Mary R. CHRISNER, Plaintiff-Appellee, v. COMPLETE AUTO TRANSIT, INC., Defendant-Appellant

KEITH, Circuit Judge,

concurring in part and dissenting in part.

I join Parts I and III of the court’s decision, but I am unable to join Part II for two reasons: first, the majority misconstrues language in the trial court opinion, and second, the majority applies a legal standard which is contrary to Sixth Circuit precedent.

A.

In Part II, the majority examines the concept of business necessity under Griggs *1264 v. Duke Power, 401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971). Before grappling with this issue, it notes that the trial court below failed to correctly apply both the business necessity and the less discriminatory alternatives concepts — the second and third stages respectively of the Griggs analysis. Nevertheless, the majority concludes at footnote eight of the opinion that “[Tjhe district court specifically found that ‘having a qualified driver at the wheel is certainly a compelling business necessity,' and that but for the availability of a policy with less of a disparate impact, the experience prerequisite was an ‘otherwise neutral and otherwise appropriate company requirement.’ ” In my view, the majority misreads the district court. The relevant portion of the district court opinion reads more fully:

... in terms of this case, I don’t find that there was a compelling business necessity as that term is described in Duke Power and the other cases that would override this otherwise neutral and otherwise appropriate company requirement. In other words, the decision of the company in 1973 was not motivated by consideration of discrimination; it was motivated according to the testimony by two factors, one, the idea that the ... yard employees are required or were required to drive these rigs, these trucks over the public highway and also that the company thought, after some discussion with the union, that it would be appropriate to have a system whereby first, prior, or the — for other jobs could be given to company employees in the first place rather than going out on the street and hiring fresh employees. But that requirement in my judgment did not have disparate effect. It did tend to freeze out the previously excluded ... So there is a disparate impact and that requirement in my opinion does not — is not for a sufficient compelling reason. There were alternatives available to the company. (Emphasis added).

In order to reach the conclusion that the district court made a factual finding of business necessity, the majority interprets the above language as follows: the company’s selection device was “otherwise appropriate” absent the existence of “alternatives available to the company.” This construction takes the phrase “otherwise appropriate” out of context. The sentences which immediately follow the phrase in the text of the district court opinion discuss disparate impact. They do not discuss available alternatives. They do make clear that the trial court sought to convey only that the selection device was “otherwise appropriate” absent its disparate impact upon women. In other words, the trial court merely observed in the opinion that the company’s selection device was neutral on its face and that adoption of the device “was not motivated by consideration of discrimination.” Therefore it is unreasonable for this court to construe the relevant portion of the trial court opinion as meaning anything other than that there was “no compelling business necessity as the term is used in Duke Power.” 1

It follows then that the majority should not have reviewed the merits of the company’s business necessity contention. The majority offers two explanations for its decision to do so: that the district court implicitly found business necessity and, at foot *1265 note eight, that “the failure of the trial judge to couch his findings in the precise language of Griggs does not necessitate a remand.” These explanations do not withstand analysis. First, as I have discussed, a proper reading of the district court opinion reveals that the trial court actually made no such finding of business necessity. Second, we do not have before us the problem of a trial court simply failing to use the precise terminology of Griggs , as was the case in James v. Newspaper Agency Corp., 591 F.2d 579 , 583 (10th Cir. 1978). 2 The terminology point is a red herring. The real reason this court should have remanded the business necessity issue for reconsideration is that the trial court collapsed the second and third stages of the Griggs analysis. Because of this error it is impossible to determine if the district court reasoned properly before making its factual finding as to business necessity.

In a closely analogous situation, the Supreme Court remanded for reconsideration a lower court’s finding of Title VII liability. See Board of Trustees v. Sweeney, 439 U.S. 24 , 99 S.Ct. 295 , 58 L.Ed.2d 216 (1978) (The Court remanded the case because the court of appeals collapsed the second and third stages of the McDonnell Douglas Title VII analysis). Under a Sweeney -like rationale, this court should have remanded the business necessity issue to the trial court for reconsideration. See Grano v. Dept. of Development, 637 F.2d 1073 at 1082 n.8 (6th Cir. 1980); Sweeney v. Board of Trustees of Keene College, 604 F.2d 106 (1st Cir. 1979), cert. denied, 444 U.S. 1045 , 100 S.Ct. 733 , 62 L.Ed.2d 731 (1980); DPOA v. Young, 608 F.2d 671, 692-98 (6th Cir. 1979) (remanding reverse discrimination case where trial court applied an incorrect legal standard as to the constitutional issues). 3 Instead, the majority went on to “affirm” the district court as to this issue because in its view the “finding” of business necessity was not clearly erroneous. 4 The majority thus affirms a finding that was never made.

B.

In further support of its ruling, the majority opines that proof of business necessity does not require a showing that the practice is “absolutely necessary or inherently essential to the operation of the business ... For a practice to be ‘necessary’ ... it need not be the sine qua non of a job performance ...” Going further, the majority endorses an approach taken by the Tenth Circuit in Spurlock v. United Airlines, 475 F.2d 216 (10th Cir. 1972), and concludes that because of “[T]he important public interest in safety on the roads and highways” the company’s hiring requirements were manifestly related to the safe and efficient operation of its business. This analysis of business necessity is contrary to long-established precedent in this circuit.

As the majority correctly observes, the courts of appeals have taken two approaches in providing a description of the *1266 second stage of the Gríggs equation that goes beyond the meaning conveyed by the conclusory phrases “business necessity” and “manifest relationship.” 5 This circuit selected its approach in Head v. Timken Roller Bearing Co., 486 F.2d 870, 879 (6th Cir. 1973), more than a year after the Tenth Circuit rendered its decision in Spurlock. 6 In Timken Roller Bearing Co., Judge Miller wrote for court:

*1267 The test [for business necessity] 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 ... Id. at 879 . (quoting Robinson v. Lorrillard Co., 444 F.2d 791, 798 (4th Cir.), cert. dismissed pursuant to Rule 60, 404 U.S. 1006 , 92 S.Ct. 573 , 30 L.Ed.2d 655 (1971).

This ruling is not an anomaly as the reference to the decision in footnote nine of the majority opinion might suggest. In fact, Timken Roller Bearing Co. has been consistently followed in a long line of subsequent decisions. See, e. g., Horace v. City of Pontiac, 624 F.2d 765 (6th Cir. 1980); Mitchell v. Mid-Continent Spring Co. of Kentucky, 583 F.2d 275 (6th Cir. 1978); Equal Employment Opportunity Commission v. New York Times Broadcasting Service, Inc., 542 F.2d 356 (6th Cir. 1976); Equal Employment Opportunity Commission v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975); Palmer v. General Mills, Inc., 513 F.2d 1040 (6th Cir. 1975); Afro-American Patrolmens League v. Duck, 503 F.2d 294 (6th Cir. 1974). 7 Yet, the majority *1268 chose to ignore well established circuit precedent in order to rule in favor of the company and to endorse the controversial interpretation of business necessity employed in Spurlock 8 I cannot join in this disregard for circuit precedent. The proper standard here is the one recognized in Timken Roller Bearing Co., the narrow construction of the business necessity defense.

As stated in the preceding section of this dissent, I do not think it was appropriate for this court to have decided whether the company made out its business necessity defense. However, since the majority goes on to decide this issue, I am compelled to express my view that the company failed to meet its burden of establishing business necessity under the Timken Roller Bearing Co. or Robinson v. Lorrillard Corp. standard.

The evidence at trial indicated that driving trucks was a very small part of the total activities of the company’s yard employees. Mr. Thompson, vice-president of the company, estimated that at most yard employees spent four percent of their work day utilizing skills developed in over-the-road truck driver training. He also noted that some of the yard employees never drove the trucks; they worked entirely on the release gate. In addition, the evidence clearly indicates that Complete Auto Transit employees can and have performed over-the-road truck driving safely and efficiently without formal schooling or two years experience. Nine out of 16 of the employees hired before 1973 had no such training and yet they have performed the job of yard employee to the company’s satisfaction. The evidence indicates that these employees were adequately prepared for the job of yard employee after undergoing a minimal amount of on-the-job training. 8

9

The most compelling reason for rejecting the company’s business necessity contention, however, is that after the wildcat strike of 1976 the company terminated its experience-school requirement. 10 The com *1269 pany offered absolutely no evidence to explain why the requirement was “necessary” during the four months it was in operation and then apparently unnecessary when the company terminated the requirement. From the evidence presented, it appears that Complete Auto Transit Inc. has operated safely and efficiently without the selection device. Therefore, it is erroneous for the majority to baldly conclude that the company proved that its selection device was so compelled by considerations of safety and efficiency as to override the device’s grossly disparate impact on women. 11 Accordingly, the evidence below, in my view, cannot adequately support a finding of business necessity.

. The trial court did state:

Now certainly it is not the function of the court to suggest or minimize the suggestion that anyone who takes a truck out on the public highway ought to be completely qualified and bear in mind the economic impact of the company as a result of accidents and so forth to the company.

The majority interprets this language in a manner that would undergird its conclusion that the trial court made a finding of business necessity. However, two points are plainly evident concerning the above language: (1) the trial court was speaking in general terms and was not specifically referring to the case before it — in fact, the next sentence in the opinion begins “[Hjowever, in terms of this case ... and (2) the trial court never stated that Complete Auto Transit’s selective device was the kind of criterion it had in mind in order for a driver to be “completely qualified.” If anything, subsequent language in the opinion indicates otherwise. As a result, the language quoted above cannot support the notion that the trial court made a finding of business necessity.

. The majority cited James v. Newspaper Agency Corp., supra, for support of its decision not to remand the business necessity defense issue. In James, the Tenth Circuit held that the district court “substantially followed the guidelines of McDonnell Douglas v. Green ” and “the fact that the trial judge’s findings are not couched in the precise language of McDonnell Douglas, Furnco and Rich does not necessitate a reversal.” 591 F.2d at 579. In the instant case, however, the district court used precise Griggs -type terminology, e. g. “disparate impact,” “business necessity,” etc., in support of its ruling against the company. Therefore, James has no applicability here.

. Moreover, the majority’s decision to review the business necessity issue is inconsistent with its decision to remand the less discriminatory alternatives issue for further consideration. Part III of the majority opinion makes clear that the court remanded the less discriminatory alternatives issue because the district court consolidated the second and third stages of the Griggs equation. It is my view that the business necessity issue should have been handled the same way. The district court should have been ordered to reconsider the business necessity issue, and to reconsider the less discriminatory alternatives issue if it found that the company made out a business necessity defense.

. In an ironic twist, the company, which had the burden on appeal of showing that the district court’s refusal to find business necessity was in clear error, now finds itself the beneficiary of the “clearly erroneous” standard of review by virtue of this court’s misreading of the trial court opinion.

. In Griggs v. Duke Power Co., supra, the Supreme Court held that Title VII prohibits selection “practices that are fair in form, but discriminatory in operation,” the “touchstone” being “business necessity.” 401 U.S. at 431 , 91 S.Ct. at 853 . However, the Court in that case did not establish a judicial standard for determining when specific practices are protected by the business necessity defense, since Duke Power concededly adopted the selection devices at issue “without meaningful study of their relationship to job performance.” Id. at 425-6, 431 , 91 S.Ct. at 851, 853 .

The Supreme Court next addressed the business necessity issue in Albemarle Paper Co. v. Moody, 422 U.S. 405 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975), in which the court held that EEOC Guidelines are entitled to “great deference” in determining whether test score selection practices are manifestly job related. In New York City Transit Authority v. Beazer, 440 U.S. 568 , 99 S.Ct. 1355 , 59 L.Ed.2d 587 (1979), the Court held that the plaintiffs’ statistical showing failed to establish disparate impact. In addition, the Beazer , majority noted in dicta that the selection device bore a “manifest relationship” to the employer’s business goals of safety and efficiency. In neither of the Court’s post- Griggs decisions, was further explication given on the nature of the business necessity defense with respect to the kind of non-scored objective selection criteria employed here by Complete Auto Transit.

Since Griggs the courts of appeals have had the opportunity to further define the business necessity defense. They have taken basically two approaches. A few of the courts have adopted a broad view of business necessity. See, e. g., Spurlock v. United States, supra. A majority of the courts, however, construe the defense narrowly. See, e. g., Kirby v. Colony Furn. Co., 613 F.2d 696 (8th Cir. 1980); Blake v. City of Los Angeles, 595 F.2d 1367, 1377 (9th Cir. 1979) (the business necessity defense is “very narrow”); Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 1374 , 1389 (5th Cir. 1975); Green v. Missouri Pac. R. R., 523 F.2d 1290, 1298 (8th Cir. 1975) (business necessity “connotes an irresistable demand”); United States v. St. Louis-S.F. Ry., 464 F.2d 301 , 308 (8th Cir. 1972) (en banc), cert. denied, 409 U.S. 1116 , 93 S.Ct. 913 , 34 L.Ed.2d 700 (1973); (the test is whether there is “compelling need”); and United States v. Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir. 1971) (“compelling need”). These two approaches are inconsistent, see Note, The Business Necessity Defense to Dispute Impact Liability Under Title VII, 46 U. of Chi.L.Rev. 911, 219 n.48 (1979), and both have their supporters among the commentators. See, e. g., id. at 933^1 (broad view of the defense required by legislative history and correct reading of Supreme Court authority); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination, 71 Mich.L.Rev. 59, 83 (1972); (narrow view of the defense required by legislative history and case law); Jain and Ledvinka, Economic Inequality and the Concept of Employment Discrimination, 26 Lab. L.J. 570 , (1975) (narrow view required by legislative history); and Note, Business Necessity under Title VII: A No Alternative Approach, 84 Yale L.J. 98 , 101-2 (1974) (citing narrow view cases in support of its “no alternative” approach to the defense).

. By listing Timken Roller Bearing Co. at footnote nine as one of the cases requiring an employer to show more than a business purpose in order to make out the business necessity defense, the majority implicitly recognizes that this circuit selected its approach to defining the second stage of the Griggs equation in that decision.

At footnote nine, the majority asserts that adherence to Timken Roller Bearing Co., is no longer in order since such an approach “which compels an employer to prove a business necessity defense by showing that there exist no less discriminatory alternatives is, in essence a two-stage analysis since it renders the third step superfluous.” In my view, the majority improperly goes out of its way to construe Timken Roller Bearing Co. in a manner that would violate Griggs .

I agree that a two-stage disparate impact formula is not in accord with Griggs . However, Head v. Timken Roller Bearing in no way adopted such a formula. This court in Timken Roller Bearing Co. simply adopted the analysis of the Fourth Circuit’s Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), still the leading case in the area. See note 8 infra. In that decision, the Fourth Circuit specifically stated that its strict view of business necessity was commanded by Griggs v. Duke Power Co. See 444 F.2d at 798 n.6. It also stated that “there must be no acceptable alternative policies” available to the employer. The majority seizes upon this statement in order to aver that Lorillard and Timken Roller Bearing Co. misallocate the burdens of proof with respect to less discriminatory alternatives. These decisions, however, did not even address the issue of who has the burden of proving less discriminatory *1267 alternatives, much less compress the Griggs three-part test into a two-part test. In Lorillard, the Fourth Circuit merely listed the following as being required by Griggs : (1) compelling business purpose; (2) the challenged practice must effectively carry out the business purpose; and (3) “there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential racial impact.” 444 F.2d at 798 . There is nothing about this set of considerations per se that would contravene Griggs . It is only when one assumes that the court meant to place the burden on the employer of proving the last issue that the analysis can be read as being inconsistent with Griggs . The majority makes this unwarranted assumption and then casts aside the entire Lorillard analysis. In Timken Roller Bearing Co. we did point out that defendants have the burden of proving business necessity, but there we did not address the issue of who has the burden of proving available alternatives. 486 F.2d at 870 . Thus, it is clear to me that a more reasonable interpretation of Lorillard and Timken Roller Bearing Co. is that the decisions simply require a showing of compelling need and a “close fit” in order for an employer to rebut a prima facie case. Since the decisions failed to discuss the burden of proving less discriminatory alternatives, the logical conclusion is that plaintiffs would have the burden — even under Lorillard and Timken Roller Bearing Co. Under this reading, the decisions are consistent with Griggs and with Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 , 95 S.Ct. 2362, 2375 , 45 L.Ed.2d 280 (1975). This panel should have adopted this reading and applied the Timken Roller Bearing Co. standard here.

In the circuit’s most recent decision in the area, Horace v. City of Pontiac, supra, this court specifically adopted the district court’s invocation of the Loriilard/Timken Roller Bearing Co. standard. Incidently, the court also correctly allocated the burden of proving less discriminatory alternatives in that decision, belying the majority’s point that Loriilard and Timken Roller Bearing Co. are necessarily inconsistent with Griggs. See 624 F.2d at 768-9 . At footnote nine, the majority asserts that there has not been a “litany of faithful adherence to Head.” In fact, however, no decision of this court has heretofore even questioned the validity of Timken Roller Bearing Co. See e. g. Palmer v. General Mills, Inc., supra (“we find that the seniority system provided helpful but not absolutely essential training and experience ... we cannot say that the system does not effectively carry out the alleged business purpose, we consider this conclusion to be of comparatively little significance in this case .. . [A]s for ... available alternatives it does not appear that any proof was offered on this point at trial.) Therefore, the majority’s suggestion — that circuit authority is somehow divided on the issue of whether the test for business necessity is a strict one — is erroneous.

It has been the policy of this circuit that one panel cannot overrule the decision of another panel absent either intervening Supreme Court authority to the contrary or other circumstances which render the precedent clearly wrong. See Timmreck v. United States, 577 F.2d 372 , 377 n.15 (6th Cir. 1978) reversed on other grounds, 441 U.S. 780 , 99 S.Ct. 2085 , 60 L.Ed.2d 634 (1979). Here, the majority departs ■ from this policy by purporting to overrule in a footnote Head v. Timken Roller Bearing Co. It is my hope that both the majority’s disregard for circuit precedent and its misanalysis of the business necessity issue will be regarded as aberrational.

. Other circuits have also found Timken Roller Bearing Co. persuasive authority. See, e. g., Donnell v. General Motors Corp., 576 F.2d 1292 (8th Cir. 1978); Smith v. Olin Chemical Corp., 555 F.2d 1283 (5th Cir. 1977) (en banc).

. See note 5, supra. In Spurlock , the Tenth Circuit held:

“[W]hen a job requires a small amount of skill and training and the consequences of hiring an unqualified applicant are insignificant ... the employer should have a heavy burden to demonstrate ... that ... [the] criteria are job related. On the other hand, when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are job related. 475 F.2d at 219 .

The majority cites the recent Fourth Circuit en banc decision in Burwell v. Eastern Airlines, 633 F.2d 361 (4th Cir. 1980) apparently as a case following the Spurlock rationale. In Bur-well, the court did hold that the airline’s interest in maintaining passenger safety was relevant to a determination of business necessity. However, the court made clear in its per cu-riam opinion that the test for business necessity “is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business.” Id. at 371. At Note 11, the court specifically stated that “[T]he criteria for establishing the defense has been no where better stated than in Robinson v. Lorillard.” (citations omitted). Therefore, contrary to what the majority suggests, it is evident that the Fourth Circuit continues to narrowly construe the business necessity defense. It does not endorse the Tenth Circuit’s sliding scale approach to the allocation of burdens under the defense.

. In addition, Appellee Mary Chrisner satisfactorily worked as a yard employee during the 1976 wildcat strike. At the time she met neither prong of the company’s selections requirements.

. Although the company instituted the experience-school requirement in 1973, it hired no yard employees until April 29, 1976. Four months later, the company dropped the requirement during a wildcat strike. This requirement was never reinstituted.

At trial, the company alleged that adoption of the experience-school requirement was motivated by the need for yard employees to transport trucks to an overflow lot. This task required a short drive over the public highway. The company, however, never explained why the experience-school requirement was not necessary after 1976. Apparently, the task of transporting trucks to the overflow lot remained a small part of yard employee responsibility, but after the strike, the company began accepting applicants who had only a chauffeur’s license and a physical examination. Therefore, in the absence of rebutting evidence I would think the logical conclusion is that the experience-school requirement was not “necessary” before the strike either.

*1269 The majority states: “The performance of this task in a satisfactory manner requires a certain degree of skill in operating the tractor-trailers. The company’s goal of transporting its freight in a safe and efficient manner is significantly served by hiring experienced truck drivers. An individual who possesses experience in driving large, unwieldly vehicles is obviously a more rational choice for the job than a person who has not demonstrated ability to drive such vehicles.” These observations, however, are not sufficient to support a finding of business necessity in this case. The company never introduced evidence validating the experience-school requirement as an appropriate measure of the “degree of skill” needed to operate the trucks in a satisfactory over-the-road manner. The majority engages in troublesome appellate factfinding when it states that an applicant who meets the criteria is “obviously a more rational choice for the job” than a person who does not meet them. This kind of speculation is inappropriate, particularly in view of the fact that the company no longer subscribes to the policy.

. Even if Spurlock v. United Airlines, supra, did provide the applicable standard for this circuit, which it clearly does not, the majority was still incorrect in finding that Complete Auto Transit made a showing of business necessity below. It is not enough to state that safety on the roads is an important public interest. That is certainly true. But under Griggs , the company has the burden of proving that the selection device was manifestly related to the protection of the public interest. In other words, an employer must validate a selection device, even under Spurlock , by introducing evidence which demonstrates that without the selection device the public would be harmed. Complete Auto Transit made no such showing here. Indeed, the company on its own apparently concluded after the wildcat strike that the public interest was adequately served by selecting yard employees who possessed only a chauffeur’s license and who had been given a physical examination.