The opinion
HATCHETT, Circuit Judge,
concurring in part and dissenting in part:
I concur in the majority’s opinion except that portion which holds that two of the discriminatees are not entitled to any relief. My disagreement is based on binding precedent of this circuit and a clear directive from the Supreme Court.
In Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir.1974), we discussed the rationale behind backpay and Title VII relief. We stated:
Under Title VII and section 1981 the injured workers must be restored to the economic position in which they would have been but for the discrimination— their ‘rightful place.’ Because of the compensatory nature of a back pay award and because of the ‘rightful place’ theory, adopted by the courts, and of the strong congressional policy, embodied in Title VII, for remedying employment discrimination, the scope of a court’s discretion to deny back pay is narrow. Once a court has determined that a plaintiff or complaining class has sustained economic loss from a discriminatory employment practice, back pay should normally be awarded unless special circumstances are present. [Emphasis in original.]
The district court’s reasons for denying back pay must be examined for the evidence of ‘special circumstances.’ ... Whether black workers were economically injured by unlawful discrimination and require a back pay award [or other relief] to make them whole is the issue. [Citations and footnotes omitted.]
Pettway at 252-53 .
We further explained:
From the employer’s viewpoint back pay may be a punishment. But just as the National Labor Relations Act, Title VII was written to protect the employee. Not only has the company violated a strong public policy against racial discrimination here, but it has substantially injured this class of black workers. ‘As between the obviously innocent discriminates and the employer who may have some equities on his side [good faith], it seems fairer to require the employer with his usually superior resources to bear the loss. This generous approach with an emphasis on compensation of the employee is found in the NLRA cases and in several noteworthy Title VII decisions.’ [Citations omitted.] [Emphasis added.]
Pettway at 252 n. 120.
We enumerated reasons for denying backpay awards: “(1) the unsettled nature of the law concerning a particular practice; (2) the good faith of an employer; (3) a state statute conflicting with Title VII; (4) and impossibility of determining the period for which back pay is to be awarded.” Pettway at 253 n. 122 (citations omitted). See Albemarle Paper Co. v. Moody, 422 U.S. 405, 421-22 , 95 S.Ct. 2362, 2373-74 , 45 L.Ed.2d 280 (1975).
Where are the special circumstances required by Pettway? This employer did not act in good faith; it intentionally practiced discrimination for a long time involving hundreds of its employees. The majority is required to follow precedent; it has not done so as to this issue.
In Teamsters v. United States, 431 U.S. 324 , 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977), the Supreme Court explained:
*1572 [A]s is typical of Title VII pattern-or-practice suits, the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial. The employer cannot, therefore, claim that there is no reason to believe that its individual employment decisions were discriminatorily based; it has already been shown to have maintained a policy of discriminatory decision making.
The [class] need only show that an alleged individual discriminatee unsuccessfully applied for a job and therefore was a potential victim of proved discrimination. ... [T]he burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. [Emphasis added] [footnote and citation omitted].
Teamsters at 361-62 , 97 S.Ct. at 1868 .
What are the “lawful reasons” demonstrated by the employer? The fact that another member of the class is more qualified for the same positions can never be a “lawful reason” upon which to base a denial of Title VII relief. Not a single case from our circuit or the Supreme Court supports this rationale for denying Title VII relief. Under the majority’s opinion, a hypothetical employer may assert that one of two discriminatees is better qualified than the other, and deny the other discrimi-natee any relief at all. It is too late in the day for the majority to undermine the rationale of class actions and render Title VII lawsuits exercises in futility.