# Petition — Hill v. Western Electric Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0804%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 929 ## Text 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 2 ¢ } Bd 4 % < 3 ~ > 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0804%3A1. Public record. Not legal advice.