GEWIN, Circuit Judge:
One of our nation's emerging legal and moral precepts is that persons may not be denied employment on the basis of their race. When the employment relationship becomes tainted with racial discrimination, federal remedial legislation has created a right of action ensuring that a discriminatee may be made whole for an employer's misconduct. As in other instances, the legislative branch has placed a heavy burden on the judiciary in the ultimate resolution of such grievances. It is our difficult task, therefore, under inherent equitable principles to devise the manner, means and method for resolving these disputes. In this regard, the complexity of the judiciary's responsibility is further enhanced by the tremendous volume and variety of the cases emanating from pervasive and prohibited employment practices. Today
As we have stated in a related context:
I. The Facts
On September 17, 1969, appellant R. L. Johnson instituted this employment discrimination action on behalf of himself and all other black employees similarly situated at Goodyear Tire & Rubber Company's plant [hereinafter "Goodyear"] in Houston, Texas. The class predicated its right to relief on Title VII of the 1964 Civil Rights Act
Goodyear's Houston plant was originally operated by the United States Government during the war years of World War II. Goodyear assumed ownership and control in 1955. The plant, which produces synthetic rubber, is divided into the following eight departments: production, utilities, shipping and traffic, receiving and stores, the laboratory, oiler group, fire, and labor.
In 1957, Goodyear adopted a policy which required all new hirees to possess a high school diploma and pass certain written tests. These job qualifications were imposed on all new employees except those workers hired into the labor department. Additionally, any tenured employee wishing to transfer out of the labor department was required to meet the new criteria. Those employees hired before 1957 into non-labor department positions however, did not have to meet the new qualifications to retain their positions.
The economic status which the labor department occupies within Goodyear's organizational chart is not in doubt. Goodyear admitted and the evidence demonstrates that labor department jobs are the lowest paying positions in the plant. Furthermore, black employees at
In 1968, Goodyear promulgated a new employment plan which permitted the transfer of labor department employees to other departments within the plant if they possessed a seventh-grade education and could pass the required examinations. However, potential labor department transferors would lose their accumulated departmental seniority upon transfer. In 1969, Goodyear eliminated the testing barrier for pre-1957 labor department employees but continued the departmental seniority system.
Johnson was hired in 1944 and has been an employee of the labor department since that time. He possesses an eleventh-grade education (considered equivalent to a high school diploma). Notwithstanding Goodyear's various alleged "affirmative" actions previously enumerated, Johnson has never sought a transfer because such a transfer would deprive him of his accumulated seniority in the labor department.
Following trial on the merits, the district court rendered its opinion on August
The court also concluded that blacks hired between 1957 and July 2, 1965 were the victims of proscribed conduct by Goodyear's hiring and transfer practices which placed black employees in the labor department and prescribed a high school diploma for a subsequent transfer to non-labor department positions. Accordingly, it conferred upon these employees plant seniority through their first transfer and forbade the interposition of the educational standard as a barrier to their transfer. The court, however, declined to grant further relief because it determined that Goodyear had not discriminated against blacks hired subsequent to July 2, 1965. It held that Johnson had failed to prove that the tests adversely affected labor department employees seeking transfer subsequent to 1957. The court denied back pay relief except to the named individual plaintiff, Johnson, without delineating any reasons for its conclusion.
With respect to the union, the court found that it had impermissibly restricted black employees to the labor department by being a party to the collective bargaining agreement which imposed departmental seniority. The court imposed back pay liability on the union from the time the union sought and received a preliminary injunction against Goodyear's unilateral modification of the seniority agreement until its judgment. Furthermore, it ordered the union to pay one third of the court costs and one third of Johnson's attorney fees.
All parties have appealed from the court's judgment. Essentially, Johnson alleges that the district court erred in concluding that black employees hired after 1965 into the labor department were not the victims of discrimination by Goodyear's testing program and in refusing to award class-wide back pay. Goodyear claims that the evidence does not support the finding that the use of the high school diploma as a pre-condition to hire or transfer discriminated against blacks. The union maintains that there was no evidence presented which would provide a basis for the finding that it had discriminated against black employees and thus the lower court erred in holding that it was liable for part of the back pay and counsel fees awarded to Johnson.
II The Employment Practices
A. High School Diploma Requirement
The district court found that Goodyear's high school diploma requirement began in 1957 for hiring or interdepartmental transfers discriminated against those black employees hired before July 2, 1965 and placed into the labor department. The discriminatory impact of this educational prerequisite on black employees hired into the labor department before 1957 is obvious.
Furthermore, we believe that the district court was correct in concluding that the high school diploma requirement had a discriminatory consequence on labor department employees hired after 1957. The overwhelming evidence demonstrates that until April 22, 1971, when the education requirement was eliminated by Goodyear, the imposition of the diploma qualification had an ascertainable discriminatory impact on prospective black employees and potential labor department transferors. In 1960, only 39.9% of Texas blacks possessed a high school education as compared with 66.9% of Texas whites.
Goodyear maintains that the lower court improperly utilized the statistics introduced by Johnson. Goodyear points out that Johnson's 1960 statistical data relates to the disparity between the education attainment of blacks and whites of all ages. In contrast, Goodyear prefers to limit the scope of its statistics to the age group "16-24" and those blacks living in the immediate Houston area. Goodyear's geographic and age limitations conveniently ignore the recognized mobility of today's black labor force and the obvious fact that the potential labor pool cannot be limited to one particular age group.
Goodyear's limited and selective interpretation of the "relevant" statistics overlooks previous judicial precedent. In Griggs v. Duke Power Company,
Goodyear has never attempted to validate its high school diploma criterion.
Following a review of Johnson's evidence on the testing qualification the district court held that:
In support of its conclusion that Johnson had failed to prove that the tests utilized by Goodyear had a discriminatory impact, the court noted that between March 31, 1969 and September 30, 1971, 132 black applicants failed the tests compared to 126 white applicants. The court stated that "[t]his is a difference of less than six percent."
The court's analysis completely misconstrued the factual and legal significance of Johnson's statistics.
Goodyear directs our attention to many statistics which it asserts establish that it has transferred black employees from the labor department and hired blacks from the Houston area in a ratio equivalent to the total black population in the area. However, reliance on such data misinterprets the significance
Accordingly, we conclude that the district court erred in determining that the tests utilized by Goodyear did not have a discriminatory effect on potential black employees and those black labor department employees seeking transfer to other departments. The tests had the impermissible result of confining black employees to the labor department. The district court, on remand, will enjoin the further use of tests by Goodyear until such time as they have been validated with the EEOC.
C. Seniority System
Concerning the seniority system imposed by Goodyear and the union, the lower court stated:
The court's findings are supported fully by the record and it correctly applied the applicable legal principles to the instant situation. The principle of the illegality of a facially neutral seniority system superimposed on a history of employment discrimination is so well settled that extended discussion is unnecessary. Once it has been determined that blacks have been discriminatorily assigned to a particular department within a plant, departmental seniority cannot be utilized to freeze those black employees into a discriminatory caste.
Goodyear complains that the district court erred in failing to order some type of residency requirement for new black transferors who will benefit under the new remedial seniority system. Whether residency requirements should be imposed when a new seniority system is implemented by a trial court is a matter left to the sound discretion of that court.
Thus, Goodyear's contention that residency requirements are needed to provide for plant safety is without merit.
Johnson maintains that the trial court erred in refusing to grant class-wide back pay. No reasons were given by the court for the denial of back pay to the class. Goodyear asserts, however, that several findings by the court justify its refusal to grant back pay. Specifically, Goodyear argues that the court found that it had attempted in "good faith" to remedy its past discriminatory practices through various affirmative action programs. Secondly, Goodyear contends that due to the unsettled state of the law concerning the validity of the diploma and testing requirements at the time these employment practices were utilized, the court properly denied back pay for the class of black employees.
Since we have held that all black employees hired into the labor department before April 22, 1971 were the victims of discrimination as a result of Goodyear's testing, diploma requirements and transfer policies, we conclude as a matter of law that the members of this class of discriminatees are presumptively entitled to an appropriate award of back pay unless evidence is adduced to establish as a matter of fact that such discriminatory practices did not adversely affect a particular claimant (or claimants). On remand, the initial burden will be on the individual discriminatee to establish that he is a member of the class discriminated against and thus presumptively entitled to recover back wages under the facts pertinent to his
A. Class-wide Back Pay
Our court has never been confronted with the precise issue of whether a district court should award classwide back pay, where the class establishes a prima facie case of employment discrimination.
Our holding does not necessarily mean that every member of the class is entitled to back pay. Individual circumstances vary and not all members of the class are automatically entitled to recovery. There should be a separate determination on an individual basis as to who is entitled to recovery and the amount of such recovery. It is clear that all members of the class have been subject to unlawful racial discriminatory practices. Therefore, those who have suffered a loss of pay because of such practices are entitled to appropriate compensation. It is our understanding that approximately 14 members of the class are in substantially the same circumstances as employee Johnson. There are approximately 35 additional employees, making a total of about 50, who were the victims of racially discriminatory practices.
In sum, it is our considered judgment that class-wide back pay is available upon proper factual proof of an individual's claim when the aggrieved class has demonstrated cognizable deprivations based on racial discrimination by the employer in the employment relationship. The relief herein ordered is intended to restore those wronged to their rightful economic status absent the effects of the unlawful discrimination. As to monetary relief nothing more is required; nothing less is acceptable.
B. Affirmative Defenses
We now consider certain defenses which are asserted by Goodyear in answer to the claim for class-wide back pay in this employment discrimination
Goodyear's argument completely misconstrues the nature of a back pay award. The entire thrust of this contention is based on the premise that back pay is punishment for its misdeeds and thus the court in good conscience should consider the motive of the employer in imposing the "penalty." This proposition has been totally rejected by our court. We held recently that:
Our Circuit has been steadfast in its determination to insure that sufficient affirmative relief be provided to vindicate the rights guaranteed by Title VII.
We refuse to engage in a futile discussion of the de facto or de jure schisms which now rage in the public domain.
Lastly, Goodyear seeks an umbrella of protection from the imposition of a back pay award by asserting that at the time its admittedly discriminatory employment practices were utilized no judicial tribunal in the land had declared them illegal under Title VII or § 1981. In support of its contention, Goodyear bases this defense on our affirmance in LeBlanc v. Southern Bell Telephone & Telegraph Company.
In sum, we feel that an employer's alleged reliance on the unsettled character of employment discrimination law as a defense to back pay is unpersuasive. At least since July 2, 1965, the effective date of Title VII, the employers of this nation have been on notice that employment discrimination based on race, whether overt, covert, simple or complex, is illegal. In this case, the employer has been violating the Act as to some employees since that date. If we were to accept the employer's position the effective date would be advanced at least to the date of the Griggs opinion. This result would be untenable and completely at odds with the Congressional purpose evidenced by enacting Title VII. Title VII is strong medicine and we refuse to vitiate its potency by glossing it with judicial limitations
c. Statute of Limitations
Johnson maintains that the district court erroneously applied the 90-day statute of limitations for filing a claim with the EEOC as a limitation on relief.
Thus, we must look to the applicable Texas statute of limitations on back wage claims to determine what limits will be put on this type of recovery. Our research leads to Article 5526 of the Vernon's Ann.Texas Civil Statutes which limits recovery of back pay to a two-year period. This section has been uniformly applied by the Texas courts to back pay relief.
Once a complaint has been filed with the EEOC, the applicable statute of limitations is tolled.
Even so, Johnson insists that he is entitled to recovery from May 4, 1965 under the § 1981 aspect of his complaint.
It is both the function and the duty of a court to balance the various equities presented when determining whether affirmative relief is needed to remove the detrimental effects of past racial discrimination. In an analytical void, free of the harsh history of employment discrimination which impelled Congress to enact Title VII, a court might conclude that a back pay award under § 1981 should extend back to the period permitted by the applicable state statute of limitations. It is our unfortunate legacy that private racial discrimination in the employment relationship was long tolerated. Therefore, in addressing ourselves to the problem of private employment discrimination, we think that notice of the proscribed conduct is an essential ingredient for the imposition of an award of back pay. To impose remedial relief after the fact would indeed run against the grain of fundamental fairness which should hopefully be the outcome of any equitable decree.
In sum, when an employment discrimination suit is brought under § 1981, recovery of back wages will be limited to July 2, 1965 if the applicable state statute of limitations would permit recovery back to that period. The effect of this holding is minimal in terms of the rights being redressed. A review of the applicable state statutes of limitation on back wages in our circuit reveals that most states limit recovery to at least two years.
Therefore, the class represented by Johnson, having established a prima facie case of employment discrimination, is presumptively entitled to back pay in accordance with the guidelines herein outlined from July 2, 1965 until November 20, 1972, the date of the district court judgment, together with interest accruing from the various dates of entitlement. Since, at the same time, the initial burden is now placed on the individual labor department employee to show that he is a member of the recognized class subject to employment discrimination, we think it is appropriate to offer some preliminary observations concerning the manner in which the presumption in favor of the class and the initial burden placed upon an individual employee may be reconciled by the district court.
Unquestionably, it is now impossible for an individual discriminatee to recreate the past with exactitude. All of the employee's previous actions were taken against a backdrop of discrimination. It is now extremely difficult for a court to separate a discriminatee's psychological or motivational outlook which were so totally intertwined with the discriminatory atmosphere at the Goodyear plant. What a laborer would have subjectively done in an atmosphere free of racial discrimination is now a matter of pure conjecture. Thus, in resolving whether an individual labor department employee is entitled to class coverage, and a back pay award, a district court should limit its inquiry to objective factors which are both ascertainable and provable. It is obviously not appropriate to list all the factors which a court should rightfully consider.
The district court's task will be further complicated since the only criteria which Goodyear previously imposed for transfer have been found by this court to be invalid under Title VII. If an employee can show that he was hired
Our approach is completely consistent with analogous labor discrimination cases. We have held under the National Labor Relations Act
We are not unmindful that in many instances proving entitlement to back pay will be based on probabilities. However difficult the ultimate resolution, discriminatees must be compensated for the unlawful strictures preventing their ascension to a more economically viable job. The Supreme Court has aptly commented:
Of course, many equitable considerations will enter into any resolution of entitlement, but onerous and speculative limitations should not be utilized as a bar to the restoration process.
Title VII litigation is now entering what may properly be termed the "recovery stage." As the cases cited in our opinion demonstrate, few courts have actually confronted this complex phase in its practical implementation. Our directives here are meant only as guideposts in the thorny path which must yet be traversed. Further explication must await later litigants in their journey through the trial and appellate process. We express full confidence in the competency of district courts to resolve these troublesome issues in a just and equitable manner. It is at the trial level that courts can more effectively resolve the tantalizing, exacting and wearisome issues presented in cases of this nature. Historical facts, emotional claims and biased contentions often accentuate and fructify the nebulous character of evidence adduced to establish the truth in a heated contest dominated by financial considerations. Much depends on the demeanor, attitude and self-interest of the witnesses. Such a situation emphasizes the value and importance of a careful trial court in molding an equitable decree.
IV Union Liability
The district court held the union accountable for back wages accruing from November 19, 1971, the date it granted the union's request for a preliminary injunction against Goodyear's unilateral modification of the seniority provision embodied in the collective bargaining agreement, until November 20, 1972, the date of its judgment. Furthermore, the district court held the union liable for one third of the attorneys' fees awarded or to be awarded to Johnson's counsel and one third of the court costs. The union's liability was based on the fact that it is a party to the collective bargaining agreement which contained the provisions requiring departmental seniority.
The only issue raised by the union requiring extended discussion is whether its role as a party to a collective bargaining agreement which is found to violate Title VII is legally sufficient to impose back pay liability. The facts are undisputed that Goodyear and the union were parties to the collective bargaining agreement which contained the provisions for departmental seniority. Although extending coverage to black employees placed into the labor department subsequent to July 2, 1965, we have more importantly affirmed the basic holding of the district court that the departmental seniority provision as applied in this case violated well settled principles of employment discrimination law. Furthermore, we have imposed back pay liability against Goodyear, at least in part, because it was a party to the collective bargaining agreement requiring departmental seniority.
The union vigorously contends that the mere fact that it was a party to a discriminatory collective bargaining agreement is legally insufficient to impose back pay liability. It argues that since it is a craft union it had a right to bargain for departmental seniority. Moreover, it points out that the trial court did not strike down departmental seniority per se at the Goodyear plant but only as it applies to the discriminatees and then only through the first transfer.
The union contends that the employer was the real instigator of the discriminatory evils established here and that it was merely a passive observer. Despite the union's attempt to present itself in the posture of the helpless negotiator, we think the union deserves more credit for the misdeeds established by Johnson. Several labor department employees testified about their futile attempts to obtain vigorous representation by the union. The union must have known precisely what effect the incorporation of the departmental seniority provisions in the collective bargaining agreement would have on labor department employees. Common sense demands that a union be held to the natural consequences of its labors in negotiating a collective bargaining agreement.
Guided by the facts of this case it would be difficult to fasten liability on one party to the labor contract which was a substantial cause of the discriminatory employment practices and grant total immunity from such liability to the other party.
We do not suggest that the union should be penalized because of its insistence on the continued adherence to the terms of the contract. Back pay is not a penalty, but a restoration to the discriminatee of that which rightly belongs to him. Moreover, the company had recognized the discriminatory effects of the seniority provisions of the collective bargaining agreement and had sought to terminate discrimination resulting from it in early November 1971. There had been protracted discussions of this question between the union and management during this period. Sometime prior to the union's application for injunctive relief, it was on notice that Johnson and his class claimed discrimination and that the company had in effect admitted discrimination arising out of the seniority provision. Of course that issue had to be ultimately decided by the district court and it granted the injunctive relief at the behest of the union only to preserve the status quo. At that juncture both Goodyear and the union were far more familiar with the facts than was the district judge who had not heard the evidence. In these circumstances we cannot conclude that the district court abused its discretion in fastening some responsibility on the union for a limited period which resulted in the unlawful discrimination found to exist. However, due to the changed posture of this case on appeal, the court on remand may wish to reconsider its allocation of the back pay liability it finds to exist. We intimate no view on the allocation issue but merely feel that based on the increased liability which will undoubtedly result from this opinion that principles of equity may require a new distribution of the back pay award imposed on both the union and Goodyear. We do not disturb the district court's award of attorneys' fees for services rendered up to the date of its judgment.
This cause is remanded to the district court for a determination of back wages for the members of the class who were subjected to racially discriminatory employment practices which resulted in economic loss. The use of the high school diploma and testing criteria must be enjoined by the district court until such time as they are validated under applicable EEOC regulations. The costs of this appeal shall be borne equally by Goodyear and the union. In all other respects, the judgment of the district court is affirmed as modified by this opinion.
Affirmed in part, reversed in part and remanded with directions.
The following charts reveal Goodyear's policy of placing blacks into the low paying labor department.
No. & % of New No. & % of New Total New White Employees Total New Black Employees White Assigned
Year Black Employees Assigned to Labor Employees To Labor1965 13 9(69%) 17 1(6%) 1966-67 22 7(32%) 28 0(0%) 1968 14 4(28%) 25 1(4%) 1969 14 6(42%) 48 4(8%) 1970 17 9(52%) 31 1(3%) Year % of Blacks in Labor Department9/7/65 100.0 1966 96.5 1967 97.0 1968 94.5 1969 87.0 1970 88.0
Thus, there could be no doubt among Good-year's employees about which department was the "black" department.