Rehearing and Rehearing En Banc Denied May 22, 1974.
TUTTLE, Circuit Judge:
This complex, class action employment discrimination suit was filed on May 13, 1966 under the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., and 42 U.S.C.A. § 1981. The racial discrimination charges are derived from complaints filed on November 22, 1965 with the Equal Employment Opportunity Commission.
Although the path of this law suit is strewn with the corpses of intermediate decisions,
On July 22, 1969 plaintiffs requested a restraining order to prevent the defendant from vacating the offices of several black employees on the Auxiliary Board, a company governing board composed of black employees, and a declaratory judgment that segregation of black and white employees on two governing boards is in violation of Title VII, 42 U.S.C.A. § 2000e et seq. The district court agreed with the plaintiffs and directed the defendant to prepare a plan to eliminate the racial restrictions on the Board of Operatives, the Board of white employees, and to disestablish the separate black Auxiliary Board. The court adopted the defendant's reorganization plan, overruling the objections filed by the plaintiffs. 332 F.Supp. 811 (N.D.Ala.1970).
When the employee discrimination charges were tried in October, 1971, the district court held that the testing conducted by the company did not pass muster under Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and had an adverse impact on the employment opportunities of black employees. The district court, nevertheless, then denied all requested relief, except for an award of attorney's fees and costs.
The plaintiffs-appellants appeal from these two decisions on the following grounds: (1) refusal to enjoin the company from requiring improper test and educational requirements, (2) failure to require restructuring of the departmental seniority system and the posting and bidding procedure for job vacancies based on the departmental seniority system, (3) failure to order red circling and advance entry for discriminatees,
Defendant-appellee, American Cast Iron Pipe Co., incorporated under the laws of the State of Georgia with its
Plaintiffs-appellants have brought this action on their own behalf and on the behalf of other persons similarly situated pursuant to Federal Rules of Civil Procedure 23(b)(2).
As discussed supra, appellants are requesting extensive relief from the present impact of past intentional discrimination and illegal testing and educational requirements utilized by the company-defendant from December, 1964 until March 25, 1971, relief from certain present discriminatory practices, and relief from the inadequate remedy granted by the district court desegregating the employee management boards. The district court denied their requests. We reverse in part, affirm in part, and remand.
I. COMPANY ORGANIZATION AND EMPLOYMENT PRACTICES
A. Company Organization
1. Departments. The company's operations are organized into various departments. There are five primary production departments, each having separate and distinct functions from the other. They consist of: (1) the mono-cast department containing three pipe shops for the production of cast iron and ductile iron pipe; (2) the fittings foundry which produces between 35,000 to 40,000 different accessories to complement the pipe produced in the pipe shops; (3) the steel foundry which produces steel tubes and castings of various alloys and shapes; (4) the melting department which melts all of the hot metal required by the mono-cast department, the fittings foundry, and the steel foundry; (5) the steel pipe foundry which produces steel pipe from steel skelp. In addition, there is a machine shop which performs all the labor required on items produced in the steel foundry, the fittings foundry, and the mono-cast department, as well as replacement maintenance on all machinery. Four of these departments—all except the steel pipe foundry and the machine shop—have employed the majority of black employees within the company between 1963 and 1971.
The company also has service departments consisting of the general yards department, central stores, the shipping
2. Wage progression and advancement. The method of advancement within these departments is a wage progression schedule, a ladder of pay groups, embracing one or more jobs. The company alleges that these are job-to-job sequences with functional relationship. The appellants argue that the company admitted that no formal, functional lines of job progressions have ever been maintained. Until 1968 the company maintained twenty-three pay groups, but on February 19, 1968, the structure was consolidated into fifteen pay groups: (a) groups 1-8 include the unskilled and semi-skilled functions; (b) groups 9 and 10 contain the more semi-skilled positions; (c) group 11 is the skilled non-craft, technical and clerical positions; (d) groups 12 and 13 are the skilled craft and technical jobs; (e) group 14 includes the secondary supervisory, and group 15, the primary supervisory positions (leadmen and foremen). The district court found that "the overwhelming majority of the black employees historically were and continue to be employed in the pay groups 1-8 jobs in the various departments and particularly in the mono-cast 1, 2, and 3, and foundry." (Emphasis added).
B. Employment Practices
1. Intentional discrimination. Until 1961 the company formally maintained exclusively black jobs and exclusively white jobs.
2. Hiring. Sometime prior to 1960, the company had instituted a hiring requirement of a high school education or its equivalent for all white applicants. By 1960 white applicants were also required to pass a screening test battery and a physical examination. Black applicants employed prior to 1964 were only required to pass the physical examination. In 1964, after a compliance review under Order No. 10925 by the Department of Army and Office of Federal Contract Compliance, the company was informed that to be eligible for federal contracts it could no longer maintain different standards for hiring black and white applicants. The company at that time extended the testing and education criteria to black applicants. These standards for hiring remained in effect until 1971. However, the company eliminated test requirements as well as the criterion of a high school education or its equivalent for hiring into pay groups 1-8 on July 14, 1969.
3. Promotion and transfer. In December, 1964, the company initiated a testing requirement for promotion within or between any pay groups and for transfer between departments.
On February 19, 1968, the company eliminated the testing criterion for promotion within the first eight pay grades.
4. Testing and educational requirements. A testing prerequisite was required for hiring, promotion and transfer, and entry into the apprentice and on-the-job training programs. A high school education or its equivalent was a criterion, as well, for being hired or entry into the apprentice program.
Concerning the testing conducted by the company, the district court concluded:
The Supreme Court in facing a high school education and testing requirement in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), stated:
The appellees do not challenge the district court's conclusions under Griggs concerning their testing. We affirm and will discuss more fully the grounds supporting the court's decision. The testimony both by appellants' witnesses and the company's witnesses indicated that the testing and educational requirements had resulted in fewer black employees being employed between 1965 and 1969 and fewer black employees being promoted between 1965 and 1971. The statistics from these periods depict the same prima facie pattern, and support the district court's conclusion of adverse effect.
The company made no attempt to validate any of the number of tests utilized,
In United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973), this Court passed specifically on the proper validation procedure for employment tests. Although recognizing that "a test is not valid or invalid per se, but must be evaluated in the setting in which it is used" (Id. at 912), we note that the company has at no time attempted to validate its tests under the EEOC guidelines, 29 C.F.R. 1607, CCH Employment Practices ¶ 4010, which we found mandatory in Georgia Power.
Although it is unclear whether the district court ruled on the high school education standard for hiring purposes,
Given the adverse effect, the company had the burden of showing job relatedness. As we stated in Georgia Power:
The company offered no evidence to satisfy this burden.
Lastly, we wish to point out here, as was true also in Georgia Power,
The company ended its formal policy of segregation of black and white jobs in 1961, although its immediate effect lingered until 1963. The improper testing for hiring, promotion and transfer, and admittance into the apprentice and on-the-job training programs, as well as the educational criterion for hiring were terminated on March 31, 1971. We have affirmed the district court's holding that the testing, and ourselves have found that the educational criterion, fail under the standards of Griggs. We agree with the district court that these discriminatory practices had an "adverse impact on the employment opportunities of blacks." The issues are now threefold: (1) Did the district court err in denying an injunction against the future imposition of testing and educational standards? (2) If there is present effect in the company's neutral employment practices as a result of the past discrimination, what relief is required? and (3) Are there continuing, present discriminatory practices?
II. PRESENT ADVERSE EFFECT AND PRESENT DISCRIMINATION
Appellants assert that the consequence of the past intentional exclusion and of the illegal testing and educational standards is currently carried forward by: (1) the neutral practices of the departmental seniority and the bidding and posting procedure which determine promotion; (2) the age requirement for entry into the apprentice program, which black employees who were denied this opportunity in the past cannot now meet; and (3) the departmental bidding utilized for the selection of on-the-job trainees. In addition, the continued educational prerequisite for entry into the apprentice program and the purely subjective criteria to be applied by all-white department superintendents for
A. Promotion—The Seniority System and Posting and Bidding Procedure
1. Effect of present neutral practices. Beginning January 1, 1971, the company instituted a policy of posting vacancies above pay group 3 and adopted a bidding procedure for filling these vacancies.
Because of the company's wage progression structure, a transferring employee may move from a higher to a lower paying position.
Appellants assert that invidious discrimination prior to 1963, and the illegal testing and educational requirements from 1964 through 1971, have resulted in racial stratification between departments and jobs within departments (and consequently in salary). This stratification is a manifestation of these past practices which have (1) excluded the majority of black workers from positions in predominantly white departments thereby absolutely preventing their obtaining of seniority there; and (2) if not excluded, deferred initial entry into these departments, thereby curtailing the seniority of black employees in these departments and hampering their promotion to higher paying positions. Therefore, appellants' argument is that this stratification of black employees into the lower paying departments and jobs, caused by past discriminatory practices, is presently effectuated through the departmental seniority system and bidding and posting procedure.
The departmental seniority system has this locking-in effect because the black transferee would have to forfeit seniority and pay rate
Under the bidding and posting procedure, only if no qualified employee within a department bids after three days is a vacancy posted plant-wide. This process continues to freeze in the stratification in two ways. First, those black employees previously excluded from the higher paying departments because of their race will be denied these promotion opportunities in favor of those white employees in the department. Secondly, those black workers, who, although deterred because of their race, have obtained a foothold in a predominantly white department cannot compete equally on the basis of departmental seniority with white employees, who were able to gain entrance to the department earlier.
Therefore, conclude appellants, the departmental seniority system deters black employees from transferring because of the inhibitors of losing seniority and pay grade while the bidding and posting procedure most often prevents even the consideration of the majority of black workers for a position within a predominantly white department. And both practices operate to handicap black employees in intra-departmental promotion for the higher paying, skilled jobs.
Chart A: Employment Totals by Race
YEAR BLACK WHITE1963 878 797 1965 869 923 1966 845 1606 1967 820 1766 1968 798 1878 1969 781 2162 1970 1121 2115 1971 927 1624
from the impact of the testing and educational requirements.
Testimony by company officials and a finding by the district court establish what the empirical proof clearly reveals, a substantial disparity in the number of blacks hired between 1964 and 1969 when testing and educational standards were required for all pay grades. Since the same test, California Test of Mental Maturity, was employed both in the determination for hiring and for promotion, its adverse impact on black applicants is highly relevant in weighing its adverse impact on the promotional opportunities of black employees.
Hiring statistics indicate that black applicants fared substantially worse than white applicants on the testing. So too the actual achievement of black workers on the mental maturity test reveal lower scoring than white employees of the company as of September, 1971. For example, in the five departments
Having observed that black employees performed less well on the tests than white employees, we must make a comparison of the black/white employment data by departments and within departments by pay rate to discover if the impact of the illegal testing (scoring lower) was to lock black workers into lower paying, non-skill departments and lower paying jobs in all departments. The statistics from 1963 to 1965 indicate almost complete stratification of black employees within the non-craft departments, mono-cast, fittings foundry melting, bolt, shipping, steel foundry, and general yards, and white employees in the more craft oriented, highly skilled departments, maintenance, machine shop, electrical, inspection, and steel pipe. Within departments, black employees occupied predominantly the 1-8 pay groups and white employees the 9-15 pay groups.
Chart B: Employees By Department And Race 1/1/63 1/27/65 9/19/69 8/15/71 Department B W B W B W B WMono-Cast 359 104 311 138 343 338 369 310 Fittings Foundry 234 185 242 234 222 344 245 296 Melting 60 26 67 70 74 107 77 108 Maintenance 9 67 9 74 6 87 9 90 Technical Division 6 25 6 51 6 60 _ _ Bolt Department 30 21 24 13 27 33 29 37 Shipping Department 35 21 40 19 22 31 30 34 General Yards 15 12 14 13 17 18 19 20 Construction 20 25 19 33 26 42 27 56 Steel Foundry 35 28 34 65 32 58 36 51 Plant Protection 0 13 0 13 1 15 _ _ Engineering 0 2 0 3 0 2 0 2 Finance Division 4 16 4 6 3 5 3 4 Personnel 19 2 20 2 19 7 13 23 Storage 0 5 0 6 1 17 2 21 Medical 5 0 Research 2 6 Lab 4 9 Shopping Center 2 4 1 3 0 1 _ _ Machine Shop 39 201 _ _ 38 318 49 379 Electrical 1 41 1 47 1 54 4 73 Inspection 1 34 Steel Pipe 2 41 1 69 1 35 Production Control 0 8 Purchasing 0 2
Chart C: Employees By Race Within Each Pay Group as of August 15, 1971
% of % of Pay No. of % of Total No. of % of Total
Group Blacks Blacks In Plant Whites Whites In Plant1 34 (3.68) (1.35) 134 (8.42) (5.33) 2 36 (3.89) (1.43) 22 (1.37) (.875) 3 336 (36.31) (13.36) 185 (11.64) (7.36) 4 122 (13.19) (4.85) 44 (2.76) (1.75) 5 84 (9.09) (3.34) 26 (1.63) (1.03) 6 125 (13.51) (4.96) 55 (3.46) (2.19) 7 110 (11.89) (4.37) 55 (3.46) (2.19) 8 35 (3.79) (1.39) 52 (3.27) (2.07) 9 23 (2.49) (.904) 278 (17.49) (11.06) 10 2 (.216) (.079) 49 (3.07) (1.95) 11 9 (.971) (.358) 104 (6.67) (4.13) 12 7 (.757) (.278) 436 (28.43) (17.38) 13 0 24 (1.51) (.959) 14 0 60 (3.77) (2.39) 15 0 61 (3.81) (2.42) 16 0 1 (.039) 17 (other) 2 (.216) (.079) 3 (.186) TOTAL 925 1,589
Between 1965 and 1969, the data indicates less black/white stratification, but the district court found that this was not due to advancement by black into previously predominant white employee positions. Rather, as the total black/white hiring figures indicated, the increased hiring of whites and decrease
Between 1969 and 1971, the statistics demonstrate a rise in the number of black employees in the pay groups 1-8. It was in February, 1968 that the testing requirement for positions in these pay ranges was removed; and in March, 1971 testing for all purposes was halted by the company.
These statistical showings are corroborated by the testimony of Mr. Phelps, the Employment Manager and Administrator of the tests, who stated:
This historical, statistical summary indicates a discriminatory pattern against black employees — (1) assignment to lower paying non-skill departments and (2) assignment to lower paying jobs within all departments. As of August 15, 1971 the traditional predominantly black departments, monocast, fittings foundry, melting, bolt, shipping, steel foundry, and general yards, contained approximately 81% of the black workers of the company.
While the extreme stratification by pay rate along racial lines of 1963
The court concluded:
The chart drawn up by the court reflects that in 1963 not a single type of job in any of the eight key departments was held by both white and black employees; 213 positions were totally segregated.
Chart D: Segregation By Types Of Jobs # #
Department Year All B All W # B/W TotalFoundry 1963 38 34 0 72 1965 37 30 6 73 1969 18 29 21 68 1971 19 24 22 65 Melting 1963 20 13 0 33 1965 11 16 11 38 1969 9 17 16 42 1971 6 14 18 38 Steel Foundry 1963 18 19 0 37 1965 14 22 4 40 1969 9 23 11 43 1971 9 20 12 41 Machine Shop 1963 5 19 0 24 1965 _ _ _ _ 1969 5 11 4 20 1971 5 26 4 36 Construction 1963 2 9 0 11 1965 3 11 0 14 1969 6 15 0 21 1971 7 21 0 28 Shipping 1963 6 6 0 12 1965 9 6 0 15 1969 7 10 3 20 1971 8 11 3 22 Personnel 1963 9 2 0 11 1965 9 2 0 11 1969 8 4 0 12 1971 _ _ _ _ Technical 1963 4 0 0 13 1965 3 10 0 13 1969 3 3 0 6 1971 1 1 0 2
The data from 1969 indicates that there were fifty-five racially mixed positions and 177 all white or all black positions. But the pertinent indicium for the period 1965-1969 is that the previous all black positions were being integrated by the influx of white personnel rather than any upward movement by black employees. In 1965 there were eighty-six all black jobs; in 1969 these were reduced to sixty jobs.
Chart E: The Racial Distribution and Salary of Employees By Department As Of August 12, 1971
*----------------------------------------------------------------------------------------------- | | | Blacks | Whites | | | |--------------------------------------|------------------------------| | | | | | | Accumulating | | | Accumulating | | | | | | | % | | | % | | | Avg. | | | Avg. | Of Blacks | | Avg. | Of Blacks | | | Wage | | % B. | Wage | In | | Wage | In | | | In | | In | Of | Work | | Of | Work | | Department | Dept. | # | Dept. | Blacks | Force | # | Whites | Force | |----------------|--------|-----|--------|--------|--------------|------|--------|--------------| | Inspection | $3.83 | 1 | 2.9% | $2.78 | 0.1% | 34 | $3.86 | 2.1% | | Maintenance | 3.79 | 9 | 8.8 | 3.29 | 1.1 | 93 | 3.84 | 7.8 | | Machine Shop | 3.65 | 50 | 11.7 | 3.08 | 6.5 | 379 | 3.72 | 31.1 | | Electrical | 3.63 | 4 | 5.1 | 2.98 | 6.9 | 74 | 3.67 | 35.6 | | Steel Pipe | 3.63 | 1 | 2.9 | 3.23 | 7.0 | 33 | 3.64 | 37.6 | | General Stores | 3.57 | 2 | 8.7 | 3.38 | 7.2 | 21 | 3.59 | 38.9 | | Construction | 3.43 | 27 | 31.8 | 3.01 | 10.1 | 58 | 3.63 | 42.5 | | General Yards | 3.38 | 19 | 47.5 | 3.22 | 12.2 | 21 | 3.52 | 43.8 | | Shipping | 3.36 | 30 | 46.9 | 3.06 | 15.5 | 34 | 3.63 | 45.9 | | Steel Foundry | 3.32 | 36 | 39.6 | 3.16 | 19.4 | 55 | 3.43 | 49.3 | | Foundry | 3.28 | 247 | 44.7 | 3.03 | 46.2 | 305 | 3.48 | 68.0 | | Melting | 3.27 | 75 | 39.9 | 3.14 | 54.4 | 113 | 3.35 | 74.9 | | Monocast | 3.16 | 371 | 54.2 | 3.08 | 94.7 | 314 | 3.26 | 94.2 | | Bolt | 3.11 | 20 | 34.5 | 2.91 | 96.9 | 38 | 3.22 | 96.5 | | Personnel, | 3.04 | 13 | 38.1 | 2.95 | 98.4 | 23 | 3.09 | 97.9 | | Gen. Plant | | | | | | | | | |----------------|--------|-----|--------|--------|--------------|------|--------|--------------| | Total | | 905 | | | | 1595 | | | -------------------------------------------------------------------------------------------------
The district court had earlier pointed out that black employees were placed into positions in the lower paid groups:
This finding coupled with plaintiff's chart comparing the average wage of blacks and average wage of whites in all the departments firmly establish that black workers were forced into lower paying positions within the company. For example, just in terms of gross comparisons, 95.35% of the black employees and 36.03% of the white employees were in pay groups 1-8, while 63.94% of the white employees and only 4.65% of the black employees were in pay groups 9-16.
The district court, while agreeing that appellants' statistics revealed racial stratification, found that this resulted from factors other than past discriminatory employment practices.
The variables suggested by the district court, when examined in light of our own and the appellants' critical analysis, do not, however, weigh heavily enough to lessen the appellants' empirical conclusions. The district court points to the refusal of 573 black employees to accept promotions from 1965 to 1971. But 554 black employees accepted offered promotions.
For the court to state that the black employees were unqualified is inconsistent with its conclusion that the testing was illegal under Griggs. For the testing and seniority were the only objective criterion utilized for promotion and transfer. Before January 1, 1971 (the date of the initiation of the posting and bidding procedure), the department superintendents utilized their subjective judgment in determining which qualified (testing and departmental seniority) employees filled job vacancies. We note that these supervisory positions are held by all-white employees.
We considered this type of subjective evaluation in Rowe v. General Motors Corp., supra, 457 F.2d at 359, stating:
A similar view to the trial court's was put forward by the district court in United States v. Jacksonville Terminal Co., supra, 451 F.2d 418, which had rejected the government's statistics because of their failure to evaluate competing black and white employees upon individual qualifications and accepted unadorned statements by the employer that they hired or promoted the best qualified persons available. We stated:
The employee make up of the steel pipe department also belies this conclusion. It is the highest paying primary production department (mono-cast, foundry, steel foundry, melting, and steel pipe) but has very few black workers, one as compared to thirty-five white employees. (See chart B, supra at 227). Since there are only a few craft positions in this department, the logical conclusion is that black workers were excluded by discriminatory practices.
The court cites a lack of requests for promotions, and yet, until January 1, 1971 when the formal posting and bidding procedure was initiated, there was no method by which black employees (or any employee) could request promotion.
Further, there was testimony at trial by a department superintendent
The single foundation for the district court's conclusion that black employees were performing poorly on the job is the figures that from July 5, 1965 through October 1, 1971, seventy-six black employees were demoted. But during the same period 143 white employees were demoted.
The only mention in the record of a voluntary transfer to a lower job classification was in reference to physical disabilities which required the employee to request a less physically wearing job. It was stated, however, that the company had a practice of allowing older employees, black and white, to accept lower paying, less physically demanding positions without a reduction in pay rate.
As to the unavailability of job vacancies contention, the district court, itself, pointed out that between 1965 and 1970 employment at the company increased by 1,444 jobs, not including turnovers. Advancement opportunities were correspondingly increased during this period of rapid economic development.
The sole ground for the district court's conclusion of lack of motivation on the part of black workers appears to be lack of black enrollment in classes conducted by the company to aid in achieving higher scores in the testing.
Chart F: Class Enrollment By Race White Black
Employees Employees1964 *116 134 1965 32 22 1966 **___ ___ 1967 134 12 1968 92 19 1969 109 10
But the statistics for these classes indicate that it was not until 1967 that black enrollment began to fall off. In light of the discriminatory impact of this illegal testing, it may be that blacks simply realized that the testing was stacked against them. This lack of motivation conclusion also comes in the face of the testimony by a company management employee concerning the "flood" of black applicants for more skilled jobs after the passage of Title VII. Further, the intense organization of black employees
In brief, the district court held that the statistical demonstration of the derogation of black employees to lower paying jobs and departments resulted from black employees' refusal of promotion and training opportunities, lack of qualifications, failure to request promotions, poor job performance, transfer to lower pay groups, lack of job vacancies, and lack of motivation. We find that this holding was "clearly erroneous." Humphrey v. Southwestern Portland Cement Co., 5 Cir., 488 F.2d 691 . Not only are these variable too numerally diminutive to rebut the distinct disparity in the black/white employment data,
3. Conclusion concerning the promotion procedure. The statistical picture drawn here is similar to that which this Court found persuasive in United States v. Jacksonville Terminal, supra, 451 F.2d 418. Under attack by the government there was a promotion system with a bidding procedure based on a rigid craft or class seniority similar to the bidding and departmental seniority systems at issue here.
This Court stated:
The district court there also rejected the statistical showing, finding that the employer had simply "hired or promoted the best qualified persons available for the particular jobs." This Court reversed:
This Court then went on to strike down the craft and seniority system because it restricted the "transfer and promotion opportunities of incumbent black employees." Id. at 453.
We have condemned similar promotion systems based on job seniority which operated to perpetuate past discrimination in Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1373-1374; United States v. Georgia Power Co., supra, 474 F.2d 906; Long v. Georgia Kraft Co., supra, 450 F.2d 557; Local 189, United Papermakers & Paperworkers v. United States, supra, 416 F.2d 980. Likewise, other courts have found tainted departmental or job-type seniority systems, utilized for promotion purposes, which effectuated discrimination. United States v. N. L. Industries, Inc., supra, 479 F.2d at 358-360; United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971); Robinson v. Lorillard Corp., supra, 444 F.2d at 795-800; Griggs v. Duke Power Co., 420 F.2d 1225, 1236-1237 (4th Cir. 1970), rev'd on other grounds, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); United States v. Virginia Electric and Power Company, supra, 327 F.Supp. 1037; Clark v. American Marine Corp., 304 F.Supp. 603 (E. D.La. 1969).
The appellants have made a strong showing (1) that the company had a formal policy of discrimination prior to 1961 which lingered until 1963; (2) that the company maintained illegal testing and educational requirements from 1964 to 1971; and (3) that the employment statistics from 1963 until
B. Apprentice Program and On-The-Job Training
The company provides its employees an opportunity to train for the highly skilled, higher paying craft jobs through an apprentice program or on-the-job training (journeymen). The company maintains these programs for the following crafts: mechanic, machinist, electrician, carpenter, molder, pattern maker, welder, scale mechanic, brick layer, plumber, and tinsmith. The departments in which most of the craft jobs are located are the machine shop, electrical department, construction department, and maintenance department.
1. Apprenticeship. Only incumbent employees are eligible for the apprentice program. Applicants are required to have the following qualifications: (1) a high school education or its equivalent, (2) employment in the same department and/or trade for a minimum of six months, (3) prior to March 31, 1971, achievement of the fiftieth percentile on the California Test of Mental Maturity and a passing score on all aptitude tests for the particular skill or craft, (4) under twenty-six years of age or under thirty years of age for those applicants having served in the military. Once selected for an apprenticeship, the trainee has to complete an 8,000 hour course, approximately three and one-half to four years. During this time, the employee receives a starting salary at a pay rate 3, but works up to the higher rate of 11. After finishing the apprenticeship and
Appellants assert (1) that the continued high school education or its equivalent requirement constitutes a present discriminatory practice and (2) that the past intentional exclusion of black employees from craft jobs and the illegal testing has a continuing adverse impact under current neutral practices. Concerning the apprentice program, the district court declared: "Defendant has practiced no invidious racial discrimination in the administration of its apprenticeship and journeyman programs." We reverse this finding as "clearly erroneous."
We agree with appellants that the educational requirement is not neutral. This standard, itself, is a present discriminatory practice if it has a disproportionate impact on black applicants. Griggs v. Duke Power Co., supra; United States v. Georgia Power Co., supra, 474 F.2d at 918-919; United States v. Inspirational Consolidated Copper Co., supra, 6 EPD ¶ 8918.
From 1915 until the time of the trial, only one black employee had ever participated in the apprentice program, while 208 white employees have done so. Moreover, from 1915 until 1961, the total exclusion of black employees from craft jobs was a culpable company policy. We have previously discussed the district court's finding that the large majority of black employees have historically and continue to be within the lowest pay groups, 1-8. This educational criterion must continue to have an adverse impact on black employees because 56% do not have a high school diploma.
The company's response was that their educational standard was not a high school diploma or its equivalent, rather a criterion used to select applicants who had obtained a sufficient educational level to successfully complete the International Correspondence courses relating to the craft for which they were entering an apprenticeship. The district court's finding that a high school education or its equivalent was a prerequisite for the apprentice program rebuts this assertion. Moreover, the company's own policy statement defining their apprentice program states as a qualification—"high school graduate or equivalent." We do, however, construe this argument as both an attempt to show "job relatedness" and "business necessity."
In order to show job relatedness, Griggs stated that a requirement must "bear a demonstrable relationship to successful performance of the jobs for which it was used." 401 U.S. at 431. Here, we understand the company to mean that a certain reading level and familiarity with study techniques is necessary to participate in the course work of the apprentice program. This cannot be equated with a requirement for a high school education or its equivalent. This Court, in fact, affirmed a district court's condemnation of a similar rationale for a high school educational criterion in Georgia Power:
Here just as in Georgia Power, there are employees who have had substantial job success and advancement without a high school education.
Assuming past discrimination has illegally denied present employees training opportunities, the question becomes: do present neutral prerequisites for entry into and completion of the apprentice program continue to deny these injured employees rightful benefits. The neutral prerequisites challenged by appellants are the age requirement and the length of the apprenticeship.
Appellants deduce that the impact of past discriminatory practices in the apprentice program is blatant from the historical and statistical showing, recited above. In addition, appellants point to the testimony by company officials, stating that the effect of the tests and educational requirement was to screen out blacks from the apprentice program. The historical formal exclusion and the statistical and testimonial evidence demonstrating disproportionate exclusion of blacks by the testing and educational requirements, when combined with the continuing use of the high school education or its equivalent standard and the present age requirement and lengthy apprenticeship term, constitutes not merely a prima facie case, but conclusive proof
2. On-the-job training. Prior to March, 1971, to qualify for on-the-job training for journeyman status in a craft position, an applicant had to (1) meet the specified testing requirements, the same mental maturity test and aptitude test required for the apprentice program, (2) have three year's experience in a craft department or related craft job, and (3) be selected by the (all-white) supervisory employee group for the program. The company currently relies on a bid system for entry into the on-the-job training program. Under this procedure bids are taken within the craft department and the senior qualified man is selected. Only if no bids from qualified men are received from within the departments are employees from outside the department allowed to compete. In either case the final selection is determined by the all-white supervisory group. After the trainee has had six years' experience and if his departmental superintendent recommends him to the apprentice committee, the trainee is eligible for the intermediate craft salary rate. After an additional year's experience, the trainee is eligible for the craft rate (pay group 12 or 13).
Appellants argue that the present bidding system and the length of the training program lock in black employees derogated to lower paying, unskilled jobs by past discrimination. The district court, as quoted above, held that the defendant had not violated Title VII or section 1981 in administering its journeyman program. We reverse this holding as "clearly erroneous."
We accepted, supra II(A), the court's and appellants' statistical conclusion that black employees had been restricted to jobs in non-craft departments and in the 1-8 pay groups containing no craft or craft related positions, first by the formal exclusion prior to 1961 and then by the testing requirement from 1964 until 1971. To focus even further on this finding, appellants cite the employment data for pay groups 12 and 13, encompassing craft and technical positions. This data compiled two months before trial indicated only seven blacks, .76% of black employees, had reached pay group 12; none had obtained a group 13
The intentional discrimination by the company from 1915 until 1961 totally excluded black employees from the on-the-job training program. From 1964 until 1971, the testing continued to restrict black employees from craft departments and from craft jobs and craft related positions. We also recognize the discriminatory potential of subjective evaluation of blacks by the all-white supervisory groups.
C. Supervisory Positions
The appellants question the absence of black employees from the supervisory positions of leadmen and foremen. The district court made the following finding of fact concerning this absence:
Out of approximately fifty leadmen, only three have been black. Defendant has never had a black foreman.
However, the court drew no specific conclusion of law on the issue of discrimination, other than a general recital at the end of its opinion
The leadman is the worker who sets the pace for his unit of workers. The general practice is to choose the foreman from the ranks of the leadmen. Prior to March, 1971, there were two qualifications for the positions of leadmen and foremen. First, the candidate had to have obtained the requisite testing achievement. Secondly, the department superintendents, who have always been white, then selected the "best qualified" of these individuals. This selection was based on their subjective judgment rather than objective criteria. The testimony at trial indicated that there were approximately forty to fifty leadmen, of which one was black. Of the approximate fifty foremen none were black.
The statistical disparity presented in this case combined with the illegal testing
In Rowe v. General Motors Corp., supra, 457 F.2d 340, this Court admonished an employer for allowing possible discriminatory subjective evaluation by all-white supervisors in the promotion of black employees. This Court cautioned:
In the past, this Court has ordered the development of objective criteria in order to eliminate the possible discrimination inherent within subjective employment determinations.
And in Russell v. American Tobacco Co., supra, 5 EPD ¶ 8447, the court pointed to the holdings of Brown v. Gaston County Dyeing Machine Company, supra, 457 F.2d 1377, and Rowe v. General Motors Corp., supra, 457 F.2d 348, condemning the lack of objective criteria in the face of a statistical disparity in job promotion as discrimination. The court then concluded:
The record reveals evidence of at least two black employees who, prior to March, 1971, had the requisite qualifications for leadmen or foremen but had been denied promotion.
On remand, we point out three indicia, among others, which the district court should examine. First, as to whether there are more examples of black employees who were able to hurdle the illegal testing barriers to these supervisory positions, but then were disqualified under the subjective criteria utilized by the department superintendents.
In fashioning an appropriate remedy for employment discrimination, Congress has granted courts plenary equitable power under both Title VII, 42 U.S.C.A. § 2000e-5(g) (Supp.1973),
Before moving to the necessary corrective measures, there is need to define the class of employees to whom these remedies are applicable. The district court, before trial, approved this suit as a class action within Rule 23(b)(2).
A. Enjoining the Testing and Educational Requirements
The district court recognized that the testing and educational criteria had a detrimental impact on black applicants and employees as a class. An injunction against the resumption of such practices was denied because the company had eliminated the educational hiring requirement and all testing in March, 1971. We find no abuse of discretion in the district court's refusal to grant such an injunction. Cf. Parham v. Southwestern Bell Telephone Co., supra, 433 F.2d at 429-430.
However, the high school educational criterion for admittance to the apprentice program remains in use. It was earlier held violative of Title VII and section 1981.
As our holding supra makes clear, a high school diploma or equivalent criterion does not effectively measure the reading and study skills necessary for the course work required by the apprenticeship. There are also alternative methods, such as a validated reading test suggested by the district court in Georgia Power,
B. Restructuring and Promotion Procedures
1. Business necessity. The company argues "business necessity" to justify the continued use of its promotion practices — seniority and the posting and bidding procedures. The company insists that its jobs are functionally related, so that service in each position provides necessary training for the next higher job in a line of progression within a department. In United States v. Jacksonville Terminal Co., supra, 451 F.2d 418, this Court explained the heavy nature of the defendant's burden to justify a discriminatory seniority system:
Under the three prongs of the Robinson standard,
The company has evidence in the record that significant portions of its operations require skillful craftsmenship, but it has failed to demonstrate that every position at the plant is so complex or specialized as to require, without exception, step by step job progression within each department. The record discloses no proof by the company that positions in other than craft or
The company here attempts what this Court found unsuccessful in United States v. Jacksonville Terminal Co., supra, 451 F.2d at 451-453. There the terminal sought to use a finding that "a few jobs at the Company provide training for other jobs," to establish functional lines of progression to legalize unit seniority under the business necessity rationale. This Court stated:
In essence, we believe our instructions infra to the district court and the court's ability to shape appropriate equitable relief is comparable to the situation in Local 189, United Papermak. & Paperwork. v. United States, supra, 416 F.2d at 990, where: "In place of job security the court ordered the institution of a mill seniority system carefully tailored to assure that no employee would have a right to a job that he could not perform properly."
2. Injunctive relief. The appellants ask that the district court be directed to require that vacancies be posted initially for plant-wide bidding and filled by a qualified employee with the greatest plant-wide seniority. In addition,
Under the "rightful place theory" we agree:
Therefore, the district court should issue an injunction requiring: (1) the posting of vacancies plant-wide;
By eliminating the initial preference given employees within the department under the posting procedure and by requiring selection on plant-wide seniority, the prior discrimination which denied entrance and accumulation of seniority in the better paying departments to the majority of black employees will be tempered. For those members of the class who obtained entry but were denied accumulation of seniority within a higher paying department, plant-wide seniority will equalize competition for promotion. This restructuring of the bidding and seniority systems and the allowance of advance entry for transfers by black employees will assure the injured class members the opportunity "to move into the next vacancies and positions which they would have occupied but for wrongful discrimination."
However, this does not aid the members of the class denied training and access to higher paying positions because of non-qualification. The red circling is designed for this remedial purpose. Black employees who were earlier blocked but now desire transfer to a department where the top pay grade and advancement opportunities are greater than in their former department, are handicapped by their lack of training for the positions in the new department. Therefore, where a job from which the black employee transfers pays more than the new job in a department where the top pay grade is greater than the rate of the old job, a member of the class shall be paid the wage rate of the old job until he advances to a position paying more than that rate or until he voluntarily freezes himself in at the new job.
C. Changes in the Apprentice and On-The-Job Training Programs
While restructuring the promotion procedures will substantially aid the advancement of previously excluded class members into non-craft departments and jobs, the necessary line of progression training will continue to delay obtaining of craft positions by black employees. For that reason changes are necessary in the programs, apprenticeship and journeyman, designed to provide training for craft positions.
The age requirement, twenty-five years or twenty-nine for those having served in the military, for entry into the apprentice program is an unnecessary dilatory barrier. The company does not attempt to overcome its racial impact under a "business necessity" rationale.
Likewise, the training periods for the apprenticeship and on-the-job training, given the exclusion of black employees, are unnecessarily long. The company has made no showing that the three and one-half to four years for apprenticeship or seven years for journeymen are periods required by "business necessity." Cf., Local 189, United Papermakers & Paperworkers v. United States, supra, 301 F.Supp. at 917, aff'd, 416 F.2d 980. On remand, either by agreement of the parties or order of the court after a hearing, if necessary, the length of the apprenticeship should be shortened with varying periods allowed according to each craft's requirements, and the three years qualifying experience on a craft related job and the length of the on-the-job training, itself, should be shortened.
On remand, the company may advance reasoning that the present length of the apprenticeship and journeyman are, for training purposes, a "business necessity." However, the district court should pay heed to the conclusions in Moody v. Albemarle Paper Co., 474 F.2d 134, 140 (4th Cir. 1973). In that case, the company hired all employees into a pool. From the pool employees were moved into lines of progression as vacancies occurred. Since the company did not know in advance in which line a vacancy would occur, it required all employees in the pool to be qualified for all the lines. The court, in considering a business necessity argument, held that:
Similarly, the record here reveals that a craft-trainee for the machine shop is required to operate all machines proficiently. An alternative might be to require a shorter training period and to train an employee to operate a particular machine. We recognize, however, that a "jobbing machine shop" is different from a paper factory. The business necessity rationale exists to take into account such situational differences.
D. Back Pay
The appellants request back pay for members of the class, arguing that the district court abused its discretion in refusing such an award. The district court had ruled:
These bases are improper for denying back pay. The district court should structure a back pay decree to conform with the analysis below.
1. Abuse of discretion. The standard of review for an appellate court in determining whether a district court has abused its discretion by failing to fully remedy employment discrimination by denying back pay was suggested by the Supreme Court in Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). The statute there, Title II of the Civil Rights Act of 1964, 42 U.S.C. A. § 2000a-3(b), provided that "the prevailing party" is entitled to a "reasonable attorney's fee" in the court's "discretion." The Supreme Court determined that Congress's purpose for enacting this provision limited the scope of discretion which a district court had in denying attorney's fees.
The district court's reasons for denying back pay must next be examined for evidence of "special circumstances."
As to an assertion of good faith, the Supreme Court in Griggs pointed to consequences not motives. 401 U.S. at 432. Likewise, this Court has specifically rejected good faith as a defense to a back pay award in Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1375-1377, n. 37. In rejecting good faith as a proper legal basis for denying back pay here, we adopt the reasoning of the court in Robinson v. Lorillard, supra, 444 F.2d 791:
See Head v. Timken Roller Bearing Co., supra, 486 F.2d at 877; Moody v. Albemarle Paper Co., supra, 474 F.2d at 141. But see, United States v. St. Louis-San Francisco Railway Co., supra, 464 F.2d at 311, 313; Baxter v. Savannah Sugar Refining Corp., supra, 350 F.Supp. 146. Compare United States v. St. Louis-San Francisco Railway Co., supra, with United States v. N. L. Industries, supra, 479 F.2d at 378-380.
The issue of future compliance is of course pertinent in deciding whether or not to provide equitable relief against future discriminatory practices, e. g. a permanent injunction. Back pay, however, is an equitable award for past economic injury.
The district court, secondarily, relied on a finding
The "special circumstances" where an unjust result has prevented an award of back pay have been narrow. The most numerous are sex discrimination suits where conflicting state legislation, which limit work hours or impose weight lifting limits or the like for women employees, require a practice in violation of Title VII. In these cases the courts have properly declined to award back pay because "state statutes, like federal ones, are entitled to the presumption of constitutionality until their invalidity is judicially declared."
In this case, except for the "extra compensation" plan the district court clearly erred in its conclusions regarding injustice to the company.
The present suit offers an additional situation falling within "special circumstances." Since the plaintiffs allege violations of 42 U.S.C.A. § 1981, as well as Title VII, a back pay award might be thought to extend to a period prior to July 2, 1965, the effective date of Title VII, under section 1981, subject to the applicable statute of limitations.
The specific prohibitions of Title VII were adequate notice to employers post July 2, 1965. Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1378. In Schaeffer v. San Diego Yellow Cabs, supra, 462 F.2d at 1007-1008, the court found back pay applicable from the time the employer had notice that a state statute, conflicting with Title VII, was invalid. Similarly, here the
2. Persons entitled to back pay. In Georgia Power, this Court expressly left undecided the question of "the availability of back pay to nonnamed class members in § 2000e-5(g) actions." 474 F.2d at 919 n. 16. This Court, most recently answered this question affirmatively in Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 1375.
Whether unnamed class members, who have not filed charges with the EEOC, may be included in a back pay award in a private Title VII suit is a question that must be considered both in light of Title VII and section 1981 requirements and of the limits imposed by Fed.R.Civ. P. 23, pertaining to class actions.
A class-wide back pay award is limited by Rule 23 only to the extent that the class might not be maintainable under subdivision (b) (2).
Subdivision (b) (2) requires:
The crucial language is "injunctive relief" or "corresponding declaratory relief." The issue is whether an award of back pay qualifies as such or can be included as relief in a (b) (2) class action.
Subdivision (b) (2) is "keyed to the effect of the relief sought, and the pragmatic ramifications of adjudication in each situation, rather than any special attributes of the class involved." 3B
The objection that back pay will vary from class member to class member is not overriding. Once class-wide discrimination has been demonstrated to result in disproportional earnings, a class-wide decision that back pay is appropriate can be discerned without deciding which members of the class are entitled to what amounts. Robinson v. Lorillard Corp., supra, 444 F.2d at 802 n. 14. This is no different than affirmative injunctive relief, in the form of red circling or advance entry, which on remand will be applied to particular individuals and not the whole class. Cf. Bing v. Roadway Express, supra, 485 F. 2d at 448, n. 5. No one has suggested that this violates the dictates of subdivision (b) (2). Likewise, the problem of binding unidentified class members may be overcome by particularizing the class members at some point in the litigation
In essence, we think: "This is a case in which final injunctive relief is appropriate and the defendants' liability for back pay is rooted in grounds applicable to all members of the defined class. Under these circumstances the award of back pay, as one element of the equitable remedy, conflicts in no way with the limitations of Rule 23(b) (2)."
3. Determination of the award. Having decided that the district court should grant back pay to the members of the class, a multitude of questions arise concerning the period of time encompassed by the back pay, the burden of proof, and the mechanics of computation. Some guidelines for the district court will be set forth.
Initially, we approve the district court's intention of referring the back pay claims to a Special Master, Fed.R. Civ.P. 53. United States v. Wood, Wire & Metal Lathers Int. Union, Local 46, 328 F.Supp. 429, 441 (S.D.N.Y.1971). However, the court and the parties may also consider negotiating an agreement. E. g., Johnson v. Goodyear Tire & Rubber Co., 349 F.Supp. 3, 18 (S.D.Tex. 1972), 491 F.2d 1364 (5th Cir. March 27, 1974); United States v. Wood, Wire & Metal Lathers, Int. Union, Local 46, supra 328 F.Supp. at 444 n. 3. An alternative is to utilize the expertise of the intervening Equal Employment Opportunity Commission to supervise settlement negotiations or to aid in determining the amount of the award.
The period for which back pay should begin is determined by July 2, 1965 or the statute of limitations, whichever is later. The charges, on which this suit is predicated, were filed on November 22, 1965 with the Equal Employment Opportunity Commission. At that point the applicable state statute of limitations for Title VII
The termination date of the back pay period for most claimants will be the date of the district court's decree implementing our decision, but may, depending on the employee's situation, be March 31, 1971, the date testing was ended. First there will be those members of the class, either currently situated or present prior to March 31, 1971, within the predominantly black departments. They are eligible for back pay for the period 1965 to 1971 because of the restrictive effect of the discriminatory testing on their intra-department and inter-department advancement. An employee currently holding a position in these departments would also have been injured up until the date of the decree by the effect of the posting and bidding system. For those class members, currently or in the past, positioned within the predominantly white departments, back pay from 1965 to 1971 is appropriate because the testing limited their advancement within the department. Back pay may be granted from 1971 to the date of the decree to those employees because they were inhibited by the testing from transferring to these departments at an earlier time, thereby handicapping their promotion by denying them the opportunity to accrue departmental seniority. Finally, those workers in the class denied supervisory positions or entrance
This Court has recently addressed the issue of the burden of proof on back pay claims in Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 1364. This Court pointed out that once a prima facie case of discrimination against the class alleged is made out, a presumption for back pay arises in favor of class members. However, this presumption was found to be tempered by an initial burden on the individual employee to bring himself within the class and to describe the harmful effect of the discrimination on his individual employment position:
This holding is entirely consistent with, and flows from our decision in Georgia Power that the presumption in favor of a member of a class discriminated against does not per se entitle an employee to back pay without some individual clarification. 474 F.2d at 921-922.
This Court in Goodyear, then went on to detail the burden on the employer:
There, just as in this case, our prior decision in Cooper v. Allen, supra, 467 F. 2d at 840, was instructive. In Cooper, the district court had placed the burden on the plaintiff to show, disregarding the discriminatory testing, that he was the most qualified for the job for which he was seeking back pay. This Court reversed:
Reading these earlier decisions together, it is clear that the burden of proof formulated by this Court conceives an initial lighter burden on the back pay claimant with a heavier weight of rebuttal on the employer. Therefore, the maximum burden that could be placed on the individual claimant in this case is to require a statement of his current position and pay rate, the jobs he was denied because of discrimination and their pay rates, a record of his employment
The method of calculating a class-wide back pay award must not be rigid. This results from the impossibility of calculating the precise amount of back pay. There is no way of determining which jobs the class members would have bid on and have obtained if discriminatory testing, seniority, posting and bidding system, and apprentice and on-the-job training programs had not been in existence. Class members outnumber promotion vacancies; jobs have become available only over a period of time; the vacancies enjoy different pay rates; and a determination of who was entitled to the vacancy would have to be determined on a judgment of seniority and ability at that time. This process creates a quagmire of hypothetical judgments. Johnson v. Goodyear Tire and Rubber Co., supra, 491 F.2d at 1379.
It does not follow that back pay claims based on promotions cannot be awarded. Unrealistic exactitude is not required. This Court made this principle clear in Brennan v. City Stores, Inc., 479 F.2d 235, 242 (5th Cir. 1973), involving the Equal Pay Act:
Likewise, in Bowe v. Colgate-Palmolive Co., supra, 416 F.2d 711, faced with the impossibility of determining the rate of pay of the plaintiffs because of the complexities of the job bidding procedure, the court ordered back pay awards at the maximum rate which the plaintiff could have earned. 416 F.2d at 721.
Therefore, in computing a back pay award two principles are lucid: (1) unrealistic exactitude is not required,
The method of computation will be a function of the complexity of the case. If the class is small, or the time period short, or the effect of the discrimination straightforward, a fairly precise determination of what each claimant's position would have been, but for the discrimination, is possible. This type of individual-by-individual determination was utilized in Bing v. Roadway Express, Inc., supra, 485 F.2d at 452-455. Initially the employer had the burden of notifying its black city drivers, in order to determine the members of the class, that some of their members had been discriminatorily excluded from road driving positions. Since there was only one type of job involved, the class was small, and the variables, back pay period and pay rate, readily definable; the court was able to take an individual-by-individual approach. Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 1364.
However, when the class size or the ambiguity of promotion or hiring practices or the multiple effects of discriminatory practices or the illegal practices continued over an extended period of time calls forth the quagmire of hypothetical judgment discussed earlier, a class-wide approach to the measure of back pay is necessitated.
Courts have reconciled, in a class-wide approach, the complexities in computing approximate pay rates and pay periods in several ways. In Stamps v. Detroit Edison Co., supra, 365 F.Supp. 87, the court had defined the class and determined the back pay period, as has been done here. In order to determine the pay rate of each member of the class who had been excluded from the jobs in the five pay groups containing the "skilled trades high opportunity jobs" the court averaged the five pay rates and awarded each claimant back pay based on this averaged rate computed for pay grade progression purposes according to the number of years of employment, less the amount of interim earnings.
Another method of computation can be categorized as a formula of comparability or representative employee earnings formula. Approximations are based on a group of employees, not injured by the discrimination, comparable in size, ability, and length of employment — such as "adjacent persons on the seniority list or the average job progress of persons with similar seniority" — to the class of plaintiffs.
Likewise, in United States v. Wood, Wire & Metal Lathers Int. Union, Local
The Equal Employment Opportunity Commission urges a comparability formula for this case:
While the district court is not limited to this particular alternative, it has more basis in reality (i. e. actual advancement of a comparable group not discriminated against) than an individual-by-individual approach.
Finally, the ingredients of back pay should include more than "straight salary." Interest, overtime, shift differentials, and fringe benefits such as vacation and sick pay are among the items which should be included in back pay.
The declaratory and affirmative injunctive relief should alleviate the perpetuated effects of the company's intentional discrimination and testing and educational requirements. Back pay should compensate for economic losses suffered during the period of testing and before the implementation of this decision. Nevertheless, two additional elements of relief are necessary. The district court should establish a complaint procedure by which a member of the class may question the interpretation or implementation of the district court's decree. See United States v. Georgia Power, supra, C.A. Nos. 12355, 11723, 12185. The procedure should include the filing of a complaint with the personnel department of the company and the proper committee of the Board of Operatives (described infra). Finally, the district court should retain this case on the docket for a reasonable time to
IV. BOARD OF OPERATIVES
The appellants also appeal the relief granted by the district court in disestablishing the separate black employees management board, the Auxiliary Board, and integrating the all-white employee board, the Board of Operatives. For complete understanding of this issue, an explanation of the organization of the company, as established by Mr. John J. Eagan, its founder, is necessary.
A. Plan of Employee Participation and Corporate Management
The company was organized in 1922 under the "Eagan Plan," envisioning an ideal of cooperation between labor and management. The plan called for the control of business policies to be vested in a board of directors elected by the stockholders. A Board of Management, composed of corporate officers elected by the Board of Directors, conducted the day to day business of the company. The unique feature of the Eagan Plan was the Board of Operatives, composed of non-supervisory personnel elected by employees of the company. A main function of the Board of Operatives has been to advise the Board of Management on matters affecting the welfare of the employees and to provide a channel of communication between management and the employees.
During the lifetime of Eagan, candidates for election to the Board of Operatives had to be white males over twenty-one years of age, American citizens, and employed by the company in a non-supervisory capacity for three or more years. The racial restriction continued after Eagan's death. The district court found that Eagan had intended that result, although the codicil to his will did not by its terms restrict membership to whites.
As an adjunct to the Board of Management and the Board of Operatives, an all black board of employees evolved to advise the other two boards on matters affecting the interest of the black employees. Voting and membership on the Board of Directors of the ACIPCO Colored YMCA and its successor, the Auxiliary Board, created in 1935, was restricted to black employees. The district court found that the Auxiliary Board would not have originated except for the racial restriction on the membership of the Board of Operatives.
From 1922 until January, 1970, the Board of Operatives and the Auxiliary Board functioned separately under the provisions of the Eagan Plan and the by-laws of the corporation. A codicil to Eagan's will had bequeathed all the outstanding common stock of the company to the members of the Board of Management and the members of the Board of Operatives, jointly, and to their successors in office. The Boards acted as trustees for the benefit of the employees and future employees of the company and their families. Similar status was not conferred on the members of the Auxiliary Board.
B. Desegregation of the Employee Boards
In finding the segregation of black and white employees into two boards illegal, the district court stated:
The court then declared the racial restriction on membership on the Board of Operatives unlawful, but directed that it continue its functions, as a joint stockholder, co-trustee, and management advisor, representing both black and white employees with no racial restriction on its membership. The Auxiliary Board was ordered to be abolished simultaneously with the elimination of the racial restriction on the membership of the Board of Operatives. The district court, however, was conscious of the fact that the ratio of black employees to white employees was approximately one to two and that if voting should polarize along racial lines no black employee would be elected to the Board of Operatives under the present electoral districts, established in 1959. Therefore, the court ordered the company to draw up new electoral districts. The court also added:
The company submitted a plan which enlarged the number of electoral districts from five to twelve with one representative elected from each district. The district court approved this plan finding that the districts "had been organized and are based on genuine geographical, operational and functional grounds without any intention or purpose to gerrymander the districts because of racial considerations." 332 F. Supp. at 819. Black employees of the company have boycotted each election held subsequently because they consider the elections pursuant to the company's plan unfair and illegally constituted. The black employees now submit their objections to this plan to this Court on appeal. We affirm the district court's order.
Appellants maintain that the district court's order is inadequate to remedy the unlawful exclusion of black employees from this segment of the management structure. They point to the record of the racially discriminatory practices employed by the company under its all-white management. The district court's notation of the low ratio of black employees to white employees, which means less black votes, is claimed to be a result of the practices condoned by the company's management which should not continue to penalize black employees. Second, appellants point out that a primary purpose of the Board of Operatives is to act as a channel of communication for employees. They postulate that 33%
The appellants' position has several strengths. The Board of Operatives, as co-trustees of the stock of the company, jointly, with the Board of Managers, elects the Board of Directors,
There is no racial gerrymandering claimed by the appellants.
However, in affirming the order of the district court, we are mindful of the responsibility the Board of Operatives will bear in aiding the implementation of the affirmative relief that the trial court will order. To the extent possible with the procedure which the district court will direct on remand, we think it
The judgment is reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.
BELL, Circuit Judge (specially concurring):
I concur in the result reached in the extended majority opinion to the extent that the result relates to the errors assigned. The result is in accord with the previous decisions of the Supreme Court and of this Court and is, with respect to each assignment of error, consonant and well within the interstices which the courts have been called upon to fill in administering Title VII, and in giving effect to the remedial aim of Congress which was expressed in enacting Title VII.
I do not join in those advisory portions of the opinion (pp. 260-264), having to do with determining back pay for the class. I prefer to wait for a concrete case involving an award of back pay before deciding whether the suggested approaches are valid in law. They may or may not be employed. Damage awards must be individualized to avoid constitutional problems which would arise in taking the property of one for another without a showing of loss to the particular recipient. This would not, of course, preclude a settlement by consent decree on terms suitable to the parties and which do not overreach the members of the class. The Georgia Power Company order referred to in Fn. 156(a) of the majority opinion is an example of such a consent decree.
I do not perceive the holding of the majority as going beyond what the court said in Johnson v. Goodyear Tire & Rubber Company, 5 Cir., 1974, 491 F.2d 1364. There the court held that each member of the class, black employees hired before April 22, 1971, had been the victim of discriminatory testing and diploma requirements and transfer policies. The court placed the burden on those claiming back pay to establish membership in the class. The burden was then to shift to the employer to show that the particular claimant would never have transferred regardless of the discriminatory employment practices. The court went on to say:
The ratio decidendi of Goodyear avoids the constitutional problem which would inhere in an approach, for example, of comparing the total remuneration of one class with that of another class, e. g., black employees versus white, for the period of discrimination and simply allocating the difference amongst the class suffering the discrimination regardless of individual financial loss.
The controlling principle for determining back pay here is set out on the majority opinion at page 259. The principle stated does not conflict with the
The retention of one year's credit for pay group purposes does not reduce substantially the deterrence to transfer of this class of black employees because their employment with the company extends over a long period of time. For example, a list of 623 class members was submitted to the district court in 1969. Even then, four years ago, these employees had substantial plant-wide seniority. Further, every employee has to serve a six month probation period before being eligible for a promotion.
See United States v. N. L. Industries, Inc., 479 F.2d 354, 358-366 (8th Cir. 1973); United States v. Jacksonville Terminal Co., supra, 451 F.2d at 453.
The courts have most often utilized this empirical proof in discriminatory hiring situations. The courts have based a finding of adverse impact on data showing the percentages of blacks and whites hired as compared to the percentages of each in the available population. The statistical disparity is held to create a prima facie showing of discriminatory impact and thus invokes a requirement that the job relatedness of the overall selection process be established. E. g., United States v. Hayes International Corp., supra, 456 F.2d at 120; United States v. Iron-workers Local 86, supra. Some courts have gone a statistical step further. The Eighth Circuit in Parham, supra, ruled that a gross disparity between the number of minority workers in an employer's work force (less than 2%), and the number in the overall population (21% of the state population) can prove discrimination "per se." See Rios v. Enterprise Association Steamfitters, Local 638, 326 F.Supp. 198 (S.D.N.Y. 1971).
While we reject the district court's conclusion that statistics have a lesser role in employment discrimination cases than these other types of litigation (see note 34, supra at 225) we do agree that complexities and variables require close scrutiny of empirical proof. Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 1364.
Without information on the percentage of white employees refusing promotions and the types of promotions offered white employees, we think the district court's statistic inconclusive.
In Brown the court stated:
See United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Baggett v. Richardson, 473 F.2d 863, 865 (5th Cir. 1973); Hodgson v. American Bank of Commerce, 447 F.2d 416, 419 (5th Cir. 1971). See generally, 5A Moore's Federal Practice ¶ 52.03  (2d Ed. 1969).
The findings reviewed here do not involve conclusions based on the credibility of witnesses giving conflicting testimony. Dillon v. M. S. Oriental Inventor, 426 F.2d 977 (5th Cir.), cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140 (1970). Rather at issue is the weight of evidence supporting the trial court's findings. We have determined that these findings are "without adequate evidentiary support" and therefore are "left with a definite and firm conviction" that the district court was mistaken.
Subjective discretion by all-white supervisory personnel is comparable to that found suspicious in jury discrimination suits. In Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), the Supreme Court concluded:
This Court had earlier found jury commissioners' subjective judgment failing in Pullum v. Greene, 396 F.2d 251, 257 (5th Cir. 1968). See generally, Jury Discrimination In the South: A Remedy?, 8 Colum.J. of L.Soc.Prob. 589 (1972).
Further testimony also implied that Willie Dunn was qualified. He had obtained the prerequisite scores, had taught at the company's night school, had attended metallurgy courses on off hours, and was deemed qualified by company officials. Evidently, although the record is confusing on this point, pressure from both white employees and supervisors and black employees, concerning his upgrading, caused a mental breakdown. He is now on medical pension.
Appellee's Response to the Brief of United States Equal Employment Opportunity Commission as Amicus Curiae at 8.
See Local 189, Papermakers & Paperworkers v. United States, supra, 416 F.2d at 996-997.
This Court has always recognized the importance of granting full relief in Title VII cases. E. g., United States v. Georgia Power Co., supra, 474 F.2d at 927; Vogler v. McCarty, 451 F.2d 1236, 1238-1239 (5th Cir. 1971).
See Robinson v. Lorillard Corp., supra, 444 F.2d at 799-800.
But then at finding #34, the court states:
The answer to this apparent riddle is the conclusion of law drawn by the district court on the issue of business necessity:
We think this clearly marks out that only to those jobs in lines of progression shown by the company to be functionally related does this finding of business necessity attach. The record thus far clearly reveals that only the craft positions are functionally related.
See note 92, supra at 246.
See Local 189, United Papermak. & Paperwork. v. United States, supra, 301 F.Supp. at 917, 925-930, aff'd., 416 F.2d at 990; Robinson v. Lorillard Corp., supra, 444 F.2d at 799-800.
Although this provision speaks in terms of relief awarded because of "intentional" discrimination, this has consistently been construed by this Court and others to read that "the defendant meant to do what he did, that is, his employment practice was not accidental." Local 189, United Papermakers & Paperworkers v. United States, supra, 416 F. 2d at 996. See Schaeffer v. San Diego Yellow Cabs, 462 F.2d 1002, 1006 (9th Cir. 1972); United States v. Jacksonville Terminal Co., supra, 451 F.2d at 442-443; Robinson v. Lorillard Corp., supra, 444 F.2d at 796-797; Sprogis v. United Air Lines, 444 F.2d 1194, 1201 (7th Cir. 1971), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971); Jones v. Lee May Motor Freight, Inc., supra, 431 F.2d at 250. But see, Dewey v. Reynolds Metals Co., 429 F.2d 324, 331 (6th Cir. 1970), aff'd. per curiam, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971) (equally divided court).
Since the Supreme Court indicated in Griggs (401 U.S. at 443-444) that administrative interpretations by the EEOC, as the enforcing agency, are entitled to great deference, a definitive administrative ruling on a conflicting state statute may be sufficient notice. 29 C.F.R. §§ 1604.1(b), 1604.2(b). See Schaeffer v. San Diego Yellow Cabs, supra, 462 F.2d at 1007-1008; Manning v. International Union, supra, 466 F.2d at 816. Cf. 42 U.S.C.A. § 2000e-12(b).
In back pay cases under the National Labor Relations Act, this Court has consistently resolved uncertainties against the wrongful employer rather than the injured employee. In NLRB v. International Union of Operating Engineers, Local 925, 460 F.2d 589, 599 (5th Cir. 1972), we summarized:
Doubts about which individuals or whether all class members would have been promoted have called forth a class approach on remedial issues other than back pay. United States v. Bethlehem Steel Corp., supra, 446 F.2d at 660; United States v. Central Motors Lines, Inc., 338 F.Supp. 532, 560 (W. D.N.C.1971).
An individual claimant had to present some evidence that he qualified under these criteria. In order to determine the actual amount of back pay, however, the court switched to a class-wide approach. The court utilized the average earnings of a comparable group of white union members for the period of discrimination.