Oscar W. Adams, Jr., Birmingham, Ala., Robert Belton, Charlotte, N. C., Jack Greenberg, Barry L. Goldstein, New York City, for plaintiffs-appellants.
Gerald D. Letwin, E.E.O.C., Washington, D.C., amicus curiae.
,J. R. Forman, Jr., Samuel H. Burr, Birmingham, Ala., for defendant-appellee.
Before TUTTLE, BELL and GOLDBERG, Circuit Judges.
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.'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 history of the testing, as they existed and were administered by defendant from July 2, 1965,16 to March 25, 1971, recorded in the findings of fact, supra, is convincing that they were not discriminatorily applied to defendant black employees. Their adverse impact on the employment opportunities of blacks is equally clear. Judged by the standard established by Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), they could not pass muster.17
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 Act (Title VII) proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.
On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability.
******
. . . But good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability.
The Company's lack of discriminatory intent is suggested by special efforts to help the undereducated employees through Company financing of two-thirds the cost of tuition for high school training. But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. 401 U.S. at 431-432.
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 P4010, 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. Goodyear 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 P8918 (D.Ariz.1973).
Given the adverse effect, the company had the burden of showing job relatedness. As we stated in Georgia Power:
There (in Griggs), the court explicitly held that 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.14 As with Georgia Power's testing program, supra, the issue here is whether or not the company has made a sufficient showing to manifest a relationship between its educational requirement and its job characteristics. 474 F.2d at 918.24
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 allwhite 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 6 25 6 51 6 60 - -
Division
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
Total
Pay No. of % of In No. of % of Total
Group Blacks Blacks 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) (13.3- 185 (11.64) (7.36)
6)
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
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
Chart E: The Racial Distribution and Salary of Employees
By Department As Of August 12, 1971 *
-------------------------------------------------------------------------------
Blacks Whites
------------------------------- -------------------------
Accumulating Accumulating
Avg. Avg. % Avg. %
Wage % B. Wage Of Blacks Wage Of Whites
In In Of In Work Of In 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
Construciton 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
-------------------------------------------------------------------------------
* All of ACIPCO's departments are included in this chart except those
departmeents having less than 15 employees: Industrial Engineering, Production
Control,, Medical, Research, Laboratory, Purchasing, Finance and Engineering
departmeent. In total, 33 whites and 15 blacks are employed in these
departmeents.
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
Q. I said are you familiar with the fact that in taking the tests blacks score less favorably than whites?
A. Yes.
Q. In all departments, is that correct?
A. I can't answer that positively.
Q. What is your best judgment?
A. Yes.
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 number of all black jobs decreased through 1969 as the number of mixed jobs increased due to the movement of whites into lower paying black jobs. From 1963 through 1969, the number of all white jobs remained approximately constant. Promotion of blacks to the higher paying white jobs, for reasons suggested above (testing and educational requirements), was not being accomplished.
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. 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 thirtyfour 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.
The district court had earlier pointed out that black employees were placed into positions in the lower paid groups:
Although there were and continued to be blacks in substantially all the departments, the overwhelming majority of the black employees historically
(CHART E OMITTED) were and continued to be employed in the Pay Group 1-8 jobs in the various departments and particularly in the Mono-Cast 1, 2 and 3, Foundry.
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
(1) Voluntary refusal of training opportunities which are prerequisite to promotion;
(2) Voluntary refusal of promotions;
(3) Lack of requisite qualifications;
(4) The failure to request promotions;
(5) Poor job performances which have defeated promotion or resulted in demotion;
(6) Voluntary transfers to lower job classifications;
(7) Availability or a lack of job vacancies; and
(8) Lack of motivation.
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:
All we do today is recognize that promotion/transfer procedures which depend almost entirely upon the subjective evaluation and favorable recommendation of the immediate foreman are a ready mechanism for discrimination against Blacks . . .. We and others have expressed a skepticism that Black persons dependent directly on decisive recommendations from Whites can expect non-discriminatory action.
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 trial judge's pronouncement cannot function as a general rule. It becomes valid only when the employer or union evidentially demonstrates that objective criteria pertinent to the particular job are the determinants of who is 'best qualified.' Id. at 442.
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:
National Lead's contention that the reason black employees were not promoted to supervisory positions was because they did not 'ask' to be promoted is without merit. Nothing in the record indicates that white employees were required to make such a request. In any case, a black employee with knowledge of the nominal number of black foremen, the Company's past discriminatory policies, and the current practice of promotion via the recommendation of an incumbent foreman could hardly be expected to make a meaningless request indicating his willingness to be promoted. Sheet Metal Workers (United States v. Sheet Metal Workers), supra (8 Cir.), 416 F.2d (123) at 132; Carter, supra, 452 F.2d at 331; see Parham, supra, 433 F.2d at 427. Id. at 369.
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 engative 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
* In 1964 the classes were conducted on a segregated basis.
** The district court did not provide statistics for 1966.
*In 1964 the classes were conducted on a segregated basis.
**The district court did not provide statistics for 1966.
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:
. . . They (statistics) do prove that employment at the facility is approximately equally divided between whites and blacks, that whites generally occupy the higher paying positions, and that blacks hold the lower paying jobs. Id. at 441.
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 statistics also show that almost all Terminal jobs were held exclusively either by whites or by blacks before July 2, 1965, and that this division has continued, with few exceptions, after that date . . .. Terminal records disclosed that the persistence of 'black' and 'white' jobs-- whatever their formal denotation-- has not been caused by failure to hire new personnel . . .. Moreover, as noted earlier, all blacks hired during this period, have become Porters. Promotions too have occurred. Blacks have gained a few supervisory positions in the Baggage and Mail Department and two Helper jobs in other departments. 'In racial discrimination cases, statistics often demonstrate more than the testimony of many witnesses, and they should be given proper effect by the courts.' Jones v. Lee Way Motor Freight, Inc., supra, 431 F.2d at 247; accord, Bing v. Roadway Express, Inc., 5 Cir. 1971, 444 F.2d 687 (1971); Lea v. Cone Mills Corp., M.D.N.C.1969, 301 F.Supp. 97, 102 aff'd., 4 Cir. 1971, 438 F.2d 86. Id. at 442.
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:
We cannot accept the assumption that the Government's statistics have no probative force: i.e., 'the Government's failure or refusal to undertake a comparative evaluation of the entitlement to job vacancies of competing Negroes and whites, upon the basis of individual qualifications, leaves the record without probative evidence to support (the contention that black employees were not even considered for jobs to which whites were promoted or for which they were hired).' 316 F.Supp. at 581. The trial judge's pronouncement cannot function as a general rule. It becomes valid only when the employer or union evidentially demonstrates that objective criteria pertinent to the particular job or the determinants of who is 'best qualified.' Id. at 442.
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. Lekewise, 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 P8918.
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:
The justification offered at trial for the requirement was very weak. As the district court observed: 'At best, the only justification for this requirement is the obvious eventual need for above-average ability to read and comprehend the increasingly technical maintenance manuals, the training bulletins, operating instructions, Forms and the like demanded by the sophisticated industry . . .. In such a context, the high school education requirement cannot be said to be reasonably related to job performance. This is not to say that such requirements are not desirable . . . it simply means that the 'diploma test' cannot be used to measure the qualities. Many high school courses needed for a diploma (history, literature, physical education, etc.) are not necessary for these abilities. A new reading and comprehension test . . . might legitimately be used for this job need.' 474 F.2d at 918.
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 trail 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:
. . . Had to acknowledge that the methods for promotion/transfer at GMAD would enable an individual foreman, if he were so inclined, to exercise racial discrimination in his selection of candidates for promotion/transfer, and that, under the social structure of the times and place, Blacks may very well have been hindered in obtaining recommendations from their foremen since there is no familial or social association between these two groups. All we do today is recognize that promotion/transfer procedures which depend almost entirely upon the subjective evaluation and favorable recommendation of the immediate foreman are a ready mechanism for discrimination against Blacks much of which can be covertly concealed and, for that matter, not really known to management. We and others have expressed a skepticism that Black persons dependent directly on decisive recommendations from Whites can expect non-discriminatory action. 457 F.2d at 359.
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 caswes 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:
The inference of discrimination provided by the statistics is reinforced by the Company's method of selecting foremen. The Company's promotional plan is very similar to that used by General Motors Corporation in Rowe, supra, 457 F.2d 348. In that plan the foreman's recommendation was the indispensible, single most important element in the promotional process; there were no written instructions to foremen as to the qualifications desired; standards that were set were vague and subjective; hourly employees were not notified of promotional opportunities; and there were no safeguards in the procedure to prevent discrimination.
******
We think evidence indicating that out of about 100 foremen only three are black, that these three black foremen are in charge of only Labor department employees, that a black foreman has never been in charge of white employees in this bargaining unit, that one of thirty-six employees promoted to foreman since 1965 was black, that a pool of qualified black employees exist, and that white employees with less qualifications have been, promoted to foreman positions presents a prima facie case of recial discrimination that has not been rebutted by the Company.
Id. at 368.
And in Russell v. American Tobacco Co., supra, 5 EPD P8447, 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:
In the instant case, the figures from the Leaf operation can hardly be surpassed. Of 63 white employees in Leaf (60 regular, 3 seasonal), 27 are foremen. Only 23 regular white employees are not supervisors. Therefore, 45 per cent of all regular whites are supervisors. In considering the same figures for blacks, there are 3 supervisors (76 regular, 124 seasonal). Out of 76 blacks, 3 are supervisors. Even figuring it out to one decimal point, only 3.9 per cent of the regular blacks are supervisors. There figures would chafed the conscience of this Court, even if objective criteria were fully in use, which has not been demonstrated. This lack of objective guldelines and written criteria are some indicia of discrimination. 5 EPD P8447 at 7191-92.
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 hranted 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
Collectively these cases conclusively establish that the applicable test is not merely whether there exists a business purpose for adhering to a challenged practice. The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with lesser differential racial impact.
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.