Petition — Hill v. Western Electric Co.
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Supreme Court, U, ec] |
FILED
AUG 27 1979
IN THE
Supreme Court of the United States
OcToBER TERM, 1979
N° “99-314
OLLIE T. Hit, et al., Petitioners,
Ws
WESTERN Exectric Co., Inc., Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
a
Pau. S. REICHLER
JEFFREY A. BurT
JAMES A. BEAT
ARNOLD & PORTER
1229 Nineteenth St., N.W.
Washington, D.C. 20036
Of Counsel:
Ricuarp T. Seymour G@20FFREY Jupp VirT
Linpa F. THOME CaPLIN & DRYSDALE
1101 Seventeenth St., N.W.
LAWYERS’ COMMITTEE :
For Crvi. RicHTS Washington, D.C. 20036
Unpber Law Attorneys for Petitioners
733 Fifteenth St., N.W.
Washington, D.C. 20005
ee ae a
Press ce Syron S. ADAMS PRINTING, INC., W isHINGTON, D. C.
wis AO am? oh atte a's eins SAS
ee Ee a Se eo
Se i ee ee
Page
Ne Cea hk pads acnesanes 1
ee daa vadadaeseneakesewn 2
I IID, wines ccccccesceeusssvcucsses 2
STATUTES AND RULE INVOLVED ........0c0cccccccvess 3
STATEMENT OF THE CASE .......cccccccccccccccccces 3
ReaSONS FOR GRANTING THE WRIT .............20000- 7
I. The Lower Court’s Adoption of Per Se Rules
Requiring That Rejected Employment Appli-
eants Be Stripped of the Relief They Had Re-
ceived in the Trial Court Against Hiring Dis-
crimination Misconstrues the Decisions of This
Court, Is in Conflict with the Decisions of Other
Circuits, and Frustrates the Intent of Congress 7
A. The Decision Below Misconstrues and Con-
tradicts This Court’s Decision in Fast Texas
Motor Freight System, Inc. v. Rodriguez .. 9
B. The Decision Below as to the Effect of East
Texas Motor Freight System, Inc. v. Rod-
riguez Is in Conflict with Decisions of Other
eis cub Ne kse 6505s sod ee aes 11
C. The Lower Court’s Decision Frustrates the
Intent of Congress That Class Action Treat-
ment Be Freely Available in Title VII Law-
ee oh ebay sc kawdhsesevnnsenes 13
II. The Lower Court’s Decision That the Claims of
a Certified Class Must Be Dismissed If a Named
Plaintiff Does Not Prevail on the Merits of His
or Her Individual Claim Is Contrary to the
Decisions of This Court and Creates a Conflict
ccc checaceeabacnces 14
ii Index Continued
Page
Ill. The Decision Below, Reversing the District
Court’s Findings of Discrimination in Promo-
tion, in the Words of the Dissenting Judge,
“Reflects a Fundamental Misconception Re-
garding the Proper Order and Nature of
Proof” and It Conflicts with Principles Re-
peatedly Set Forth by This Court and Deci-
sions of the Fifth, Sixth, Seventh, Eighth,
Ninth, amG Temth Ciregits..cvscicscccvescses 1¢€
A. The Decision Below Conflicts with the De-
Sees Ge Tek. CINE nav cesa vu 0ceawicns 18
B. The Decision Below Conflicts with Decisions
os nnd bis Nowe bhokebaes 22
IV. The Decision Below, Reversing the District
Court’s Findings of Discrimination in Promo-
tion, Conflicts with Decisions of This Court
Holding That the Factual Findings of a Dis-
trict Court Must Not Be Disturbed Unless They
BEG TRUET TOOOED oc vce hcedccversvcses 24
IE Go vc uads Gu vwsicncehes OSA ds oe cue uAey 27
APPENDIX
Court of Appeals Decision ............cee00. la
SatTaee COURS THPOMMIOE occ cece cecesvewesss 27a
District Court Findings of Fact ............. 45a
District Court Decree, as Amended .......... 88a
Statutes and Rule Involved ................ 106a
Bic.
OO a eOWmr
TABLE OF AUTHORITIES ili
CasEs: Page
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .. 19
Arnett v. American National Red Cross, 78 F.R.D. 73
EE SE rae and aenala ens eed ae 6 0s6 6 an 13
Baxter v. Savannah Sugar Refining Corp., 495 F.2d
437 (5th Cir. 1974), cert. denied, 419 U.S. 1033
EC. ae reas ee eee 22
Beasley v. Griffen, 81 F.R.D. 114 (D. Mass. 1979) .... 13
Brown v. J.P. Allen Co., 79 F.R.D. 32 (N.D. Ga. 1978) 13
Califano v. Yamasaki, 99 S. Ct. 2545 (1979) ........ 10
Carpenter v. Herschede Hall Clock Division, 77 F.R.D.
Pe Ces I NEE oh oss sedecsanacaveecaes¥s 13
Donaldson v. Pillsbury Co., 554 F.2d 825 (8th Cir.
1977), cert. dented, 434 U.S. 856 (1978) ........ 12, 16
Dothard v. Rawlinson, 433 U.S. 321 (1977) .......... 19
Duncan v. State of Tennessee, 19 E.P.D. J 9087 (M.D.
SE oa eens coor eV aWeua ik kas acoeoans 13
East Texas Motor Freight System, Inc. v. Rodriguez,
ge Es eee 2, 7, 9, 10, 15-16
Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) .. 15
Furnco Construction Corp. v. Waters, 438 U.S. 567
RR apne BAER SEE at: ARIS a ooh ee eae 20
Gladstone, Realtors v. Village of Bellwood, 99 S. Ct.
i a ie ee kk dine eek ERT A Sk a8 8 13
Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C.
ee eae C en adukk din bbaeeeenheewas 12
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ...... 19, 21
Hazelwood School District v. United States, 433 U.S.
Se ection chcbakee bus eeueedekeket aks 26, 27
International Brotherhood of Teamsters v. United
oR Es er ee 19, 20
James v. Stockham Valves & Fittings Co., 559 F.2d
310 (5th Cir. 1977), cert. denied, 434 U.S. 1034
SEE gakk Cage 0is bas dkee enn tees iabkeieavas 23, 24
iv Table of Authorities Continued
Page
Kaplan v. IATSE, 525 F.2d 1354 (9th Cir. 1975) ..... 22
Long v. Sapp, 502 F.2d 34 (5th Cir. 1974) ........... 11
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1998). 00000006005 5 eee nnn 20, 21
Muller v. United States Steel Corp., 509 F.2d 923 (10th
Cir.), cert. dented, 423 U.S. 825 (1975) .......... 22
Parson v. Kaiser Aluminum ¢& Chemical Corp., 575 F.
2d 1374 (5th Cir. 1978), cert. denied, 99 S.Ct. 2417
(1979)... .ucccenetcdeun eae eennnnenee 21, 23, 24
Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir.),
cert. denied, 414 U.S. 854 (1973) ...........6..
Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.
i) ene re eee
Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir.
1978), petition for cert. filed, 74 U.S.L.W. 3513
(Dee. 21, 1978) (No. TE-20QB) ...ccccccssccness 12, 16
Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.
1976), cert. denied, 429 U.S. 870 (1976) ........
Sosna v. Iowa, 419 U.S. 393 (1975) ........ eee eee 12,15
Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th
Cir. 1972) .....00s<0000ne eeu enue eee es
Stewart v. General Motors rh 542 F.2d 445 (7th
Cir. 1976), cert. denied, 433 U.S. 919 (1977) ....23, 24
Swint v. Pullman-Standard, 539 F.2d 77 (5th Cir. 1976) 23
Trafficante v. Metropolitan Life Insurance Co., 409 U.S.
20G (1978) ....ccnvecessesneen abe nee ep naneas 12
United States v. Hayes International Corp., 456 F.2d
112 (Sth Civ. 190%) ...0s0c00eneuneaeueea sees 22
United States v. N.L. Industries, Inc., 479 F.2d 354
(Sth Cir. 1973) ...ccaucsaceecdenusu a eeeeneeee 24
United States Fidelity & Guaranty Co. v. Lord, 585
F.2d 860 (8th Cir. 1978), cert. denied, 99 S. Ct. 1228
(1999) ....ccccccnscccuseeua seme nnnnnEEEEES 12
CC _E————
Table of Authorities Continued Vv
Page
United Steelworkers of America v. Weber, 99 S. Ct.
Se MAP ee ee 21
Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir.
1976), cert. denied, 429 U.S. 861 (1976) ......... 23
Zenith Radio Corp. v. Hazeltine, 395 U.S. 100 (1969) .. 26
ConsTITUTIONAL Provisions, StaTuTESs AND RuLEs:
I I I in nc oon cae dusccussssevcceva 9
ee 3
Equal Employment Opportunity Act of 1972, Pub. L.
ee I MO PO, UE an ve cna seuccccucicese 13-14
OTHER AUTHORITIES:
Subcommittee on Labor, Senate Committee on Labor
& Public Welfare, Legislative History of the Equal
Employment Opportunity Act of 1972 .......... 14
IN THE
Supreme Court of the United States
OcToBER TERM, 1979
No.
OLLIE T. HILL, et al., Petitioners,
V.
WESTERN ELeEctRIC Co., INc., Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioners pray that a writ of certiorari issue to re-
view the judgment of a divided panel of the United
States Court of Appeals for the Fourth Circuit entered
in this case on April 6, 1979.
OPINIONS BELOW
The opinion of the court of appeals is reported at 596
F.2d 99 and is reproduced in the Appendix at pp.
la-25a.
The opinion of the district court on liability is not
officially reported. It is unofficially reported at 12 Fair
Employment Practice Cases (‘‘FEP Cases’’) 1175.
The opinion is reproduced in the Appendix at pp. 27a-
44a.
2
Also reproduced in the Appendix are the findings of
fact adopted by the district court (App. 44a-87a ) and
the district court’s decree, as amended. App. 88a-105a.
The findings of fact have not been reported. The
original October 21, 1976 decree, but not the November
2, 1976 order amending the decree, is unofficially re-
ported at 13 FEP Cases 1157.
JURISDICTION
The decision of the court of appeals was entered on
April 6, 1979. App. la. The court of appeals denied pe-
titioners’ petition for rehearing and suggestion for re-
hearing en banc on May 29, 1979. App. 26a. J urisdic-
tion is invoked under 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
Whether this Court’s decision in Hast Texas Motor
Freight System, Inc. v. Rodriguez, 431 U.S. 395
(1977), mandates a per se rule that employee-plaintiffs
in an employment discrimination suit may not under
any circumstances represent rejected applicants for
employment and seek relief on their behalf, even when
the district court has found such representation to be
appropriate and has awarded full and complete relief
to applicants discriminatorily denied employment ?
Whether the claims of a certified class must be dis-
missed if a named plaintiff does not prevail on the
merits of his or her individual claim?
Whether plaintiffs in employment discrimination liti-
gation, in order to make out a prima facie case, must
earry the burden of proving what are appropriate and
job-related selection criteria, even though the employ-
er’s failure to use any discernible criteria has resulted
in a proven adverse impact on blacks and females?
on wi
3
Whether, in light of the ‘‘clearly erroneous” stand-
ard of review, a court of appeals may base its decision
on factual assumptions which are contradicted by the
findings of the district court, the stipulations of the
parties, and the overwhelming weight of th .
of record in the case? aoe —
STATUTES AND RULE INVOLVED
The relevant provisions of Title VII of ivi
Rights Act of 1964, as amended by the gual Beapiey.
ment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq
and of Federal Rule of Civil Procedure 52(a) are re-
produced in the Appendix at 106a.
STATEMENT OF THE CASE
The petitioners are black and female employees or
former employees of the Arlington, Virginia facility of
the Western Electric Company (‘*Western’’). Follow-
ing exhaustion of the administrative prerequisites to
suit under Title VII, this case was filed as a class action
under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and Section 1 of the Civil Rights
Act of 1866, 42 U.S.C. § 1981, on May 14, 1975. On
November 21, 1975, the district court certified the case
as a class action and determined that the class should
consist of:
All black persons and all female persons wh
have been, or will be employed by Defendant “ De.
fendant’s. facility in Arlington, Virginia, at any
time since July 2, 1965; and all black persons and
all female persons who have applied for employ-
ra at gc gh Pe cays in Arlington, Vir-
, Since July 2, , or who will
ia hereafter ap-
4
The case was tried to the Honorable Albert V. Bryan,
Jr., United States District Judge for the Eastern Dis-
trict of Virginia on February 17-19, 1976. The trial rec-
ord includes the testimony, either in court or by deposi-
tion, of 27 witnesses (including 7 experts), and more
than 10,000 pages of exhibits. On April 30, 1976, the
district court entered, in the words of Judge Lay’s dis-
senting opinion below, ‘‘an exhaustive and analytical
opinion,’”’ (App. 21a), adopted findings of fact, and
directed the parties to present draft decrees. App.
27a-44a. The court entered its decree on October 21,
1976, and adopted amendments to that decree by order
dated November 2, 1976.
The district court found that Western has discrimi-
nated against blacks and females in (i) hiring, (ii) job
assignments, (iii) promotions from hourly rated to sal-
aried jobs, and (iv) promotions from nonsupervisory
to supervisory jobs.
With respect to hiring, the stipulations of the parties
established gross disparities in hiring percentages for
blacks compared to whites and for males compared to
females.’ Based on the evidence of record, the district
1 a. Western hired only 12.7% of the black applicants for un-
skilled, entry-level service center jobs as compared to 29.8%
of the white applicants ;
b. Western hired only 17.9% of the black applicants for
unskilled entry-level installer jobs as compared to 45.1% of
the white applicants ;
c. Western hired only 16.9% of the female applicants for
unskilled entry-level service center jobs as compared to 26.8%
of the male applicants;
d. Western never hired a female for an unskilled entry-level
installer job. App. 31la-32a.
The district court found that these statistics
demonstrate that black applicants have been rejected at a far
higher rate than white applicants, and that female applicants
have been rejected at a far higher rate than male applicants.
. . . Consequently, Defendant’s hiring practices have had an
adverse impact on blacks and females. App. 49a.
4)
court further made findings as to how those statistical
disparities resulted from Western’s hiring practices.’
With respect to promotions from hourly rated to
salaried jobs, the statistics revealed that since July 2,
1965 only 9.8% of those promoted were black although
26.4% of those available for promotion were black, and
only 11.9% of those promoted were female although
18.8% of those available for promotion were female.
App. 69a, 7la. The district court found Western’s pro-
motion procedure to be standardless, vague and sub-
jective, and reliant on the decisions of white male
supervisors. App. 72a-73a.°
The statistics with respect to promotions from non-
supervisory to supervisory jobs since July 2, 1965 re-
7“*The adverse impact of Defendant’s hiring practices on blacks
is caused by: (a) the personal interviews which Defendant requires
each applicant to undergo . . . (b) Defendant’s use of high school
education as a criterion in hiring . . . and (c) Defendant’s use of
an applicant’s scores on the pre-employment ‘Installer’s Test
Battery’ as [a criterion] in hiring. . . . The adverse impact of
Defendant’s hiring practices on females is caused by: (a) the per-
sonal interview .. . and (b) Defendant’s policy of excluding
“amales from employment as installers.’’ App. 49a.
* The stipulations and findings established that:
_a. The section chief’s recommendation is the indispensable
single most important factor in the promotion process .. . the
employee is not permitted to apply for promotion or recom-
mend himself or herself for promotion.
_ b. Section chiefs are given no written instructions pertain-
ing to the qualifications necessary for promotion; they are
given nothing in writing telling them what qualities to look
for in making this recommendation.
c. The standards for promotion, which are, in practice, ap-
plied by section chiefs, are vague and subjective.
d. Vacancies . . . are not posted, announced or generally
publicized.
e. There are no safeguards in the promotion procedure
a to avert discriminatory practices. App. 39a-40a, 71a-
a.
6
vealed even greater disparities. The district court
again held that these statistics resulted from the sub-
jective and uncontrolled nature of the selection process
for supervisors.°
The remedial decree entered by the district court
(1) enjoined Western from engaging in any of the
specific practices which the court found to be diserimi-
natory; (2) ordered the company to ‘‘make whole
identifiable victims of past discriminatory practices by
according them, where appropriate, back pay, front
pay or priority consideration in filling future job open-
ings; and (3) imposed temporary preferential quotas
for hiring and promoting blacks and females in order
to eradicate the lingering effects of Western’s past dis-
criminatory practices.
The court of appeals’ decision held that petitioners,
all present or former employees of Western, could not
represent rejected applicants for employment, even
though applicants had been certified as members of the
elass before trial, the class issues affecting rejected
¢ a. Only 2.8% of the nonsupervisory employees promoted to
ade edaues jobs were black, even though blacks
comprised as much as 23% of the work force from which such
promotions were made during this period and no females were
promoted to these supervisory jobs. App. 74a.
b. Only 8.9% of the nonsupervisory employees promoted to
service center supervisory jobs were black and only 5.4% were
female, even though blacks constituted as much as 26% and
females 27% of the work force from which such promotions
were made during this period. App. 75a.
6 The process [for promotion to a supervisory job] is basically
informal and non-structured. There are no written guidelines
for evaluating potential supervisory personnel and the pro-
motion decision is based upon the subjective evaluations of
supervisors. The process is secret—vacancies are not posted
and no one is allowed to ‘‘apply’’ for a job. App. 76a, 77a.
ne Letiathis dependable: Habs jut 6 eet eee
7
applicants had been fully tried, and the district court
had awarded full relief to black and female applicants
who had been discriminatorily denied employment.
The court held that its ruling was required by this
Court’s decision in East Texas Motor Freight System,
Inc. v. Rodriguez, 431 U.S. 395 (1977).
Although the court of appeals affirmed the district
court’s finding of discrimination in job assignments,
it reversed the findings of discrimination in promo-
tions both from hourly rated to salaried jobs and from
nonsupervisory to supervisory jobs. In response to
petitioners’ proof that Western had no standards or
criteria for promotions, and that the lack of standards
and criteria resulted in disproportionately low rates of
promotion for blacks and females, the court of appeals
held that petitioners would have to prove what appro-
priate job-related standards and criteria would be
‘based upon experience or a combination of skill, expe-
rience and job performance or any other criteria
which an employer might find relevant to decisions
about promotions.”’’
REASONS FOR GRANTING THE WRIT
I, The Lower Court's Adoption of Per Se Rules Requiring That
Rejected Employment Applicants Be Stripped of the Relief
They Had Received in the Trial Court Against Hiring Discrimi-
nation Misconstrues the Decisions of This Court, Is in Conflict
with the Decisions of Other Circuits, and Frustrates the Intent
of Congress
The lower court’s decision seriously restricts the
availability of class treatment under Title VII of the
Civil Rights Act of 1964, and does so in a manner
which misconstrues and conflicts with the decisions of
this Court, conflicts with the decisions of other cir-
cuits, and frustrates the clear intent of Congress. The
8
crux of the problem is the lower court’s abdication of
accepted principles of judicial discretion in favor of
per se rules to be applied without regard to the facts of
each case.
The facts of the case at bar illustrate the anomalies
of the lower court’s reflexive approach to Rule 23
determinations. Since November 21, 1975, the six peti-
tioners had represented a certified class that included
black and female applicants and employees at West-
ern’s facility in Arlington, Virginia. The petitioners
were all present or former employees of that facility;
one petitioner had been an unsuccessful applicant for
one job more than two weeks before she was hired for
a different job which was less desirable to her.’ The
elass action was tried in early 1976, including the issues
affecting rejected applicants, and petitioners prevailed
in the district court on every one of the hiring issues
raised in the complaint. App. 29a-37a. The district
court awarded full relief on each of these issues. App.
88a-105a.
The evidence at trial complemented the record con-
sidered by the trial court in certifying the class to in-
clude applicants, and confirmed the strength of the
nexus between the claims of employees and those of
applicants: both sets of claims arose from the em-
ployer’s practice of relying on standardless and uncon-
trolled subjective discretion in making personnel de-
cisions, and the result of the employer’s reliance on
such standardless subjective discretion was that blacks
and women were substantially disfavored in both hir-
ing and promotion. App. 39a, 49a, 52a-55a, 71a-73a,
76a-77a. Moreover, employees frequently sought pro-
motion to jobs which could also be filled by hire, and
® See the discussion at 14-15, infra.
9
thus competed with applicants. The trial court found
that some of these jobs had traditionally been reserved
for whites or for males (App. 3la-32a, 57a-58a, 61a-
66a, 74a), and black or female employees obviously
have the same interest as black or female applicants in
challenging both the company’s reliance on subjective
discretion in filling the jobs and its reservation of jobs
for whites or males.’ In short, the evidence showed that
there was a strong nexus between the claims of appli-
cants and those of employees.
Neither in the trial court nor in the court of appeals
was any contention raised that the named plaintiffs
had failed to meet the Rule 23(a) (4) requirement that
they ‘‘fairly and adequately protect the interests of
the class.’’
A. poe Decision Below Misconstrues and Contradicts This
urt’s Decision in East Texas Motor Freight
rag la teight System, Inc.
The court below held that applicants had to be ex-
cluded from the class, and the relief awarded to them
vacated, on the ground that this Court’s decision in
East Texas Motor Freight System, Inc. v. Rodriguez
431 US. 395 (1977), forbade rejected applicants from
ever being represented by employee-plaintiffs, App.
3a-4a. The court of appeals also held that Rodriguez
prohibits Title VII plaintiffs from representing a class
which includes applicants or employees at different
7 One of the female petitioners had unsu
ecessfully sought trans-
fers to various departments which filled their venaase We either
+ rege or hire, The district court found that women were excluded
rom these departments by, inter alia, reliance on uncontrolled
re oa discretion by white male supervisors. App. 52a-54a. The
ing that women had been excluded was affirmed
of appeals. App. 6a-7a. aaa
10
facilities of the same employer, unless the facilities are
immediately contiguous. App. 4a-6a.* Otherwise, the
class representatives would not meet the Rodriguez
requirement that they ‘‘possess the same interests and
suffer the same injury’’ as the class members they seek
to represent. App. 3a-4a.
The thrust of Rodriguez was exactly the opposite—
to require an inquiry into the Rule 23 questions of
nexus and of adequacy of representation, not to for-
bid such an inquiry by the adoption of a mechanical
per se rule. ‘‘[C]areful attention to the requirements
of Fed. Rule Civ. Proc. 23 remains . . . indispensable.’’
431 U.S. at 405.
Nor are the facts of Rodriguez so similar to the facts
of the case at bar as to require the per se rule adopted
below. In Rodriguez, the plaintiffs had demonstrated
their inadequacy as class representatives by failing to
protect the interests of the class: they neither moved
for class certification prior to trial, nor sought to have
the class claims tried; they concentrated throughout
the litigation on their individual claims to the detri-
ment of the class claims, and a large part of the class
had voted to oppose the relief sought by plaintiffs.
Here, the plaintiffs timely requested and received class
certification, tried the class claims in advance of their
individual claims,’ prevailed on the merits of the class
®* This aspect of the court of appeals decision squarely conflicts
with this Court’s holding in Califano v. Yamasaki, 99 S. Ct. 2545
(1979), that even nationwide class treatment may be appropriate
under Rule 23.
® The trial court reserved the personal claims of the petitioners
and of class members for subsequent determination by a Special
Master. App. 88a-89a.
11
claims, and obtained full relief for the class on those
claims. No member of the class opposed any part of
the relief requested.
In Rodriguez, the plaintiffs had stipulated that they
had not been discriminated against with respect to
their original hire; here, petitioner Marable has a
claim of hiring and initial assignment discrimination.
In Rodriguez, the claims of the named plaintiffs had
been proven to be without merit prior to the certifica-
tion of the class on appeal; here, class certification was
entered prior to the trial and prior to any indication
of any infirmity in the claim of any petitioner.’® In
Rodriguez, no effort was made to prove a nexus be-
tween the claims of the plaintiffs and those of the
class, and the union vote tended to show a lack of nexus.
Here, the strong nexus shown has been rendered irrele-
vant by the adoption of the per se rule.
The lower court’s construction of Rodriguez is di-
vorced from the facts of that case, and is based upon
nothing more than its abstract interpretation of the
phrase ‘‘possess the same interest and suffer the same
injury” which it took out of context from the decision
in that case. Petitioners respectfully submit that the
decision of the lower court is a serious misinterpreta-
tion of Rodriguez.
B. The Decision Below as to the Effect of East Texas Motor
Freight System, Inc. v. Rodriguez Is in Conflict with Deci-
sions of Other Circuits
The Fifth Circuit held in 1974 that a former em-
ployee could represent a class which included unsuc-
cessful applicants. Long v. Sapp, 502 F.2d 34, 43 (5th
1° See the discussion infra at 14-16.
12
Cir. 1974). Reconsidering the issue after Rodriguez,
the Fifth Circuit reaffirmed Long en banc. Satterwhite
v. City of Greenville, 578 F.2d 987, 993-94 n.8 (5th Cir.
1978), petition for cert. filed, 74 U.S.L.W. 3513 (Dee.
21, 1978) (No. 78-1008). Contrary to the decision be-
low, the Fifth Circuit recognized that this Court’s de-
cision in Rodriguez rested on the factual determina-
tion that the class representatives had failed to meet
the Rule 23 requirements, and held that the controlling
question under Rule 23 continues to be whether a plain-
tiff has a “ ‘sufficient homogeneity of interests’ with
the class to represent it.’ 578 F.2d at 992, quoting
Sosna v. Iowa, 419 U.S. 293, 403 n.13 (1975).
Both before and after this Court’s decision in Rod-
riguez, the Eighth Circuit has held that present or for-
mer employees may in an appropriate Title VII case
represent the interests of applicants in challenging
hiring discrimination. Reed v. Arlington Hotel Co.,
476 F.2d 721, 722-24 (8th Cir. 1973), cert. denied, 414
U.S. 854 (1973) ; Donaldson v. Pillsbury Co., 554 F.2d
825, 827, 831-32 (8th Cir. 1977), cert. denied, 434 U.S.
856 (1978); United States Fidelity & Guaranty Co. v.
Lord, 585 F.2d 860, 862, 865 (8th Cir. 1978), cert. de-
nied, 99 S. Ct. 1228 (1979) (holding that, although the
class representatives were present or former employees,
the certification of a nationwide class of applicants and
employees was a lawful exercise of discretion and not
to be overturned by mandamus).
The D.C. Cireuit also has held that employees have
standing in a Title VII case to represent rejected ap-
plicants and to challenge discrimination in hiring.
Gray v. Greyhound Lines, East, 545 F.2d 169, 176
(D.C. Cir. 1976). Its decision was based upon the stand-
ing decision of this Court in Trafficante v. Metropolitan
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13
Itfe Insurance Co., 409 U.S. 205 (1972). a decision re-
affirmed last Term in Gladstone, Realtors v. Village of
Bellwood, 99 8. Ct. 1601 (1979).
The decision below thus misconstrues the decision
of this Court in Rodriguez, and is in conflict with the
decisions of the Fifth, Eighth, and D.C. Circuits. The
question of the proper interpretation to be given Rod-
riguez has substantially divided the district courts,”
and, unless clarified by this Court, may result—as here
—in an enormous waste both of judicial resources and
of the limited resources available for private Title VII
enforcement.
C. The Lower Court's Decision Frustrates the Intent of Con-
gress That Class Action Treatment Be Freely Available in
Title VII Lawsuits
The lower court’s adoption of per se rules restricting
the availability of class treatment in Title VII cases
conflicts with the congressional intent, clearly ex-
pressed during the course of enactment of the Equal
Employment Opportunity Act of 1972, Pub. L. No.
92-261, 86 Stat. 103, that class treatment be freely
available in cases brought under the statute:
In establishing the enforcement provisions under
this subsection and subsection 706(f) generally, it
is not intended that any of the provisions contained
therein are designed to affect the present use of
™ See, e.g., Brown v. J.P. Allen Co., 79 F.R.D. 32, 35 (N.D. Ga.
1978) (an employee may not represent applicants) ; Carpenter v.
Herschede Hall Clock Division, 77 F.R.D. 700, 701 (N.D. Miss.
1977) (same) ; Arnett v. American National Red Cross, 78 F.R.D.
73 (D.D.C. 1978) (an employee may represent applicants) ; Dun-
can v. State of Tennessee, 19 E.P.D. 1 9087 (M.D. Tenn. 1979)
sn Beasley v. Griffin, 81 F.R.D. 114, 116 (D. Mass. 1979)
same).
14
class action lawsuits under Title VII in conjunc-
tion with Rule 23 of the Federal Rules of Civil
Procedure. The courts have been particularly cog-
nizant of the fact that claims under Title VII in-
volve the vindication of a major public interest,
and that any action under the Act involves consid-
erations beyond those raised by the individual
claimant. As a consequence, the leading cases in
this area to date have recognized that Title VII
claims are necessarily class action complaints and
that, accordingly, it is not necessary that each indi-
vidual entitled to relief under the claim be named
in the original charge or in the claim for relief.
Section-by-Section Analysis, placed into the Congres-
sional Record by the floor managers of the Act in each
House, Subcommittee on Labor, Senate Committee on
Labor and Public Welfare, Legislative History of the
Equal Employment Opportunity Act of 1972 at 1773.
This Court should grant review of this question in
order to ensure that its decisions be given proper scope
and effect, to ensure uniformity among the circuits, to
avoid an enormous waste of judicial resources, and to
ensure the effectuation of a policy Congress has deter-
mined to be of the highest national priority.
II. The Lower Court’s Decision That the Claims of a Certified
Class Must Be Dismissed If a Named Plaintiff Does Not Prevail
on the Merits of His or Her Individual Claim Is Contrary to
the Decisions of This Court and Creates a Conflict Between
the Circuits
As the court of appeals recognized, petitioner Mar-
able asserted a claim of discrimination in hiring and
had initially applied unsuccessfully for a clerical job at
Western’s facility. App. 3a note 1. She subsequently
was hired by Western, but into a different job category
which was less desirable to her. She continued, unsuc-
iii sesisiscas patbatibink
15
cessfully, to try to obtain a clerical job with the com-
pany. The district court found that Marable was told
there was not an opening in the office and that she could
work her way up through the shop. He further found
that a white female had been hired at the same time for
an opening in the office. The district court also estab-
lished a procedure for the adjudication of the personal
claims of the plaintiffs and of the class members. The
court of appeals ignored these findings of the district
court and, instead, made its own determination that
this petitioner had not proven her claim of hiring dis-
crimination. App. 3a. The court of appeals then held
that petitioner was not an adequate representative of
the interests of applicants because of the failure of her
personal claim of hiring discrimination.
Even assuming that petitioner Marable’s claim had
in fact failed for want of proof,” the lower court’s view
of the legal effect of such a finding on a previously cer-
tified class is in conflict with the decisions of this Court
and with the decisions of other circuits. This Court has
repeatedly addressed this issue and has held that a class
becomes a distinct legal entity once it is certified, and
that the subsequent mootness, or failure on the merits,
of a named plaintiff’s claim does not destroy the claims
of the class members. Sosna v. Iowa, 419 U.S. at 400-02
(holding in addition that the requirement of adequacy
of representation is met where—as here—‘‘the inter-
ests of that class have been competently urged at each
level of the proceeding,’’ id. at 403); Franks v. Bow-
man Transp. Co., 424 U.S. 747, 752-57 (1976); Rod-
2 Petitioners are also seeking review of the lower court’s failure
to apply the ‘‘clearly erroneous’’ standard. Petitioner Marable’s
personal claim of hiring discrimination will stand or fall with the
resolution of this question.
16
riguez, 431 U.S. at 406 n.12. Comparable decisions in
the courts of appeals are numerous. See, e.g., Satter-
white, 578 F.2d at 994-96, and cases there cited ; Donald-
son, 554 F.2d at 831-32 n.5, and cases there cited.
The lower court did not provide any explanation for
its failure to follow the settled law established by this
Court and followed by other circuit courts of appeals.
Review or summary reversal by this Court is necessary
to ensure that its decisions be given proper weight by
the court below.
Ill. The Decision Below, Reversing the District Court's Findings
of Discrimination in Promotion, in the Words of the Dis-
senting Judge, “Reflects a Fundamental Misconception Re-
garding the Proper Order and Nature of Proof” and It Conflicts
with Principles Repeatedly Set Forth by This Court and
Decisions of the Fifth, Sixth, Seventh, Eighth, Ninth, and
Tenth Circuits
The court below, by a 2-1 vote, reversed the district
court’s well-supported findings of discrimination
against blacks and females in promotions based on an
erroneous theory as to the proper order of proof and
burden of proof which plaintiffs must carry in order to
make a prima facie showing of discrimination under
Title VII. As Circuit Judge Lay stated in dissent, the
majority’s conclusion ‘‘reflects a fundamental miscon-
ception regarding the proper order and nature of proof
in disparate impact actions under Title VII.’’ App.
17a.
The evidence of promotional discrimination showed:
that there were large disparities between the percent-
ages of blacks and females receiving promotions and
the percentages of blacks and females in the hourly
work force from which it was stipulated that virtually
17
all promotees were selected ; that there were no specific
or written criteria or qualifications for promotion but,
instead, that promotions depended exclusively on the
subjective, standardless and entirely discretionary
judgments of the employer’s lower-level supervisors,
practically all of whom were white males; and that the
employer used an unvalidated written test in selection
of promotees.”
Although such evidence clearly meets the require-
ments set forth by this Court and followed by virtually
every court of appeals for establishing a prima facie
case of discrimination, the lower court majority found
it not only inadequate, but a ‘‘total failure of proof.’’
App. 14a. The majority ruled that petitioners failed
to establish a prima facie case of promotional discrimi-
nation because they did not offer proof that the em-
ployer denied promotions to ‘‘qualified’’ blacks or fe-
males:
There was no attempt to identify an available pool
[of black and female employees] based upon expe-
rience or a combination of skill, experience and
job performance or any other criteria which an
employer might find relevant to decisions about
promotions. App. lla.
The court of appeals thus ruled that it was plaintiffs’
burden, in order to establish a prima facie case, to
prove that class members were ‘‘qualified’’ for promo-
tion to the positions in question, even though the em-
ployer failed to establish even that there were any
‘‘qualifications’’ for these positions, let alone that such
‘‘qualifications’’ were job-related. To have satisfied this
burden, the plaintiffs would have had to prove that
18 See pp. 4-6, supra.
18
class members met certain ‘‘qualifications’”’ (1.e., ‘‘ex-
perience,’ ‘‘skill,’”’ ‘‘job performance’’) which the
court of appeals, without any basis in the record what-
soever, assumed existed, assumed to be job-related, and
assumed that Western used despite stipulations to the
contrary.”
Circuit Judge Lay recognized that the majority had
imposed an impossible burden on plaintiffs: ‘‘[t]he
promotion practices utilized by Western Electric...
precluded an initial definition of the pool of qualified
employees.’’ App. 18a (emphasis added). Continuing,
Judge Lay wrote:
Accordingly, the trial court used the racial and
sexual composition of the entire hourly-employee
work force as the most probative labor market per-
centages. At this juncture, the ‘‘experience’’ needs
of Western Electric were properly addressed by
the trial court to determine whether Western Elec-
tric successfully rebutted the prima facie showing
of discrimination. In light of the fact that Western
Electric had totally failed to apprise section chiefs
of any promotion qualification requirements, the
order in which the trial court evaluated the proof
was clearly justified. App. 18a.
A. The Decision Below Conflicts with the Decisions of This
Court
The majority below failed, without explanation, to
abide by or even to recognize the decisions of this Court
defining the nature of proof sufficient to establish a
14The lower court’s use of ‘‘experience’’ as a qualification for
promotion to the positions in question was particularly unsupport-
able in light of Western’s express stipulations that no prior experi-
ence was required for promotion to these positions and that no
minimum length of service was required. See discussion infra at
pp. 25-26.
——_
nian’, Saar shat We ice RRS wile thes SS
19
prima facie case in an employment discrimination ac-
tion, namely Dothard v. Rawlinson, 433 U.S. 321
(1977) ; International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977) ; Albemarle Paper
Co. v. Moody, 422 U.S. 405 (1975) ; and Griggs v. Duke
Power Co., 401 U.S. 424 (1971). These decisions estab-
lish that when the evidence shows that an employer’s
selection standards or procedures have a disparate im-
pact on blacks or females, the burden shifts to the em-
ployer to rebut that evidence by showing that its stan-
dards or procedures are nondiscriminatory and job-
related. See, e.g., Griggs v. Duke Power Co., 401 U.S.
at 432. In Dothard, this Court stated:
[T]o establish a prima facie case of discrimina-
tion, a plaintiff need only show that the facially
neutral standards in question select applicants for
hire in a significantly discriminatory pattern. Once
it is thus shown that the employment standards are
discriminatory in effect, the employer must. meet
‘the burden of showing that any given require-
ment [has] ...a manifest relationship to the em-
—— in question.’’ Griggs v. Duke Power
_ ere
433 U.S. at 329. Accord, Albemarle Paper Co., 422 U.S.
at 425; International Brotherhood of Teamsters v.
United States, 431 U.S. at 349."
*® The decision below also conflicts with this Court’s holding in
Albemarle Paper that an employment test that has a significant
adverse impact on blacks may not be used to select employees for
a particular job unless the employer demonstrates the test to be
validated for such job. 422 U.S. at 432. The district court based
its findings of discrimination in promotions in part on the em-
ployer’s use, in selecting persons for promotion, of a written test
which had a significant adverse impact on blacks but had not been
validated for such use. The lower court decision reversing the
district court’s findings of discrimination fails even to mention the
employer’s use of this test, the fact that it was unvalidated, or the
evidence of its discriminatory impact on blacks.
20
In imposing on plaintiffs the burden of identifying
‘‘qualified’’ blacks and females who were denied pro-
motions, the court below has in effect applied errone-
ously the principles of McDonnell Douglas Corp. V.
Green, 411 U.S. 792 (1973), to this class action pattern
or practice case."* In McDonnell Douglas, this Court
set forth the proof required of a plaintiff, in an indi-
vidual case alleging ‘‘disparate treatment’’ on account
of race, to make out a prima facie claim; the plaintiff’s
burden in such a case includes proving his qualifica-
tions for the employment in question. 411 U.S. at 802.
The Court repeatedly has made it clear, however, that
the burden of proof standard established in M cDonnell
Douglas does not apply to class action cases challenging
a pattern or practice of discrimination and based on a
‘‘disparate impact”’ theory of discrimination:
Claims of disparate treatment may be distin-
guished from claims that stress ‘disparate im-
pact.”” The latter involve employment practices
that are facially neutral in their treatment of dif-
ferent groups but that in fact fall more harshly on
one group than another and cannot be justified by
business necessity... .
International Brotherhood of Teamsters v. United
States, 431 U.S. at 336 n.15.
In Furnco Construction Corp. v. Waters, 438 U.S.
567 (1978), this Court reaffirmed the application of the
McDonnell Douglas standards to an individual ‘‘dis-
parate treatment” case, and expressly noted that ‘Sit
was not a ‘pattern or practice’ case’’ like Teamsters,
1® We note, however, that the court below, in reversing the dis-
trict court’s findings of discrimination in promotions, cited neither
McDonnell Douglas nor any other decision of this Court pertaining
to allocation of burden of proof in a Title VII case.
21
438 U.S. at 575 n.7, or a ‘“‘disparate impact’ case
where the standards set forth in Griggs v. Duke Power
Co., supra—rather than those set forth in McDonnell
Douglas—would apply. 438 U.S. at 575.
The lower court’s decision, by blurring the distinction
which this Court has carefully maintained between the
standards for individual ‘‘disparate treatment’’ actions
and those for ‘‘pattern or practice’’ and ‘‘disparate
impact”’ suits, inevitably will create confusion among
the lower courts as to the proof required of plaintiffs in
class action employment discrimination suits. The dis-
tinction is significant and will be in many eases, as in
this case, outcome-determinative. Judge Lay’s dissent-
ing opinion below illustrates this. Citing Griggs v.
Duke Power, Judge Lay points out that even where
an employer utilizes clearly articulated and purport-
edly job-related criteria such as ‘‘experience’’ to eval-
uate candidates for promotion, a demonstrated ‘dis-
parate impact’’ of those criteria requires the employer
to bear the burden of proving that the criteria are
justified by ‘‘business necessity.’’ App. 18a n.1. Accord,
United Steelworkers of America v. Weber, 99 S. Ct.
2721, 2730 (1979) (Blackmun, J., concurring) ; Par-
son Vv. Kaiser Aluminum & Chemical Corp., 5175 F.2d
1374, 1386 (5th Cir. 1978), cert. denied, 99 S. Ct. 2417
(1979). As Judge Lay further noted, Western could
not possibly have met this burden, particularly in light
of its admission that it ‘‘does not contend that it estab-
lished a ‘business necessity’ of a particular number of
years of experience as a qualification for promotion.”’
App. 18a-19a n.1, quoting Western’s Reply Brief at 19.
22
B. The Decision Below Conflicts with Decisions of Other
Circuits
The decision of the divided lower court is squarely
in conflict with a variety of court of appeals decisions
which apply this Court’s ‘disparate impact’ stan-
dards in ‘‘pattern or practice’’ cases. Several circuits
have directly confronted the question whether plain-
tiffs or defendants bear the burden of proving what
constitute appropriate ‘‘qualifications”’ for a job. In
Baxter v. Savannah Sugar Refining Corp., 495 F.2d
437 (5th Cir. 1974), for example, the court of appeals
held that it was error for the trial court to have re-
quired plaintiffs, in order to establish a prima facie
ease of discrimination in promotion, to prove that mem-
bers of the employee class ‘‘ possessed the qualifications
for a promotion’’:
On the basis of this record, we find it difficult to
discern just what qualifications the district court
had in mind. Baxter’s evidence demonstrated that
promotions resulted only from supervisory recom-
mendations based on esoteric standards never re-
vealed to the discriminatees. It is hard to conceive
how one can prove that he meets certain employ-
ment criteria when no standards have been de-
lineated by the employer. It is obvious that the
burden of proof, encompassing nebulous and in-
determinate standards, was improperly imposed
here.
495 F.2d at 444. Accord, United States v. Hayes Inter-
national Corp., 456 F.2d 112, 120 (5th Cir. 1972) ; Kap-
lan v. [ATSE, 525 F.2d 1354, 1358 n.1 (9th Cir. 1975) ;
Muller v. United States Steel Corp., 509 F.2d 923, 929
(10th Cir. 1975); Spurlock v. United Atrlines, Inc.,
475 F.2d 216, 218 (10th Cir. 1972).
Pendle Sta nla thsi» Sn ia aI
23
The holding below also is in conflict with court of
appeals decisions holding that a prima facie case of
discrimination in selection for an employer’s higher-
level or supervisory positions may be established by
showing a significant statistical disparity between the
percentage of blacks or females in such positions and
the percentage of blacks or females in the employer’s
hourly or overall work foree. These cases include:
Watkins v. Scott Paper Co., 530 F.2d 1159, 1190-91
(5th Cir. 1976), cert. denied, 429 U.S. 861 (1976)
(semiskilled operatives and unskilled laborers used as
basis of comparison on a claim of discrimination in
promotions to the supervisory level); Swint v. Pull-
man-Standard, 539 F.2d 77, 103-05 (5th Cir. 1976)
(on the same type of claim, total plant work force sta-
tistics were an adequate base but other statistics on
black rejections of offers of promotions, and on more
recent promotions, must also be considered) ; Parson
v. Katser Aluminum & Chemical Corp., 575 F.2d 1374,
1380, 1386 (5th Cir. 1978), cert. denied, 99 S. Ct. 2417
(1979) (hourly production employees used as basis of
comparison with number of supervisors); James Vv.
Stockham Valves & Fittings Co., 559 F.2d 310, 341
(Sth Cir. 1977), cert. denied, 434 U.S. 1034 (1978)
(hourly workers used as a basis of comparison with
number of craft workers); Senter v. General Motors
Corp., 532 F.2d 511, 527 (6th Cir. 1976), cert. denied,
429 U.S. 870 (1976) (total plant work force used as a
basis for comparison with numbers of supervisors) ;
Stewart v. General Motors Corp., 542 F.2d 445, 449-50
(7th Cir. 1976), cert. denied, 433 U.S. 919 (1977) (total
plant work force used as basis for comparison on claims
of discrimination in filling desirable hourly clerk posi-
tions and salaried positions).
24
Still a third group of court of appeals decisions in
conflict with the Fourth Circuit’s disposition of this
ease are those considering promotion and transfer
practices which, like Western’s, are wholly reliant on
the exercise by white supervisors of standardless sub-
jective discretion. Where such practices have a dis-
parate impact on black employees, circuits other than
the Fourth Cireuit have held such evidence to con-
stitute a prima facie case without any requirement
that plaintiffs prove who would be ‘‘qualified”’ under
undefined and nonexistent criteria which the employer
could have used but has not. Rowe v. General Motors
Corp., 457 F.2d 348, 358-59 (5th Cir. 1972) ; Parson
v. Kaiser Aluminum & Chemical Corp., supra, 575
F.2d at 1385; James v. Stockham Valves & Fittings
Co., 559 F.2d 310, 346 (5th Cir. 1977), cert. dented,
434 U.S. 1034 (1978); Stewart v. General Motors
Corp., supra, 542 F.2d at 450; United States v. N.L.
Industries, Inc., 479 F.2d 354, 368 (8th Cir. 1973).
IV. The Decision Below, Reversing the District Court’s Findings
of Discrimination in Promotions, Conflicts with Decisions of
This Court Holding That the Factual Findings of a District
Court Must Not Be Disturbed Unless They Are Clearly
Erroneous
The majority below erroneously substituted its judg-
ment for that of the district court as to the composi-
tion of the appropriate labor pool from which candi-
dates for promotion were drawn. The district court’s
findings that persons promoted to salaried positions
and to supervisory positions were drawn from the
employer’s total hourly work force, and that this work
force therefore constituted the appropriate labor pool,
were supported by the overwhelming weight of the
25
evidence, including stipulations of fact agreed to by
the employer.” The court of appeals did not determine
that any of the district court’s findings were clearly
erroneous, but nevertheless rejected many findings,
overrode the stipulations of fact, and concluded, con-
trary to the evidence, that the appropriate labor pool
was defined by: (i) the census statistics for the
Washington Standard Metropolitan Statistical Area
(““SMSA’’) showing the percentages of black and fe-
male ‘‘Managers and Administrators’’ in the general
population; or, alternatively, (ii) those blacks and fe-
males in the employer’s hourly work force with a mini-
mum of ten years of service with the employer.
Circuit Judge Lay spelled out in detail in his dissent
why the majority erred in rejecting the district court’s
use of actual work force statistics in favor of general-
ized SMSA data. App. 15a-17a. Judge Lay also demon-
strated the error in the majority’s determination that
the labor pool was limited to those employees with a
minimum of ten years of experience:
Western Electric stipulated that no specific num-
ber of years of experience is necessary to be quali-
fied for promotion. Accordingly, the trial court
used the racial and sexual composition of the en-
tire hourly-employee work force as the most pro-
bative labor market percentages. App. 18a.
” Specifically, it was stipulated that:
There is no minimum length of service required either with
the company or in a particular job level before an hourly-
rated employee may be considered for promoti
Jt. App. Below, p. 109. promotion to the office.
No prior experience is required to perform the j
: : e job
center section chief. Jt. App. Below, a 115. Pe re
No prior experience is required to perform the j
tion section chief. Jt. App. Below, p18. ‘sti ial
26
By overriding the ‘‘no experience requirement’”’ stip-
ulations, the majority below was patently unfair to pe-
titioners. As Judge Lay observed:
Assuming, as the majority opinion apparently
does, that ten years of experience was the prerequi-
site for promotion, plaintiffs could have attacked
that qualification requirement as a facially neutral
employment practice having a disparate impact on
blacks and females. The statistics relied on by the
trial court clearly support such a claim. Western
Electric would Bi have been required to show
that such a stringent experience requirement was
justified by ‘‘business necessity.’’ See Griggs V.
Duke Power Co., 401 U.S. 424, 482 (1971). In the
instant case, however, plaintiffs can hardly be
faulted for not directly attacking a job qualifica-
tion requirement which Western Electric stipu-
lated did not exist. Furthermore, in suggesting the
ten year statistics as a basis for comparison, the
majority suggests a defense which Western Elec-
tric candidly denies. App. 18a-19a n.1.
In elevating its own extra-record assumptions over
the well-supported factual findings of the district court,
the majority below completely ignored the strictures of
Federal Rule of Civil Procedure 52(a) and the princi-
ples established by this Court in Zenith Radto Corp. Vv.
Hazeltine, 395 U.S. 100, 123 (1969), that appellate
courts must not disturb the factual findings of trial
courts unless they are ‘‘clearly erroneous.”’
This principle is particularly applicable to determi-
nations by district courts as to the appropriate labor
pool for a specific employer’s jobs. In Hazelwood
School District v. United States, 433 U.S. 299 (1977),
the Court rejected the Eighth Circuit’s definition of the
appropriate labor market, which the court of appeals
had substituted for the district court’s definition. In
27
remanding the case to the trial court for a determina-
tion of the appropriate labor market, the Court said:
“[S]tatistics . . . come in infinite variet
['T Jheir usefulness depends on all of the an:
ing facts and circumstances.”’ . . . Only the trial
court is in a position to make the appropriate de-
termination after further findings. 433 U.S. at 312.
In light of these principles, and the fact that the dis-
trict court’s findings were well supported by the evi-
dence and not clearly erroneous, the majority below
should have followed Judge Lay, who concluded:
I would defer to the trial court’s careful analysis.
App. 25a.
CONCLUSION
For the foregoing reasons the petition for a writ of
certiorari should be granted.
Respectfully submitted,
Pau. S. REICHLER
JEFFREY A. Burt
JAMES A. BEAT
ARNOLD & PoRTER
1229 Nineteenth St., N.W.
Washington, D.C. 20036
GEOFFREY J Upp ViTT
CaPpLIN & DRYSDALE
1101 Seventeenth St., N.W.
Washington, D.C. 20036
Attorneys for Petiti
Of Counsel: ys for Petitioners
RicHarpD T. SEyMour
Linpa F.. THOME
LAWYERS’ COMMITTEE
FOR Civit RicHts
UNDER Law
733 Fifteenth St., N.W.
Washington, D.C. 20005
APPENDIX.
la
APPENDIX
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 76-2439
Ouuiz T. Hitt, Joann W. Warp, Cuartes R. MerriweETHeER,
Jr., Epwarp A. Minater, Minnie Marpet, Mary E. Carter,
Individually and on behalf of all other persons similarly
situated,
Appellees,
versus
WeEsTERN Exectric Company, Inc.,
Appellant.
THe American Society ror PERSONNEL ADMINISTRATION,
Amicus Curiae.
EquaL EMpLoyMENT Apvisory CouncIL,
Amicus Curiae.
Appeal from the United States District Court for the
Eastern District of Virginia, at Alexandria. Albert V.
Bryan, Jr., District Judge.
Argued April 6, 1978 Decided April 6, 1979
Before HaynswortH, Chief Judge, Lay® and Russet, Cir-
cuit Judges.
HaynswortH, Chief Judge:
Six black male and female plaintiffs instituted this class
action against Western Electric, alleging that the company
had engaged in a pattern of discrimination against blacks
and females in hiring, in job assignments, and in promo-
tions to salaried and supervisory positions in its facilities
in Arlington, Virginia. The district judge upheld all of the
2a
plaintiffs’ claims and granted extensive relief. Because no
named plaintiff is a member of the excluded classes, we
think the district court improperly considered the discrimi-
nation in hiring claims and the claim of discrimination
against women in promotions in the Installation facility.
We accept the findings of discrimination in job assignments
in the Service facility as being not clearly erroneous, but
we conclude that there was a failure to prove a prima facia
[sic] case of discrimination in promotions.
Western Electric has a Service Center in Arlington, Vir-
ginia. Its principal work is the repair, refinishing and re-
assembly of telephone sets and other telephone equipment.
There is an area in the shop, however, called “Shop
Trades” in which wooden and metal telephone booths are
repaired, refinished and assembled, and miscellaneous other
woodwork and metalwork is done there. Some fourteen
wood and metal workers, all of whom are white males, were
assigned to that work.
The work in the Service facility is supported by a ware-
house and by an administrative and technical office, both
of which are housed in the same building in which the Ser-
vice shops are operated.
A small portion of the building is occupied by the admin-
istrative office of the Installation division. Only office work-
ers are there. The installers, who work under that admin-
istrative unit, are engaged in installing switching and re-
ceiving equipment in business and professional establish-
ments in the metropolitan Washington area.
I.
The named plaintiffs are two black females employed in
the Service Shop and four black males employed, or for-
merly employed, as installers of switching equipment in the
Washington area. No one of the six was denied employ-
ment, and no one is a member of a class of black or female
3a
applicants who were denied employment allegedly on the
basis of race.’
At the time of his decision, the district court had for
guidance our opinion in Barnett v. W. T. Grant Company,
518 F.2d 543 (4th Cir. 1975). There we allowed Barnett to
represent a class which included some people who had not
been disadvantaged directly in the same way Barnett al-
leged that he had been disadvantaged. In footnote 4, how-
ever, we noticed the problem which is created when repre-
sentatives are allowed to represent a class which includes
people who have not been disadvantaged directly just as
the representatives have been. We permitted it in that case,
however, because Barnett sought to represent only persons
seeking positions as over-the-road drivers and had not
launched a general attack upon racial discrimination in the
employer’s other employment practices.
If Barnett arguably might authorize these named plain-
tiffs, who were employed, to represent unsuccessful appli-
cants, who were denied employment, the basis for any such
application was foreclosed by the Supreme Court’s subse-
quent decision in Fast Texas Motor Freight v. Rodriguez,
431 U.S. 395 (1977). In Rodriguez, the Supreme Court em-
phasized that a class representative must “possess the same
interests and suffer the same injury” as the class members
they seek to represent. All blacks and females have an in-
1One of the women plaintiffs, employed in the Service Shop,
testified that she first sought employment as a clerk-typist in the
office but was told there was no vacancy in the office, though another
white girl who was seeking employment at the same time was given
a job in the office. The records of Western Electric indicated that
the only woman employed in the office within two months of the
date of that plaintiff’s employment was, indeed, a white woman
with technical skills, and she was employed as a technician, not
as a clerk-typist. Under the circumstances, the fact that this plain-
tiff was offered a job in the shop rather than as a clerk-typist, does
not suggest that she had been denied employment because of her
race.
4a
terest in being free from discrimination in employment. In
a very broad and loose sense, any member of any such class
who suffers discrimination has the same interest as other
members of the class who suffered discrimination in very
different circumstances and by very different means, but
clearly that is not the thrust of Rodriguez. The interest of
these named, employed plaintiffs in being free of discrimi-
nation in job assignments and in promotions is so different
in kind from that of people who were denied any employ-
ment that the named plaintiffs may not properly maintain
an action for redress of alleged discrimination in hiring.
Under Rodriguez, certification of a class including victims
of alleged hiring discrimination who never were employed
by Western Electric was in error.
II.
If Rodriguez limited Barnett in application, it did not
leave it a derelict. Under Barnett a named plaintiff may
represent a class of persons whose injuries and interests
are of a kind with the representative’s. A person who has
been injured by unlawful, discriminatory promotion prac-
tices in one department of a single facility may represent
others who have been injured by the same discriminatory
promotion practices in other departments of the same fa-
cility. In such a case, the representatives of the class all
have the same interests in being free from job discrimina-
tion, and they have suffered injury in precisely the same
way in the denial of promotion. Rodriguez did not require
the fractionization of similar claims by a class of employees
in a single facility, nor does it destroy the utility of the
class action device by requiring separate suits on an epi-
sodic basis.
What is left of Barnett, however, is not broad enough to
permit a named representative to represent a class of peo-
ple who suffered different injury or those having similar
claims but who are employed in other facilities. The In-
5a
stallation facility is not a single facility with the Service
Shop. It is a separate one.’
It is true that the small office component of the Install-
ment facility is located in the same building housing the
Service Center, but the affected people, the installers, are
not employed there. They do their work entirely in the
field. Their job sites change. They range all over the area,
and their work is done on premises belonging to others
than Western Electric. There is no apparent basis for a
finding that they have a community of interests with the
employees in the Service Center.
In Patterson v. American Tobacco Co., 535 F.2d 257 (4th
Cir. 1976), we treated two plants of the same employer as a
single facility for the purpose of class action representa-
tion. There, the two plants were within a few blocks of each
other. Each plant had a prefabrication department in which
tobacco was mixed and blended, and it was principally the
employees of those departments who complained of dis-
crimination in promotion. We emphasized the fact that the
two plants drew their employees from the same labor mar-
ket, and, of course, they were drawn to do similar work.
In this case, however, though we may assume that the
installers live in the same geographic area as the employees
of the Service Center, that is, the entire metropolitan
Washington area, they are not drawn from the same labor
market as they were in Patterson. The work of the hourly
paid employees of the Service Center is relatively un-
skilled, while the installers are engaged in installing, ser-
vicing and fixing sophisticated electronic equipment requir-
ing many and varied skills. Newly employed installers are
* There have been no women installers, so there are no installers
who may assert a claim of discrimination in job assignment or
promotion in the Installment facility. Since the district court
gp ong Pn ie relief against sex discrimination in promotions
in the Installment facility, however, it is not inappropri
consider its separateness. alles
6a
not required to have previous training or experience. After
employment, they are given formal training and provided
with experience. As new skills are acquired, they progress
in five steps, each step being called an index, until the most
skillful and experienced reach step 5. People with the gifts
and ambition to become such technicians simply do not com-
pete in the same labor market with unskilled workers.’
ITT.
The plaintiffs first allege discrimination in the assign-
ment of employees to jobs in Shop Trades, to jobs in the
warehouse and to jobs in the office.
A. Shop Trades
The employees holding jobs in Shop Trades have all been
white males. Its foreman testified that on two different oc-
casions when there were vacancies to be filled in Shop
Trades, through other foremen in the Service Center, he in-
vited a list of employees who might be interested ina trans-
fer to Shop Trades. On each occasion he received a list
with a substantial number of names upon it, and some of
the listed people were black and some were female. All of
them were interviewed and were allowed to see the jobs
in which there were vacancies, but afterwards no one of
those persons, black or white, male or female, was inter-
ested in actually being transferred. This is not inconceiv-
able since woodworking and metalworking may require
greater skills than most of the other jobs in the shop por-
’The named plaintiff who testified about her wish to become a
clerk-typist and to be transferred to Shop Trades and to the ware-
house, testified that she was trained to do her first job in the
service shop in approximately two hours, Later she was trained
to do other jobs in the shop, and each time the training consisted
of her being shown by an hourly rated employee how to do it. In
contrast, the installers receive formal training as they progress to
the fifth step in the rating of skills.
Ta
tion of the Service Center. Nevertheless, there is the fact
that no black and no female had ever been assigned to one
of these woodworking and metalworking jobs, and there is
the testimony of the plaintiff, Marbel, that she sought a
transfer to Shop Trades because people there progressed
more rapidly to pay grade 3, but did not obtain it. Thus
there is evidentiary support for the district judge’s finding
that there was both racial and sexual discrimination in job
assignments to Shop Trades.
B. Warehouse
The district court also found that the defendant had been
guilty of illegal sex discrimination in making job assign-
ments to warehouse positions in the Service Center. A posi-
tion in the warehouse also had the advantage of a position
in Shop Trades of a more rapid progression to pay grade
3 than for other employees in the shop of the Service
Center.
It is clear that for many years Western Electric re-
garded the jobs in the warehouse as appropriate for men
only. No woman was assigned to a job there until 1972,
when only one was. From July 1965 through 1974, four hun-
dred fifty-one persons have been hired for warehouse jobs,
all but the one woman being men. Moreover, there was the
testimony of the plaintiff, Marbel, that between 1966 and
1970 she sought a transfer to the warehouse, but did not
obtain it.
The policy of exclusivity with respect to females in the
warehouse was abandoned by 1972 when the one woman
was employed. It may be, too, that the jobs in the ware-
house may be heavy jobs, unsuitable for most women, but
the fact that only one woman had been employed there be-
tween 1972 and the time of trial supports the finding of the
district court that there was continuing sex discrimination
in assignment of employees to the warehouse, if not a con-
tinuing policy of exclusivity.
8a
C. The Office
The district court also found racial discrimination in the
assignment of blacks to the Service Center office. This was
premised principally upon data showing that blacks had
never constituted more than ten percent of the work force
in the office, and that from 1965 to 1974 only 7.9 percent of
the persons newly hired for office work were black. The
trouble with those statistics, however, is that there is no
differentiation between those jobs in the office for which
employees in the shop might be qualified and those for
which they are not. There are some positions in the office
requiring little skill, but we are not told how many, or what
proportion, of the people filling them are black. Nor is the
void filled by the testimony of Ms. Marbel, who testified
that when she initially applied she was told that there were
no openings in the office for a clerk-typist, but that a white
woman was employed for a position in the office, a position
which the employer’s records disclosed was that of a
trained technician. The question now is one of job assign-
ments of unskilled employees,‘ and there was simply no
showing, prima facie or otherwise, of any disparity in the
assignment of blacks to those kinds of positions in the
office.
D. Remedy
Since we have held that there is a basis for the findings
in the district court of racial and sex discrimination in the
assignment of employees to Shop Trades and of sex dis-
crimination in the assignment of employees to the ware-
house, we generally approve the decree’s provision for back
and front pay for those individuals who can show they suf-
fered deprivation by reason of such discrimination. We
emphasize, however, that the burden must be upon the in-
dividual claimant to prove that he or she sought a posi-
tion, or would have sought it had not an application been
* As indicated above, the question of possible discrimination in
hiring is not now before us.
9a
excused under the principle of International Brotherhood
of Teamsters v. United States, 431 U.S. 324, that the ap-
plicant was qualified to fill the position, having such skills
and physical strength as were necessary for performance
of the work, would have accepted the position had it been
offered, and that there was an available position which was
ae by someone else in conformity with the discriminatory
policy.
IV.
Promotions
The district court found discrimination in promotions.
In the Service Center, the usual progression from hourly
rated jobs to supervision was by way of intermediate sal-
aried, non-supervisory positions in the office. Section Chiefs,
the lowest level supervisors, were drawn almost exclusively
from salaried office workers who had been promoted from
hourly rated jobs in the shops or warehouse. The district
judge found discrimination at both promotional levels and
that the victims included both black and females.
The district court also found discrimination against
blacks and females in promotions at Installation. There,
the Section Chiefs were selected by supervisors from among
the installers who had achieved at least Index 4.
The court ordered extensive relief. A Special Master was
appointed to hold hearings, to identify victims of discrimi-
natory promotional practices and to award them back and
front pay. Western Electric was required to make priority
promotional offers to such identified discriminatees, after
which a system of quotas was imposed upon the employer
in making promotions. Subject to a stated availability of
qualified persons, promotions to salaried non-supervisory
office positions in the Service Center were to be at the ratio
of at least two blacks for every one other employee so
promoted, and of at least three females to every two males.
10a
For the positions of Section Chiefs in the Service Center
and in Installation, the ratio was two blacks for every
other employee. In the Service Center, Western Electric
was required to promote three females to supervisory po-
sitions for every two males, while in Installation the ratio
was to be one female for every two males, though at the
time of the decree there was no female installer.
In every instance, the quotas were to remain in effect
until the percentage of blacks and females in the promo-
tional positions “approximates cumulative applicant pool
proportions from the previous four (4) years.”
Thus the quotas placed upon the promotion of hourly
rated employees to upper level and supervisory positions
were not referrable to the pool of experienced employees,
or even to the pool of all employees, regardless of experi-
ence. They were referrable to the applicant pool.
While the quotas which were ordered were referrable to
the applicant pool, the initial finding of discrimination in
promotion was premised upon a finding of disparity in
the number of blacks and females promoted in comparison
with the number of blacks and females in the hourly paid
work force. Such a comparison, of course, treats the re-
cently employed person in an entry level job as qualified
for promotion to a salaried job in the office at the Service
Center or to a supervisory position. In the Service Cen-
ter, for instance, only 10% of those in hourly paid jobs
in 1965 were black. The number of whites employed in such
positions declined from 555 at the end of 1965 to 492 at the
end of 1973, while the number of blacks in such positions
increased from 62 in 1965 to 227 at the end of 1973. At the
end of 1973 blacks constituted 31.6% of the employees in
hourly paid jobs, and an average for the nine year period
produced a figure of 26.4% black work force. The court
found that 26.4% of those available for promotion were
black and disparity between that figure and the fact that
of those promoted to salaried jobs, only 9.8% were black.
Similarly, the number of females employed in hourly rated
lla
jobs in the Service Center increased from 85 in 1965 to
161 at the end of 1973, an increase from 13.8% of the work
force to 22.4% of the work force. The average for the nine
years was found to have been 18.8%, and it was found that
females constituted 18.8% of those available for promo-
tion, while only 11.9% of those actually promoted were
female.
Thus, the findings of disparity and discrimination in pro-
motions of both blacks and females were premised upon
an assumption that all employees in hourly rated positions
constituted the available pool from which persons promoted
to salaried positions were to be drawn. This necessarily in-
cluded those in entry level jobs, those with little experi-
ence and little skill. There was no attempt to identify an
available pool based upon experience or a combination of
skill, experience and job performance or any other criteria
which an employer might find relevant to decisions about
promotions.
The assumption that minimally qualified hourly rated
employees were qualified for promotion to a salaried posi-
tion is simply unfounded. The district court was probably
misled by a stipulation that prior experience was not a
requisite for supervisory positions. The stipulation in turn
was probably the consequence of the fact that at Installa-
tion three college graduates, without prior experience as
installers, had been made Section Chiefs in Installation
pursuant to a college graduate development program.
Though they had no prior experience as installers, this in
no way suggests that an untrained, unskilled person, seek-
ing employment in the jobs requiring the least skill, is im-
mediately qualified for a high level salaried job or for
supervision. Common experience belies the assumption. We
do not employ babes at high salaries to lead men doing
hourly rated work. In higher educational institutions, peo-
ple with unusual capabilities may be trained for the per-
formance of supervisory roles. When, however, the pool
12a
from which supervisors are to be selected is the hourly
paid work force, one naturally and inevitably looks to those
who have acquired experience and demonstrated skills.
The greater the experience and the greater the number of
demonstrated skills, the more appropriate it is for con-
sideration to focus upon a particular individual. One does
not look for supervisors at the bottom rung of the ladder;
it is at the top where any search may be expected to pro-
duce fruitful results.
In Roman v. ESB, Inc., 550 F.2d 1343 (4th Cir. 1976),
we held that an employer was entitled to adopt selection
standards based upon demonstrated ability, proper quali-
fications, experience and length of service and to consider
such things as job performance, willingness to accept re-
sponsibility and dependability. In Patterson v. American
Tobacco Co., 535 F.2d 257 (4th Cir. 1976), we held that the
ratio of blacks and females in supervisory positions should
be judged on the basis of their ratio in the qualified work
force, and that a standard might be found in SMSA data.
In the Washington SMSA this would yield a ratio of 4%
blacks and 10% females in Western Electric’s Section Chief
positions.
That experience was an essential requirement for pro-
motion from hourly rated jobs is indicated by the fact that
from July 1965, when Title VII became effective, those
persons promoted to Section Chief in the Service Center
had an average of 15.3 years experience, while those in
Installation had an average of 14.8 years experience. Some
at each facility had been promoted with less than the aver-
age experience, but the least in the Service Center was
more than six years, while the least in Installation was
more than eight years. Of all those promoted to Section
Chief jobs, 79% in the Service Center and 77% in Instal-
lation had ten or more years experience. There was testi-
mony that experience was an important factor in the
process of selecting people for promotions, as were job
13a
knowledge, skills, a sense of responsibility and attendance
dependability.
. If the ratio of blacks and females in all hourly rated
jobs is disregarded, as it must be in considering promo-
tions, what remairs in the record is insufficient to show any
disparate impact upon blacks and females. From mid-1965
through 1973, of those promoted to salaried positions in
the Service Center, 9.8% were black and 11.9% were
women. The Washington SMSA data suggests only 4%
black and only 10% female. In 1965 blacks represented only
10% of the hourly paid work force, and that proportion
grew to 31.6% at the end of 1973. Only 9.8% of those pro-
moted to salaried positions in the Service Center through
1973 were blacks, but only 7% of the blacks in the hourly
paid work force at that time had as much as ten years
experience. Of those promoted to salaried positions in the
Service Center, 11.9% were female. There is in the record
a table showing that 15% of the females employed in non-
supervisory, non-professional positions in the Service Cen-
ter had as much as ten years experience, but that table
includes women employed in the office and the people in
non-supervisory salaried positions. There is no data re-
flecting the work experience of the hourly paid female em-
ployees in the Shop.
Of those promoted to Section Chief in the Service Cen-
ter since July 2, 1965, 8% were black and 5.4% were fe-
male. The number of blacks substantially exceeded the
SMSA comparison, while the number of females was sub-
stantially deficient. The comparison is quite imperfect,
however, for the salaried employees constituted the pool
from which promotions to Section Chief were made, and
there is nothing in the record permitting a comparison of
the number of males and females promoted to Section
Chief out of that portion of the pool which became salaried
on or after July 2, 1965. The number of persons already
in the pool on that date necessarily greatly distorts any
comparison.
l4a
In Installation, only one black had been promoted to Sec-
tion Chief, and, in a period of general curtailment and re-
duction in force, he was demoted to an Index 5 installer.*
While there are figures showing the racial composition of
the installers, there are no such figures for Index 5 or for
Index 4, from which the Section Chiefs were drawn. There
are data indicating that only four blacks achieved Index
5 during the period July 1965 through 1971, but that figure
is of no assistance without complete data about all promo-
tions to Installation Section Chief and the racial composi-
tion of the pool from which the Section Chiefs were drawn.
Thus there was a total failure of proof of any disparate
effect in promotions upon blacks or women in the Service
Center or upon blacks in Installation.
¥s
Our conclusion is that on this record a finding of dis-
crimination against blacks and females is warranted only
in job assignments to Shop Trades and against females in
job assignments in the warehouse in the Service Center. |
Upon remand, the district court should frame an appropri-
ate decree consistent with this opinion, granting appropri-
ate relief with respect to those job assignments. In all other
respects, the findings of discrimination are vacated.
AFFIRMED IN Part;
REVERSED IN Part;
AND REMANDED.
6 There was a finding that this demotion was not discriminatory.
Other installer Section Chiefs were also demoted.
l5a
Lay, Circuit Judge, concurring in part and dissenting in
part.
I concur in the majority’s affirmance of the trial court’s
finding of discrimination in job assignments. Likewise, I
concur that plaintiffs lack standing to challenge Western
Electric’s hiring practices and the alleged sex discrimina-
tion in promotions in the Installation facility.
I must voice vigorous disagreement, however, with the
reversal of the district court’s findings of discrimination
relating to the other promotion practices of Western Elec-
tric. I agree with the trial court’s finding that plaintiffs
not only established a prima facie case of discrimination
but also presented strong evidence which amply demon-
strates that the facially neutral promotion practices have
a disparate impact on blacks and female employees enti-
tling them to the remedial relief.
The trial court’s opinion adopts as statistical support for
its disparate impact finding the data set forth in plain-
tiffs’ Proposed Findings of Fact ({] 104-110). These sta-
tistics establish:
1. While blacks constituted 26.4% of those available
for promotion from hourly-rated to salaried nonsu-
pervisory jobs, only 9.8% of those promoted were
black;
2. While females constituted 18.8% of those avail-
able for promotion from hourly-rated to salaried non-
supervisory jobs, only 11.9% of those promoted were
female;
3. Only 2.8% of the nonsupervisory employees pro-
moted to installation supervisory jobs were black, even
though blacks comprised as much as 23% of the work
force from which such promotions were made during
this period, and no females were promoted to these
supervisory jobs;
16a
4. Only 8.9% of the nonsupervisory employees pro-
moted to service center supervisory jobs were black,
and 5.4% were female, even though blacks constituted
as much as 26% and females 27% of the work force
from which such promotions were made during this
period.
Thus, the district court relied on the disparities between
the percentages of blacks and females in the pool of em-
ployees eligible for promotion to salaried and supervisory
positions and the percentages of blacks and females actu-
ally promoted to such positions.
The majority opinion advances two sets of statistical data
which allegedly provide a more accurate basis for assess-
ing the impact of Western Electric’s promotion practices.
First, the majority suggests the Washington SMSA sta-
tistics might contain a more appropriate standard of com-
parison. SMSA figures would yield a ratio of 4% blacks and
10% females in Western Electric’s salaried and section
chief positions. When these percentages are compared to
the proportions of blacks and females actually promoted,
the conclusion is drawn that no disparate impact exists. In
addition, the majority opinion utilizes statistical data which
suggests that an employee should have at least ten years
experience to be qualified for promotion to salaried posi-
tions in the Service Center. Since only 7% of the blacks
and 15% of the females in the hourly work force in 1973
had the requisite experience, it is argued that the statistical
data offered by plaintiffs fails to establish even a prima
facie showing of disparate impact. From the foregoing it
is concluded that the trial court erred and that there was
a “total failure of proof of any disparate effect in promo-
tions upon blacks or women in the Service Center or upon
blacks in Installation.” Ante at 22.
The trial court considered the efficacy of using SMSA
statistics and experience-related data to determine whether
17a
a prima facie showing of discrimination was made. In
properly rejecting the SMSA data, Judge Bryan observed:
The facility in question is located in Arlington County,
Virginia, a largely residential suburb of the District
of Columbia. The Washington SMSA includes not only
Arlington County, but the District of Columbia, the
Cities of Alexandria and Falls Church, the Counties of
Fairfax, Loudoun and Prince William in Virginia, and
the Counties of Montgomery and Prince Georges in
Maryland. This is too large an area to be considered as
the area from which an employer, situated as the de-
fendant is here, draws for its labor market. Here the
entry level jobs at both units are, except for secre-
tarial employees, for the unskilled, and the census data
does not provide an accurate or reliable indication of
persons who are available for work in a particular job
with a particular employer. Insofar as vocational and
occupational data are concerned, the census data does
not, of course, take into account existing discrimina-
tion.
Hill v. Western Electric Co., 12 FEP Cases 1175, 1179
(E.D. Va. 1976).
It is difficult for me to understand how the over-inclusive
census statistics contained in the Washington SMSA can
be considered more probative to the issue at hand than the
actual work force from which the promotions are made at
the specific plant in question.
The majority opinion does not rest on the SMSA sta-
tistics alone, but rather relies primarily on the experience-
related data to support its conclusion that no disparate
impact was proven. The majority’s use of the lengthy-
experience “requirement” reflects a fundamental miscon-
ception regarding the proper order and nature of proof in
disparate impact actions under Title VII.
18a
As previously noted, the trial court did consider the “ex-
perience” claims of Western Electric when determining
whether discrimination existed. The promotion practices
utilized by Western Electric, however, precluded an initial
precise definition of the pool of qualified employees. Under
Western Electric’s promotion procedures, employees had
to be placed on a list by their section chief in order to be
eligible for promotion. Western Electric provided the sec-
tion chiefs no written guidelines setting forth the quali-
fications necessary, or the criteria used, for promotion of
employees. The factors employed by the section chiefs in
determining whether to place an employee on the list were
vague and subjective:Furthermore, Western Electric stip-
ulated that no specific number of years of experience is
necessary to be qualified for promotion. Accordingly, the
trial court used the racial and sexual compusition of the
entire hourly-employee work force as the must probative
labor market percentages. At this juncture, the “experi-
ence” needs of Western Electric were properly addressed
by the trial court to determine whether Western Electric
successfully rebutted the prima facie showing of discrimi-
nation. In light of the fact that Western Electric had to-
tally failed to apprise section chiefs of any promotion
qualification requirements, the order in which the trial
court evaluated the proof was clearly justified.’
? Assuming, as the majority opinion apparently does, that ten
years of experience was the prerequisite for promotion, plaintiffs
could have attacked that qualification requirement as a facially
neutral employment practice having a disparate impact on blacks
and females. The statistics relied on by the trial court clearly sup-
port such a claim. Western Electric would then have been required
to show that such a stringent experience requirement was justified
by ‘‘business necessity.’’ See Griggs v. Duke Power Co., 401 U.S.
424, 432 (1971). In the instant case, however, plaintiffs can hardly
be faulted for not directly attacking a job qualification requirement
which Western Electric stipulated did not exist. Furthermore, in
suggesting the ten year statistics as a basis for comparison, the
19a
The trial court’s inquiry did not begin and end with the
statistical data. Judge Bryan properly allowed Western
majority suggests a defense which Western Electric candidly denies.
Western states in its brief:
Western does not contend that it established the ‘‘business
necessity’’ of a particular number of years of experience as a
qualification for promotion, but that experience is relevant to
the threshold inquiry of whether Western’s promotion prac-
tices have had an adverse impact.
Reply Brief of appellant at 19 (emphasis added).
I would make one additional comment on the majority’s treat-
ment of the experience factor. By using ten years experience as
the factor which defines the qualified work force, the majority, in
effect, elevates lengthy experience to a promotion qualification.
The majority opinion justifies this conclusion by noting that ‘‘one
naturally and inevitably looks to those who have acquired expe-
rience and demonstrated skills’’ when selecting supervisors, Ante
at 18. The fact that an employer would probably look to its
experienced employees when determining who should be promoted
may negate an inference of discriminatory intent, but it does not
resolve an adverse impact claim. By definition, an adverse impact
eause of action arises when job qualifications which are facially
neutral and neutral in terms of intent fall more harshly on minori-
ties. See, e.g., Griggs v. Duke Power Co., supra; Stewart v. General
Motors Corp., 542 F.2d 445, 450 (7th Cir. 1976), cert. denied, 433
U.S. 919 (1977); Patterson v. American Tobacco Co., 535 F.2d
257, 268 (4th Cir.), cert. denied, 429 U.S. 920 (1976); United
States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970).
When examining such job qualifications
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 a lesser differential racial impact.
Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971),
cert. dismissed, 404 U.S. 1006 (1972).
20a
Electric to present evidence which would cast doubt on the
propriety of using the entire hourly-wage work force in
determining whether promotion practices had a disparate
impact on blacks and females. Western Electric strenu-
ously argued before the trial court that experience is rele-
vant in making promotion decisions. In assessing the
credibility of the ‘‘experience defense’’ proffered by
Western Electric, the trial judge noted that a lengthy-ex-
perience requirement could be used to perpetuate discrimi-
nation in hiring. Although plaintiffs have no standing to
launch a frontal assault on Western Electric’s hiring prac-
tices, the trial court could legitimately consider evidence
of such discrimination when evaluating the experience
claim.? See Rowe v. General Motors Corp., 457 F.2d 348,
356 (5th Cir. 1972); cf. Hazelwood School District v.
United States, 433 U.S. at 309 n.15. Furthermore, contrary
to the majority’s conclusion, the relevance of experience
in determining whether an employee is qualified for pro-
motion is not overlooked in the trial court’s remedial or-
? To support its finding of discrimination in hiring the trial court
relied on the following:
(a) Only 12.7% of the black applicants for entry-level jobs
in defendant’s Service Center from 1970 through 1974 were
hired as compared to 29.8% of the white applicants; while
1,489 of the 3,382 applicants (or 44.4%) were black, only 189
of the 754 applicants hired (or 25.1%) were black.
(b) Only 17.9% of the black applicants for entry-level jobs
in defendant’s installation organization from 1968 through
1971 were hired as compared to 45.7% of the white applicants ;
while 1,293 of the 2,760 applicants (or 46.8%) were black, only
232 of the 903 applicants hired (or 24.7%) were black.
(ec) Only 16.9% of the female applicants for entry-level
jobs in defendant’s Service Center from 1970 through 1974
were hired, as compared to 26.8% of the male applicants;
while 1,443 of the 3,511 applicants (or 41.1%) were female,
only 244 of the 799 applicants hired (or 30.5%) were female.
12 FEP Cases at 1179.
21a
der, nor is it necessarily obviated in the master’s duty to
award back pay related to promotional transfers.°
In addition, in rejecting the experience factor as a
threshold issue, the district court viewed not only the sta-
tistical proof but also the overall record regarding the
subjective employment practices in which promotions were
made. I think it significant to highlight this other evidence,
not otherwise discussed in the majority opinion. Judge
Bryan, in an exhaustive and analytical opinion, wrote:
Promotion—Service Center.
Promotion within hourly positions is done strictly by
departmental seniority unless an individual is de-
* With regard to priority promotions, the trial court’s remedial
order states :
Promotion shall be offered only to those eligible claimants
whe are employed at the time by the defendant, and who are
qualified on a job-related, non-discriminatory basis.
If a claimant is found to be eligible by the Master, but
subsequently is found to be unable to perform the duties of a
position at the time the defendant otherwise would be required
to make a priority offer of that position to that claimant, no
obligation to make such an offer shall be imposed on defendant.
With regard to back pay, the order states:
[T]he Master may take into account the eligible claimant’s
actual employment history and such other factors as he may
deem relevant to that claimant’s performance potential, and
may adjust the formula figure up or down accordingly, stating
the reasons for such adjustment.
Defendant shall have the opportunity to seek reduction of
the net back pay award for each eligible claimant by showing
higher actual earnings, or earnings obtainable through due
diligence, or demonstrable factors probative on the question
of how the claimant might have performed had no discrimi-
nation occurred.
22a
termined to be unqualified. As yet, no one has ever
been found to be unqualified.
The potential problem with this scheme of promo-
tion is that it perpetuates past discrimination and re-
flects discrimination in original hiring. The fact that
promotions are always made from within the particu-
lar section in which the vacancy occurs adds to this,
since transfer among sections is prohibited. However,
the Court does not find any discrimination in the sys-
tem of promotion.
Hourly to Salaried Non-Supervisory
Promotion of hourly workers to salaried non-super-
visory positions is made from a list of recommended
employees. The initial recommendation to place an
employee upon the list is made by the section chief.
This recommendation is reviewed by two higher super-
visory levels. The specific promotion recommendation
is made by an advancement committee but sometimes
by the section chief. The final decision to promote is
made by the assistant manager and manager.
The statistics support, and the Court finds an ad-
verse impact on blacks and females and discrimina-
tion in this class of promotion (Plaintiff’s Proposed
Findings of Fact {{] 104-110). The promotional pro-
cedure itself is supportive of the Court’s finding, be-
cause an employee cannot be promoted unless he is
placed upon the list and the only way that can be done
is by the section chief. Section chiefs are given no
written guidelines for this task and the factors em-
ployed by the section chiefs are necessarily vague and
subjective. Additionally, vacancies are not posted and
there is no way for an individual to apply for a par-
ticular position. The section chief’s decision is final
and unreviewable.
23a
Non-Supervisory to Supervisory
Supervisory promotions are made from a Manage-
ment Potential Inventory. In order to be listed, an
employee must first complete a request form. Annually,
all supervisors meet and there determine who shall
be placed upon the list. The actual promotion decision
is made and reviewed up four levels of supervisory
command.
The statistics from 1965 support a charge of dis-
crimination (Exhibit P-243). In addition, the promo-
tion procedure is subject to most of the same objec-
tions as ‘‘hourly to Salaried Non-Supervisory.’’ The
process is basically informal and non-structured. There
are no written guidelines for evaluating potential
supervisory personnel and the promotion decision is
based upon the subjective evaluations of supervisors.
The process is secret—vacancies are not posted and no
one is allowed to ‘‘apply’’ for a job, only the list.
The defendant seeks to offset the plaintiff’s sta-
tistics with statistics of its own. No one has been pro-
moted since 1972. In 1972, five people—including 1
black and 2 females—were promoted. Defendant claims
that the overall disparate statistics are due to the fact
that generally, only those employees with ten or more
years of experienced [sic] are promoted. Only one per-
son hired since 1965—a woman—has been promoted
to supervisor. Nevertheless, the statistics are such
that they cannot be explained away in this manner.
They result, the Court finds, from past discrimination,
and warrant, at the very least, injunctive relief.
24a
Promotion—Installation.
Supervisory Positions
Annually, the department chiefs and the district
manager select names of non-supervisory employees
and place them on a Management Potential Inventory.
When a supervisory vacancy occurs, an employee is
selected from this list to fill it.
The statistical evidence supports a finding of dis-
crimination. There has only been one black and no
female supervisors. The defendant once again asserts
that length of employment is the basic criterion for
promotion. In addition, there have been only five pro-
motions since 1970 and none since 1973. In fact, since
1972 there has been a net downgrading from super-
visory to hourly of 28 positions.
The objections to the actual promotion procedure
are similar to those for the Service Center. An em-
ployee must be recommended to be placed upon the
Management Potential Inventory; and this decision
is unstructured and subjective. Again, as in the case
of the Service Center, injunctive relief is warranted.
12 FEP Cases at 1181-83.
In view of this additional evidence and the exhaustive
and specific findings of fact by the trial court, I find it dif-
ficult to say there is a total failure of proof by plaintiffs
to show discrimination in promotional practices. Even if it
is assumed that the statistical comparison employed by
the district court fails to furnish a precise measure of
Western Electric’s conduct, the additional findings made
by the trial court warrant injunctive relief. As this court
stated in Patterson v. American Tobacco Co.:
The fact that the company’s appointments since
1965 exceed the ratio of qualified blacks and women
25a
in the workforce does not exonerate the company for
the violations of the Act which the district court found.
The tardy appointments of blacks and women to su-
pervisory positions long after the passage of Title VII
and the present lack of published job descriptions and
objective selection procedures fully justify the injunc-
tive relief the district court ordered.
535 F.2d at 275.
Any number of cases, including decisions of this circuit,
have emphasized that subjective practices utilized by de-
fendant constitute strong evidence of discrimination. See,
e.g., Parson v. Kaiser Aluminum & Chemical Corp., 575
F.2d 1374, 1384-85 (5th Cir. 1978) ; Roman v. ESB, Inc., 550
F.2d 1343, 1351 (4th Cir. 1976) ; Stewart v. General Motors
Corp., 542 F.2d 445, 450-51 (7th Cir. 1976), cert. denied,
433 U.S. 919 (1977); Patterson v. American Tobacco Co.,
535 F.2d at 272-73; Muller v. United States Steel Corp.,
509 F.2d 923, 928 (10th Cir.), cert. denied, 423 U.S. 825
(1975); United States v. N.L. Industries, Inc., 479 F.2d
354, 368 (8th Cir. 1973); Rowe v. General Motors Corp.,
457 F.2d at 358-59.
For the foregoing reasons, I would defer to the trial
court’s careful analysis.
26a
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 76-2439
[Filed May 29, 1979.]
Oty T. Huw, Jonn W. Warp, Cuartes R. MeRRiwETHeER,
Jr., Epwarp A. MrnaTez, Minniz MaraB.e, Mary E. CarTER,
individually and on behalf of all other persons similarly
situated, Appellees
Vs.
WesTERN Exectric Company, Inc.,
Appellant.
ORDER
Upon consideration of the petition for rehearing, there
having been no request for a poll of the court on the sug-
gestion of rehearing en banc,
It Is Onperep that the petition be, and it hereby is,
denied.
With the concurrence of Judge Lay and Judge Russell.
For the Court:
Ciement F. Haynsworts, JB.
Chief Judge, Fourth Circutt
May 24, 1979
27a
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
Crvi. Action No. 75-375-A
O.tuiz T. Hu, et al.,
Plantiffs,
v.
WestTEeRN Evectric Company, INc.,
Defendant.
MEMORANDUM OPINION
This action is brought pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Section 1
of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The named
plaintiffs are black and female employees of defendant
Western Electric Company, Inc., at its Arlington, Virginia
facility. The plaintiffs complain, on behalf of themselves
and the class they represent, that the defendant has dis-
criminated and continues to discriminate against blacks and
females in hiring, job placement, promotions, selection of
supervisory personnel, layoffs and treatment of pregnant
employees.
The action was filed on May 14, 1975. On November 21,
1975, the Court entered an order determining that the ac-
tion should be maintained as a class action and specified
that the class should consist of:
All black persons and all female persons who are, have
been, or will be employed by Defendant at Defendant’s
facility in Arlington, Virginia, at any time since July
2, 1965; and all black persons and all female persons
who have applied for employment at Defendant’s facil-
ity in Arlington, Virginia, since July 2, 1965, or who
will hereafter apply.
_-
28a
The case was tried to the Court on February 17, 18 and
19, 1976. Counsel waived closing argument and in lieu there-
of it was agreed that post-trial briefs would be filed after
preparation of the transcript of the trial. The last of these
briefs was received on April 8, 1976. In addition, counsel
for both sides have submitted extensive proposed findings of
fact from which the Court will borrow heavily in support
of its conclusions.
The case was tried on the issue of liability only, with the
decision on the relief, if any, to be awarded plaintiffs to be
deferred until after a decision on liability. In addition, the
notice requirements of F. R. Civ. P. 23(b)(3) were post-
poned until after determination was made with regard to
entitlement to monetary relief.
Before reaching the merits of the discrimination charges,
there are two preliminary matters raised by the defendant
requiring resolution. First, the defendant contends that the
hiring issue and the allegations of sex discrimination in its
Installation Area (Installation) ' are not properly before
the Court since none of the named plaintiffs were unsuc-
cessful employment applicants at Installation, nor were any
of the named female plaintiffs employed there. Second, the
defendant asserts that the time frame within which the im-
pact of its employment practices should be viewed in deter-
mining liability should commence 180 days before the fil-
ing with the Equal Employment Opportunity Commission
(EEOC) of the charges which provide the basis for this
action insofar as Title VII is concerned and two years prior
to May 14, 1975, the date on which the complaint was filed,
insofar as § 1981 is concerned.
1 As will be pointed out in the findings of fact, the defendant’s
Arlington facility houses both its Service Center and Installation
Area. The latter rents approximately 1,578 square feet from the
Service Center out of a total 450,000 square feet area occupied by
the Service Center at the facility. Defendant has maintained
throughout the action that the two units are separate and should
be considered separately on each allegation of discrimination.
29a
The first of these issues, i.e., whether the named female
plaintiffs lack standing to litigate allegations of sex dis-
crimination at Installation because they were employed at
the Service Center, and of race discrimination in hiring be-
cause the named plaintiffs were all successful hirees, will be
discussed first. This involves first a determination whether
the two units of the defendant, Installation and Service
Center, are so separate that the employment practices of
one cannot be said to affect an employee or applicant for
employment at the other. Patterson v. American Tobacco
Co., No. 75-1259 (4th Cir. February 23, 1976), supports the
Court’s conclusion that they are not. As the defendant
points out, there are differences between that case and the
instant one. In Patterson there was under consideration the
question of ‘‘locations’’ and not just difference in functions.
The issue in the two cases is basically the same, however,
and on the most relevant elements to be considered in re-
solving the issue the circumstances are the same. Both In-
stallation and the Service Center draw from the same labor
market and in both, at the entry level, no specific skills,
aptitudes or prior experience are required, except typing
and stenographic skills for secretarial positions. After em-
ployment, different skills may be required for promotion,
and frequent overtime and transfers may be required at
Installation, but insofar as hiring is concerned, while not
‘fone and the same’’ for all purposes, the units have an
undeniable nexus.
The second standing inquiry is squarely answered, it
- seems, by Barnett v. W. T. Grant Company, 518 F.2d 543,
547 (4th Cir. 1975). Plaintiffs’ suit here, as in Barnett, is a
wholesale attack on various discriminatory employment
practices of defendant. The fact that there is not a named
plaintiff for each alleged discriminatory practice is not fatal
to the claim for relief as a result of that practice. Nor, of
course, does it defeat the claim of the class if a named
plaintiff cannot prove his own claim. Brown v. Gaston
30a
County Dyeing Machine Co., 457 F.2d 1377, 1380 (4th Cir.
1972).
Insofar as the second issue is concerned, the Court con-
cludes, as in Patterson, that the allegations are of continu-
ing violations of Title VII and § 1981. The challenge here is
not just to individual employment practices occurring with-
in the 180 day period prior to the filing of charges with the
EEOC under Title VII nor within two years under § 1981
but, on the contrary, is to continuous discrimination extend-
ing back beyond those dates. Accordingly the class cannot
be limited to those persons who could have filed charges
with the EEOC and who could have filed suit under § 1981.
Williams v. Norfolk and Western Rwy. Co., No. 74-1549
(4th Cir. September 23, 1975).
With respect to the merits of the plaintiffs’ claims, the
various alleged discriminatory practices mentioned will be
discussed in the order heretofore evumerated:
Hraino
In order to establish a prima facie case of discrimination
in hiring, or in any other employment practice, there must
be shown an adverse impact on blacks or women, or both.
Plaintiffs have sought to establish and defendant has sought
to negate such an initial showing through statistics. In the
use of the statistics, however, the parties have differed on
the standard against which to measure the employer’s
hiring practices. The defendant has used census data for
the Washington Standard Metropolitan Statistical Area
(SMSA) workforce. During 1960-1974, the black percent-
age of the Washington SMSA has ranged from 22.5% to
26.5%, and the female percentage has ranged from 39.7%
to 43.3%.
3la
Using the above figures for comparison, any impact on
blacks and womei is minimal at most. The statistics show
that, for the Service Center: ?
(1) Of those hired since 1972, 27% have been black, and
40% have been women.
(2) Of those hired since 1965, 25% have been black, and
27% have been women.
(3) As of December, 1975, 41% of the active employees
hired since July, 1965 were black and approximately 40%
were women.
The statistics for the hiring and retention of blacks in
Installation also reveals little, if any, impact:
(1) During the most recent* four-year hiring period,
1968-1971, 32% of the persons offered employment and
26% of those who accepted employment were black.
(2) Of those beginning employment since July, 1965,
20% have been black.
(3) Of the installers hired since 1965 who were active in
July, 1972 (before the beginning of extensive layoffs),
41% were black.
The statistics offered by the defendant with regard to
women in Installation are not so impressive. Sex is not a
criterion for employment in Installation, yet there has
never been a woman hired in that unit. Defendant argues
that plaintiffs have not identified a single woman who
applied for or expressed an interest in employment as an
installer. This argument fails, at least as far as persua-
siveness to the Court is concerned, when it is remembered
that when defendant placed job advertisements for instal-
* No new employees have been hired at the Servi
December, 1974. ervice Center since
* No one has been hired as an installer since 1971.
32a
lers it was in the ‘‘Help Wanted—Male”’ section of the
newspaper. This was the source of the majority of appli-
cants for employment at Installation. Moreover, use of the
census occupational classification of ‘‘operative’’ to arrive
at a 1.9% female workforce availability in the SMSA is
suspect because it is agreed that no specific skills or apti-
tudes, or prior experience, are required to perform entry
level jobs at Installation except for typists and secretarial
employees.
Plaintiffs contend that, rather than the SMSA, the
standard against which to measure an employer’s hiring
practice is ‘‘applicant flow.’’ By this is meant a compari-
son of those, black or female, who were hired with those
who applied to be hired.
Using this standard, i.e., applicant flow, the following is
revealed :
(a) Only 12.7% of the black applicants for entry-level
jobs in defendant’s Service Center from 1970 through 1974
were hired as compared to 29.8% of the white applicants;
while 1,489 of the 3,382 applicants (or 44.4%) were black,
only 189 of the 754 applicants hired (or 25.1%) were black
(Exhibit P-195) ;
(b) Only 17.9% of the black applicants for entry-level
jobs in defendant’s installation organization from 1968
through 1971 were hired as compared to 45.7% of the white
applicants; while 1,293 of the 2,760 applicants (or 46.8%
were black, only 232 of the 903 applicants hired (or 24.7%)
were black (Exhibit P-201) ;
(ec) Only 16.9% of the female applicants for entry-level
jobs in defendant’s Service Center from 1970 through 1974
were hired, as compared to 26.8% of the male applicants;
while 1,443 of the 3,511 applicants (or 41.1%) were female,
only 244 of the 799 applicants hired (or 30.5%) were female
(Exhibit P-196).
33a
Under the circumstances of this case the Court finds that
use of the applicant flow standard, where that data is avail-
able, is the appropriate and preferable measure. The fa-
cility in question is located in Arlington County, Virginia,
a largely residential suburb of the District of Columbia.
The Washington SMSA includes not only Arlington
County, but the District of Columbia, the Cities of Alex-
andria and Falls Church, the Counties of Fairfax, Loudoun
and Prince William in Virginia, and the Counties of Mont-
gomery and Prince Georges in Maryland. This is too large
an area to be considered as the area from which an em-
ployer, situated as the defendant is here, draws for its labor
market. Here the entry level jobs at both units are, except
for secretarial employees, for the unskilled, and the census
data does not provide an accurate or reliable indication of
persons who are available for work in a particular job with
a particular employer. Insofar as vocational and occupa-
tional data are concerned, the census data does not, of
course, take into account existing discrimination. The cases
cited by the defendant in support of its contention that the
“primary” statistical standard to be used is census data,
Barnett v. W. T. Grant, supra, and Brown v. Gaston
County Dyeing Machine Co., supra, just do not support
that contention.‘ The question of which standard to use
was not an issue in either case, and the Court finds persua-
sive the language in Hester v. Southern Railway Co., 497
F.2d 1374, 1379 (5th Cir. 1974), that:
The most direct route to proof of racial discrimina-
tion in hiring is proof of disparity between the per-
*The Court recognizes, of course, that the ‘‘applicant flow’’
theory has its imperfections. It penalizes an employer’s successful
affirmative action efforts. Moreover it theoretically is subject to
manipulaticn, although there is no evidence that that occurred
here. It also would theoretically penalize blacks or females who,
because an employer had a reputation for not employing blacks or
females, would be discouraged from applying for employment.
Again, however, there is no evidence that this is the situation with
this defendant.
34a
centage of blacks among those applying for a par-
ticular position and the percentage of blacks among
those hired for the position.
497 F.2d at 1379.
From the foregoing the Court finds that statistically
there has been an adverse impact on blacks and women in
the hiring practices of the defendant. Accordingly, at least
a prima facie case of discrimination in hiring has been
established. United States v. Chesapeake & Ohio Railway
Co., 471 F.2d 582, 586 (4th Cir. 1972), cert. denied 411 US.
939 (1973); Barnett v. W. T. Grant Co., supra at p. 549.
Under now familiar principles the burden is therefore
upon the defendant to come forward with legitimate non-
discriminatory reasons for what, prima facte, is a rejec-
tion of employment based on race and sex. McDonnell
Douglas Corp v. Green, 411 U.S. 792, 802 (1973).
At this stage, then, in the ‘‘order and allocation of
proof’’ it becomes necessary to consider the individual
steps in the process of hiring employed by defendant.
Hirrinc—SeErvice CENTER
At the Service Center, a prospective employee signs an
application, is interviewed and references are checked.
The interviewer selects which applicants are to proceed
further. Those selected proceed to pre-employment testing.
The interviewer selects which pre-employment test battery
or batteries each applicant will take. The interviewer
makes the initial determination whether an applicant
should be hired based on the individual’s application, in-
terview, reference check and test scores. The final de-
cision is made by the Personnel Department Chief. A high
school diploma is a factor in the hiring decision, although
since November 1966 it has not been required as a condi-
tion of employment. While there is a question whether
35a
plaintiffs actually challenge the validity of the Service
Center tests in hiring, this is unimportant, for the sta-
tistics show (Exs. P-195, 197) that the percentage of blacks
and whites selected for testing for the years 1970-1974
very closely approximates the percentage of blacks and
whites actually hired. The Court, from this, finds that the
personal interview is the key to defendant’s hiring process.
These interviews are casual and subjective; all interview-
ers are white and all except one are male.
Hirinc—INstTALLaTION
No attempt is made by the defendant to justify the lack
of females in Installation. It contents itself with the argu-
ment that no woman has been shown to have applied or
expressed an interest as an installer. As indicated, this is
unpersuasive.
At Installation the test is given prior to the interview.
The factors upon which hiring is based in Installation are
the application, performance on the test, an interview,
possible reference check, and a medical examination. A
high school diploma is a factor in the hiring decision, but
has not been a condition of employment since 1968. Here
again, the interviewers are all white.
The Installer’s Test Battery results do little to help
defendant’s case, for they show that:
(a) Only 23.5% of the blacks who took the ‘‘Installer’s
Test Battery’’ from 1968 through 1971 passed, while
57.6% of the whites who took the test battery passed (Ex-
hibit P-203) ;
(b) The mean test score on the ‘‘Installer’s Test Bat-
tery’’ for blacks was 151.2 (considerably below the recom-
mended qualifying score of 177), while the mean test score
for whites was 177.5 (slightly above the recommended
qualifying score) (Exhibit P-203).
36a
The above reveals that the initial test batteries do have
an adverse impact on blacks. Consequently the Court must
look to determine the test’s validity. This validity depends
upon whether the test has ‘‘a manifest relationship to the
employment in question.’’ Griggs v. Duke Power Co., 401
U.S. 424, 432 (1971); or in the language of the EEOC
Guidelines, whether it is ‘‘predictive of or significantly
correlated with important elements of work behavior
which comprise or are relevant to the job or jobs for which
candidates are being evaluated.’’ 29 CFR § 1607.4(c). The
cases on this issue require the Court to conclude that the
tests for installers have not been validated. The tests rely
on supervisory evaluations as the sole job performance
criterion, and the Court cannot ignore the cautionary lan-
guage in Albermarle Paper Co. v. Moody, 422 U.S. 405,
433 (1975), that:
There is no way of knowing precisely what criteria
of job performance the supervisors were considering,
whether each of the supervisors was considering the
same criteria or whether, indeed, any of the super-
visors actually applied a focused and stable body of
criteria of any kind.
422 U.S. at 433. The same deficiencies are present here.
The defendant seeks to minimize the importance of any
differential validity study and establishment. Whatever
the academic view of differential validity, its requirement
in these cases seems fairly well established, Albermarle
Paper Co. v. Moody, supra at 435; and the EEOC Guide-
lines clearly mandate it. 29 CFR §1607.5(b)(5).° It has
not been established for the Installer test batteries.
5 § 1607.5(b) (5) :
‘‘Differential validity. Data must be generated and results
separately reported for minority and non-minority groups
wherever technically feasible. Where a minority group is suffi-
ciently large to constitute an identifiable factor in the local
labor market, but validation data have not been developed and
37a
Test fairness and practical significance have not been
shown, even using, as urged by the defendant, a definition
of fairness in terms of the predicted job performance of
an individual. The reason for the Court’s rejection of de-
fendant’s attempted establishment of these elements of
the test validation is, again, its dissatisfaction with the
method of measuring job performance.®
From the foregoing the Court concludes that there has
been discrimination by the defendant in hiring of both
blacks and females at both the Service Center and In-
stallation.
JoB PLACEMENT
It may well be that at such time as monetary relief is
considered, there may be no identifiable members of the
class who have suffered from the total absence of black
presented separately for that group, evidence of satisfactory
validity based on other groups will be regarded as only provi-
sional compliance with these guidelines pending separate vali-
dation of the test for the minority group in question. (See
§ 1607.9). A test which is differentially valid may be used in
groups for which it is valid but not for those in which it is
not valid. In this rezard, where a test is valid for two groups
but one group characteristically obtains higher test scores than
the other without a corresponding difference in job perform-
ance, cutoff scores must be set so as to predict the same prob-
ability of job success in both groups.’’
* The difficulty of such measurement is not underestimated or
unappreciated by the Court. Nor is the Court unaware of the view
that in the ‘‘real world’’ judgmental measures such as supervisory
ratings are more reliable than so-called ‘‘objective’’ criterion
measures, or the view that elimination of supervisory ratings would
. be a severe blow to industry efficiency. The Court has no desire to
condemn judicially supervisory ratings. What the Court does feel,
however, is that such ratings must be carefully collected and
standardized to the largest extent possible. Evidence as to this in
the test validation as well as in promotion discussed i i
lacking here. , —?
38a
and female employees in the shop trades in the Service
Center. The same may prove to be the case with regard to
the absence of female employees in warehouse jobs in the
Service Center, and of blacks in the office jobs at the
Service Center prior to 1963. Sex is not a bona fide occu-
pational qualification for employment in the shop trades
or warehouse, and such absences of females and blacks
surely warrant at least injunctive relief in the absence of
some satisfactory explanation. None has here been forth-
coming.
PrRoMOTION—SERVICE CENTER
Within Hourly Positions
Promotion within hourly positions is done strictly by
departmental seniority unless an individual is determined
to be unqualified. As yet, no one has ever been found to
be unqualified.
The potential problem with this scheme of promotion
is that it perpetuates past discrimination and reflects dis-
crimination in original hiring. The fact that promotions
are always made from within the particular section in
which the vacancy occurs adds to this, since transfer
among sections is prohibited. However the Court does not
find any discrimination in the system of promotion.
Hourly to Salaried Non-Supervisory
Promotion of hourly workers to salaried non-supervi-
sory positions is made from a list of recommended em-
ployees. The initial recommendation to place an employee
upon the list is made by the section chief. This recom-
mendation is reviewed by two higher supervisory levels.
The specific promotion recommendation is made by an
advancement committee but sometimes by the section chief.
The final decision to promote is made by the assistant
manager and manager.
39a
The statistics support, and the Court finds an adverse
impact on blacks and females and discrimination in this
class of promotion (Plaintiff’s Proposed Findings of Fact
1] 104-110). The promotional procedure itself is supportive
of the Court’s findings, because an employee cannot be
promoted unless he is placed upon the list and the only
way that can be done is by the section chief. Section chiefs
are given no written guidelines for this task and the fac-
tors employed by the section chiefs are necessarily vague
and subjective. Additionally, vacancies are not posted and
there is no way for an individual to apply for a particular
position. The section chief’s decision is final and unreview-
able. Apparently, scores achieved on the Clerical Test Bat-
tery are one of the promotion criterion and the plaintiffs
further contend that these tests have not been validated
for this purpose. The defendant, however, claims that
these tests are used as a criterion only for those clerical
positions for which the tests have been validated on the
entry-level. The Court does not need to pass on the tests’
validity; for the use of the tests, designed for entry-level
evaluation, even only as a criterion, is not a proper factor
for consideration in promotion.
Within Salaried Non-Supervisory
Plaintiffs introduced no evidence concerning this cate-
gory of promotions.
Non-Supervisory to Supervisory
Supervisory promotions are made from a Management
Potential Inventory. In order to be listed, an employee
must first complete a request form. Annually, all super-
visors meet and there determine who shall be placed upon
the list. The actual promotion decision is made and re-
viewed up four levels of supervisory command.
The statistics from 1965 support a charge of discrimina-
tion (Exhibit P-243). In addition, the promotion procedure
40a
is subject to most of the same objections as ‘‘hourly to
Salaried Non-Supervisory.’’ The process is basically in-
formal and non-structured. There are no written guide-
lines for evaluating potential supervisory personnel and
the promotion decision is based upon the subjective evalu-
ations of supervisors. The process is secret-—vacancies are
not posted and no one is allowed to ‘‘apply”’ for a job,
only the list.
The defendant seeks to offset the plaintiff’s statistics
with statistics of its own. No one has been promoted since
1972. In 1972, five people—including 1 black and 2 females
—were promoted. Defendant claims that the overall dis-
parate statistics are due to the fact that generally, only
those employees with ten or more years of experience are
promoted. Only one person hired since 196.—a woman—
has been promoted to supervisor. Nevertheless, the sta-
tistics are such that they cannot be explained away in this
manner. They result, the Court finds, from past discrimina-
tion, and warrant, at the very least, injunctive relief.
PRoMOTION—INSTALLATION
Hourly Positions
Advancement within the hourly positions is governed,
pursuant to collective bargaining, by an ‘‘Index Plan.”’
The employee must be qualified at the next index level
before he is promoted to that level. Each employee’s in-
dex classification is reviewed every six months at a con-
ference of the department chief and other supervisors.
The index decision is based upon the number of hours
worked at the next index level and demonstrated skills.
This conference recommends upgradings which are re-
viewed at a conference composed of department chiefs
and the installation manager.
The statistics concerning the mean time needed to ad-
vance from one index level to the next and the level of
4la
advancement for all continuously employed workers sup-
ports a charge of discrimination. However, the statistics
of all those installers hired refute the charge. Defendant
also attacks the much smaller sample employed by the
plaintiffs for their statistics.
The actual upgrading procedure is subject to several
challenges, e.g., the ability to qualify for upgrading de-
pends in large measure upon being assigned the necessary
work at the next index level. Assignment of particular
jobs is discretionary with the supervisors and affords the
opportunity of favoritism. The supervisory judgment of
whether or not an installer is ‘‘qualified’’ at the next index
level is also subject to abuse although, at least nominally,
this judgment should largely depend upon an objective
criterion—experience. However, aside from the written
descriptions of necessary job skills at each index level,
there are no written guidelines concerning how work
should be assigned or how to determine whether or not an
installer is ‘‘qualified’’ for the next index level. The Court
finds, however, that though the possibility of abuse exists,
there is no discrimination in promotion of blacks in hourly
positions in Installation. Any lack of blacks in those posi-
tions stems, not from discrimination in promotion but in
the original hiring, the result of which, coupled with the
lack of any hiring since 1971 and large layoffs beginning
then, may tend to perpetuate any lack of blacks in the
higher jobs. Blacks hired as Installers have had a lower
attrition rate than whites, a factor which does not reflect
adversely on the defendant. This, of course, is reflected in
an increase in the overall black employment in Installa-
tion. The promotion process, however, is not discrimina-
tory.
Supervisory Positions
Annually, the department chiefs and the district man-
ager select names of non-supervisory employees and place
42a
them on a Management Potential Inventory. When a su-
pervisory vacancy occurs, an employee is selected from
this list to fill it.
The statistical evidence supports a finding of discrimi-
nation. There has only been one black and no female su-
pervisors. The defendant once again asserts that length of
employment is the basic criterion for promotion. In addi-
tion, there have been only five promotions since 1970 and
none since 1973. In fact, since 1972 there has been a net
downgrading from supervisory to hourly of 28 positions.
The objections to the actual promotion procedure are
similar to those for the Service Center. An employee must
be recommended to be placed upon the Management Po-
tential Inventory; and this decision is unstructured and
subjective. Again, as in the case of the Service Center,
injunctive relief is warranted.
LAYOFFS
Layoffs in Installation, as governed by a collective bar-
gaining agreement, have been, with the exception of a 10%
exemption provision, in the inverse order of employment
seniority. Since the layoff process, facially neutral, can
only be applicable to one who is already hired, it cannot
be said to perpetuate the effects of past discrimination.
Watkins v. United Steel Workers, Local 2369, 516 F.2d
41 (5th Cir. 1975). Even though disproportionately af-
fected, therefore, blacks in Installation are not discrimi-
nated against by the process. Chance v. Board of Exam-
iners, —— F.2d —— (2nd Cir. January 19, 1976).
Nor has the 10% retention option given the employer
had an adverse impact on blacks. The stipulated evidence
is that of the 288 Installers laid off during 1971-1975, the
period of massive layoffs by the defendant, a total of 18
persons have been retained under the 10% exemption. Of
43a
these, seven (7) are black. This is too small a number
from which the Court can find any discrimination.
MaTeRNITY BENEFITS
This issue, though decided in the plaintiffs’ favor in
Gubert v. General Electric Co., 519 F.2d 661, (4th Cir.
1975), cert. granted, —— U.S. ——, has been presented in
that case to the Supreme Court. In view of the expected
announcement by that Court of its decision, this Court
will defer ruling on the issue.
ConcLUSION
The Court adopts, in uddition to the foregoing, as its
findings of fact the Joint Stipulation filed by the parties,
Plaintiffs’ Proposed Findings of Fact 1, 2, 8, 9, 10, 11, 12,
13, 14, 15, 16, 17 (omitting the reference to ‘‘Clerical Test
Battery’’), 18, 19, 20 (omitting the last sentence), 21, 22,
23, 24 (omitting the last sentence), 25, 26, 27, 28, 29, 30,
32, 33, 35, 38, 41, 42, 43, 44, 50, 51, 52, 53, 61, 62, 64, 65,
71, 72, 73, 74, 77, 81, 82, 83, 84, 86, 87, 88, 89, 90, 92, 93,
94, 95, 97, 98, 99, 100, 101, 102, 104, 105, 107, 108, 111, 112,
113, 114, 117, 118, 119, 121, 154, 155, 156, 157, 158, 159, 161,
162, 163, 164, 165, 166, 167, 169, 170, 171, 172, and Defen-
dant’s Proposed Findings of Fact 41, 42, 45, 46, 47, 67, 68
69, 70, 71, 73, 74, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,
100, 101, 102, 103, 104, 106, 107, 170, 171, 172, 173, 174.7
_The Court accordingly concludes that there has been
discrimination against blacks and females in hiring, job
placement, promotions from hourly to salaried non-super-
visory personnel and from non-supervisory to supervisory
"No finding is made with reference to the def 7 i
! endant’s affirmative
action efforts to hire blacks because, although the evidence supports
a finding that there were such, the evidence is far from persuasive
that such efforts resulted in empl
ployment of bl
tained for any length of time. acks who were re-
44a
personnel; that there has been no such discrimination in
promotions within the hourly positions or in layoffs; and
that the decision as to discrimination with respect to ma-
ternity benefits should be deferred.
Counsel for the plaintiffs should prepare a decree em-
bodying by reference the foregoing, and present the same
for entry after submission to counsel for defendant for
approval as to form. The decree should also provide for
dismissal of the allegations of discrimination in providing
training school opportunities or sickness benefits and of
harassment of those who assert rights pursuant to Title
VII. At the same time counsel for both sides should pre-
sent decrees, with such supporting briefs as desired,
awarding injunctive relief, making provision for the notice
to members of the class pursuant to F. R. Civ. P. 23(b) (3)
with regard to monetary relief, and providing for the
extent as well as the method of calculation and distribu-
tion of any monetary relief.
Apert V. Bryan, JB.
United States District Judge
Alexandria, Virginia
April 30th, 1976
45a
PLAINTIFFS’ PROPOSED FINDINGS OF FACT
ADOPTED BY THE COURT
1. Plaintiffs are black and female employees and former
employees at Defendant’s facility in Arlington, Virginia.
On May 14, 1975, they filed a Complaint on behalf of
themselves and on behalf of a class of black and female
employees, former employees, and applicants for employ-
ment, alleging that Defendant has discriminated and con-
tinues to discriminate against black and female employees,
and against black and female applicants for employment,
in violation of Title VII of the Civil Rights Act of 1964
(42 U.S.C. §§ 2000e, et seg.) and Section 1 of the Civil
Rights Act of 1866 (42 U.S.C. § 1981).
2. On November 21, 1975, the Court entered an Order
permitting Plaintiffs to maintain this action as a class
action. The Order specified that the class which Plaintiffs
represent consists of :
‘*All black persons and all female persons who are,
have been, or will be employed by Defendant at De-
fendant’s facility in Arlington, Virginia, at any time
since July 2, 1965; and all black persons and all female
persons who have applied for employment at Defend-
ant’s facility in Arlington, Virginia, since July 2,
1965, or who will hereafter apply.’’
8. Defendant’s installation organization did not hire
blacks either for hourly-rated or salaried positions prior
to 1963. (Joint Stipulations 61, 62). Although blacks applied
for jobs with the installation organization prior to 1963,
‘*{t]here was a practice not to hire blacks as installers.’’
(Exhibit P-264, Haag Dep., p. 32).
9. Defendant’s service center did not hire blacks for
salaried positions prior to 1963. (Joint Stipulation 49).
Prior to 1961, Defendant did not hire blacks for any posi-
tions in the shop of its service center. (Joint Stipulation
46a
50). Until 1961, blacks were hired only as warehousemen
or janitors. (Exhibits P-39, P-40).
10. The following statistics show the number of black
and white applicants for entry-level jobs with Defendant’s
service center, the number hired, and the percent hired,
from 1970 through 1974. (Exhibit P-195):
Number of Number Percent
Applicants Hired Hired
1974: Blacks 121 22 18.2
Whites 173 66 38.2
1973: Blacks 138 24 17.4
Whites 138 50 36.2
1972: Blacks 229 33 14.4
Whites 241 89 36.9
1971: Blacks 393 39 9.9
Whites 510 145 28.4
1970: Blacks 608 71 LZ
Whites 831 215 25.9
Total 1970-1974:
Blacks 1,489 189 12.7
Whites 1,893 565 29.8
11. These statistics show that, from 1970 through 1974:
a. Only 12.7% of the black applicants for entry-level
jobs in Defendant’s service center were hired as compared
to 29.8% of the white applicants; and that 1,489 of the
3,382 applicants (or 44.4%) were black, while only 189 of
the 754 applicants hired (or 25.1%) were black. (Exhibit
P-195) ;
b. It is stipulated that no specific skills or aptitudes,
and no prior experience, are required to perform the en-
try-level jobs in the service center (Joint Stipulation 32) ;
accordingly, the foregoing statistical disparities cannot be
47a
explained by any difference in skills or experience between
black and white applicants (Haimes, I-33); Defendant
offered no evidence to explain these statistical disparities.
12. The following statistics show the number of black
and white applicants for entry-level jobs with Defendant’s
installation organization, the number hired, and the per-
cent hired, from 1968 through 1971. (Exhibit P-201) :
Number of Number Percent
Applicants Hired Hired
1971: Blacks 43 10 23.3
Whites 115 71 61.7
1970: Blacks 158 11 7.0
Whites 267 118 44.2
1969: Blacks 508 76 15.0
Whites 542 193 35.6
1968: Blacks 584 135 23.1
Whites 543 289 53.2
Total 1968-1971:
Blacks 1,293 232 17.9
Whites 1,467 671 45.7
13. These statistics show that, from 1968 through 1971:
a. Only 17.9% of the black applicants for entry-level
jobs in Defendant’s installation organization were hired
as compared to 45.7% of the white applicants; and that
1,293 of the 2,760 applicants (or 46.8%) were black, while
only 232 of the 903 applicants hired (or 24.7%) were
black. (Exhibit P-201).
b. It is stipulated that no specific skills or aptitudes, and
no prior experience are required to perform the entry-level
jobs in the installation organization (Joint Stipulation
51); accordingly, the foregoing statistical disparities can-
not be explained by any difference in skills or experience
between black and white applicants. (Haimes, I-33).
48a
14. The following statistics show the number of female
and male applicants for entry-level jobs with Defendant’s
service center, the uumber hired, and the percent hired,
from 1970 through 1974. (Exhibit P-196) :
Number of Number Percent
Applicants Hired Hired
1974:
Females 151 43 28.5
Males 172 50 29.1
1973:
Females 138 29 21.0
Males 149 47 31.5
1972:
Females 219 45 20.5
Males 273 82 30.0
1971:
Females 366 46 12.6
Males 568 140 14.6
1970:
Females 569 81 14.2
Males 906 236 26.0
Total
1970-1974:
Females 1,443 244 16.9
Males 2,068 555 26.8
15. These statistics show that, from 1970 through 1974:
a. Only 16.9% of the female applicants for entry-level
jobs in Defendant’s service center were hired, as compared
to 26.8% of the male applicants; and that 1,443 of the
3,511 applicants (or 41.1%) were female, while only 244
of the 799 applicants hired (or 30.5%) were female. (Ex-
hibit P-196).
49a
b. It is stipulated that no specific skills or aptitudes,
or prior experience, are required to perform the entry-
level jobs in the service center (Joint Stipulation 33) ;
accordingly, the foregoing statistical disparities cannot be
explained by any differences in skills or experience between
female and male applicants. (Haimes, I-33). Defendant
offered no evidence to explain these statistical disparities.
16. The statistics set forth in Findings 10-15, supra,
demonstrate that black applicants have been rejected at
a far higher rate than white applicants, and that female
applicants have been rejected at a far higher rate than
male applicants. (Haimes, I-18). Consequently, Defendant’s
hiring practices have had an adverse impact on blacks and
females. (Haimes, I-18).
17. The adverse impact of Defendant’s hiring practices
on blacks is caused by: (a) the personal interviews which
Defendant requires each applicant to undergo (Haimes,
I-19); (b) Defendant’s use of high school education as a
criterion in hiring (Haimes, I-29); and (c) Defendant’s
use of an applicant’s scores on the pre-employment ‘‘In-
staller’s Test Battery’’ [and ‘‘Clerical Test Battery’’] as
criteria in hiring. (Haimes, I-30, 45). The adverse impact
of Defendant’s hiring practices on females is caused by:
(a) the personal interview (Haimes, I-19); and (b) De-
fendant’s policy of excluding females from employment as
installers. (Exhibit P-264, Haag Dep., p. 26).
18. Applicants for employment with Defendant in its
service center are required to undergo a personal inter-
view before the pre-employment testing stage of the hiring
process. (Joint Stipulation 36). Based on this interview,
Defendant’s interviewers select only certain applicants to
be tested; those not so selected by the interviewers are
summarily rejected. (Joint Stipulation 38; Haimes, I-20).
19. The following statistics show the number of black
and white applicants for employment with Defendant in
50a
its service center, the number selected for testing on the
basis of the personal interview, and the percent selected
for testing from 1970 through 1974. (Exhibit P-197) :
Number of Number Selected Percent Selected
Applicants For Testing For Testing
1974: Blacks 121 22 18.2
Whites 173 65 37.6
1973: Blacks 138 28 20.3
Whites 138 55 39.9
1972: Blacks 229 31 13.5
Whites 241 73 30.3
1971: Blacks 393 30 7.6
Whites 510 129 25.3
1970: Blacks 608 107 17.6
Whites 831 250 30.1
Total 1970-1974:
Blacks 1,489 218 14.6
Whites 1,893 572 30.2
20. These statistics show that, from 1970 through 1974,
only 14.6% of the black applicants were selected for test-
ing on the basis of Defendant’s personal interview, as
compared to 30.2% of the white applicants. (Exhibit
P-197). [Defendant offered no evidence to explain this
statistical disparity. ]
5la
21. The percent of black and white applicants selected
for testing is nearly identical to the percent of black and
white applicants hired, in each year from 1970 through
1974 (Exhibits P-195, P-197; Haimes, I-21, 22).
Percent Selected Percent
For Testing Hired
1974: Blacks 18.2 18.2
Whites 37.6 38.2
1973: Blacks 20.3 17.4
Whites 39.9 36.2
1972: Blacks 13.5 14.4
Whites 30.3 36.9
1971: Blacks 7.6 9.9
Whites 25.3 28.4
1970: Blacks 17.6 11.7
Whites 30.1 25.9
Total 1970-1974:
Blacks 14.6 12.7
Whites 30.2 29.8
22. The similarity between the number of those selected
for testing and those actually hired demonstrates that the
personal interview is the key stage in Defendant’s hiring
process because, if the applicant is selected for pre-em-
ployment testing on the basis of this interview, it is almost
certain that he or she will be hired. (Haimes, I-21, 22).
23. Applicants for employment with Defendant in its
installation organization are required to undergo a per-
sonal interview after taking the pre-employment installer
test battery. (Joint Stipulation 56).
24. The following statistics show the number of black
and white applicants who failed Defendant’s pre-employ-
ment installer test battery, and the number and percent
52a
of these test-failers who were hired anyway from 1968
through 1971. (Exhibit D-102):
White White Failers Black Black Failers
Failers Hired Failers Hired
564 65 [11.5%] 971 55 [5.7% ]
Defendant offered no evidence to explain the statistical
disparity in hiring rates for black and white test-failers.
25. The foregoing statistics indicate that Defendant’s
personal interview, conducted after the pre-employment
‘‘Installer’s Test Battery’’ is taken, affords white appli-
cants a greater opportunity than blacks to overcome poor
test performance and, consequently, ‘‘is responsible for
this two [whites] to one [black] rate in those who failed
the test being hired.’’ (Haimes, I-23).
26. There are three reasons why Defendant’s personal
interviews have an adverse impact on black and female
applicants for employment: (a) Defendant’s interviews
are highly subjective and very casual (Haimes, I-23, 24) ;
(b) all of Defendant’s interviewers have been white and
all but one have been male (Haimes, I-28; Exhibit P-252,
Mamola Dep., pp. 90-91); and (c) there have been no con-
trols on the interview process to prevent race or sex dis-
crimination by the interviewers, intentional or uninten-
tional. (Haimes, 1-28, 29).
27. Defendant’s interviewers make highly subjective judg-
ments about the suitability of applicants for employment,
relying, for example, on an applicant’s ‘‘appearance,’’ ‘‘as-
pirations,’’ and degree of ‘‘work motivation.’’ (Haimes,
I-24). The use of such subjective criteria, and the casual
nature of Defendant’s personal interviews, are revealed in
the deposition testimony of two of Defendant’s principal
interviewers, Betty J. Davidson, Section Chief of Personnel
in the service center (Exhibit P-262), and William M. Haag,
former Employment Supervisor in the installation organi-
zation (Exhibit P-264), and in Defendant’s Notes of Inter-
53a
views for the years 1974, 1973 and 1968-1969. (Exhibits P-
174, P-175 and P-176).
28. When Mrs. Davidson interviews applicants, she asks
them, among other things, various questions regarding
‘their aspirations’’ and ‘‘their hobbies and likes and dis-
likes, their military background.’’ From an applicant’s ‘‘de-
sires and aspirations,’’ Mrs. Davidson makes a determina-
tion as to how ‘‘work motivated’’ the applicant is. (Exhibit
P-262, Davidson Dep., p. 170). Mr. Haag regarded the
‘*qualifications for employment’’ as: ‘‘ Appearance; general
health; education; employment record; the service record if
a veteran; criminal record, if any. That’s about all I can
pull out of the hat.’’ Mr. Haag’s interviews were relatively
short, but he always tried to make an assessment of the
desire an applicant had for the job and the applicant’s
motivation in determining whether the applicant should be
hired. (Exhibit P-264, Haag Dep., pp. 15, 27-28).
29. Notes of Interviews are made by Defendant’s inter-
viewers concerning each applicant interviewed. (Joint Stip-
ulation 36). Notes such as the following are illustrative of
the subjective criteria relied on by Defendant’s interview-
ers. (Exhibit P-176) :
‘* Avg. app.—not very well motivated—nice appearance,
but lacks firm goals in life—told him could offer noth-
ing at this time.’’ (Black male, 7-31-69)
‘*Below avg. app.—Slouched in chair and mumbled the
whole interview—not really interested in working—
interested in money only. Would not recommend at this
time.’’ (Black male, 7-21-69)
‘* App. interested only in money. Has tried to get GED
on and off in school. Mentioned 1-Y classification (re:
something in his blood?) skinny and not too healthy
looking. Consider with app. of equal qualifications.’’
(Black male, 7-7-69)
30. Casual and subjective interviews contain a great deal
of potential for abuse. Such interviews facilitate unreliable
54a
and invalid judgments which can disadvantage minority
and female applicants. Even among the most well-inten-
tioned interviewers, racial and sexual stereotypes or un-
reliable subjective judgments can be made, judgments
which can be shown statistically to disadvantage minorities.
(Haimes, I-27).
32. The use of vague, subjective criteria (such as ‘‘work
motivation’’) by Defendant’s interviewers has, in fact,
‘‘operated in a disparate manner to impact negatively on
black applicants.’’ (Haimes, I-25). ‘‘ Work motivation’’ ap-
pears frequently in Defendant’s Notes of Interviews as a
criterion used in hiring. (Exhibits P-174, P-175). In 1973,
50% of the applicants for employment with Defendant in
its service center were black and 50% were white; of those
noted as being ‘‘work motivated,’’ only 38% were black—
however, of those noted as being ‘‘not work motivated,”’
83% were black. (Haimes, I-25).
33. Defendant’s own Interviewer’s Manual (Exhibit P-
36), condemns the use of ‘‘work motivation’’ as an ‘‘in-
valid’’ employment criterion. Specifically, the Interviewer’s
Manual states that ‘‘some criteria are invalid because they
are too subjective to have a meaningful bearing on predic-
tions of job performance, including: poor personality, im-
maturity, emotional instability, work motivation, etc. None
of these can be accurately measured by the employment
interviewer.’’ (Emphasis added.) (Exhibit P-36, p. T4-11).
35. It is stipulated that all of the persons who have con-
ducted interviews are white (Joint Stipulations 36, 56);
and there is uncontradicted testimony that all but one have
been male. (Exhibit P-252, Mamola Dep., pp. 90-91). The
fact that all of Defendant’s interviewers have been white,
and all but one have been male, has heightened the potential
for unreliable subjective judgments to be made on the basis
of invalid racial and sexual stereotypes to the disadvantage
of black and female applicants. ‘‘The black applicants being
interviewed by a white interviewer might appear restrained
and somewhat unaggressive in the interview situation, and
55a
[this] could be due to the interpersonal relationship of a
black person with a white man or a white woman. Yet, the
interviewer can conclude that this restrained behavior
might be a sign of poor motivation for work, and therefore
undervalue the performance ability of the black applicant.’’
(Haimes, I-28).
38. Defendant has submitted no evidence to show whether
or not the fact that an applicant has graduated from high
school is related to performance of any of Defendant’s jobs.
In fact, the only evidence introduced on this point suggests
that graduation from high school is not related to job per-
formance. John O. King, Manager of Defendant’s installa-
tion organization, testified that there have been supervisors
who have not had a high school education, and that gradua-
tion from high school is ‘‘not necessarily’’ helpful in per-
forming the tasks of section chief. (Exhibit P-263, King
Dep., pp. 35-36; King, II-144).
41. The following statistics show the number of black and
white applicants tested, their mean test scores, the number
who passed, and the percent who passed, from 1968 through
1971. (Exhibit P-203) :
Mean Percent
Tested Score Passed Passed
1971: Blacks 43 161.4 17 39.5
Whites 84 183.1 55 65.5
1970: Blacks 159 152.2 39 24.5
Whites 224 180.5 138 61.6
1969: Blacks 480 149.8 111 23.1
Whites 504 175.9 274 54.4
1968: Blacks 587 151.5 131 22.3
Whites 519 176.6 300 57.8
Total 1968-1971:
Blacks 1,269 151.2 298 23.5
Whites 1,331 177.5 767 57.6
56a
42. These statistics show that, from 1968 through 1971:
a. Only 23.5% of the blacks who took the test passed,
while 57.6% of the whites who took the test passed;
b. The mean test score for blacks was 151.2 (considerably
below the recommended qualifying score of 177), while the
mean test score for whites was 177.5 (slightly above the
recommended qualifying score). (Exhibit P-203).
43. The following statistics show the number of blacks
and whites who failed the test, the number of those who
failed but were hired anyway, and the percent of test-fail-
ers who were hired, from 1968 through 1971. (Exhibit
P-204) :
Percent of
Failed Failed Who
Failed but Hired Were Hired
1971: Blacks 26 0 0.0
Whites 29 0 0.0
1970: Blacks 120 0 0.0
Whites 86 5 5.8
1969: Blacks 369 11 3.0
Whites 230 19 8.3
1968: Blacks 456 44 9.6
Whites 219 41 18.7
Total 1968-1971:
Blacks 971 55 5.7
Whites 564 65 11.5
44. These statistics show that, from 1968 through 1971:
a. Very few persons who failed the test—only 5.7% of the
blacks and only 11.5% of the whites—were hired (Exhibit
P-204) ; consequently, ‘‘the passing of the test battery is a
precondition for employment,’’ (Haimes, I-22-23) ;
57a
b. ‘‘The major criterion for employment in the Installa-
tion Organization was the passing of this installer test bat-
tery.’’ (Haimes, I-31).
50. Defendant has twice collected job performance data
for use in test validity studies of the “Installer’s Test Bat-
tery.” Data collected in 1963-64 were analyzed in separate
reports in 1964, 1965 and 1973. (Lockwood, II-224-225).
51. An additional study of the “Installer’s Test Battery,”
which was commenced in 1975, was not complete at the
time of trial—although a preliminary report had been pre-
pared dealing solely with data gathered from the Wash-
ington Installation Area. (Exhibit D-100). In addition, De-
fendant’s Department Chief of Personnel Testing and Se-
lection gave testimony concerning certain other prelimi-
nary data available from this study. (Lockwood, II-238-
244).
52. All of the validity studies relating to the “Installer’s
Test Battery” were conducted by Defendant’s employees.
(Lockwood, ITI-4-5).
53. Defendant’s validity studies fail to establish either
the validity or the utility of the ‘‘Installer’s Test Battery’’
because (i) the studies rely on subjective supervisory eval-
uations as the exclusive criterion by which job performance
was measured, without sufficient protection against or ex-
amination for supervisory bias; (ii) the “differential va-
lidity” of the test battery for blacks is not proved; (iii)
the “fairness” of the test battery for blacks is not proved;
and (iv) there is no proof of the “practical significance”
of the test battery. Detailed findings with respect to these
issues are set forth in Section IX of these Findings of
Fact.
61. Sex is not a bona fide occupational qualification for
the position of installer (Joint Stipulation 60). Neverthe-
less, Defendant admitted that its policy, at least through
58a
1971, was not to hire females as installers. (Exhibit P-264,
Haag Dep., p. 26).
62. The effects of this policy are shown in the following
statistics, which show the number of installers, and the
number of female installers, employed during each year
from 1965 through 1975. (Exhibit P-213):
Total Female
Installers Installers
1975 334 0
1974 390 0
1973 402 0
1972 430 0
1971 dll 0
1970 533 0
1969 583 0
1968 575 0
1967 578 0
1966 503 0
1965 582 0
64. Whenever Defendant placed advertisements in the
newspaper to hire installers, the advertisements appeared
in the “Help Wanted, Male” section of the want ads; no
such advertisements have ever been placed in the “Help
Wanted, Male-Female” section, or the “Help Wanted, Fe-
male” section. (Joint Stipulation 54; Exhibit P-24).
65. By placing job advertisements only in the “Help
Wanted, Male” section of the newspaper, Defendant “failed
to give proper notice to women in the labor market as to
the availability of job opportunities for them. In addition,
should a woman, or some women, have seen... this ad-
vertisement .. . they would have been discouraged from
applying for employment as the ad was only run under the
Help Male column.” (Haimes, I-32; Haber, I-98).
59a
71. Where data on the number and percent of blacks and
whites who actually applied for employment with a partic-
ular employer are available, such data furnish the most
accurate and reliable basis for determining the number and
percent of blacks who, absent discrimination, should have
been hired. (Haimes, I-50; Haber, I-82, 89). Absent dis-
crimination, the percent of blacks among those hired should
approximate the percent of blacks among those who ap-
plied. (Id.) (See also Hester v. Southern Railway Co., 497
F.2d 1374, 1379 (5th Cir. 1974); Green v. Missouri Pacific
Railway Co., 523 F.2d 1290, 1294 (8th Cir. 1975).) For
example, if 50% of those who apply for work with a par-
ticular employer are black, then approximately 50% of
those hired should be black. (Haimes, I-50).
72. This is especially true where, as here, the employer
hires workers for unskilled, entry-level jobs. (Haimes, I-
50; Haber, I-82, 89). The total supply of labor available to
a particular employer is defined as consisting of those per-
sons who are qualified and willing to work at the employ-
er’s wage rates and working conditions. (Haimes, I-49-50,
60-61; Goldstein, II-198; Haber, I-89). Where, as here, the
job to be filled is entry-level, and where no prior experience
or specific skills or aptitudes are required, the supply of
labor available to the employer for that job consists pre-
cisely of those persons who actually apply for the job.
(Haimes, I-50; Haber, I-82, 89). Consequently, when such
data are available, the most accurate measure of the avail-
ability of blacks for an employer’s unskilled, entry-level
jobs is the percent of blacks among those who actually ap-
plied for these jobs. (Haber, I-82-83).
73. Census occupational data only report the number of
persons presently employed in certain job categories in a
predetermined geographical unit. (Haber, I-84, 89-90).
These data are incomplete; Defendant’s own expert wit-
ness, Harold Goldstein, testified that “The census data that
we have does not fully define the labor supply for the oc-
60a
cupation.” (Goldstein, II-198-199). Mr. Goldstein testified
that census data do not show who is “capable, qualified,
and interested [in work] at the current work rate and work
conditions.” (Goldstein, II-199).
74. There are many inaccuracies contained in census oc-
cupational data:
a) Blacks and females in the labor supply are under-
reported in the census occupational data: Defendant’s ex-
pert testified that blacks are more frequently under-
counted, t.e., omitted from the census, than whites and that
young black males are more frequently undercounted than
other blacks. (Goldstein, II-199-200). Specifically, the un-
dercount approximates three to five percent for the popu-
lation at large, but may be as high as 20 percent for young
black males. (Goldstein, IT-200-202).
b) The fact that the percentage of unemployed blacks is
higher than the percentage of unemployed whites and the
percentage of unemployed females is higher tha the per-
centage of unemployed males also contributes to the under-
reporting of blacks and females in census occupational data
(Haber, I-91). Unemployed persons are, by definition, not
employed in a particular job category; accordingly, they
are not reported in census occupational data, even though
they are part of the labor supply. (Haber, I-91).
c) Census data does not account for underemployment,
1.e., employment of a person in a job below his skill level
because of his inability to get a job utilizing his skills.
(Goldstein, II-202-203). As Defendant’s expert testified, “If
a worker has a
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