, yet some jobs at Timken are not included in the post and bid system. These jobs are included in another transfer system called the limited bid transfer system.
Before an injunction should be issued in a Title VII case of this nature it should be determined whether the challenged system was discriminatory and, if so, whether it was justified by a business necessity. The district court in this case has held that the limited bid transfer system was not discriminatory, and that even if it was, it was justified by a business necessity.
Clearly, the limited bid system is not discriminatory per se. Here, however, we do not begin with a clean slate since the plaintiffs were subjected to past discrimination. Thus the limited bid system must be examined in light of the residue of past practices.
A system neutral on its face but which in its actual effect perpetuates prior discrimination is prohibited by Title VII. The Supreme Court made this clear in Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971):
Thus a policy limiting transfers to entry level jobs, United States v. Hayes, 456 F.2d 112 (5th Cir. 1972), educational requirements for transfer, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), a system of departmental seniority, Papermakers and Paperworkers, Local 189 v. United States, 416 F.2d 980 (5th Cir. 1969), cert. den. 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970), and a no transfer rule, Jones v. Lee Way Motor Freight, 431 F.2d 245 (10th Cir. 1970), cert. den. 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971), have been enjoined, not because they were facially discriminatory, but because they perpetuated originally segregated departmental or job assignments. Timken's limited bid system has the same effect and must be enjoined unless it is justified by a business necessity.
The district court held in the alternative that even if the post-1968 system was discriminatory in effect, it was justified by the business necessity test. We are not prepared to say that this conclusion is erroneous, but an examination of the court's analysis reveals at least that the test was not properly applied.
The court placed the burden of proving the absence of business necessity on the plaintiffs. This, in our opinion, was error. If an employment practice, though facially neutral, is shown to have a differential impact on minority employment, it is prohibited unless the employer can prove business necessity. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Moody v. Albemarle Paper Co., 474 F.2d 134 (4th Cir. 1973).
The court's error arose from its failure to take into account one necessary element of the test. The test consists of two discrete parts as set forth in Robinson v. Lorillard Co., 444 F.2d at 798:
The first prong of the test was correctly applied by the court below but there was no finding or holding that the limited bid system could not be replaced by another plan that would be just as efficacious for Timken's business purpose with a lesser racial impact. This must be considered on remand.
As stated, the district court found discrimination but awarded no relief. Since we remand the case for further consideration of the issues indicated herein, we deem it inappropriate to consider
The district court's judgment is affirmed in part, reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion.
Judge Dupree, dissenting, considered the awarding of back pay under § 1981 for pre-Title VII discrimination as novel when he said:
Discussing the Congressional intent of the relief section of the 1972 Amendments to Title VII, the Senate-House Conference Report states: