'although the statistics do not establish a prima facie case of discrimination, . . . absent explanatory evidence in testimony, the statistics indicated that officials have impliedly equated job qualifications with race.'
How later courts described this case
- 'although the statistics do not establish a prima facie case of discrimination, . . . absent explanatory evidence in testimony, the statistics indicated that officials have impliedly equated job qualifications with race.'
- evidence of agreements made in the 1930s should have been considered
- posting of job vacancies and job qualification requirements
- “[P]roof of subjective intent to discriminate is unnecessary; the Government must show only that the defendant intended to perform the discriminatory act.”
Written by the judges who cited it.
The opinion
COLEMAN, Circuit Judge
(dissenting).
With all deference for the prodigious labor and the prolonged consideration which went into the production of the majority opinion, I respectfully dissent.
Of course, I do not disagree with all that is said in the opinion. Yet, I see nothing worthwhile to be achieved by further lengthening matters by a prolonged catalog of my agreements and disagreements.
Realizing that the opinion of the Court must ultimately stand or fall on its own merits, I shall touch only upon the “high spots” of my views.
1. The majority, for whom I have the most profound personal and professional respect, has examined every chip in the woodyard for the purpose of demonstrating that the trial findings of fact are clearly erroneous. With deference, it seems to me that the effort results in the substitution of appellate findings for those of the only man with the authority to make them, i. e., the District Judge. I think the findings below are supported by substantial evidence. I definitely do not have the conviction that they are manifestly wrong. Hence, I would not interfere with them.
*461 2. If, however, there are wrongs which are to be corrected, then I am very sorry that this Court, an appellate Court, attempts to assume the function of formulating the remedy by a “model decree”. The remedy should come in the District Court after full and complete hearings, based upon our exposition of the law, in which all hands would have an opportunity to point up advantages or deficiencies affecting the wisdom of the action proposed to be taken. I do not discount the possibility that the parties might, out of their peculiar expert knowledge of the subject, hammer out a consent decree that would be far more effective than that devised by us, far removed, as we are, from the sound of the whistle and the roar of the diesel.
I shudder to consider that by this decision the Fifth Circuit now undertakes to oversee the operation of railroads, railroad terminals, labor unions, and the handling of the United States Mail. That is what is involved in hiring and promoting those who are to do the actual work.
3. I feel that this case should be decided in its true context, which is that we are here concerned with a railroad terminal with a long history of union labor contracts, standardized throughout the Nation. Those contracts cannot be unwritten as to days long gone past. If God cannot change yesterday then we judges can hardly be expected to do it. The majority holds, as I understand it, that there has been no racial discrimination in hiring since the effective date of the Act. The discrimination, they say, is in promotions. Are we going to eliminate that discrimination by destroying the seniority of those who for years, under contract, in good faith worked to earn it? That, to me, is substituting one form of discrimination for another.
4. Assuming that remedial action is needed, I think we should accomplish it by directing the District Judge to enter appropriate injunctive orders after a full hearing and upon mature consideration.
Í respectfully dissent.
ON PETITIONS FOR REHEARING AND PETITIONS FOR REHEARING EN BANC
PER CURIAM:
The Petitions for Rehearing are denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petitions for Rehearing En Banc are denied.