holding in a Title VII disparate impact case that the requirement of a healthy back is so manifestly related to performance of certain employment that employer need not prove “business necessity”
How later courts described this case
- holding in a Title VII disparate impact case that the requirement of a healthy back is so manifestly related to performance of certain employment that employer need not prove “business necessity”
- requirement that manual laborers have good back was so manifestly job related, notwithstanding disparate racial impact, that employer did not need to make evidentiary showing of business necessity
- x-rays of the low back have become routine part of pre-employment physical examination in many occupations, and may form basis for precluding hiring of persons with pre-existing conditions
- employer does not have to justify with evidentiary proof of business necessity the exclusion of any person with a bad back as a laborer
Written by the judges who cited it.
The opinion
GODBOLD, Circuit Judge, with whom WISDOM and GOLDBERG, Circuit Judges,
join, dissenting:
I agree with the approach to the pleadings referred to in Part III(b) of the majority opinion. The pleadings of this plaintiff, read with the liberal interpretation which until now this court has given in Title VII eases, raised an “effect” case under Griggs v. Duke Power Co., 401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971), as well as an “intent” case, that is, whether Olin’s employment practices (with respect to bad back discharges) were discriminatory in operation though fair in form.
The grant of summary judgment for defendant cannot be predicated upon the failure of plaintiff to come forward with facts in support of his “discriminatory effect” claim. Olin’s motion for summary judgment and supporting affidavits simply did not address this claim because in the district court, and in this court on appeal, Olin has viewed the case as only involving intentional discrimination. The uncontested affidavit evidence that Olin did not have a policy of firing persons with sickle cell anemia, did not know Smith had sickle cell anemia when it decided to discharge him, and did not suspect that sickle cell anemia was the cause of his back problem, disposed of discriminatory intent but not of “discrimination in operation.” There was no burden on Smith to come forward with factual matter concerning discriminatory effect since Olin’s documents did not reach this aspect of the case — indeed, as already pointed out, Olin did not even consider it to be an issue.
I turn now from the erroneous procedural ground set out by the majority to the substantive validity of the grant of summary judgment. In every Title VII case where racial discrimination is charged there must be a threshold inquiry into whether the characteristic or quality that is the subject matter of alleged discrimination is race-related. In some instances the relation is obvious, as where an employer says, “I will not hire Negroes.” 1 There are other qualities or characteristics which may be traceable to race but are not self proving, such as would be involved in an employer decision not to hire anyone with coarse hair or not to employ any person with Tay-Sacks disease. 2 In these circumstances the relationship between the characteristic or quality and race must be the subject of proof. Moving even further away from matters that are racial per se, the relation to race may be latent or affected by factors other than physical characteristics. An employer decision “I will not hire anyone living west of the river” is facially neutral, but a black plaintiff living west of the river would be entitled to prove, if he could, that the area is a black ghetto and that the employer’s decision really is racially-related.
In Griggs itself it was necessary to establish that a practice not facially racial actually had a racial impact. It was not apparent that Duke Power’s test requirements and diploma requirements discriminated against blacks. Rather these consequences had to be proved, and the proof consisted of the Supreme Court’s taking judicial notice of its own prior decision. 401 U.S. at 430 , 91 S.Ct. at 853 , 28 L.Ed.2d at 163-64 .
Turning to the present case, the inquiry relates to bad backs, or the absence of good backs. Alone, this facially neutral physical characteristic carries no indicia of race. It is like the requirement of a high school diploma in Griggs or a requirement that one not live west of the river. Whether bad backs are sufficiently related to race by *1290 virtue of the tendency of blacks to sickle cell anemia is a matter of proof. This plaintiff is entitled to his day in court to attempt to prove it. It would be necessary for him to bring forward evidence that sickle cell anemia produces bad backs in a high proportion of blacks and that substantially more blacks than whites were fired for bad backs (however caused). If plaintiff met these two elements of proof, he would make out a prima facie case. Olin would then be required to prove its defense of business necessity.
As an alternative ground of decision, the majority opinion moves to the ultimate question whether a requirement of a “good back” is a business necessity for a manual laborer employed by Olin at this particular plant, and concludes that the requirement is a business necessity. We do not know what work is done by a manual laborer in the pool of such employees at this Olin installation, whether he picks up heavy weights, sweeps floors, picks up trash from the grounds with a spearing stick, or polishes company cars. This court’s ruling is based upon a two-word job description. The only evidence the court has with respect to the duties of persons in this job description at this plant is the tangential evidence that they have been within plaintiff’s capacity to perform satisfactorily. Business necessity is a proper subject for factual inquiry at the trial level, not for appellate hunches reached in the dark.
. Or, in a sex discrimination case, “I will not employ anyone who might become pregnant.’’
. A disease said to be peculiar to Jews.