Bowman Transportation, Inc. appeals from the decision of the district court holding that it had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-16, by discriminating against women in its hiring for over-the-road ("OTR") tractor-trailer driving positions. In Case Nos. 84-8105 and 84-8899, Bowman, a trucking company, raises numerous challenges to the district court's findings with respect to the disparate impact of its one-year prior experience rule, the pattern and practice of discrimination against women in hiring for OTR truck drivers, and the certification of the plaintiff class ("plaintiffs"). We reject each of Bowman's challenges. On the cross-appeal, we also reject plaintiffs' challenge to the district court's refusal to include hiring goals in its remedial order. In Case No. 85-8409,
In late 1974, Bowman imposed a requirement that applicants for OTR driver positions have one-year prior experience as OTR drivers. This requirement was imposed on a company-wide basis, with the exception of the Birmingham, Alabama region, which only required six-months prior experience until 1976. Under this rule, an applicant's prior experience would be considered OTR if it involved driving a tractor-trailer for a distance greater than a 75-mile radius from the dispatch terminal.
In 1976, Edna Kilgo went to the Bowman terminal in Atlanta, Georgia to apply for an OTR driver position, and when Bowman refused to allow her to file an application, she filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). After receiving her right-to-sue letter, Kilgo filed this class action lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-16, alleging sex discrimination by Bowman in its hiring of OTR drivers.
In August 1979, Virginia Wentz was added as a party plaintiff. After the death of Edna Kilgo in November 1979, the district court held that Kilgo's Title VII claim survived her death, and thus permitted the substitution of her husband, Oscar Kilgo, as a named plaintiff in his capacity as the representative of her estate. Kilgo v. Bowman Transportation, Inc., 87 F.R.D. 26, 27-28 (N.D.Ga.1980). The court, however, concluded that Oscar Kilgo would not be an adequate representative of the proposed class "because, although he has an interest in claims for back pay, he does not have the same interest in declaratory and injunctive relief as other members of the proposed class." Id. at 28-29. In addition, the court found that the date of Kilgo's filing of her EEOC charge would govern the scope of the class both because her filing had given Bowman "adequate notice of a challenge to its employment practices" and because a contrary holding might prejudice members of the proposed class who "could have been aware of Edna Kilgo's EEOC charge and the possibility that she would represent them in a class action." Id. at 29. Finally, the court also conditionally certified a class consisting of "[a]ll females who, since April 18, 1976, have, would have, but for the futility of doing so, or will in the future seek permanent employment as an over-the-road truck driver with [Bowman] by applying through its Atlanta, Georgia terminal and who have been, would have been, or will be refused such permanent employment due [to Bowman's discriminatory practices]." Id. at 28-30.
In March 1982, the district court redefined the class as follows:
Record on Appeal, vol. 3 at 634-35.
After a nonjury trial, the district court found that Bowman had committed sex discrimination in its hiring of OTR drivers. Kilgo v. Bowman Transportation, Inc., 570 F.Supp. 1509 (N.D.Ga.1983). First, the court redefined the class with respect to the disparate impact claim:
Id. at 1512-13 (emphasis in original). The court rejected Bowman's contention that this redefinition of the class would violate the due process clause, Rules 16 and 23 of the Federal Rules of Civil Procedure, and N.D.Ga.R. 221.13. Id. The court first noted that since Bowman's experience requirement is a company-wide policy, the asserted business justification for the requirement would apply whether this requirement is examined in terms of applicants seeking employment through the Atlanta terminal or through any of Bowman's terminals. Id. at 1513. In addition, the court rejected Bowman's argument that it would be prejudiced by the lack of an opportunity to introduce system-wide applicant flow data; the court found that argument to be without merit because such applicant flow data did not reflect an appropriate labor pool in this case since women were deterred from applying. Id. Finally, the court found that the introduction of evidence of the labor market in each of the regions where Bowman hires truck drivers was not necessary because its finding of adverse impact was based on a comparison of Bowman's "women hirees for the relevant time period" with, inter alia, the general labor force and national labor pool of truck drivers "which are equally applicable to applications filed through the Atlanta terminal or through other terminals." Id.
Turning to the merits, the court found that based on a comparison of Bowman's hirees in the relevant time period with various national and local labor pools, Bowman's prior experience requirement had an adverse impact upon female applicants. Id. at 1514-17, 1525-26. The court then concluded that Bowman had failed to establish that its prior experience requirement was a business necessity and that even if this requirement were a business necessity, there were less discriminatory alternatives available, and this requirement was used as a pretext for sex discrimination. Id. at 1517-21, 1526-27.
Finally, the district court held that Bowman had engaged in a pattern and practice of disparate treatment of female applicants for OTR driving positions. Id. at 1522-25, 1527-28. In reaching this conclusion, the district court relied on plaintiffs' statistical evidence and testimony concerning Bowman's
In 1984, the district court issued a remedial order. Kilgo v. Bowman Transportation, Inc., 576 F.Supp. 600 (N.D.Ga.1984). In this order, the court refused to impose hiring goals or quotas but indicated that it would reconsider this decision "at a later time if [Bowman] fails to make a special effort to insure that women are given the opportunity to achieve OTR positions." Id. at 601. This order also required Bowman to file a hiring plan to remedy its past discriminatory practices. Id. at 602-03.
Bowman filed its plan on June 1, 1984. Pursuant to the plan, on June 15, 1984, Bowman sent out "offers" of employment to plaintiffs, which provided in relevant part:
Supp. Record on Appeal, Case No. 85-8409, vol. 2 at 8-9.
On June 21, 1984, plaintiffs moved to have Bowman, its officers, and its attorneys held in contempt
The special master recommended that Bowman be held in civil contempt for violating the remedial order. Although he did not recommend fining Bowman or incarcerating its officers or attorneys because Bowman had purged its contempt by filing a plan that complied with the remedial order, the master did recommend that the contempt "be considered in connection with the issue of back pay, if any, due the class members and any notice sent under the noncomplying plan cannot affect or terminate
On appeal, Bowman challenges the district court's findings of disparate impact and disparate treatment, the certification of the instant case as a class action, and the validity of the provision in the contempt order concerning potential back pay liability.
A. Disparate Impact
The Supreme Court has established a three-step analysis for evaluating the evidence in disparate impact suits. See, e.g., Connecticut v. Teal, 457 U.S. 440, 446-47, 102 S.Ct. 2525, 2530-31, 73 L.Ed.2d 130 (1982); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). In order to establish a prima facie case of discrimination, a plaintiff must show by a preponderance of the evidence that a facially neutral employment practice had a substantial adverse impact
1. Prima Facie Case
Bowman raises several challenges to the district court's finding that its prior experience requirement had an adverse impact on female applicants. Bowman's first contention is that the district court improperly disregarded the applicant flow data. Bowman argues that the applicant flow data from the Atlanta terminal for the period from 1976 to 1980 would have established that its prior experience rule had not had a disparate impact upon female applicants.
The Supreme Court has held that applicant flow data may be relevant in determining whether a facially neutral employment practice has a disparate impact in a particular case, Hazelwood School District v. United States, 433 U.S. 299, 308 n. 13, 97 S.Ct. 2736, 2742 n. 13, 53 L.Ed.2d 768 (1977), but the Court has rejected the requirement that a prima facie case of disparate impact must be based on an analysis of the characteristics of actual applicants, Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977). As the Court explained in Dothard, "[t]he application process might itself not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory." 433 U.S. at 330, 97 S.Ct. at 2727. See also, e.g., Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir.1983) (applicant flow data inappropriate because individuals who lack the challenged employment requirements such as a high school education "will self-select themselves out of the pool of applicants"); Wheeler v. City of Columbus, 686 F.2d 1144, 1152 (5th Cir.1982) (applicant flow data should be treated with "[c]aution" because this data "`is often distorted by inadequate or excessive recruiting efforts, improper deterren[ce] of applicants, unqualified applicants, multiple applications by the same applicant, or lack of specificity or improper groupings'") (quoting B. Schlei & P. Grossman, Employment Discrimination Law 320-21 (Supp.1979)); Castaneda v. Pickard, 648 F.2d 989, 1003 (5th Cir. Unit A 1981) (applicant flow data may not "constitute an accurate picture of the relevant labor market" where "the employer's discriminatory practices infect recruiting, the process by which applications are solicited").
In the instant case, we conclude that the district court's rejection of Bowman's applicant flow data is not clearly erroneous. See, e.g., Markey v. Tenneco Oil Co., 707 F.2d 172, 174-75 (5th Cir.1983) (applying "clearly erroneous" standard to district court's finding that applicant flow data was not skewed by discriminatory recruiting practices); United States v. East Texas Motor Freight, Inc., 643 F.2d 304, 307 (5th Cir. Unit A 1981) ("clearly erroneous" standard is applicable to district court's finding that five employees would have applied for OTR jobs "but for their knowledge that doing so would have been futile" due to racial discrimination). The posted experience requirement at defendant's Atlanta terminal was more likely to deter women than men from filing applications because women are less likely than men to satisfy this requirement.
Bowman's next contention is that the district court erred as a matter of law in its selection of the relevant labor market because the labor pools selected by the district court were geographically and temporally irrelevant. We disagree.
Contrary to Bowman's assertion, we conclude that the determination of the relevant labor market in the instant case is essentially a factual inquiry, reviewable under the "clearly erroneous" standard.
Turning to the merits of Bowman's challenge, we find that the district court did not err in determining the relevant labor market. The district court found that the percentage of female truck drivers nationally in 1980 (2.2%) was an appropriate labor pool because Bowman "hires over-the-road drivers throughout the Southeastern United States, as opposed to only in one or two cities."
The district court also used 1970 and 1980 data from Georgia and the Atlanta SMSA to support its finding of disparate impact. The court compared the percentage of women hired by Bowman with the percentage of female truck drivers in Georgia in 1970 (1.96%), the percentage of female truck drivers, bus drivers, routemen, and deliverymen in Georgia in 1970 (4.06%), the percentage of female Class V license holders (the license required to drive a tractor-trailer) in Georgia in 1980 (2.44%), the percentage of female truck drivers in the Atlanta SMSA in 1970 (2.1%), and the percentage of unemployed women in motor freight occupations in Georgia in 1980 (2.15%). 570 F.Supp. at 1516. These figures are geographically relevant since Bowman hired many drivers from the Atlanta and Georgia areas. Moreover, these figures were temporally relevant since they bracketed the period at issue in the instant case and showed that the percentage of women in trucking occupations in Georgia and Atlanta had increased during this period. Thus, we find no error in the district court's use of these figures.
Finally, Bowman contends that even if the various labor statistics relied upon by the district court were relevant, there was no evidence of adverse impact. Bowman asserts that in order for a statistical disparity to be probative of discrimination, the difference between the expected value and the observed number must be greater than three standard deviations.
Id., 1552 (quoting Teamsters, 431 U.S. at 340, 97 S.Ct. at 1856-57) (citation omitted). Other courts have also adopted this approach. See, e.g., Craik v. Minnesota State University Board, 731 F.2d 465, 475-76 n. 13 (8th Cir.1984); Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 551-53 (9th Cir.1982); EEOC v. American National Bank, 652 F.2d 1176, 1192 (4th Cir.1981), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982); Chang v. University of Rhode Island, 606 F.Supp. 1161, 1189 (D.R.I.1985).
After examining plaintiffs' statistical evidence and the surrounding circumstances,
Bowman contends that even if its prior experience requirement had a disparate impact upon women, the district court erred in finding that this requirement was not a business necessity, and that there were less discriminatory alternatives available. We do not reach this contention, however, because we find that even if its experience requirement were a business necessity and even if there were no less discriminatory alternatives that would serve Bowman's legitimate business needs, Bowman used this requirement as a pretext for discrimination against women.
In the instant case, the district court found that Bowman had used the prior experience requirement "merely as a pretext for discrimination." 570 F.Supp. at 1527. The court noted that Bowman had hired over 60 men who did not satisfy the prior experience requirement as OTR drivers, while the prior experience requirement was strictly enforced against female applicants. Id. at 1522-24.
Bowman contends that even if it had used this requirement as a pretext to discriminate against women, pretext is irrelevant in a disparate impact case. This argument, however, is without merit. Courts have been virtually unanimous in holding that even if an employer shows that its employment practice is a business necessity, the plaintiff may prevail by proving that this practice is a pretext for discrimination. See, e.g., Connecticut v. Teal, 457 U.S. 440, 447, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982); Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir.1985); Atonio v. Wards Cove Packing Co., 768 F.2d 1120, 1131 (9th Cir.1985); Easley v. Anheuser-Busch, Inc., 758 F.2d 251, 255 n. 7 (8th Cir.1985); Merwine v. Board of Trustees for State Institutions of Higher Learning, 754 F.2d 631, 639 (5th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 76, 88 L.Ed.2d 62 (1985); Lasso v. Woodmen of World Life Insurance Co., 741 F.2d 1241, 1244 n. 1 (10th Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 2320, 85 L.Ed.2d 839 (1985); Walker v. Jefferson County Home, 726 F.2d 1554, 1559 (11th Cir.1984). But see Levin v. Delta Air Lines, 730 F.2d 994, 999 (5th Cir.1984).
Reviewing the district court's finding of pretext under the clearly erroneous standard,
B. Disparate Treatment
Bowman's next contention is that the district court's finding of a pattern and practice of disparate treatment of female applicants for OTR driving positions is clearly erroneous.
In an action alleging class-wide disparate treatment, the plaintiffs must "establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure — the regular rather than the unusual practice." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396 (1977). A prima facie case of class-wide disparate treatment may be established by statistics alone if they are sufficiently compelling. See, e.g., Griffin v. Carlin, 755 F.2d 1516, 1525 (11th Cir.1985); Eastland v. Tennessee Valley Authority, 704 F.2d 613, 618 (11th Cir.1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1415, 79 L.Ed.2d 741 (1984). The prima facie case will be enhanced if the plaintiffs offer anecdotal evidence to bring "the cold numbers convincingly to life." Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856.
Once the plaintiffs have established a prima facie case of disparate treatment, the burden of production shifts to the defendant to rebut the inference by showing that the plaintiffs' statistics are misleading or by presenting legitimate nondiscriminatory reasons for the disparity. See, e.g., Griffin, 755 F.2d at 1525-26; Eastland, 704 F.2d at 618-19. The defendant does not have to persuade the court that it was actually motivated by the proffered reasons; it is sufficient if the defendant raises a genuine issue of fact as to whether it discriminated. See, e.g., Griffin, 755 F.2d at 1526; Perryman v. Johnson Products Co., 698 F.2d 1138, 1143-44 (11th Cir.1983). If the defendant carries this burden of production, the plaintiff must prove that the reasons offered by the employer were pretextual. See, e.g., Griffin, 755 F.2d at 1526; Perryman, 698 F.2d at 1145.
In the instant case, we find ample evidence in the record to support the district court's finding of a pattern and practice of sex discrimination in Bowman's hiring of OTR drivers. As discussed above in Part II.A.1, plaintiffs offered statistical evidence showing that its hiring rate for women applicants for OTR driving positions differed from several different labor pools in a range from 1.92 to 5.3 standard deviations. This statistical evidence is also relevant to the question of whether Bowman had engaged in a pattern and practice of discrimination.
Plaintiffs offered a variety of anecdotal evidence of discrimination to bolster the statistical evidence. For example, Bowman used many different devices to discourage women from becoming OTR drivers. Bowman refused to provide separate sleeping, shower and bathroom facilities for its women drivers, see, e.g., Record on Appeal, vol. 10 at 123-25, vol. 15 at 1014, and female applicants were informed about the lack of separate facilities, see, e.g., id. vol. 9 at 81. In fact, at a meeting between Bowman's president, Garfield Salyer,
Moreover, women were not hired as OTR drivers because of Bowman's policy against women driving with men other than their husbands. For example, Jon Martin was told that "because I was a female that I could not be put into a truck with a male driver and that they did not have any female drivers that I could be put with, therefore, they could not hire me." Id. vol. 9 at 32. Female applicants were also informed that they might be assigned to drive with a male driver of a different race, see, e.g., id. vol. 10 at 125-26, 131, vol. 11 at 308, vol. 12 at 444-45, even though racially integrated driving teams are extremely rare at Bowman, see, e.g., id. vol. 9 at 65-66, vol. 11 at 308, 310-11, vol. 12 at 427, 442. The district court found that such devices had been used to discriminate against women, 570 F.Supp. at 1527, and this finding is not clearly erroneous.
The district court also concluded that Bowman's attempts to articulate nondiscriminatory reasons for its denial of employment to plaintiffs were "unconvincing" because "[t]he record is replete with instances where [Bowman's] representatives testified at trial that a particular class member was denied employment because of a legitimate reason which contradicted the reasons stated originally for such denial." Id. at 1528. The district court's finding that these explanations were pretextual is amply supported by the record. For example, Mr. Wood testified at trial that Carolyn Hewitt, who had nine months of OTR experience and had graduated from a truck driving school, was rejected because her past employer stated that she could not unload a truck.
Finally, as discussed above in Part II.A.2, Bowman used its prior experience requirement as a pretext for sex discrimination. For example, Bowman hired over sixty men who did not satisfy the prior experience requirement while it strictly enforced this requirement against female applicants. Under these circumstances, we hold that the statistical and anecdotal evidence in the instant case amply supports the district court's finding of a pattern and practice of disparate treatment of female applicants for OTR driving positions.
C. Class Certification
Bowman raises three principal challenges to the class certified in the instant case. Bowman first argues that Edna Kilgo's EEOC filing cannot be used to determine the temporal scope of the class. Bowman's next contention is that the district court abused its discretion by expanding the disparate impact class after trial. Finally, Bowman asserts that the conditionally certified class failed to satisfy the numerosity requirement of Fed.R.Civ.P. 23. We address each of these arguments in turn.
Bowman offers two arguments in support of its contention that Kilgo's EEOC filing date cannot be used to determine the temporal scope of the class. Bowman first contends that because Kilgo's Title VII cause of action did not survive her death, her EEOC filing date cannot constitute the cut-off date for the class. Because we find that her Title VII cause of action survives under both federal and state law, this contention
In Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), the former Fifth Circuit held that under Georgia law, a decedent's § 1983 claim for damages survives his death.
A Title VII cause of action would also survive under federal common law. In James v. Home Construction Co. of Mobile, 621 F.2d 727, 729-30 (5th Cir.1980), the former Fifth Circuit held that under federal common law, a federal cause of action generally survives the death of the plaintiff unless it is an action for penalties. In determining whether the plaintiff's cause of action under 15 U.S.C. § 1635 survived her death, the court looked to three factors: (1) whether the purpose of the action was to redress individual wrongs or more general wrongs to the public; (2) whether the recovery runs to the individual harmed or to the public; and (3) whether the recovery was wholly disproportionate to the harm suffered. 621 F.2d at 730. Accord Smith v. No. 2 Galesburg Crown Finance Corp., 615 F.2d 407, 414 (7th Cir.1980).
Applying this analysis to the instant case, we find that Title VII of the Civil Rights Act of 1964 is a remedial, rather than a penal statute for the purpose of survival. Turning to the first consideration (the purpose of the action), the primary purposes of Title VII are to prevent discrimination and achieve equal employment opportunity in the future, see, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 364, 97 S.Ct. 1843, 1869, 52 L.Ed.2d 396 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975), and to make whole the victims of discrimination, see, e.g., Teamsters, 431 U.S. at 364, 97 S.Ct. at 1869; Franks v. Bowman Transportation Co., 424 U.S. 747, 764, 96 S.Ct. 1251, 1264, 47 L.Ed.2d 444 (1976). Although Title VII thus benefits both the individual and the public, we conclude that the primary purpose of Title VII is to remedy individual wrongs, not to punish employers. Recovery under Title VII also runs to the individual, not to the public at large. Finally, the authorized recovery under Title VII is not disproportionate to the harm suffered since, as described above, Title VII is intended to make whole the victims of discrimination.
Even if Kilgo's cause of action survives her death, Bowman asserts that since she died before the certification of the class and since her husband was determined to be an inadequate class representative, her EEOC filing cannot be used to determine the temporal scope of the class. We also find no merit in this contention.
Section 2000e-5(e) requires a charge to be filed with the EEOC "within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C.A. § 2000e-5(e) (West 1981). The
In cases involving Title VII class actions, we have long held that every member of the class is not required to file an EEOC charge; it is sufficient that at least one named plaintiff has filed such a charge. See, e.g., Crawford v. United States Steel Corp., 660 F.2d 663, 665 (5th Cir. Unit B 1981);
Oatis, 398 F.2d at 498; see also Wheeler v. American Home Products Corp., 582 F.2d 891, 897 (5th Cir.1977).
However, Bowman argues that this rule only applies where the timely EEOC filing is made by one of the class representatives. Since Edna Kilgo died before the class was certified, and since her husband was determined to be an inadequate class representative, it claims that her EEOC filing cannot be used as the cut-off date for the class. We find no merit in this distinction. Kilgo's filing of her EEOC charge satisfied both purposes of the timely filing requirement since Bowman had notice of her claim and the EEOC was given an opportunity to settle the grievance. Moreover, Kilgo's Title VII cause of action survived her death, and the district court permitted the substitution of her husband as a party in this case, even though the court determined that her husband would not be an adequate class representative. On the facts of this case, we hold that the date of her EEOC filing may be used to determine the temporal scope of the class.
Bowman's next contention is that the district court abused its discretion in expanding the disparate impact class after trial on the merits.
Bowman's final contention is that the conditionally certified class failed to satisfy the numerosity requirement of Fed.R.Civ.P. 23. We will not reverse a district court's finding that joinder is impracticable absent an abuse of discretion. See, e.g., Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038-39 (5th Cir. Unit A 1981). Practicability of joinder depends on many factors, including, for example, the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion. See, e.g., Zeidman, 651 F.2d at 1038; Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981).
In the instant case, we conclude that the district court did not abuse its discretion in finding that the numerosity requirement had been met. Plaintiffs have identified at least thirty-one individual class members, and the class includes future and deterred job applicants, which of necessity cannot be identified. The certified class also includes applicants from a wide geographical area.
D. Contempt Order
On appeal, Bowman claims that the provision in the contempt order regarding back pay — i.e., indicating that the contempt would be considered in connection with the back pay issue — is neither compensatory nor coercive, and thus must be deemed punitive.
458 U.S. at 231-32, 102 S.Ct. at 3065-66 (footnotes omitted).
The instant case differs from Ford Motor Co. An examination of Bowman's "offer" shows that it was not unconditional. For example, the offer stated that the claimant was invited "to submit an application" for one of an undisclosed "number of vacancies," and that there was a "good chance" the claimant would be hired if she were "minimally qualified." Supp. Record on Appeal, Case No. 85-8409, vol. 2 at 8-9. Since the plaintiffs were not offered employment, but simply the opportunity to apply for an unspecified number of jobs, we conclude that Bowman's offer did not satisfy the requirements of Ford Motor Co. See Rasimas v. Michigan Department of Mental Health, 714 F.2d 614, 625 (6th Cir.1983) (an interview letter is not an unconditional offer of employment), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 537 (1984); Orzel v. City of Wauwatosa Fire Department, 697 F.2d 743, 757 (7th Cir.) (offer of reinstatement conditioned upon plaintiff's taking and passing a physical exam did not toll back pay liability), cert. denied, 464 U.S. 992, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983); cf. Romasanta v. United Air Lines, Inc., 717 F.2d 1140, 1158-59 (7th Cir.1983) (rejecting argument that the failure of the plaintiffs to seek available rehire by United weighed in favor of United on the award of seniority to the plaintiffs, because airline's "offer" of employment consisted of a publicity statement "to the effect that priority would be given to applicants who had previously worked in positions involving `customer service'"), cert. denied, 466 U.S. 944, 104 S.Ct. 1928, 80 L.Ed.2d 474 (1984). Since Bowman's "offer" of employment could not toll the accrual of potential back pay liability, we hold that the statement to that effect in the contempt order is not punitive.
E. Hiring Goals
On cross-appeal, plaintiffs contend that the district court abused its discretion in refusing to impose hiring goals in its remedial order.
Under Title VII, courts have been granted broad equitable powers to remedy statutory
In the instant case, we conclude that the district court did not abuse its discretion. Although no hiring goals were imposed, the order does eliminate the discriminatory practices in the hiring of OTR drivers, and places an affirmative duty on Bowman to recruit women for its OTR driving positions. 576 F.Supp. at 602-04. The order also required Bowman to make periodic progress reports to the special master, and the court retained jurisdiction over the case to insure compliance with its decree. Id. at 603-04. Finally, the court noted that the question of hiring goals would be "reconsidered at a later time if [Bowman] fails to make a special effort to insure that women are given the opportunity to achieve OTR positions." Id. at 601. Thus, contrary to plaintiffs' assertion, the district court did not deny hiring goals because of any personal opposition to such remedies, but rather because he found that less restrictive means would be effective.
For the foregoing reasons, the judgment of the district court is
The relevant chronology of events is as follows. On January 5, 1984, the district court entered a remedial order, which, inter alia, enjoined Bowman from using certain discriminatory employment practices and required Bowman to file a plan for the recruitment of women to be OTR drivers. On January 12, Bowman timely served a motion for a new trial under Fed.R.Civ.P. 59. On February 3, while this motion was still pending, Bowman filed its first notice of appeal (Case No. 84-8105). On October 5, the district court denied Bowman's motion for a new trial, and Bowman filed a timely second notice of appeal (Case No. 84-8899).
Federal Rule of Appellate Procedure 4(a)(4) provides that a notice of appeal filed before the disposition of a Rule 59 motion for a new trial is a nullity, and that a new notice of appeal must be filed within the prescribed time from the denial of this motion:
Fed.R.App.P. 4(a)(4); see also Bolden v. Odum, 695 F.2d 549, 550 (11th Cir.1983); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982). Bowman contends that its motion for a new trial did not nullify its first notice of appeal because Rule 4(a)(4) applies only to appeals from final orders, not to appeals from interlocutory injunctions and because an appeal from an interlocutory injunction, unlike an appeal from a final order, does not divest the district court of jurisdiction. We do not reach the question of whether Bowman's first notice of appeal was effective because we find that Bowman complied with the refiling requirement of Rule 4(a)(4). Since Bowman filed its second notice of appeal within thirty days after the denial of its motion for a new trial, we hold that we have jurisdiction over the instant appeal. See, e.g., Great American Insurance Co. v. Rush, 670 F.2d 995, 996 (11th Cir.1982).
433 U.S. at 311-12, 97 S.Ct. at 2743-44 (footnote omitted) (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977)).
Griffin is also distinguishable from the instant case. In Griffin, we held that the appropriate labor pool was, as a matter of law, the craft work force, rather than those employees on the supervisory registers because "[w]hen promotions to supervisory positions are made almost exclusively from the internal work force and when the primary qualification for promotion is experience in the craft work force, the appropriate comparison is to this work force rather than to those on the supervisory register, who have already been screened by the agency through the use of various procedures." 755 F.2d at 1526. The criteria used for determining the employees who would be placed on a supervisory register — e.g., written examinations and supervisory evaluations — were also challenged as being discriminatory. Id. at 1526-28. In the instant case, however, the determination of the relevant labor market depended upon the resolution of essentially factual questions — e.g., whether national statistics were appropriate because of Bowman's recruiting practices — and did not involve the use of labor pools that could never be appropriate — e.g., supervisory registers created by discriminatory practices.
In discussing whether a prima facie case of discrimination in grand jury selection had been established, the Court in Castaneda noted that "if the difference between the expected value and the observed number is greater than two or three standard deviations, then the hypothesis that the jury drawing was random would be suspect to a social scientist." 430 U.S. at 496 n. 17, 97 S.Ct. at 1281 n. 17. In Castaneda, the standard deviations ranged from more than twelve to approximately twenty-nine. Id.
In Hazelwood, the Court explained that the selection of the relevant labor market could have a significant effect on the question of whether the plaintiffs had established a pattern or practice of racial discrimination in the school district's employment practices:
433 U.S. at 311 n. 17, 97 S.Ct. at 2743 n. 17. The Court, however, cautioned that "[t]hese observations are not intended to suggest that precise calculations of statistical significance are necessary in employing statistical proof, but merely to highlight the importance of the choice of the relevant labor market area." Id.
We conclude that Castaneda and Hazelwood do not require a disparity of more than three standard deviations before an inference of discrimination is permissible. See, e.g., Maddox v. Claytor, 764 F.2d 1539, 1552 (11th Cir.1985); Segar v. Smith, 738 F.2d 1249, 1283 n. 28 (D.C.Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985); EEOC v. American Nat'l Bank, 652 F.2d 1176, 1191-93 & n. 11 (4th Cir.1981), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). First, the huge difference between two and three standard deviations (a level of two standard deviations corresponds to a 5% probability that chance would account for the disparity between the observed and the expected number, and a level of three standard deviations corresponds to approximately a .1% probability that chance would account for the disparity) suggests that the Court did not intend to fix a specific test for statistical significance. Moreover, it was unnecessary for the Court to set a precise lower bound in either Castaneda or Hazelwood because the statistical disparities in Castaneda greatly exceeded two or three standard deviations and those in Hazelwood were less than two.
576 F.Supp. at 601. This claim, however, ignores the fact that the court expressly stated that it would consider hiring goals if the relief granted were ineffective.