PETTWAY v. AMERICAN CAST IRON PIPE COMPANY

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.

Introduction

Although the path of this law suit is strewn with the corpses of intermediate decisions,1 the posture of the present cases on appeal will hopefully allow final resolution. In order to accomplish this the opinion must unfortunately be long and complex.

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,2 (4) refusal to require changes in the apprenticeship and on-the-job training in the crafts programs, (5) refusal to remedy unlawful exclusion of blacks from supervisory positions, (6) granting inadequate relief in desegregating the company's employees management board, and (7) failure to award back pay.

Defendant-appellee, American Cast Iron Pipe Co., incorporated under the laws of the State of Georgia with its principle place of business in Birmingham, Alabama, is engaged in the production of cast iron and ductile ironpipe and fittings and various other miscellaneous cast iron and steel products. As of August 12, 1971, the company employed 2,551 persons of whom 927 were black.3

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).4 The class of persons represented by plaintiffs-appellants are "those negro employees of defendant employed as of May 13, 1966 and negro persons who have been employed subsequent to May 13, 1966 who have been, continued to be, or in the future will be denied equal employment opportunities by defendant on the ground of race or color."5

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.6

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 department, electrical department, maintenance department, inspection department, and the construction department. These departments perform services in the receipt of raw materials, the shipment of finished products, and various maintenance functions in the company's operations. Of these departments, the general yards, shipping, and construction departments have had substantial numbers of black employees.7 The machine, electrical, maintenance, and inspection departments consist principally of the higher skilled jobs and craft positions with a small turnover in personnel. Fewer blacks have been employed in these departments.8

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).9

B. Employment Practices

1. Intentional discrimination. Until 1961 the company formally maintained exclusively black jobs and exclusively white jobs.10 Departments were not totally segregated, but there were predominantly black and predominantly white departments. When Presidential Executive Order No. 10925 made such a policy unlawful in 1961, the company terminated this practice. The resulting employment segregated profile, however, was preserved until 1963 by economic conditions requiring lay-offs and subsequent rehiring of laid-off workers. The process of lay-off and rehiring meant that any movement of black employees into traditional white jobs would come to an end. As lay-offs occurred, the employees with the least departmental seniority, e. g. the newly hired, promoted, or transferred black employees, would be either (1) furloughed, if newly hired, or (2) dropped back into the department from which they transferred, as they retained former departmental seniority in that department for lay-off purposes.11 As production increased in 1964, and re-employment of blacks might normally be expected to increase, the company instituted its illegal testing and educational requirements. As of 1963 black employees constituted about half the work force of the company, but only three blacks earned more than any white production workers, and few if any jobs had racially mixed staffing.

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, 1969.12 The failure of blacks successfully to hurdle these qualifying barriers had resulted, between 1965 and 1969, in the decrease in the number of black employees in the plant from 869 to 791, while the number of white employees increased from 923 to 2,162.13

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.14 Achievement levels (test cut-off scores) were established using the California Survey of Mental Maturity Tests. To be eligible for position in a particular pay group, an employee had to obtain a test score corresponding to the specified achievement level. The company determined that the tests' recommended national norms were too high for the company's purposes. Therefore, the company in an effort to establish its own standards of norm selected 100 average performers from its employees to take the test. This was used to determine what achievement levels to assign to various jobs within the company's pay grades. Ninety-eight of the 100 selected employees took the test. Seventy-five were black; and twenty-three were white. This testing program for promotion was reviewed by Dr. Brimm of the Department of Army and Office of Federal Contracts Compliance and praised as one of the best systems in the companies he had visited on compliance reviews.

On February 19, 1968, the company eliminated the testing criterion for promotion within the first eight pay grades.15 In addition to employee complaints concerning these testing requirements, the company determined that ability of employees to perform functions in these pay grades could be established by on-the-job observation without detriment to the company. Requisite achievement levels for hiring and for promotion or transfer within or without a department to positions in pay groups 9-15 were retained, however. The company eliminated all testing in March, 1971. Currently, the company simply tries the person, selected under the bidding procedure on the basis of departmental seniority or plant seniority and ability, on the job and evaluates his performance in determining the promotion.

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.18 This disproportionate impact on black applicants and employees shifts the burden of demonstrating job-relatedness to the company under Griggs.

The company made no attempt to validate any of the number of tests utilized,19 except the California Test of Mental Maturity. The trial court found this showing inadequate under Griggs. We concur.

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.20 The company's efforts to establish achievement levels which have a relationship to job performance are less acceptable than the procedure held inadequate in Georgia Power.21 Id. at 912-918.

Although it is unclear whether the district court ruled on the high school education standard for hiring purposes,22 we think that this educational requirement cannot "pass muster" under Griggs, either.23 Johnson v. Good-year Tire & Rubber Co., 5 Cir. 491 F.2d 1364 [No. 73-1712 March 27, 1974]; United States v. Georgia Power Company, 474 F.2d at 918-919; United States v. Consolidated Copper Co., 6 EPD ¶ 8918 (D.Ariz. 1973).

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,25 a large percentage of the current employees (August 12, 1971), 56% of the black employees and 12% of the white employees, are enjoying job success without a high school diploma.26 See Griggs v. Duke Power Co., 401 U.S. at 431-432.

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 selection of supervisory personnel are challenged as present discriminatory practices.

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.27 The job vacancies are first posted for bidding for three days within the department. Basic qualifications, i. e. ability, and departmental seniority control the selection from the bidders. If no qualified employee within the department bids, then the company posts the vacancy plant-wide. A transferring employee retains his former seniority for purposes of returning to his former department in case of lay-off within the new department. But he does not carry over any of his accumulated seniority for purposes of departmental promotion —a basic unit or job seniority type.28 See Note, Title VII, Seniority Discrimination, and the Incumbent Negro, 80 Harv.L.Rev. 1260, 1263-66 (1967).

Because of the company's wage progression structure, a transferring employee may move from a higher to a lower paying position.29 In fact, an employee who has progressed substantially within pay groups in one department and then transfers to a different department to enhance his chances for eventual advancement, higher pay, or better working conditions will usually be required to endure a loss of seniority and a wage cut as a condition of transfer.

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 rate30 in order to transfer and because the black transferee to a predominantly white department would be unable to compete equally for promotion based on departmental seniority with a white employee, in the department at the time of the transfer, of equal or less plant seniority. Black employees within predominantly white departments, who were unable to gain entry into the department prior to 1971, because of their race, as swiftly as white workers, would also be harmed in greater proportion by lay-offs or reductions in force.31

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.32 We agree with appellants that if past discriminatory employment practices have resulted in racial stratification in pay, jobs, and departments, the present effect is to lock in, as discussed above, black employees.33

2. Effect of past discriminatory practices. The next step is to determine whether there was racial segregation along pay, job, and department lines. While there was substantial viva voce evidence on the issue of the impact of past discriminatory practices, the appellants primarily relied on statistical evidence. Introducing black/white comparative employment statistics from 1963, 1965, 1969, and 1971, dealing with salary, jobs, and departments, the appellants demonstrated a pattern of racial stratification between departments and within departments by the derogation of black employees into the lower paying, non-skilled pay groups. This statistical pattern considered in light of the past intentional discrimination and the illegal testing requirement, coupled with the hurdles to black employees presented by the departmental seniority system and the handicaps under the bidding procedure, present a prima facie case of present effect of past discrimination in the company's promotion and transfer process.34 Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-807, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In relying on this method of statistical proof, we first examine the total black/white employment figures for the years 1963, 1965 through 1971. Between 1965 and 1969, the period when the testing and educational requirements were prerequisites for all pay groups, the number of black workers decreased from approximately one-half to one-third of the company's work force, correspondingly the number of white employees increased. The company admitted and the district court35 found that this decrease resulted

               Chart A: Employment Totals by Race

  YEAR             BLACK        WHITE

  1963              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.36 It was not until 1969-70, when the company dropped its testing and educational requirements for jobs in the 1-8 pay groups, that the percentage of black employees for the company began to increase. By 1970, 1971 the company's work force again was approximately 50% black.

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 departments37 containing 80% of the black workers, the black employees' scores averaged in the 0-9, 10-19, or 20-29 percentile while white employees' scores averaged in either the 40-49 or 50-100 percentile in every department.

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.38

                   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     W 

Mono-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 Plant

1          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 in the number of blacks led to the placement of whites into the previous lower paying, predominantly black departments and positions. The district court further pointed out that the black employees during this period could not qualify under the testing for transfer or promotion.

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:39

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.40 The higher paying, traditionally white departments, maintenance, machine shop, electrical, inspection, and steel pipe, contained only 7% of the black employees although 37.6% of the total white work force was employed in these departments.

While the extreme stratification by pay rate along racial lines of 196341 was blurred by the influx of large number of white employees into the traditionally lower paying black positions from 1965 to 1969, there was no sign of movement of blacks into higher paying jobs.42 The district court's findings reflect this fact. The district court examined eight key departments to demonstrate that job types were segregated with blacks occupying the lower paying positions.

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     Total

Foundry               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.43 A total of thirty-four positions were integrated during this period. In other words, twenty-six of the thirty-four jobs were integrated by the movement of white employees or applicants into previously all black jobs. As late as 1971, only fifty-nine of 232 jobs were integrated — only 25% of the total.

                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.44 The district court sifted out the following variables which were held to undermine appellants' empirical conclusions that black employees were locked in the lower paying jobs and departments:45

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.46 In addition, the testimony concerning the promotions offered indicated that these positions were often less desirable than the employee's current position, being more physically menial and paying little more with limited future advancement opportunities. Also, for employees who had substantial seniority, and had consequently reached the top of their pay groups, a promotion involving transfer to a higher paying department would result in a cut in pay and beginning as a new man in the department. See United States v. N. L. Industries, supra, 479 F. 2d at 362.

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.47 During this period, promotion was, in effect, determined by all white supervisors; a practice we noted in Rowe which could have racial emphasis. This is particularly of importance considering the testimony reflecting a number of promotion requests by black employees which were never acted upon by the white foremen and department superintendents. Moreover, we deem appropriate the court's holding in United States v. N. L. Industries, Inc., supra, 479 F.2d 354:

Further, there was testimony at trial by a department superintendent48 that after the passage of the Civil Rights Act of 1964 (Title VII) the company received a "flood" of requests from black employees for more skilled positions. Of course, most were rebuffed by their failure to qualify under the illegal testing. In addition, during the first ten months in which the formal posting and bidding procedure operated, the testing and educational requirements having been terminated for the last six of these months, 41% (107) of the 251 jobs bid for departmentally and plant-wide were won by black employees.49

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.50 In addition, the testimony at trial indicates that demotions were often due to work cut backs rather than poor job performance.51 This demotion statistic concerning black employees is at the least nebulous and at the most negative in support of the court's conclusion.

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.52

                Chart F: Class Enrollment By Race

                 White             Black
                 Employees       Employees

  1964*            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 employees53 and continued interest in this and past litigation54 demonstrates that the black employees of the company are interested in opportunities for better pay and more highly skilled jobs.

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 [1974]. Not only are these variable too numerally diminutive to rebut the distinct disparity in the black/white employment data,55 but analysis and the evidence have disclosed that these variables have no substantial validity.56

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.57

This Court stated:

Similarly, the work force here is approximately 50% black with the black employees occupying the lower paying jobs and departments. Likewise, the jobs and departments here and in Jacksonville Terminal have been segregated both by prior formal discrimination and present effect.

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 1971 reflect that black employees have been derogated to the lower paying, non-skill departments and to the lower paying positions in all departments because of these past discriminatory employment practices. As we demonstrated above these variables cited by the trial court to explain the statistics, do not, on analysis, undermine the large statistical disparity between black/white employees' departments, positions, and pay rate. We have observed that the departmental seniority system deters black employees, by their loss of seniority and pay rate, from transferring and that the posting and bidding procedure, requiring initial consideration of persons within the department, often may prevent even the application of the majority of black employees for a job vacancy in the higher paying, predominantly white departments. In addition, both practices operate to handicap black employees in intradepartmental promotion because past discrimination was an impediment to black employees acquisition of seniority in these departments. Therefore, the neutral practices of the departmental seniority system and the posting and bidding procedure carry forward into the present the stratification of black employees into lower paying, non-skill departments and jobs resulting from past discrimination. Neutral employment practices perpetuating past discrimination were condemned by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. at 430. Affirmative relief is mandated by our decisions in Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1371, n. 34; United States v. Georgia Power Co., supra, 474 F.2d at 927; and Local 189, United Papermakers & Paperworkers v. United States, supra, 416 F.2d at 990-991.58

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 after being placed into a craft position, the employee is eligible for a pay rate 12 or 13.

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."59

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.60 Because of this disproportionate impact, the burden shifts to the company to demonstrate that their high school education or equivalent requirement for entry into the apprentice program is "job related." Griggs v. Duke Power Co., supra; United States v. Georgia Power Co., supra; United States v. Inspirational Consolidated Copper, supra.61

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."62

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.63 For example, there are seventy-five white employees,64 without a high school education, receiving over $4.00 an hour. Of the approximate fifty foremen and forty to fifty leadmen in the plant, twelve foremen and eight leadmen are among this seventy-five. Sixteen of this group are machinists in the machine shop, a highly skilled, craft department; and two are electricians. The high proficiency level established by this standard not only precludes qualified employees but also is not refined sufficiently to measure the ability sought by the company. As the Supreme Court promulgated in Griggs and this Court stated in Georgia Power, "the use of a high school requirement which has a disproportionate racial impact and has not been proven to be a predictor of ultimate job success controverts the congressional mandate of Title VII."65 474 F.2d at 918.

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.66 Appellants argue that the application of the age requirement has the consequence of continuing to exclude from the apprentice program all black employees who are employed and reached the age of twenty-five or twenty-nine before the company ceased its official segregation in 1961. Additionally excluded are those blacks barred by the testing program, who reached the age of twenty-five or twenty-nine before the company ceased its testing program in 1971. Therefore, appellants conclude that this age requirement perpetuates into the present effects of past discrimination and is unlawful.67

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 proof68 of present effect from past discrimination.69

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."70

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 position. At this time, 436 white employees, 28.4% of the total, occupied group 12 jobs, and twenty-four, 1.5% of the total, held group 13 jobs. An additional factor relied on by appellants is the selection on the subjective evaluation by the all-white supervisory force, both a past and a present prerequisite to entry into the training program. Rowe v. General Motors Corp., supra, 457 F.2d at 359 ("we and others have expressed a skepticism that Black persons dependent directly on decisive recommendations from Whites can expect non-discriminatory action.")71

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.72 Therefore, we are compelled again to find that past discrimination has had an adverse impact upon black employees' employment opportunities which is carried forward by neutral, current practices. The bidding procedure presently in effect would require black employees long denied this training opportunity in the past, to suffer a loss of seniority and cut in salary for admittance and participation in this training program. The requirement that bids from within the craft departments be given initial, primary consideration must fail in light of the proof demonstrating that a large majority of black employees have been excluded from these departments. In addition, a lengthy training program of six years will continue to exclude black employees from craft positions for an unnecessarily longer period. Appellants have presented prima facie evidence of the present effect of past discrimination, thus requiring affirmative relief.73 Cf. McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 800-807.

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 opinion74 that the plaintiffs were not entitled to any other relief.

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 and a subjective standard applied by all-white department supervisors would normally present a conclusive showing of present discrimination. The company, however, terminated their testing requirement for these positions in March, 1971, which was six months prior to the trial in October, 1971. The question for us is whether selection on the basis of subjective judgment of all-white superintendents operates independently of the testing to discriminate and helped produce this disparity.

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.75 Local 53 of the International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969). In cases involving similarly alleged racial discrimination for promotions to supervisory positions, courts have acted on a showing equal to that made by the appellants here.76 In United States v. N. L. Industries, supra, 479 F.2d 354, the court stated:

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.77 In addition, the record reflects that while many whites had been appointed as "relief leadmen,"78 no black employees have had such an opportunity. Testimony by two department supervisors, however, indicated that since the testing qualification was dropped, black employees in these departments, steel foundry and mono-cast, are qualified and are under consideration for these supervisory positions. We are uncertain whether the consideration of black employees since the testing was terminated, stems from awareness, stimulated by this and other law suits, by the company of possible legal sanctions, or whether the illegal testing alone had created this discriminatory barrier, and now qualified black employees are being considered. Therefore, we are remanding this issue, the independent effect of subjective evaluation by all-white superintendents, to the district court.79

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.80 Secondly, the court should note whether less qualified white employees have been appointed leadmen or foremen both prior to March, 1971 and since that time. Finally, the court should obtain evidence of the operation of this subjective standard applied by white supervisors since the trial.81

III. RELIEF

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),82 and section 1981.83 Most courts, and expecially our Circuit, have applied this equitable relief within the framework of the "rightful place" theory.84 In Georgia Power, this Court explained: "Most courts, in molding appropriate remedies, have adhered to the `rightful place' theory, according to which blacks are assured the first opportunity to move into the next vacancies in positions which they would have occupied but for wrongful discrimination and which they are qualified to fill. Note, Title VII, Seniority Discrimination and the Incumbent Negro, 80 Harv.L.Rev. 1260, 1268 n. 2 (1967)." 474 F.2d at 927. We agree that: "This is the theory which should be applied here." Id.

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).85 This class includes black employees, both named and unnamed, who have filed or not filed complaints with the Equal Employment Opportunity Commission. Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert. denied, 405 U.S. 916, 92 S.Ct. 931, 30 L.Ed.2d 785 (1972) (section 1981); Jenkins v. United Gas Corporation, 400 F.2d 28 (5th Cir. 1968) (Title VII); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) (Title VII). Specifically, this class is composed of black employees of the company employed prior to March 8, 1971, termination date of the testing and educational requirements for pay groups 9-16, and also embraces those black employees hired after March 8, 1971 harmed by present discriminatory practices.

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 1981.86 At that point we reserved the discussion of the "business necessity" justification. This doctrine has evolved to except those few employment practices, which are non-intentionally discriminatory or neutral, but perpetuate the consequences of past discrimination, because of their overriding business necessity.87 See Griggs v. Duke Power Co., supra, 401 U.S. at 431-432; United States v. N. L. Industries, supra, 479 F.2d at 364-366; Robinson v. Lorillard Corp., supra, 444 F.2d at 797-798. Once a discriminatory result is demonstrated, the defendant has the burden to justify a practice under a "business necessity."88 The nature and requirements of this burden were correctly outlined in Robinson v. Lorillard Corp., supra, 444 F.2d at 798:89

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,90 which would have a lesser racial impact. Moreover, since there is a large demonstration of successful employee achievement without a high school diploma, a discriminatory standard, by definition, cannot be a "business necessity." We, therefore, conclude that the district court should enjoin the continued use of a high school educational requirement for entrance into the apprentice program.

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,91 the business purpose, training to insure safe and efficient plant operation, must be "sufficiently compelling to override any racial impact;" the department seniority system must effectively and efficiently carry out its training purpose; and there must be no alternate acceptable practice of accomplishing this training. In an industry involving sophisticated machining processes such as many of the operations of this company, training of employees for skilled positions is a necessary function for the continued economic life of the business. However, a departmental seniority system is effective and efficient as an instruction program only as to those positions in a line of progression where the jobs below them on the ladder serve as prerequisite training steps.92 Thus, in a departmental line of progression where the positions do not require specific training93 or where on-the-job experience in another department qualifies an employee,94 a departmental seniority system is not efficient and it is certainly not the best training method.95

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 technical lines of progression are functionally related. The plaintiffs themselves admit that craft positions require specific prerequisite training and experience. But we read the district court's findings96 and the record97 as providing no showing by the company that other lines of progression are functionally related.98 Robinson v. Lorillard Corp., supra, 444 F.2d at 799.

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, red circling99 and advance entry100 are requested.

Under the "rightful place theory" we agree:

Therefore, the district court should issue an injunction requiring: (1) the posting of vacancies plant-wide;101 (2) the selection of "qualified" personnel for the vacancies on the basis of plant-wide seniority;102 (3) transferring members of the class shall retain their plant-wide seniority for all purposes including promotion, lay-off, reduction-in-force, and recall;103 (4) advance entry into jobs for which an employee in the class is "qualified" or for which no specific training is necessary;104 (5) red circling of members of the class;105 (6) establishment of specific residency periods in lines of progression where the company has established prerequisite training as a "business necessity."106 By the term "qualified" we mean ability which is not to be determined solely by reference to experience in the line of progression of a department, e. g. a forklift operator in the mono-cast department should be able to transfer to a forklift operator position in the fittings foundry or some other department, or an employee in a grinder position transferring to the inspection department. This has specific application in the advance entry situation. Assume a member of the class requests transfer to or bids for a position in another department above the entry level in the line of progression. If by his prior experience or because no training is necessary, he is qualified, advancement from entry level up the line of progression should be by-passed in order to insure this employee his "rightful place."106a

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."107

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.108 Therefore, the district court should enjoin the continuance of the age prerequisite for the apprentice program. On remand, the company may present evidence that another limit other than the thirty-five years endorsed by plaintiffs' expert should be established, but this would require a compelling interest of the company.109

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.110 In addition, consideration should be given to broadening the qualifying experience on a craft related job to include comparable experience on jobs outside craft departments. The court should examine for adverse impact the use of subjective selection criteria, since the trial, in the journeyman program.

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:111

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.112 Likewise, the parameters of discretion, within which a district court may deny back pay in employment discrimination cases, are defined by the purpose for which Congress enacted, and the courts have interpreted, the statutory back pay provisions.113 Congress in authorizing courts, expressly under Title VII114 and impliedly under section 1981,115 to grant equitable relief to persons harmed by employment discrimination, included the discretion to award back pay. This Court116 and commentators117 have noted that the provision for back pay in Title VII was modeled on the similar provision in the National Labor Relations Act, 29 U.S.C.A. § 160(c), whose object is "designed to vindicate the public policy of a statute by making the employees whole for losses suffered on account of an unfair labor practice."118 Nathanson v. NLRB, 344 U.S. 25, 27, 73 S.Ct. 80, 97 L.Ed. 23 (1952). An award of back pay has been recognized by this Court as not a "mere adjunct of some more basic equity" but as an "integral part of the whole relief which seeks, not to punish the respondents but to compensate the victim of discrimination." United States v. Georgia Power Co., supra, 474 F.2d at 921. Johnson v. Good-year Tire & Rubber Co., supra, 491 F.2d at 1375; Johnson v. Georgia Highway Express, supra, 417 F.2d 1122. Under Title VII and section 1981 the injured workers must be restored to the economic position in which they would have been but for the discrimination — their "rightful place."119 Because of the compensatory nature120 of a back pay award and because of the "rightful place" theory, adopted by the courts, and of the strong congressional policy, embodied in Title VII, for remedying employment discrimination, the scope of a court's discretion to deny back pay is narrow. Head v. Timken Roller Bearing Co., supra, 486 F.2d at 876; Moody v. Albemarle Paper Co., supra, 474 F.2d at 141-142. Once a court has determined that a plaintiff or complaining class has sustained economic loss from a discriminatory employment practice, back pay should normally be awarded unless special circumstances are present.121

The district court's reasons for denying back pay must next be examined for evidence of "special circumstances."122 The primary contentions relied on by the court were (1) that the company had demonstrated good faith compliance with Title VII and (2) that a back pay award was not necessary to insure future compliance by the company. As expounded earlier the raison d'etre of a back pay award is to compensate victims of discrimination for economic loss, not to punish the discriminating employer or insure future compliance. Neither the past good faith of the company nor the possibility of future violations of Title VII is relevant. Whether black workers were economically injured by unlawful discrimination and require a back pay award to make them whole is the issue.

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 791:123

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 finding124 as to the "inequity" of granting back pay. The discretion a court has under the "special circumstances" standard encompasses a denial of back pay on the grounds of substantial injustice. Moody v. Albemarle Paper Co., supra, 474 F.2d at 142. Cf. Newman v. Piggie Park Enterprises, supra, 390 U.S. at 402.

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."125 Davies Warehouse Co. v. Bowles, 321 U.S. 144, 153, 64 S.Ct. 474, 479, 88 L.Ed. 635 (1944). However, a back pay decree is appropriate in those cases where a limitation is not imposed by a state statute but by the employer,126 or where the employer is put on notice of a judicial or definitive administrative determination of the invalidity of the state law.127

In this case, except for the "extra compensation" plan the district court clearly erred in its conclusions regarding injustice to the company.128 Even the argument that distributions to employees out of earned surplus (the extra compensation plan) would be reduced, penalizing all employees, is hyperbolic and misleading. Since the workers are, in essence, the stockholders of the company,129 they, like any stockholders, should help bear the burden of a back pay award. Any injustice results from the fact that this class of black workers will again be penalized economically. Moreover, a majority of white employees have enjoyed swifter job advancement with consequential salary increases because qualified black workers have been discriminatorily hampered in competition for promotion. At the same time a majority of black employees endured substantial economic losses. To assert now that reductions in the distribution from earned surplus which all employees will suffer can somehow defeat an award of back pay is peculiarly unpersuasive.

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.130 Head v. Timken Roller Bearing Co., supra, 486 F.2d at 874-875; Brown v. Gaston County Dyeing Machine Co., supra, 457 F.2d 1377 (back pay ordered for 1961 to 1962 under section 1981). In this Circuit, private employment practices were not held violative of section 1981 until 1970 in Sanders v. Dobbs House, supra, 431 F.2d at 1099, although the Supreme Court laid the foundation for this holding in 1968 in Jones v. Alfred H. Meyer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).131 The question becomes whether a back pay award under section 1981 for a period prior to 1970 (or 1968 or 1965) constitutes a substantial injustice because of lack of notice to employers of a statutory scheme prohibiting discriminatory employment practices.132

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 company was put on sufficient guard by the enactment of Title VII to be found liable for back pay under section 1981 as of July 2, 1965. However, following the reasoning of this Court's decision in Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1378, 1379, we conclude that back pay awards under section 1981 should not cover any period of employment prior to the effective date of Title VII because of insufficient notice. Brown v. Gaston County Dyeing Machine Co., supra, 457 F.2d at 1385-1387 (Dupree, dissenting in part).

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.133 Title VII does not exclude unnamed or nonfiling class members from a back pay decree because of failure to exhaust remedies, 42 U.S.C.A. § 2000e-5(a)-(e) (1972), with the EEOC. Courts have allowed employees who have filed with the EEOC to represent a class whose members have not all filed134 and have approved the intervention of non-filing class members.135 The basis for these decisions is that the opportunity for investigation and conciliation by the EEOC is adequately fulfilled by the filing of one charge of discrimination against an employer, so that filing further claims would be superfluous. Furthermore, even if Title VII restricted class membership for back pay purposes to named persons who had filed a charge with the EEOC, section 1981 would independently support an unrestricted class award of back pay.136

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).137

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 Moore's Federal Practice ¶ 23.45 [1] at 703 (2d Ed. 1969). In other words, the language, "`final injunctive relief or corresponding declaratory relief' is `appropriate,'" describes the situation in which a class can be recognized, as one in which this type of relief is appropriate. This is not to be read as saying "thereby making appropriate only final injunctive relief or corresponding declaratory relief." All that need be determined is that conduct of the party opposing the class is such as makes such equitable relief appropriate. This is no limitation on the power of the court to grant other relief to the established class, especially where it is required by Title VII and section 1981. Cf. Sprogis v. United Air Lines, supra, 444 F.2d at 1201-1202. Back pay has been granted by courts in (b) (2) class actions where injunctive or declaratory relief has also been requested,138 and even where the need for injunctive relief has been obviated before trial by the defendant's own actions.139

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 litigation140 or utilizing the notice provision of subdivision (d) (2).141

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)."142 Robinson v. Lorillard Corp., supra, 444 F.2d at 802. Cf. Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 1364.

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 VII143 and section 1981144 was tolled.145 The proper Alabama limiting provision, Code of Alabama, Tit. VII, § 26(1) (1960),146 for back pay for both Title VII and section 1981 sets out a one year limit. Since no claim may extend to a period prior to July 2, 1965 under either Title VII or section 1981, this date marks the beginning of the back pay period.

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 into the apprenticeship and on-the-job training are eligible for back pay.

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 history with the company and other evidence that qualified or would have qualified him for the denied positions, and an estimation of the amount of requested back pay. The employer's records, as well as the employer's aid, would be made available to the plaintiffs for this purpose. The burden then shifts to the company to challenge particular class members' entitlement to back pay.147

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,148 (2) uncertainties in determining what an employee would have earned but for the discrimination, should be resolved against the discriminating employer.149 Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1380, n. 53.

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.150 It should be emphasized that this is not a choice between one approach more precise than another. Any method is simply a process of conjectures.151 When a court is faced with the employment situation like this case, where employees start at entry level jobs in a department and progress into a myriad of other positions and departments on the basis of seniority and ability over an extended period of time, exact reconstruction of each individual claimant's work history, as if discrimination had not occurred, is not only imprecise but impractical.152

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.153 In Bowe v. Colgate-Palmolive Co., 489 F.2d 896 (7th Cir. 1973), involving a class of fifty-four women, the court approved this approach:

Likewise, in United States v. Wood, Wire & Metal Lathers Int. Union, Local 46, supra, 328 F.Supp. at 443-445, where the court was computing the back pay of black lathers injured by a discriminatory union referral system, a "representative employee earnings formula" was employed:

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.155 Adjustment to the pension plan for members of the class who retired during this time should also be considered on remand.156

Conclusion

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 insure the continued implementation of equal employment opportunities.156a Brown v. Gaston County Dyeing Machine Co., supra, 457 F.2d at 1383; Parham v. Southwestern Bell Telephone Co., supra, 433 F.2d at 429.

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.157

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% of the company's work force, all of the black employees, will go unrepresented if the clear majority of white employees is allowed to rule. Finally, in assuming that the Board of Operatives will have substantial responsibility in monitoring the compliance with Title VII, appellants challenge the bona fides of persons who have condoned and been the beneficiaries of the company's prior discriminatory practices. Appellants rely on Fifth Circuit precedent ordering equal black and white representation in elective offices and committees in merging previously segregated unions. E. g., Long v. Georgia Kraft Co., supra, 455 F.2d 331; United States v. Jacksonville Terminal Co., supra, 451 F.2d at 457-458. Cumulative voting on a plant-wide basis and a two-thirds voting requirement for the Board of Operatives is requested.

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,158 who are ultimately responsible for the company's policies and who elect the Board of Managers, the day to day operators of the company's business. The Board, therefore, shares the responsibility for the company's past employment practices. In addition, the Board of Operatives will be the main recipient of any complaints concerning compliance with the relief granted by the court. Therefore, input by black employees is vital. However, the district court has correctly applied the law in this case,159 and we do not think it has abused its discretion in granting relief.

There is no racial gerrymandering claimed by the appellants.160 Since the date of the district court's order, the number of black employees has increased to approximately 50% of the company's work force. In addition, in the first election after the district court's order, the statistics reveal that black employees were in a majority in three of the electoral districts and constituted a substantial percentage in two others.161 To allow cumulative voting would defeat the valid company policy of alloting representation along geographical and functional lines. Cumulative voting would also result in at-large elections. Courts in the reapportionment area have frowned upon the use of at-large districts while endorsing single electoral districts. White v. Regester, 412 U.S. 755, 765-770, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971). Finally, at-large elections would encourage voter polarization by race. We are seeking to apply a law whose purpose is to resolve employment inequalities resulting from racial discrimination rather than emphasize race as an employment or voting criterion.

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 appropriate that a bi-racial committee of employees, operating as an agency of the Board of Operatives, be appointed to deal with this matter. Cf. Ellis v. Board of Public Instruction of Orange County, 423 F.2d 203, 206, n. 4 (5th Cir. 1970). The members of this committee should be drawn from the ranks of the Board of Operatives and the Equal Employment Opportunity Committee. The committee would be available to receive employee complaints and aid in compliance with Title VII. It could report both to the Board of Operatives and to the district court, so long as it retains jurisdiction, on equal employment problems.

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 burden of proof rule of Goodyear but is a more definitive statement of the same principle and gives greater assurance of individualizing each claim. The majority statement is as follows: