Petition — Procter & Gamble Manufacturing Company v. Dennis Fisher

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FILED

80-474 SEP 25 980

No.

MICHRET RODAK, JR, CLERK

IN THE Pe |

Supreme Court of the United States

OCTOBER TERM, 1980

THE PROCTER & GAMBLE MANUFACTURING COMPANY,

Petitioner,

VS.

DENNIS FISHER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ERWIN N. GRISWOLD

1735 Eye Street, N.W.

Washington, D.C. 20006

(202) 861-3898

Of Counsel

HOBART TAYLOR, JR.

THOMAS F. CULLEN, JR.

JONES, DAY, REAVIS & POGUE

1735 Eye Street, N.W.

Washington, D.C. 20006

HAROLD S. FREEMAN

GREGORY L. HELLRUNG

DINSMORE, SHOHL, COATES & DEUPREE

2100 Fountain Square Plaza

511 Walnut Street

Cincinnati, Ohio 45202

(513) 621-6747

QUESTIONS PRESENTED

1. Whether a finding of employer discrimination

can be properly based on the effects of pre-Act

hiring, time-barred promotivun decisions, and a bona

fide seniority system, despite this Court’s decisions in

at)

Teamsters v. United States, 481 U.S. 324, and in, al“

%y ae

United Air Lines v. Evans, 481 U.S. 553 gl

2. Whether the court below could properly find

discrimination by ignoring the inadequate number of

promotion decisions and the proper qualifications of

the relevant population and relying on statistics

derived from a “snapshot” view of job category in-

cumbents at a particular point in time, contrary to

the decisions of this Court in Hazelwood School Dis-

trict v. United States, 483 U.S. 299, Griggs v. Duke

Power Co., 401 U.S. 424, and Albemarle Paper Co. v.

Moody, 422 U.S. 405, and in conflict with the decision

of the Seventh Circuit in Movement for Opportunity &

Equality v. General Motors Corp., 622 F.2d 1235 (7th

Cir. 1980), and other cases.

3. Whether the decision below defeats the objec-

tive of equal employment opportunity by in-

validating promotion devices which are designed to

ameliorate the impact of seniority.

Nag pw €9? (1777)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................::eeeee i

TABLE OF BU oso sdivnsecoescscccec08.00....... iv

CPT NRO Birra se cesses... 1

JURISDOC ee ee. c................ 2

Soe Writes 9) 5, 5) Serer 2

Cae We by Been lo) he 3

Decision of the District Court........................ x

Decision of the Court of Appeals................... 10

Reasons for Granting the Writ..................... 12

l. Conflict with Teamsters and Evans....... 12

2. Conflict with this Court’s Decisions in

Hazelwood, Griggs, and Moody with

Respect to the Use of Statistics ......... 14

3. Conflict with Decisions of Courts of

| SS Ao SE 19

4. The Case Has Great Practical Impor-

tance for Future Affirmative Action

Efforts as Well as Bona Fide Senior-

a a 22

CONC i a rcireccissessss........ 26

APPENDIX A (Opinion of the court of ap-

ee) RO la

APPENDIX B (Findings of Fact and Con-

clusions of Law of the district court) ............... 37a

APPENDIX C (Judgment of the district

CUED cic datiscrseseesesscteceese 53a

ili

Page

APPENDIX D (Order amending Findings) ...... 55a

APPENDIX E (Amended Judgment of the

SR NOD ii solits dea bainst aan ock bia 57a

APPENDIX F (Order for Affirmative Action

BACHE Sires BRU Scom ie ieee 1A ARIES 0 Neat ie 59a

APPENDIX G scuncantani of the court of ap-

ERATE Heatran) xls har Wiese rea he en MOI. | 5000 69a

APPENDIX H (Order denying petition for

EE cad ce eee Tla

APPENDIX I (Statutes Involved) .0...0.00.00000000..... 78a

TABLE OF AUTHORITIES

Page

CASES:

Adams v. Reed, 567 F.2d 1283 (5th Cir.

DE cael Sr Stain cla deuaehpedienss + cubende)

MN Sooo e ianaichersscusvscsevoupatiarateretanbeeenss

Alexander v. Aero Lodge No. 735, 565 F.2d

co Cir. 1977), cert. denied, 436

Bridgeport Guardians, Inc. v. Members of

the Bridgeport Civil Service Commis-

sion, 354 F. Supp. 778 (D. Conn.), aff'd

in part and rev'd and remanded in part,

482 F.2d 1333 (2d Cir. 1978) aff'd, 497

F.2d 1113 (2d Cir. 1974), cert. denied,

RRS RRR Cis Saar oN He

California Brewers Association v. Bryant,

een a ore cabaeeaeeel

Castaneda v. Partida, 430 U.S. 482.......0...... 15,19

Croker v. Boeing Company, 437 F. Supp.

as F) 2 yy ER eeereen ere omneere

Firefighters Institute for Racial Equality

v. City of St. Louis, 549 F.2d 506 (8th

Cir. 1977), cert. denied, 434 U.S. 819.......

Friend v. Leidinger, 588 F.2d 61 (4th Cir.

Bei icés cerca ceo caead ek ae sesh aoc es

Waa aha ccc nitions ah eectecishaimen Canoes:

Harper v. Trans World Airlines, Inc., 525

F’.20 400 (Sth Cir. 1975) .............cccccccccerees.

Hazelwood School District v. United States,

ea et

Page

James v. Stockham Valves & Fittings

Company, 559 F.2d 310 (5th Cir. 1977),

cert. denied, 434 U.S. 1084 .........0.0.0.0000.. 14

Mayor of Philadelphia v. Educational

Equality League, 415 U.S. 605................... 18

Movement for Opportunity & Equality v.

General Motors Corporation, 622 F.2d

Es BIE ses daspnceiiaswicinsvonssncomcsssns iit

Ochoa v. Monsanto Company, 473 F.2d 318

I WN oii va isintrcanl.scccenlinntene abled 18

Robinson v. City of Dallas, 514 F.2d 1271

I os cdcdaccon nun haeobensodamatos 18

Roman v. ESB, Inc., 550 F.2d 1343 (4th

I, 5 ca ec has gis conk dencacadoicemenaioeah 17,18

Teamsters v. United States, 431 U.S. 324 .... 3,4,8,10,

12,13,14,

17,18-19,

21,24,25

Turner v. Texas Instruments, Inc., 555

ee) 5 Et Lh. | y | Renee 18

United Air Lines v. Evans, 431 U.S. 553..... 3,8,13

14,20

Younger v. Glamorgan Pipe & Foundry

Company, 561 F.2d 563 (4th Cir. 1977),

on remand, 20 FEP Cases 776 (W.D. Va.

1979), aff'd, 621 F.2d 96 (4th Cir. 1980) .. 21

STATUTES:

Civil Rights Act of 1866,

Fd EE i ea RE Oe ep ae 3

Page

Title VII of the Civil Rights Act of 1964,

42 U S.C. $3 20000 ot eee. ......;.......5........... 2,3

42 US.C. § 2000e—2(h) ........ ee. 2,3,6,12

13,17,24

42 U.S.C. § 2000e—5(e) ....... eee 3

RE EE ey ce ae 2

OTHER AUTHORITIES:

P. HOEL, INTRODUCTION TO MATHEMATI-

CAL STATISTICS (4th ed. 1971) ..........000..... 19

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

THE PROCTER & GAMBLE MANUFACTURING COMPANY,

Petitioner,

vs.

DENNIS FISHER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, The Procter & Gamble Manufac-

turing Company (hereinafter “Company”) prays

that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Fifth

Circuit, ‘ ntered in the above case on May 29, 1980.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

613 F.2d 527. It is reproduced in Appendix A, infra,

pp. la-35a.

The Findings of Fact and Conclusions of Law of

the District Ccurt for the Northern District of Texas

dated April 20, 1977 are not officially reported, but

are reported at 14 EPD 97662. A copy is reproduced in

Appendix B, infra, pp. 37a-52a. The Judgment of the

district court is reproduced in Appendix C, infra, pp.

58a-54a. The District Court’s Order Amending Find-

ings of Fact and Conclusions of Law dated May 6,

1977, officially unreported, is reproduced in Appendix

D, infra, p. 55a. The District Court’s Amended

Judgment dated May 19, 1977, also officially unre-

ported, is reproduced in Appendix E, infra, pp. 57a-

58a. The District Court’s Order Providing for an

Affirmative Action Plan in Defendant’s Dallas Plant

dated May 31, 1977, also officially unreported, is

reproduced in Appendix F, infra, pp. 59a-68a.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on March 12, 1980. Appendix G, infra, pp. 69a-

70a. <A petition for rehearing and suggestion for

rehearing en banc was denied on May 29, 1980.

Appendix H, infra, pp. 7la-72a; 618 F.2d 1389. By

order of this Court, dated August 14, 1980, the

petitioner was granted an extension of time in which

to file this petition, up to September 26, 1980. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTES INVOLVED

Title VII of the Civil Rights Act of 1964 (here-

inafter “Title VII’), 42 U.S.C. § 2000e et seq., specific-

ally Section 703(h) thereof (42 U.S.C. § 2000e—2(h) )

and Section 706(e) thereof (42 U.S.C. § 2000e—5(e)).

Additionally, the Civil Rights Act of 1866, 42 U.S.C.

§ 1981. Sections 703(h), 706(e) of Title VII and

Section 1981 are set forth in their entirety in Appen-

dix I, infra, pp. 78a-74a.

STATEMENT

This case is a class action under Title VII of the

Civil Rights Act of 1964. It involves the seniority

system and promotion practices of the Dallas, Texas

plant of The Procter & Gamble Manufacturing Com-

pany. The basic issue is whether despite this Court’s

holdings in Teamsters v. United States, 431 U.S. 324,

and United Air Lines v. Evans, 431 U.S. 553, a

conclusive showing of discrimination can be founded

upon only a snapshot statistical showing which ig-

nores the combined effects of a bona fide seniority

system, pre-Act hiring decisions, and time-barred

promotion decisions, and which incorporates far too

few promotional decisions to support a reliable find-

ing.

The evidence before the district court may be

summarized as follows:!

The Dallas plant, which produces and distributes

food, soap, and synthetic detergents, has a current

work force of over 500 employees. Since at least 1972,

the Dallas plant has had an active affirmative action

program. The work force as a whole has gone from

5% (3 of 549) black employees in 1966 to 14.7% (74 of

‘Citations to the record below are either to the Joint

Appendix before the court of appeals, cited J.A. , or to the

Joint Appendix exhibit volumes, cited J.A.X. P

505) in 1977; as of January 1, 1977,’ 35.5% of employ-

ees with seniority dates after July 1, 1966 were black.

(Approximately 12.8% of the total work force in the

Dallas-Fort Worth Standard Metropolitan Statistical

Area is black. Finding of Fact 17, App. B at 40a; 613

F.2d at 535 n.8, App. A at 8a n.8.)

Turnover at the plant is low, and, as the figures

above would indicate, there is no contention of hiring

discrimination during the relevant years.’ The

present controversy between the parties relates en-

tirely to promotions among the ranks of existing

employees.

For most positions at the plant, promotion is

based upon seniority, pursuant to the provisions of a

labor contract. The court of appeals found the Com-

pany’s plant-wide seniority system to be neutral in

operation and bona fide within the meaning of Team-

sters v. United States, 481 U.S. 324. All non-

management openings within the plant are posted

plant- wide and for most jobs, plant- wide seniority is

the sole effective criterion of selection among the

bidders.

For certain job categories which require special

qualifications, the most senior qualified bidder is

chosen according to a process termed “total assess-

ment.” There are three non-management job cate-

gories which are filled in this way: (1) maintenance

? January 1, 1977 was the date established as the cutoff point

for evidence to be considered at the trial, which began January

11, 1977.

‘The court of appeals below found specifically that hiring

practices had not been “joined or litigated” in the case. (613

F.2d at 541, App. A at 22a.)

technician (mechanic); (2) lab analyst; and (3) high

level operator. For a fourth job category—

manufacturing clerical—total assessment is not used

but bidders do take the Aptitude Form C-M test.

Total assessment operates as a qualification on

seniority rights. In order to qualify for promotion,

the senior bidding employee must achieve an “ac-

ceptable” rating. Thus, the job bidder with the

greatest plant-wide seniority and with at least an

“acceptable” total assessment profile is selected to fill

the vacancy. (J.A. 341, 679.)‘

‘As is discussed infra, the total assessment system was

implemented for the various jobs at different times within the

statutory period. Thus the number of promotion decisions

affected by total assessment is less than the total number of

promotion decisions made within the statutory period. See nn. 6

& 7, infra.

Total assessment was developed by professional industrial

psychologists, and implemented by the Company in response to

the 1966 EEOC Guidelines on Employment Testing Procedures

(hereinafter “1966 EEOC Guidelines”, J.A.X. 1659) which spe-

cifically advocated use of total personnel assessment (J.A. 653.)

In practice, total assessment is a uniformly administered, sys-

tematic and comprehensive way of compiling and evaluating

evidence about a bidder with respect to “what counts” factors,

which are related to performance on the job for which the

employee has bid. (J.A. 340-41, 651-52.) ““What counts” criteria

are established for each position for which total assessment is

used.

Where total assessment is utilized, the bidder for a non-

management job takes one or more professionally developed

tests. For mechanic positions, the bidder takes the Aptitude

Form M-A test. (J.A.X. 1828-43.) For lab analyst positions, the

(footnote continued )

Total assessment has two impacts. First, it has a

positive impact on less senior bidders who are consid-

ered for promotion when more senior bidders do not

achieve acceptable ratings. Second, it has a negative

impact on more senior bidders who are “by-

passed” —i.e., those with enough seniority to receive

the promotion but who were not judged to be accept-

able candidates.

As of the date of trial, all of the non-

management employees then employed at the plant

whose seniority dates predated July 1, 1966, were

white. Thus, there were 239 white employees out of a

total of 436 employees who had more seniority than

the most senior black employee. Consequently, it was

predominantly white bidders who were disqualified

or bypassed (see Finding of Fact 19, App. B at 40a;

J.A.X. 1269-77; D. Ex. 14, J.A.X. 1278.)

(footnote continues)

bidder takes the Aptitude Form C-M test. (J.A.X. 1344-54.)

For high level operator positions, the bidder takes the Aptitude

Form M-A test (J.A.X. 1328-43), the Production Control test

(PCT) (J.A.X. 1355-73), and a “Form “’” arithmetic test. There

are no specified minimum scores for any of the tests (J.A. 408-

09, 416-17), but rather they are scored on the basis of a four-

category scale. (J.A. 408-09.) When a test is used as a part of

the overall total assessment process, it is used as only one of the

pieces of information athered about the bidder in the “what

counts” areas. (J.A. 400, 409-10.) These tests were developed

in-house by Procter & Gamble professional industrial psy-

chologists and the trial court found all of them to be “profes-

sionally developed” within the meaning of 42 U.S.C. § 2000e-

2(h) (except the C-M test, as it is used apart from total

assessment in selection of employees for manufacturing clerical

positions). (Conclusion of Law 18, App. B at 50a.)

Between September 11, 1970,5 and January 1,

1977 (the cutoff date for the evidence at trial), 19

mechanic selections were made. For these selections,

79 white employees (90.8%) and 8 black employees

(9.2%) were bypassed.’ (J.A.X. 1393-1400.) In this

period, only two lab analyst selections were made; 5

white employees (83.8%) and one black employee

(16.6%) were bypassed. (J.A.X. 1403-06.)’ For man-

ufacturing clerical jobs, only 2 selections were made

in the period and no black employee with more

seniority than the employee selected was ever by-

passed. (J.A.X. 1407.)

The greatest number of vacancies occurred in

high level operator jobs where 34 vacancies were

filled after implementation of the total assessment

system for these jobs. Of these vacancies, 21 were

filled by whites (62%) and 12 by blacks (35%) a ratio

’ The respondent filed his charge with the EEOC on March

10, 1971. The statutory time period runs from the 180th day

prior to that date, i.e, September 11, 1970. See § 706(e) of Title

VII, as amended.

‘Total assessment was not used for selection for mechanic

positions until February, 1973. (J.A.X. 1393.) Before that time,

selections were made on the basis of plant-wide seniority and

valid qualifying tests. (See fn. 4, p. 5.) Since that time, there

have been 15 mechanic jobs awarded, one (6.7%) of which was

awarded to a black (compare J.A.X. 1898-1400 with Finding of

Fact 42, App. B at 44a.) For those 15 selections, 47 employees

were bypassed, only 2 (4.2%) of whom were black. Ha# total

assessment not been utilized, the one black awarded a mechanic

position would not have been selected since he was not the senior

bidder. (J.A.X. 1398.)

7 Total assessment was used with respect to only one lab

analyst selection. (J.A.X. 1403-06; Finding of Fact 45, App. B at

44a.)

of black employees to white employees which far

exceeds black representation in the work force.

(J.A.X. 1887-89.)°

Promotions to management from _ non-

management jobs are based on a type of total assess-

ment, which incorporates the use of the Form PM

test, and which is quite different from that used for

non-management promotions. (Amended Finding

of Fact 22, App. D at 55a.) Since September 11, 1970,

6 persons have been promoted to management posi-

tions, one of whom was black. (J. A. X. 1412-13.)

Decision of the District Court

The case was tried before the district court below

as a class action on behalf of all actual black employ-

ees and all future black employees of the DallaSplant.

In a decision rendered before this Court’s decisions in

Teamsters (431 U.S. 324) and Evans (431 U.S. 553),

the court found a pattern or practice of dis-

criminatory promotions based on the advantages

which the plant’s seniority system apparently gave to

white employees. First, the court concluded that the

seniority system was not “bona fide”, despite the fact

that it was plant-wide and neutral in operation,

because it operated to freeze the effects of past

discriminaton. All results of that system were there-

fore suspect. The district court relied upon the then-

current job category figures which, as of the date of

the trial, showed disproportionately low numbers of

’ One position was filled by a member of another minority

group.

blacks in management and certain non-management

positions. The district court went on to find that the

total assessment program was invalid because blacks

were underrepresented among the managerial per-

sonnel who applied the program. (Conclusion of Law

21, App. B at 50a.)°

On the testing issues, the court found dis-

crimination in the use of two of the tests. The Form

PM test used for promotion to management positions

was held not to be a valid test unless it was used in

conjunction with a valid total assessment program,

because it had content validity only with respect to

certain aspects of the managerial functions. The

Form C-M test, insofar as it was used for promotion

to manufacturing clerical positions, was found to be

not “professionally developed” or properly validated,

because of the court’s conclusion that test results did

not show that it was valid for both black and white

employees. The court gave judicial approval to the use

of Form C-M insofar as it was used for promotion to

lab analyst positions, and to the use of all other tests

in issue in this case. (See fn. 4, supra, p. 5.)

Moreover, the court found no discrimination in

promotion to high level operator positions despite the

use of total assessment and three tests.

Finally, the district court found discrimination

in promotion to security guard positions, even though

* The court’s conclusion applied to the type of total assess-

ment used for promotions to management as well as to the type

used for non-management promotions, although (1) total

assessment for promotions to management was a different

process, and (2) it was never litigated before the district court.

such promotions were made solely on the basis of

plant- wide seniority.

Decision of the Court of Appeals

Shortly after the district court decision, this

Court rendered its decision in Teamsters v. United

States, 431 U.S. 324. Based on Teamsters, the court of

appeals rejected the district court’s conclusion that

the Company’s seniority system was not bona fide, but

upheld the lower court’s finding of a prima facte case,

and many of the ultimate findings, of discrimination.

The court of appeals did so by characterizing the

district court’s holding as based upon two alternative

supports: first, the finding that the seniority system

was not bona fide, and second, the disparate impact of

the Company’s promotion system on blacks. The

court said (613 F.2d at 543, App. A at 26a-27a):

The district court found that the Company had

committed present and continuing violations.

This conclusion was premised not only on the

court’s finding that the seniority system was not

bona fide, but on its finding that the Company

engaged in active discrimination in granting

promotions to certain positions. Because the

record supports the latter finding, the district

court’s erroneous determination as to the bona

fide nature of the seniority system does not

affect the outcome.

_.. We find ample record evidence to demon-

strate the disparate impact of Company promo-

tion policies. As noted, while blacks comprise

14.7% of the total work force, they are marked by

their conspicuous presence in the “lower eche-

lons” of the employee hierarchy.... When this

action was filed, one of the sixty-three company

managers was black, none of the twenty-two lab

analysts was black and none of the security

guards was black. At the time of judgment, one

of twenty-nine clerical workers was black, and

one of seventy-six mechanics at the plant was

black. [Citations omitted. ]

Relying solely upon these snapshot figures show-

ing an apparent underrepresentation of blacks in

certain positions on different dates, the court of

appeals stated that the burden of rebutting this

showing was on the Company. To the extent that the

Company maintained that general population figures

were an inappropriate comparison because of special

skills required, the “burden of proving lack of quali-

fications [in the general population] is on the Com-

pany.” (613 F.2d at 544, App. A at 28a.) Likewise, it

was the Company’s burden to explain the racial

disparity by proving the “job relatedness” of the two

company promotional practices found objectionable

by the district court: (a) the two qualifying tests,

and (b) the total assessment program.

In upholding the district court’s findings with

respect to both the tests and the total assessment

program, the court of appeals began by noting that

the showing of disparate impact placed the burden of

justifying the practices on the Company. It affirmed

the district court’s conclusion that the C-M test for

manufacturing clerical promotions and the PM test

for promotions to management had not been properly

validated and thus were not “professionally devel-

oped tests” within the meaning of Section 703(h) of

Title VII. (Findings of Fact 61-64, App. B at 47a-

48a.)° The court concluded that the Company had not

carried its burden with respect to total assessment

because “subjective evaluations by all white super-

visors provide a ready mechanism for discrimin-

ation.” (613 F.2d at 546, App. A at 31a.)

The court also upheld the district court’s findings

of discrimination in promotion to security guard

positions, finding that the Company had failed to

explain the disproportionate underrepresentation of

blacks in the job, despite the fact that all security

guard promotions were based on seniority alone.

(613 F.2d at 546 n.36, App. A at 32a n.36.)

Reasons For Granting The Writ

1. Conflict with Teamsters and Evans

By basing a prima facie finding of discrimination

on employment figures which reflected the effects of

pre-Act hiring, time-barred promotion decisions,

and a bona fide seniority system, the court below

placed itself in direct conflict with this Court’s deci-

sions in Teamsters v. United States, 431 U.S. 324, and

Section 708(h) of Title VII, 42 U.S.C. § 2000e-2(h),

provides in pertinent part that it shall not be an unlawful

employment practice “for an employer to give and to act upon

the results of any professionally developed ability test provided

that such test, its administration or action upon the results is

not designed, intended or used to discriminate because of race,

color, religion, sex or national origin.”

in United Air Lines v. Evans, 481 U.S. 553, and

undermined the protections for bona fide seniority

erected by Congress and affirmed by Teamsters.

In Section 703, Congress provided in clear lan-

guage that racially neutral, bona fide seniority sys-

tems would remain permissible under Title VII."

In Teamsters, this Court held that the “unmis-

takable purpose of Section 703(h) was to make clear

that the routine application of a bona fide seniority

system would not be unlawful under Title VII.” (431

U.S. at 352.) Section 703(h) immunizes a racially

neutral, bona fide seniority system, even where the

seniority system has the incidental effect of perpetu-

ating the impact of racial discrimination prior to the

enactment of the Civil Rights Act. (431 U.S. at 348

n.30.) Moreover, in the Evans case, this Court ex-

tended its holding in Teamsters to immunize a sen-

iority system “even though it perpetuates post- Act

discrimination that has not been the subject of a

timely charge by the discriminatee.” Evans, supra,

paraphrased in Teamsters, supra, 431 U.S. at 348 n.30.

See also California Brewers Association v. Bryant, 444

USS. 598.

1 ee

{I]t shall not be an unlawful employment practice for an

employer to apply different standards of compensation, or

different terms, conditions, or privileges of employment

pursuant to a bona fide seniority ... system, provided that such

differences are not the result of an intention to discriminate

because of race ... or national origin... .”

42 U.S.C. § 2000e-2(h).

Constrained to hold that the Company’s seniority

system was bona fide by Teamsters,” the court below

attempted nonetheless to preserve the district court’s

finding of discrimination. The court characterized

Teamsters as affecting this case only with respect to

the question whether pre-Act practices or results

would constitute relevant evidence. It purported to

find active, present discrimination apart from the

operation of the seniority system. To do so, the court,

completely ignoring Evans, relied on incumbency

statistics which reflected the effects of pre-Act and

time-barred hiring and promotion decisions as well

as the operation of the bona fide seniority system

itself. The court of appeals ignored Evans, and

chopped Teamsters in half by holding that while the

Company’s seniority system was bona fide, the results

of its operation were conclusive proof of dis-

crimination.

2. Conflict with this Court’s Decisions in Hazel-

wood, Griggs, and Moody with Respect to the

Use of Statistics

To construct a conclusive showing of dis-

crimination in this case, the court of appeals ignored

this Court’s guidance on statistical treatment of

qualifications, adverse impact, and sample size, as

well as seniority. The conflict with the precedents on

these issues is clear when attention is focused on the

group allegedly hurt by the Company’s promotion

practices—i.e., those persons who qualified for promo-

tion based on seniority but who were “bypassed” for

other reasons.

2 See also James v. Stockham Valves & Fittings Co., 559 F.2d

310, 347-53 (5th Cir. 1977), cert. denied, 434 U.S. 1034.

A. The court below failed to face the issue of

proper qualifications in identifying those eligible for

promotion, as this Court’s decision in Hazelwood

School District v. United States, 483 U.S. 299, requires.

In Hazelwood, the trial court had based a finding of a

prima facie case of discrimination upon a comparison

between the percentage of blacks among teachers in

defendant school system with the percentage of

blacks in the student population. This Court held

that the district court had “fundamentally mis-

conceived the role of statistics in employment dis-

crimination cases.” (433 U.S. at 308.) The Court held

in Hazelwood that the trial court should employ a

statistical comparision well suited to the particular

question under consideration—in that case, a com-

parison “between the racial composition of Hazel-

wood’s teaching staff and the racial composition of

the qualified public school teacher population in the

relevant labor market.” (4383 U.S. at 308 (footnote

omitted).) See also Castaneda v. Partida, 430 U.S. 482.

In the current case, a basic qualification for

promotion of a person in petitioner’s work force is the

amount of seniority which that person has acquired.

Thus, under Hazelwood, the proper approach of the

district court in the current case should have been to

compare the racial composition of those persons re-

ceiving promotions with the racial composition of

those persons possessing sufficient seniority to have

been realistically eligible for promotion. There is no

indication that the district court made this com-

parison; insofar as the district court did compare the

experience of blacks and whites with roughly com-

parable seniority, it specifically found that for non-

management employees with seniority dates after

July 1, 1966, blacks averaged more gross earnings in

1976 than whites. (Amended Finding of Fact 52,

App. D at 55a.) Both courts below have failed to make

the appropriate comparison in deciding that there

was adverse impact.

B. There is no adverse impact on blacks from the

practices which the courts below have held invalid.

Finding an adverse impact which results from the

challenged practices is the essential first step in

inferring discrimination. The uniform teaching of

this Court, and of courts of appeals, is that a selection

procedure must have an overall adverse impact on

minorities before the procedure is found to be illegal,

and before it is necessary to assess the impact of

individual components of the procedure. See Albe-

marle Paper Co. v. Moody, 422 U.S. 405, 425; Griggs v.

Duke Power Co., 401 U.S. 424, 426; Friend v. Leidinger,

588 F.2d 61, 66 (4th Cir. 1978).

For promotions to the job positions at the Dallas

plant where seniority was a primary factor there is

no adverse impact on blacks, with respect either to

the incidence of senior employees being bypassed or

to actual selections.

The deficiency in the approach of the court below

is clearly demonstrated in its treatment of the issue

of promotion to the manufacturing clerical jobs. In

the first of the two selections made since September

11, 1970, the job was awarded to the senior bidder.

(J.A.X. 1407.) In the second selection, the job was

awarded to the second most senior bidder, because

the senior white bidder was bypassed due to his C-M

test score. (J.A.X. 1407.) No black employee who had

more seniority than the person selected had ever

been passed over for the job because of his C-M test

score. (J.A.X. 1407.) Since the Company’s seniority

system is bona fide, and since the C-M test did not

disqualify any black employee from a manufacturing

clerical job, there is no basis for a finding of adverse

impact and no basis for invalidating the C-M test."

For promotion to management positions the nec-

essary conclusion is the same. Since September 11,

1970, and up to the time of trial, the Company made

six managerial selections, one of which was black.

(J.A.X. 1412-13.) One of six is a higher percentage

(16.6%) than the highest percentage of blacks in the

plant (14.7%), and the black promoted was the only

one to complete the Form PM test and the total

assessment process. Both the PM test and the total

assessment program were invalidated despite the

fact that they disqualified no blacks.

'? The state of the record is similar on the security guard

issue, where the court of appeals relied solely on the absence of

any black security guards without noting that no senior black

had ever been bypassed in the non-union, but straight seniority,

bidding for a guard job.

It is unclear whether the court below ignored the impact of

seniority on security guard selections as part of its general

pattern of ignoring seniority, or based its decision on an

implicit conclusion that only seniority based on a union agree-

ment is entitled to the protection of § 703(h) and Teamsters. If

the former was the reason, the treatment of the issue is in

conflict with Teamsters; if the latter was the reason, the court is

in conflict with Roman v. ESB, Inc., 550 F.2d 1343, 1349 n.5, 1352

(4th Cir. 1976), as well as with Teamsters. In Roman, the Fourth

Circuit made it clear that § 703(h) of Title VII related to bona

fide seniority systems generally and not just to systems nego-

tiated under union contracts.

C. By relying on incumbency statistics, the court

below obscured the very small number of relevant

promotions within the statutory period: the numbers

of persons conceivably affected are in the range

which has been consistently identified as too small to

support a statistical inference of discrimination.

During the time period at issue in this case, the

number of promotions to each job where plaintiff

challenged the Company’s promotion practices was

extremely small. Only 6 manager, 2 lab analyst, 2

manufacturing clerical, 19 mechanic, and 11 security

guard promotions were made during the more than 6

years from September 11, 1970, up to January 1, 1977,

the time of trial. Although the problems inherent in

small sample size were explicitly recognized in Team-

sters and in previous cases in the Fifth Circuit and

elsewhere," the court of appeals below ignored the

issue entirely. Even if the court were correct in

stating that its statistical comparisons “shifted the

burden to the Company,” it disregarded the lesson of

Teamsters when it concluded that the only way the

Company could “explain the racial disparity [was] by

proving job relatedness” (613 F.2d at 544, App. A at

28a). In taking this position, the court of appeals

ignored the explicit caveat in Teamsters that an

“ Teamsters v. United States, 431 U.S. 324, 339-40, n.20;

Mayor of Philadelphia v. Educational Equality League, 415 US.

605, 621 (13 too small a sample); Adams v. Reed, 567 F.2d 1283,

1287 (5th Cir. 1978); Turner v. Texas Instruments, Inc., 555 F.2d

1251, 1257 (5th Cir. 1977) (8 far too small); Roman v. ESB, Inc.,

550 F.2d 1848, 1852 (4th Cir. 1976) (83 too small); Harper v.

Trans World Airlines, Inc., 525 F.2d 409, 412 (8th Cir. 1975) (5

too small); Robinson v. City of Dallas, 514 F.2d 1271, 1278 (5th

Cir. 1975) (7 too small); Ochoa v. Monsanto Co., 473 F.2d 318,

319-20 (5th Cir. 1973) (56 too small).

adequate, innocent explanation for apparent dis-

parities could be found in the smallness of the sample.

(431 U.S. at 339-40.)

In sum, the court below has ignored the decisions

of this Court on the proper use of statistics in con-

structing a finding of discrimination, and has substi-

tuted a model of haphazard handling which can only

lead to unstructured and unwarranted findings of

discrimination in the Fifth Circuit and elsewhere.

3. Conflict with Decisions of Courts of Appeals

The conflict between the decision below and the

previous decisions of this Court is disguised, but not

remedied, by the court’s attempt to rely on in-

cumbency figures which do not identify the impact of

any challenged practice. The court below relied on

“snapshot” statistics—employment data at a given

moment in time—and failed to distinguish lawful

from unlawful explanations for the results. The

Seventh Circuit in Movement for Opportunity &

Equality v. General Motors Corp., 622 F.2d 1235 (7th

Cir. 1980), has rejected this sort of analysis and

stated the reasons cogently.

The plaintiffs in General Motors attempted to

establish their case in the same manner as plaintiffs

here:

Plaintiffs undertook to prove their claims of

class-wide discrimination on the basis of data

focusing on an instant in time (snapshot statis-

'S P| HOEL, INTRODUCTION TO MATHEMATICAL STATISTICS, 82

(4th ed. 1971), cited with approval in Castaneda, supra, in-

dicates clearly that samples and probabilities of the magnitude

reflected here cannot provide reliable statistical expectations or

standard deviations.

tics). Plaintiffs would take a date, look at a job,

and determine the percentage of women and

minorities in that job at that instant compared

to the percentages in the relevant workpool.

Anytime the percentages of women and minor-

ities in the “snapshot” were less than those in the

workpool, plaintiffs considered themselves to

have proven discrimination by defendant.

Id., 622 F.2d at 1244.

The Seventh Circuit concluded that the plaintiffs’

“snapshot” statistics did not prove their case:

[P]laintiffs’ snapshot statistics incorporate dis-

criminatory impacts occurring before the rele-

vant time frame.... Thus, given Congress’

imposition of a statute of limitations for Title

VII actions..., defendants’ approach empha-

sizing the day-to-day decisions made during the

relevant period are better than plaintiffs’, which

include pre-statute of limitations actions by

virtue of their use of cumulative statistics. [Ci-

tations omitted. ]

Id., 622 F.2d at 1245.

In the present case, the district court failed to

distinguish the impact of seniority, pre-Act actions

and time-barred decisions, and valid tests, because

(prior to this Court’s decisions in Teamsters and

Evans) it found that the Company’s seniority system

was not bona fide. The court of appeals found the

seniority system bona fide but failed to give this

finding any significance in assessing the numbers

upon which it relied. (See fn. 4, p. 5 supra, and

discussion in text at p. 8-9, supra.)

Like the General Motors’ court, the Sixth Circuit

has stressed the need to find discrimination inde-

pendent of the impact of a bona fide seniority system.

In Alexander v. Aero Lodge No. 735, 565 F.2d 1364 (6th

Cir. 1977), cert. denied, 486 U.S. 946, the court re-

jected the plaintiffs’ statistical showing because:

[T]he statistical differences must be discounted

to the extent they are simply a reflection of the

impact of a bona fide seniority system, including

its job equity feature.

Id., 565 F.2d at 1382.

In remanding to the district court for reconsidera-

tion in light of its opinion, and of this Court’s decision

in Teamsters, the Sixth Circuit clarified the showing

necessary to support a cause of action for dis-

crimination in that circuit. The court of appeals

directed the trial court to assess whether a “regular

procedure or policy” of “unlawful discrimination”

could be proved “absent consideration of the effects of

the seniority system.”

In contrast, after the decision below in the case

at bar, no such constraint applies in the Fifth Circuit:

a pattern or practice of discrimination can be proved

based on statistics which agglomerate the effects of

challenged practices with the effects of bona fide

seniority systems, pre-Act actions, and time-barred

decisions. Compare Croker v. Boeing Co., 437 F. Supp.

1138, 1183, 1187 (E.D. Pa. 1977).'°

'® Compare also Younger v. Glamorgan Pipe & Foundry Co.,

561 F.2d 563 (4th Cir. 1977), on remand, 20 FEP Cases 776 (W.D.

Va. 1979), aff'd, 621 F.2d 96 (4th Cir. 1980), finding in light of

(footnote continued )

4. The Case Has Great Practical Importance for

Future Affirmative Action Efforts as Well as

Bona Fide Seniority Systems

By confusing the proper legal standards for

identifying discrimination, the court below con-

founds good faith compliance by employers and pe-

nalizes efforts to remedy past imbalances. Black and

white employees as well as employers will suffer from

the effects of this decision.

A. The paradoxical result of the decision below is

to discredit good faith efforts to ameliorate the ad-

verse impact of a bona fide seniority system on black

employees. The operation of a bona fide seniority

system produced the incumbency figures condemned

by the court below, but the brunt of the decision falls

on promotion devices which generally operate to

make competent employees, black or white, eligible

for promotion even if those employees are not the

most senior applicants.

The total assessement program was profes-

sionally developed in a good faith effort to identify,

fairly and comprehensively, the qualifications neces-

sary for certain jobs. EEOC guidelines encouraged

the use of such programs; subsequent decisions of the

courts have supported their use (see Firefighters In-

stitute for Racial Equality v. City of St. Louis, 549 F.2d

506, 512 (8th Cir. 1977), cert. denied, 434 U.S. 819);

(footnote continues)

Teamsters that the plaintiffs’ case, based on the admitted

concentration of blacks in lower level jobs, failed because the

plaintiffs could establish no discriminatory reason for this result

apart from the operation of the employer’s bona fide seniority

system.

and successful affirmative action requires that com-

panies such as Procter & Gamble have some device

other than seniority to identify competence.

The benefits of total assessment for minority

employees are apparent in the Company’s experience.

For promotions to high level operator jobs, total

assessment resulted in 12 blacks being selected out of

a total of 34 (35.38%). (J.A.X. 1887-89.) For mechanic

jobs, 2 blacks (and 26 whites) were bypassed on the

basis of total assessment for 8 mechanic jobs bid in

1973 and 1974 (the only mechanic selections where

any blacks were bypassed). (J.A.X. 1398-1400.)

Moreover, one of the eight openings was filled by a

black employee who would not have been selected on

seniority alone. (J.A.X. 1398.) For all non-manage-

ment selections in which total assessment has been

used, 26% (13 of 50 selections) of those selected have

been black, as compared with a plant representation

of 14.7%."

Black employees are not helped by haphazard

invalidation of such a system, and employers’

affirmative action efforts will surely be chilled if it is

clear that they cannot rely on EEOC guidelines or

prior court decisions in constructing screening de-

vices other than seniority. If the court of appeals has

correctly applied the law, employers will be encour-

aged to rely strictly on seniority—a result which will

harm rather than help those minorities on the lower

rungs of the seniority ladder.

' The plant representation of black employees was 14.7% as

of January 1, 1977, which was significantly higher than at

earlier times (Finding of Fact 20, App. B at 40a.)

B. To remedy the statistica! condition which the

courts below found sufficient to establish a prima

facie case of violation of Title VII, the Company

would have to extirpate completely the seniority

rights which Title VII protects. If a prima facre case

can be made out by reference to overall employment

figures without regard to the small number of promo-

tions, then the implication is that the Company has to

create opportunities to balance its work force, by

“bumping” incumbents or scrambling the seniority

order of bidders in some way. This is precisely the

result which Congress meant to preclude in enacting

Section 703(h) and which this Court meant to make

unnecessary in deciding Teamsters."

Moreover, the court below found that the overall

statistical results justified a finding that each of the

components of the promotional system was dis-

criminatory. The logic of such a procedure is dubious.

Compare Bridgeport Guardians, Inc. v. Members of the

Bridgeport Civil Service Commission, 354 F. Supp.

778, 794 (D. Conn.), aff'd in part and rev'd and

remanded in part, 482 F.2d 1333 (2d Cir. 1973) aff'd,

497 F.2d 1118 (2d Cir. 1974), cert. denied, 421 U.S. 991

(once the overall impact is established, the impact of

individual components should be assessed ). The result

8 As the court stated in General Motors, supra (622 F.2d at

1245):

“By relying on cumulative statistics alone, plaintiffs

grouped defendants’ hiring decisions from 20-30 years ago with

those of the last five years. Defendants could have hired all

women and minorities for those jobs which opened during the

relevant statutory periods, yet, because of the large number of

existing non-minority male employees carried over from before,

it would look as though defendant was still discriminating.”

here of the reasoning of the court of appeals is

especially perverse, because the effects of a bona fide

seniority system have been used to discredit fair,

professionally developed tests and personnel assess-

ment techniques which are crucial to petitioner’s

affirmative action program.

C. In summary, ‘under the decision below:

(a) a prima facie case is based upon the

impact of a bona fide seniority system;

(b) adverse impact is statistically based on as

few as two promotion decisions;

qualified a single black are invalidated; and

(d) the statutory period of limitations is dis-

regarded in finding a violation.

The result of the decision below is to enhance the

risk of random Title VII prosecution, and also to

reduce the employer’s range of alternatives in the

creative development of legitimate remedies to mod-

ify the baneful effects of past discriminatory prac-

tices. Under this decision, there is little or no way for

an employer to order his conduct to avoid Title VII

sanctions. Contrary to Teamsters, seniority provides

no safe harbor, and contrary to previous guidelines

provided by the EEOC and the courts, employers

cannot rely on professionally developed tests and

assessment devices, either. Under the holdings be-

low, the most fragmentary and isolated statistical

results can invalidate the most careful and even-

handed procedures, and leave employers without any

means to reward merit, or give equal opportunity for

advancement to those who have been victims of prior

discrimination.

CONCLUSION

The decision below puts the Fifth Circuit at odds

with this Court and with courts of appeals of other

circuits; it provides no guidance to employers and

labor organizations in their efforts to implement bona

fide seniority systems, and it presents future courts

presiding over Title VII cases with a nebulous and

harmful model for assessing statistical evidence. For

these reasons, and for all the reasons stated above,

the petition for a writ of certiorari should be granted.

Respectfully submitted,

ERWIN N. GRISWOLD

1735 Eye Street, N.W.

Washington, D.C. 20006

(202) 861-3898

Of Counsel

HOBART TAYLOR, JR.

THOMAS F. CULLEN, JR.

JONES, DAY, REAVIS & POGUE

1735 Eye Street, N.W.

Washington, D.C. 20006

HAROLD S. FREEMAN

GREGORY L. HELLRUNG

DINSMORE, SHOHL, COATES & DEUPREE

2100 Fountain Square Plaza

511 Walnut Street

Cincinnati, Ohio 45202

(513) 621-6747

September, 1980

APPENDIX A

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT.

DENNIS FISHER,

Plaintiff- Appellee,

PROCTER & GAMBLE MANUFACTURING COMPANY,

Defendant- Appellant.

Nos. 77-2204, 77-2205 and 77-2474.

March 12, 1980.

Gregory L. Hellrung, Harold S. Freeman, Cincinnati,

Ohio, Royal H. Brin, Jr., Dallas, Tex., for defendant-

appellant.

Linda N. Coffee, Dallas, Tex., for plaintiff- appellee.

Douglas S. McDowell, Washington, D.C., Robert E.

Williams, Kenneth C. McGuiness, Washington, D.C., for

Equal Employment Advisory Council, amicus curiae.

Appeals from the United States District Court for the

Northern District of Texas.

Before THORNBERRY, GEE and HATCHETT, Circutt

Judges:

HATCHETT, Circuit Judge:

In this Title VII class action,! brought on behalf of

black employees at the Dallas plant of the Procter &

Gamble Manufacturing Company (Company), we review

a district court order finding discrimination in promotion

'42 U.S.C. § 2000e et seq.

practices, hiring, and job assignments. The order was

entered prior to recent Supreme Court pronouncements

directly bearing on the issues raised. While certain con-

clusions of the district court are inconsistent with present

case law, we find other legally sufficient grounds to sup-

port its judgment in all but one respect. Accordingly, we

affirm in part and vacate and remand in part.

The Company is a corporation organized and existing

under the laws of the State of Ohio, doing business in

Dallas, Texas. At its Dallas plant, the Company engages in

the manufacture and distribution of food, soap, and syn-

thetic detergents. The Dallas plant has operated since

1921 and has a current work force of more than 500

employees. Dennis Fisher, began employment at the

Dallas facility as a hydrolizer attendant in 1967 and has

been employed by the Company since that time. On March

10, 1971, Fisher filed a charge of discrimination with the

Equal Employment Opportunity Commission (EEOC)

alleging racial discrimination against black and Spanish-

American employees at the Dallas plant.? An EEOC right

to sue letter was issued on May 24, 1974 and Fisher

instituted this Title VII action on July 15, 1974.

Fisher brought the action “on his own behalf and on

behalf of other persons similarly situated pursuant to Rule

23(b)(2) of the Federal Rules of Civil Procedure.” The

142 U.S.C. § 2000e et seq.

* Fisher charged:

The company discriminates against me and other Negroes

in that:

1) Negroes get worse job assignments.

2) Negroes get less pay.

3) Negroes are subjected to racial slurs.

4) The company uses tests to deprive Negroes of job

opportunities.

5) The company does not have Negro supervisors, the

company does not hire Spanish surnamed Americans, the

company does not hire Negro females.

district court certified the case as a class action on behalf

of all blacks employed by the Company since March 10,

1971, and all future black applicants at the Dallas plant. In

his complaint, Fisher charged the Company with the

following conduct:

1. The establishment of a promotion system which

intentionally preserves the Company practice and

policy of “limiting employment and promotional

opportunities of black employees.”

2. The classification of all management positions

as “white only,” and the attempt to exclude black

employees from these positions.

3. The classification of security guard positions as

“white only.”

4. Discrimination “against black employees in the

area of job assignments.”

5. Discrimination “against black employees in

terms of compensation.”

6. The failure to prohibit racial slurs against black

employees by white employees.

7. The utilization of non-professionally developed

ability tests “to deprive blacks of job opportunities.”

8. The failure to take affirmative action to remove

the present effect of past discrimination against black

persons.

Fisher further charged that he was denied promotion

to a lab position in March, 1971, solely because of his

failure to score well on an ability test which bore no

relationship to the skills required of the job.

After a non-jury trial on the class liability issues, the

district court found Company discrimination in hiring,

promotions, and job assignments.

HISTORICAL FRAMEWORK

In July, 1972, the Company instituted an affirmative

action program designed to make “equal opportunity. . .

meaningful” at the Dallas facility. In the written plan,

the purposes for the affirmative action program were

outlined by the president of the Procter & Gamble Com-

pany:

It will remain the policy of Procter & Gamble to seek

out and employ members of racial or ethnic minor-

ities. We will make special effort to employ not only

the qualified but the qualifiable. We will educate our

incumbent managers on the aims and the proper

execution of this program. We will maintain working

conditions where minority employees will find peace,

dignity, challenge and equal opportunity for advance-

ment.

Local plant managers assumed responsibility for the

effective implementation of the plan. The plan included

numerical hiring and promotion “goals” for each job

classification, and stressed the need for stronger efforts in

specified employment categories where minorities were

significantly underrepresented.’ The designated cate-

gories of significant underrepresentation included man-

agement, professional, technical, skilled, clerical, and

semi-skilled positions.

Other affirmative actions outlined in the plan includ-

ed:

1. active involvement in local minority organiza-

tions;

2. periodic audit of training, hiring, and promo-

tion programs to remove impediments to the attain-

ment of goals.

* According to the plan, “goals are not considered rigid and

inflexible quotas which must be met, but are targets reasonably

attainable by means of applying good faith efforts to make all

aspects of the Affirmative Action Program work.”

3. regular discussions with local managers, super-

visors, and employees to insure compliance with com-

pany policies; and,

4. review of the qualifications of all employees “to

insure minorities and women are given full opportu-

nities for transfers and promotions.”

Supervisors were responsible to prevent harassment

of minorities and were advised that their equal employ-

ment efforts would be measured in evaluating their work

performance. Racial Awareness Seminars were instituted

to correct work force attitudes hindering EEOC efforts.

The program has been updated each year since 1972 to

reaffirm policies and revise goals.

The impact of Company efforts is reflected in the

increase in minority employment at the plant from 1966

to 1977. As depicted in the chart below, the percentage of

black employees at the Dallas plant increased from .5% of

the Company’s total work force in 1966 to 14.7% of the

total work force in 1977.

Minority Employment Figures

Black Total

Dates Employees Work Force

PR eh sas icscathls arcs 3 549

eh RO 8 545

SEN I aR 19 565

SRE Rr 29 545

nc ea, 41 545

a 38 490

eh ierhiat Sa ck a usigceks 46 505

eh ee ae 61 531

RS CP 61 516

1975, January ........ 64 508

1975, July... 69 515

1977, January ........ 74 505

The plaintiff does not rely on these overall employ-

ment figures to subs intiate his claim of unlawful dis-

crimination under Title VII. According to Fisher, only

when we examine the.promotional progress of black em-

ployees, can we discern whether the Company has en-

gaged in discriminatory acts prohibited by law.

BLACKS IN LOWER ECHELONS OF EMPLOYEE HIERARCHY

Although the overall percentage of black employees at

the Dallas plant has increased substantially during the ten

year period preceding the institution of this action, blacks

have remained concentrated in lower level non-

management positions.

Management.

As of January 1, 1977, blacks constituted fourteen and

seven tenths percent (14.7%) of the Company’s total work

force. In the same year, thirty-five and five tenths percent

(35.5%) of the non-management employees having sen-

iority dates after July 1, 1966 were black. As noted by the

district court, the Company employed its first black man-

ager in 1970. On March 1, 1971, one of the Company’s

seventy-seven management employees was black. At the

time this action was filed, one of sixty-three management

positions was held by a black. At the same time, blacks

comprised eleven and eight tenths percent (11.8%) of the

Company’s total work force. From September 11, 1970, to

the time the suit was instituted there were seventeen new

managers, one of whom was black. The district court

found that although the position of supervisor or line

manager was of critical importance in matters of promo-

tion, discipline, and employee relations, no black person

had ever been a supervisor as of the time the action was

brought. No black has ever held any operations manager

position.

Non- Management.

As the district court recognized, the mechanic and lab

analyst positions are critical non-management jobs and

highly attractive to employees.‘

At the time judgment was entered in this case, one of

seventy-six mechanic jobs at the plant was held by a black.

Between December, 1967, and January, 1977, three of

forty-four mechanic openings were filled by blacks. At the

time of judgment, blacks held none of the twenty-two lab

analyst jobs. Of the twenty-four lab analyst job openings

between December, 1967, and January, 1977, one was filled

by a black. Blacks were underrepresented in other impor-

tant job categories including manufacturing clerical,’ and

security guard positions.’ In contrast, the district court

found overrepresentation of blacks in the “slide handler”

position, which is considered “one of the least desirable

jobs” at the plant.’

‘The district court found that six pay levels exist for non-

management positions in the plant. From the lowest to the

highest, the levels are: A (Specialist I); B (Specialist II); C

(Specialist III); D (Technician I); E (Technician II); and F

(Technician III). With few exceptions, employees in mechanic

and lab analyst positions are paid at the D, E or F rate levels.

‘The district court noted that as of March 29, 1971, blacks

held none of the forty-one clerical jobs and that since that time

the Company’s annual Employer Information Reports (EEO-1

Forms) have never indicated more than one black holding a

clerical position. As of January, 1976, one of twenty-nine

clerical positions was filled by a black.

*The district court found that the Company had never

employed a black security guard: “Of twelve security guard jobs

bid from September, 1970, until January 1, 1977, only one black

was selected, but he subsequently withdrew his bid.”

"Employees working as slide handlers stack pieces of fin-

ished product into a pattern, formation or tie so that the

product may be mounted on a forklift for relocation and

distribution. Work as a slide handler at the Dallas plant was

conducted in a warehouse which had no drinking fountain and

which lacked adequate ventilation.

Blacks are significantly underrepresented in key up-

per level positions in a Company- whose total work force

fairly represents the racial make-up of the standard

metropolitan area in which it is located.* This incongruity

draws into question the design and operation of the

system employed to select applicants and promotees for

these higher level positions.

It is the Company’s policy and practice to hire persons

into various entry level positions and to provide them with

on-the-job training and experience.’ Higher level open-

ings are most often filled by current low or entry level

employees demonstrating capability for promotion or

transfer. Accordingly, class members claiming under-

representation in higher level positions, have focused their

attack not on the Company’s initial hiring practices but

on the promotion system utilized at the plant.'°

THE COMPANY’S PROMOTION SYSTEM

Under the terms of the collective bargaining agree-

ment between the Company and the Independent Oil and

Chemical Workers of Dallas it was agreed that:

* The trial court found that approximately twelve and eight

tenths percent (12.8%) of the total work force in the Dallas-

Fort Worth Standard Metropolitan Statistical Area is black.

Blacks comprised fourteen and seven tenths percent (14.7%) of

the plant’s total work force as of January, 1977.

* The following job titles or classifications require entry level

skills: Employee Services Staff Technician I, Industrial Engi-

neering Staff Technician I, Office Staff Technician II, Account-

ing Staff Technician I, Office Staff Technician I, Office Staff

Specialist III, Maintenance Technician I, II & III, and Manage-

ment. Entry level positions require no previous skills.

In his pre-trial brief, Fisher acknowledged that “[t]}he

primary issues raised in this litigation concern Defendant’s

alleged job classifications based on race and racially dis-

criminatory promotional policy. Correllary [sic] issues concern

job assignments, Defendant’s efforts to remove the vestiges of

past discrimination and Defendant’s efforts to insure a working

atmosphere free of racism.”

Plant Seniority shall be the governing factor in both

promotions and demotions in all cases where ability

and merit, as judged solely by the Employer, are

approximately equal. Seniority of an employee shall

begin after he has been continuously in the employ of

the Employer for six months and shall then be com-

puted from the latest date of employment.

It is understood that in all cases under Article XI,

Seniority, where the Employer exercises his judgment

of ability and merit, such judgment is not subject to

arbitration.

Notice of a job vacancy or a new job will be made by

posting for three days on the plant bulletin boards,

showing the type of job and rate. If no one in the

plant bids on the job, or is qualified, the job shall be

open to new hires.

Promotion to all non-management categories other

than security guard positions is governed by the terms of

the collective bargaining agreement. Plant-wide senior-

ity governs in all cases where ability and merit are judged

to be approximately equal’by the Company. Different

merit and ability assessment schemes are utilized depend-

ing on the importance of the job from the Company’s

perspective. With respect to most jobs in the plant, merit

and ability are judged by evaluating the bidder’s work

performance, absentee record, disciplinary history and

pertinent medical condition. Promotion to the ‘most

critical” non-management jobs is made pursuant to a

selection procedure designated by the Company as “a

professionally developed total assessment process.””!

'' These include mechanic, lab analyst, and high level oper-

ator positions.

10a

All employees are entitled to “bid” laterally, down-

ward, and upward across all departments for job vacancies

occurring anywhere in the plant. When a job vacancy

occurs, a notice is posted throughout the plant for three

days. The notice includes the number of vacancies, the

department in which they occurred, the job title, wage

rate, and a brief description of the nature of the work.

The notice also informs employees that anyone interested

in bidding must either attend a meeting at a specified

time and place, or contact a designated person to make

alternative arrangements. After the bid is removed, the

bidders are listed according to plant seniority. If the

vacancy occurs with respect to one of the less critical jobs

in the plant, the senior bidder will be awarded the job if he

is determined to have average merit and ability under the

above noted general criteria for positions not requiring

total assessment. If the vacancy occurs in one of the more

critical plant positions, total assessment will be utilized to

measure the merit and ability of the job bidders.

The Total Assessment Process.

“Total assessment” is a system designed to gather

extensive evidence regarding an applicant’s job related

capabilities. The system is characterized by four main

features. First, the identification of skills, abilities and

other aspects of work behavior which are considered

important for the effective performance of the job being

considered. The Company refers to these indicia of effec-

tive performance as “what counts” factors.” These factors

are determined for each position based on the results of

2 These factors vary with the job being considered. For

instance, “dexterity and coordination” is one of the eight

designated “what counts” factors for mechanical positions, but

is not listed as a ‘what counts” factor for high level operator

positions.

lla

national surveys of company supervisors distributed by

the Procter & Gamble Company in Cincinnati, Ohio. The

surveys ask company supervisors to rate what they feel to

be the key criteria for effective performance of the pro-

duction jobs within their unit. A second feature of the

total assessment system is the use of several means to

secure evidence of a given applicant’s capabilities.'* Once

the Company knows what factors count, it must have valid

means of determining whether a given applicant meets

the necessary criteria. Next, the system requires a uni-

form method-of recording and organizing the evidence

received. Finally, the process demands a systematic

means of evaluating the evidence to provide a sound basis

for advancement decisions.

The non-management level jobs for which total

assessment is utilized include mechanic, lab analyst, and

high level operator positions. Job bidders for these posi-

tions with the greatest plant-wide seniority and with at

least an “acceptable” total assessment profile are selected

to fill the vacancies. Because the most senior acceptable

bidder will be selected to fill the vacancy, only the more

senior bidders are initially totally assessed. If an accept-

able bidder is not found in this group of senior bidders, a

second group of the next senior bidders is totally assessed.

Each of the employees in the separated group of

senior bidders begins the total assessment process by

completing what is referred to as an Experiences Form.

The form asks the bidder to state specific personal ex-

periences either on or off the job, which relate directly to

'’ Among the means used to secure evidence are: the appli-

cation form and other pertinent records; an “experiences form”

completed by the applicant; an “experiences form” completed by

one or more managers in a position to describe specific ex-

periences typical of the employee’s performance; a structured

interview procedure; and the use of aptitude and ability exam-

inations.

12a

the “what counts” factors listed for the position sought.

Additionally, managers acquainted with the bidder’s work “™

performance complete Employee Description Forms, de-

scribing incidents of the Didder’s job performance as they

relate to the “what counts” factors. On the form, these

same managers also make recommendations as to the

applicant’s suitability for the job he is seeking. If two or

more managers indicate that they “do not recommend”

the applicant, the assessment will not be continued. Next,

two managers, one having responsibility for the job to be

filled, and one involved in employment matters, interview

the app!icant. The interviewers independently prepare a

profile of the applicant, rating him on a scale from one to

seven on the various “what counts” factors. At the

interview, the bidder is given an opportunity to relate

additional information which may demonstrate his ability

to effectively perform the work required. Finally, written

aptitude or production tests are administered to each of

the bidders.'‘ For mechanic positions the bidder takes the

Aptitude Form M-A Test."* Bidders for lab analyst posi-

tions take the Aptitude Form C-M Test."* Bidders for high

“The Company refers to these examinations as “profes-

sionally developed tests” which are designed to measure the

ability and merit of the bidder in relation to the particular job

sought.

'’ The Aptitude Form M-A Test was designed in the per-

sonnel research department of the Procter & Gamble Company,

Cincinnati, Ohio, in 1964. The Company considers the test

appropriate for use in reviewing applicants for “jobs requiring

considerable mechanical ability.” The test is designed to mea-

sure mechanical comprehension, reading comprehension, and

the ability to handle technical information.

'6 The Aptitude Form C-M Test was designed in the person-

nel research department of the Procter & Gamble Company,

Cincinnati, Ohio. It was first instituted at the plant in 1963. It is

a factor in considering an applicant for a position as a clerk or

laboratory analyst in a manufacturing plant or a cost clerk or

laboratory technician in a technical center. The examination

tests vocabulary, mathematic, and data interpretation skills.

13a

level operator positions take the Aptitude Form M-A Test

and the Production Control Test (PCT)."’ The test results

are used as one of the factors in the Company’s evaluation

of the applicant’s ability and potential to perform the job

for which he applies.

Utilizing all of the above data, the bidder is rated in

each of the what counts areas and is given an overall total

assessment performance rating of “strong”, “acceptable”,

“borderline” or “weak”. The senior bidder who has

achieved at least an acceptable rating will be selected for

the job. As the district court noted, generally a senior

applicant rated acceptable will be selected over a junior

applicant rated strong, but a junior applicant rated ac-

ceptable will be selected over a senior applicant rated

borderline. If none of the senior group of bidders who

have undergone total assessment receives an “acceptable”

rating, the process is repeated for the next highest group

of seniority bidders.

Management Positions.

The Company fills the majority of its management

level vacancies by hiring recent college graduates with

engineering or other technical degrees. The remaining

management level vacancies are filled by promotion from

non-management positions within the plant. Non-

management employees being considered for promotion to

"The Production Control Test (PCT) was designed at the

personnel research department of the Procter & Gamble Com-

pany, Cincinnati, Ohio. It was first used at the plant in 1972. The

Company views the test as appropriate for use in considering

candidates for production jobs in manufacturing “which require

the ability to make judgments about the quality level of prod-

ucts based upon readings from gauges and other displays.” The

test is composed of forty items and calls for decisions about

product quality based upon readings from a set of five gauges.

l4a

management must go through total assessment, including

the taking of the Aptitude Form P-M Test.”

DISTRICT COURT ORDER

After a non-jury trial, the district court concluded

that the Company discriminated against plaintiff’s class

in its practices relating to job assignments and in its

promotional policies relating to management, mechanical,

lab analyst, manufacturing clerical, and security guard

positions. The court found no business necessity for the

college degree requirement for hiring into management

or for the 20 years experience requirement for promotion

to management. Moreover, the total assessment program

was determined to be an invalid promotion tool “as long as

blacks are so disproportionately underrepresented in de-

fendant’s management.” Finally, the Aptitude Form C-M

Test, when used for clerical positions, and the Aptitude

Form P-M Test, when not used in conjunction with a valid

total assessment program, had not been shown to be

professionally developed ability tests within the meaning

of 42 U.S.C. § 2000e-2(h).

The district court entered its judgment against the

Company, and ordered it to:

1. compensate the plaintiff class for dis-

criminatory promotion practices in an amount to be

determined by the court at a later hearing;

2. include in all posted vacancy notices a state-

ment informing employees that attendance at the

'§ The Aptitude Form P-M Test was designed in the person-

nel research department of the Procter & Gamble Company,

Cincinnati, Ohio. It was specifically designed for use with

candidates for first-line management positions. The test was

instituted at the plant in 1967. It is a ninety minute exam-

ination consisting of forty-eight multiple choice questions,

designed to measure reading comprehension and data inter-

pretation.

15a

meeting of bidders to discuss the vacancy is manda-

tory;

3. devise a test, if a test is used, for manufac-

turing clerical positions which fully meets EEOC

Guidelines concerning criterion—related validation;

4. discontinue use of the Aptitude Form P-M Test

for selection of non-management employees for man-

agement positions, unless it is used in conjunction

with a valid assessment program;

5. prepare and file either proposed affirmative

action plans or a single affirmative action plan,"

containing the elements delineated in the court’s

Conclusions of Law;” and

6. pay attorney’s fees to the plaintiff’s attorneys

and to the attorneys for certain “objectors”.

ISSUES

The Company argues that the district court erred in:

(I) considering events which occurred prior to September

'’ The class plaintiffs were also ordered to submit a proposed

affirmative action plan. As an alternative, the parties were

permitted to submit “an agreed upon plan instead of separate,

proposed plans.”

*» In its Conclusions of Law, the district court directed that

any such plan shall include provisions relating to: “training

programs; opportunities for college training or training at a

technical institute; goals for-promotion of blacks into positions

in which defendant has been found to have discriminated; clear

explanations to the non-management employees of the selection

procedures for promotions, including explanations of the roles

played by the PM, MA, CM, and PCT tests; disciplinary proce-

dures; plans for reduction of racial tensions at defendant’s

plant; and plans for making defendant’s management person-

nel more aware of and sensitive to the situation of black

employees.”

16a

11, 1970, the beginning of the effective statute of limita-

tions period; (II) basing its liability finding on the Com-

pany’s hiring practices, which were never at issue in this

case; (III) finding Company discrimination in promotion

to management and key non-management positions;

(IV) finding Company discrimination in its job assign-

ment practices; (V) awarding attorney’s fees to counsel

for certain class members who, according to the Company,

had never become parties to the lawsuit; and, (VI) order-

ing the Company to remedy practices which had not been

found to be discriminatory.

DISCUSSION OF THE ISSUES

The Company argues that the district court erred in

failing to restrict the evidence to alleged acts of dis-

crimination occurring after September 11, 1970, the be-

ginning of the EEOC statutory period.”'’ Resolution of this

issue is guided by Supreme Court pronouncements issued

after the district court judgment was entered. JIJnter-

national Brotherhood of Teamsters v. United States, 431

U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); United Air

Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d

571 (1977). According to the Company, these cases

foreclose judicial consideration of prior discriminatory

acts which are said to have continuing impact on alleged

discriminatees. The cases, however, establish no such

prohibition.

*! An EEOC complaint must be filed within 180 days of the

alleged discriminatory act. 42 U.S.C. § 2000e-5(e); Hamilton v.

General Motors Corp., 606 F.2d 576 (5th Cir. 1979); Chapell v.

Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979);

McArthur v. Southern Airways, Inc., 569 F.2d 276 (5th Cir. 1978)

(en banc). The 180th day prior to the March 10, 1971 date on

which Fisher filed the EEOC charge of discrimination is

September 11, 1970.

17a

In Teamsters, the Supreme Court discussed the effect

of section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h),” on

a seniority system which “operate[d] to freeze the status

quo of prior discriminatory employment practices.” 431

US. at 349, 97 S.Ct. at 1862. Under the seniority system

in Teamsters, lower paid city drivers who transferred to

more desirable line driver jobs were required to forfeit all

competitive seniority accumulated in their former posi-

tions, and to start with the lowest seniority in the line

driver pool. By discouraging transfer to more desirable

positions, the system perpetuated the effects of past dis-

criminatory hiring. The government argued that such a

system could not be “bona fide” within the meaning of

section 703(h). According to the court, however, section

703(h) was designed to immunize seniority systems that

allowed for the full exercise of seniority accumulated

before the effective date of the Act. The court held that

“an otherwise neutral, legitimate seniority system does

not become unlawful under Title VII simply because it

may perpetuate pre- Act discrimination.” 431 U.S. at 353-

354, 97 S.Ct. at 1864.

The Teamsters rationale was developed further in

Evans, where the Court addressed the legality of a senior-

ity system which perpetuated post-Act discrimination.”

* Section 703(h), 42 U.S.C. § 2000e-2(h), provides:

Notwithstanding any other provision of this [ Title], it shall

not be an unlawful employment practice for an employer to

apply different standards of compensation, or different

terms, conditions, or privileges of employment pursuant to

a bona fide seniority or merit system ... provided that such

differences are not the result of an intention to dis-

criminate because of race, color, religion, sex, or national

origin. ....

*® As the Evans court acknowledged, the seniority system

gave “present effect to a past act of discrimination” occurring

subsequent to the effective date of the Act. Evans, 431 U.S. at

558, 97 S.Ct. at 1889.

18a

In Evans, a female flight attendant was forced to resign

upon her marriage in 1968, but was rehired by the airline

in 1972. The attendant did not file an EEOC charge of

discrimination within 90 days of her separation in 1968.”

Recognizing that this failure barred relief based directly

on the 1968 resignation, the flight attendant argued that

she was the victim of a continuing violation caused by the

impact of the past illegal act on her present seniority

status. This continuing violation was said to have occurred

within the statutory period preceding her EEOC charge of

discrimination which was filed in 1973. The Court ac-

knowledged that the airline’s refusal to credit the flight

attendant with pre-1972 seniority gave present effect to

the past discriminatory act of forced resignation. It was

not convinced, however, that the continuing effect of the

past act of discrimination was sufficient to constitute a

“present violation” of the Act:

Respondent emphasizes the fact that she has alleged a

continuing violation. United’s seniority system does

indeed have a continuing impact on her pay and

fringe benefits. But the emphasis should not be on

mere continuity; the critical question is whether any

present violation exists.

431 U.S. at 558, 97 S.Ct. at 1889.

The attendant in Evans based her entire claim on the

present application of a neutral seniority system which

perpetuated the effects of a past discriminatory act not

made the subject of a timely charge. The Court held that

the operation of an otherwise bona fide and neutral

seniority system is not unlawful under Title VII merely

“The applicable time limit on the date she filed her claim

was 90 days. Effective March 24, 1972, this time limit was

extended to 180 days. See section 706(d) of Title VII, 42 U.S.C.

§ 2000e-5(e).

19a

because it perpetuates post-Act discrimination that has

not been made the subject of a timely charge of dis-

crimination.

Neither Evans nor Teamsters foreclose consideration

of prior discrimination in all circumstances. They hold

only that prior discrimination, by itself, cannot make the

operation of an otherwise bona fide seniority system

unlawful. They do not hold, as the Company suggests, that

a continuing violation can never constitute an actionable

wrong; only that the mere perpetuation of the effects of

pre- Act or time barred discrimination does not constitute

a present violation. See also, Pettway v. American Cast

Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978); James v.

Stockham Valves & Fitting Co., 559 F.2d 310 (5th Cir.

1977); Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir.

1977). In Olinkraft this court noted that notwithstanding

Evans, where an entire promotion system is challenged on

the basis that it operates to hold plaintiffs “in lower

echelons,” the 180 day statutory period is inconsequential

in determining the admissibility of prior discriminatory

acts.

After reciting Company employment and promotion

practices occurring prior to September 11, 1970, the dis-

trict court noted that such evidence “is relevant and

admissible to show possible plant-wide discriminatory

conduct with continuing effects, the probability of the

continuation of such conduct, and the relationship be-

tween past actions and present effects and actions.” Cit-

ing, Swint v. Pullman-Standard, 589 F.2d 77 (5th Cir.

1976); Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th

Cir. 1973). There is no question that, without the benefit

of Teamsters or Evans, the district court overstated the

test for the consideration of past discriminatory conduct.

The challenged evidence was improperly considered, how-

ever, only if the district court viewed the prior dis-

criminatory acts as constituting the actionable wrongs

20a

upon which relief was based. Dobbs v. City of Atlanta, Ga.,

606 F.2d 557 (5th Cir. 1979); United Air Lines v. Evans.

If, on the other hand, prior practices were considered

relevant to show independently actionable conduct oc-

curring within the statutory period, the district court did

not err in taking the evidence into account.”

Considering the district court order in its entirety in

light of all the evidence before it, we conclude that the

court did not improperly premise its judgment on pyst_

discrimination. The EEOC charge and class action com-

plaint alleged the present existence of racially dis-

criminatory employment practices. The major thrust of

the complaint was directed at the promotion system still

in effect at the plant. The court found discrimination not

with respect to pre-1971 conduct, but in specific employ -

ment practices occurring within the appropriate statutory

time frame.”

One other factor should be emphasized in considering

the admissibility of testimony regarding past acts of

discrimination. Unlike the private suit in Evans, this

action brought under challenge a broad range of employ-

ment practices which were said to affect nearly all past,

present, and future black employees at the Dallas plant.

Thorough and coherent consideration of the plaintiff’s

claims would necessarily require the recognition of various

** As the Supreme Court stated in Evans: A discriminatory

act which is not made the basis for a timely charge is the legal

equivalent of a discriminatory act which occurred before the

statute was passed. Jt may constitute relevant background evi-

dence in a proceeding in which the status of a current practice is

at issue, but separately considered, it is merely an unfortunate

event in history which has no present legal consequences. Evans,

431 U.S. at 558, 97 S.Ct. at 1889. (Emphasis supplied).

** As noted, the court found that the Company had com-

mitted discriminatory acts in promotion to management and

certain non-management positions, and in assignment to vari-

ous jobs.

— 2la

factors which carry no independent legal consequences.

In reviewing class action cases of this kind, where the

challenges are broad and sweeping, we are more inclined

to accept the district court’s assessment of the admissibil-

ity of evidence which it deems relevant. Fed.R.Evid. 403,

404; Claiborne v. Illinois Central Railroad, 583 F.2d 143

(5th Cir. 1978); James v. Stockham Valves. We conclude

that the district court did not err in admitting evidence of

past discriminatory acts.

II.

The Company next contends that the trial court erred

in basing its liability finding on hiring practices which

were never at issue in this case. The Company is correct in

asserting that its hiring practices were not directly in

issue before the district court. The plaintiff’s complaint

did not allege discrimination in hiring. Hiring practices

were not set forth among the contested issues of fact or

law in the court’s pre-trial order. Fisher’s pre-trial brief

acknowledged that the issue of overall hiring practices

was “simply not being raised in this litigation.” The

question then becomes to what extent has the district

court based its judgment on discriminatory hiring prac-

tices of the Company. We find that with the exception of

one finding and conclusion, the court correctly limited its

holding on discrimination to employment practices other

than hiring. Consideration of hiring practices, both before

and after the applicable statutory period, is a necessary

predicate to meaningful findings regarding employment

practices at issue in this case. See, Clark v. Olinkraft, Inc.

To fully examine the significance and impact of promotion

polices on black advancement within the Company, the

court properly identified the number and percentage of

black employees hired at entry-level positions over a

substantial period of years. The figures were not used to

independently form the basis for a finding of liability

22a

against the Company. That finding, with one exception,

was premised on the Company’s discriminatory promotion

practices and job assignments.

Although we find nothing improper in the court’s

consideration of hiring figures to substantiate its finding

of discriminatory promotion practices, we believe the

court erred in making specific conclusions of dis-

criminatory hiring into management positions. Accord-

ing to the court, the Company demonstrated no business

necessity for its policy of hiring only recent college gradu-

ates with engineering or technical degrees. Whatever the

legal sufficiency of that conclusion, the issue had not been

properly joined or litigated before the district court.

Accordingly, we vacate those portions of the district court

judgment requiring the Company to alter its hiring quali-

fications and other hiring practices. Hodges v. United

States, 597 F.2d 1014 (5th Cir. 1979); Pierre v. United

States, 525 F.2d 933 (5th Cir. 1976).

ITT.

Citing what it calls the “application of erroneous and

inappropriate legal principles,” the Company argues that

the district court erred in concluding that the Company

discriminated against blacks in promotion to manage-

ment, mechanical, lab analyst, manufacturing clerical,

and security guard positions.”

“7 The Company also asserts that the district court erred in

concluding that the Company “demonstrated no business neces-

sity” for its policy of hiring into management “only recent

college graduates with engineering or technical degrees,” and

for its “twenty years experience” requirement for promotion

from non-management to management positions. Our determi-

nation on the impermissibility of district court conclusions on

hiring renders unnecessary a discussion of the college gradu-

ation requirement for hiring into management. Because the

(footnote continues)

23a

The district court premised its conclusion on several

major findings. While we agree that one of these findings

has no basis in present case law, we are satisfied that the

conclusion is amply supported on other legally sufficient

grounds.

Applying legal principles then in effect, the court

found that the Company “does not have a bona fide

seniority system within the meaning of 42 U.S.C. § 2000e-

2(h).”* Under the law of this circuit at the time the

judgment was entered, seniority systems which perpetu-

ated the effects on incumbent employees of prior dis-

crimination were not bona fide within the meaning of

703(h) of Title VII, 42 U.S.C. § 2000e-2(h). United States

v. Jacksonville Terminal Company, 451 F.2d 418 (5th Cir.

1971); Local 189, United Papermakers and Paperworkers v.

United States, 416 F.2d 980 (5th Cir. 1969).

(footnote continued )

twenty years experience requirement relates to promotion from

non-management to management positions within the Com-

pany, our consideration on this point is not foreclosed by our

holding that hiring practices were not before the district court.

Shortly before trial, a black employee with only nine years

experience was successfully promoted to a management level

position. Fisher asserts that the promotion establishes that

there is, as the district court concluded, no business necessity for

the twenty years requirement. The Company points to that

same promotion to argue that there was never any twenty years

experience requirement for promotion to management. What-

ever the Company policy at this time, we affirm the district

court finding on lack of business necessity. The Company is

enjoined from imposing a twenty year requirement in the

future, whether or not it has in the past.

* We note at the outset that management and security

guard positions are not covered by the teriis of the seniority

system embodied in the union contract. Because we uphold the

district court conclusion as to discrimination in promotion to

these positions on other grounds, we need not separately consid-

er the effects of the seniority ruling on positions not covered in

the union contract.

24a

Since Teamsters and Evans, however, we have recog-

nized that an otherwise bona fide seniority system “is not

itself illegal merely because it perpetuates the effects of

pre- Act or post- Act discrimination.” Pettway v. American

Cast Iron Pipe Co., 576 F.2d 1157, 1189 (5th Cir. 1978). In

other words, a seniority system is no longer non-bona fide

because it operates to “ ‘freeze’ the status quo of prior

discriminatory employment practices.” Teamsters, 431

U.S. at 349, 97 S.Ct. at 1862. Instead, “purposeful dis-

crimination in connection with the establishment or con-

tinuation of a seniority system is integral to a determina-

tion that the system is or is not bona fide.” James v.

Stockham Valves, at 351. In Stockham Valves we noted

four factors to be considered in determining whether a

seniority system is bona fide:

1) whether the seniority system operates to dis-

courage all employees equally from transferring be-

tween seniority units;

2) whether the seniority units are in the same or

separate bargaining units (if the latter, whether that

structure is rational and in conformance with in-

dustry practice);

3) whether the seniority system has its genesis in

racial discrimination; and

4) whether the system was negotiated and has

been maintained free from any illegal purpose.

Id. at 352.

There are no individual “seniority units” at the Dallas

plant. Seniority for all purposes is calculated on a plant-

wide basis without regard to prior job classification. The

system does not lock employees into inferior jobs by

requiring them to commit “seniority suicide” by forfeit-

ing accumulated seniority upon advancement. See, Stock-

ham Valves, at 348; Teamsters, 431 US. at 344, 97 S.Ct. at

25a

1859. Any employee may compete for any job vacancy in

the plant based upon his total length of service with the

Company. Moreover, as in Teamsters, there is no evidence

in the record to show that the seniority system had “its

genesis in racial discrimination” or that it was negotiated

and maintained for any “illegal purpose.” Teamsters, at

356, 97 S.Ct. at 1865.”

Acknowledging that the court’s order was premised

on case law then in effect, we reject its finding that the

seniority system was not bona fide within the meaning of

703(h) of Title VII. The system is therefore legally valid

under the immunity of that provision.

The existence of a bona fide seniority system, how-

ever, does not shield the Company from “other illegal acts,

so long as those other acts are independently actionable.”

Pettway, at 1189. It is well recognized that racially

discriminatory promotion practices are actionable wrongs

under Title VII regardless of the bona fide character of the

controlling seniority system. See, Davis v. Board of School

Commissioners of Mobile County, 600 F.2d 470 (5th Cir.

1979); Claiborne v. Illinois Central Railroad; James v.

Stockham Valves; Pettway; Teamsters. Moreover, post- Act

discriminatees may receive complete retroactive seniority

“without attacking the legality of the seniority system as

applied to them.” Teamsters, 431 U.S. at 347, 97 S.Ct. at

1861. (Emphasis supplied)

Like the plaintiff in Clark v. Olinkraft, Fisher con-

tends not only that the seniority system perpetuates the

effecis of past discrimination, “but also that dis-

crimination in promotion .. . constitutes a continuing

and unlawful employment practice in violation of Title

VII.” Clark v. Olinkraft, at 1222; see also, Stockham Valves,

at 351.

** Fisher conceded in his pre-trial brief that the “seniority

provision is a neutral employment practice.”

26a

The district court found that the Company had com-

mitted present and continuing violations. This conclusion

was premised not only on the court’s finding that the

seniority sytem was not bona fide, but on its finding that

the Company engaged in active discrimination in grant-

ing promotions to certain positions. Because the record

supports the latter finding, the district court’s erroneous

determination as to the bona fide nature of the seniority

system does not affect the outcome.”

When plaintiffs assert that they have been victims of

the “disparate impact” of illegal promotion practices,

proof of discriminatory motive is not required under Title

VII. Davis v. Board of School Commissioners of Mobile

County, at 473; Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at

1854 n. 15; Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct.

% There is a further reason for not finding reversible error

in the district court’s determination that the seniority system

was not bona fide. For the purposes of determining the validity

of a seniority system which perpetuated the effects of past

discrimination, the Court in Teamsters refused to distinguish

between systems that perpetuate pre- and post-Act dis-

crimination. Teamsters, 431 U.S. at 348 n. 30, 97 S.Ct. at 1861 n.

30. As to relief, however, the Court conciuded that while post-

Act discriminatees may receive full “make-whole” relief, in-

cluding retroactive seniority to the date of their employment,

pre- Act discriminatees may receive retroactive seniority only to

the effective date of the Act. Accordingly, the issue whether the

seniority system is bona fide under section 703(h) of Title VII is

relevant to this case “only if ... the class of black employees

represented by the plaintiffs consists of some blacks who suf-

fered only from pre-Act discrimination.” James v. Stockham

Valves, at 351. The class in this case is limited to blacks employed

since March 10, 1971, and future employees at the Company

plant. The earliest seniority date for a current black employee at

the plant is August 8, 1966. There is no claim that any class

members suffered only from pre- Act discrimination. We there-

fore note that even if the seniority system were properly held to

be non-bona fide, “such a holding would in no way enlarge the

relief to be awarded.” Teamsters, 431 U.S. at 348 n. 30, 97 S.Ct.

at 1861 n. 30.

27a

849, 28 L.Ed.2d 158 (1971). Once the plaintiffs have

demonstrated the racially adverse impact of promotion

practices and tests, it becomes the Company’s burden to

prove job relatedness or business necessity. Scott v. City of

Anniston, Alabama, 597 F.2d 897 (5th Cir. 1979);

Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48

L.Ed.2d 597 (1976).

We find ample record evidence to demonstrate the

disparate impact of Company promotion policies. As

noted, while blacks comprise 14.7% of the total work force,

they are marked by their conspicuous presence in the

“lower echelons” of the employee hierarchy. See Clark v.

Olinkraft, Inc., at 1222; Rich v. Martin Marietta Corp., 522

F.2d 333, 348 (10th Cir. 1975). When this action was filed,

one of the sixty-three company managers was black, none

of the twenty-two lab analysts was black and none of the

security guards was black. At the time of judgment, one

of twenty-nine clerical workers was black, and one of

seventy-six mechanics at the plant was black. The Com-

pany asserts that these figures are insufficient to support a

prima facie case, without competent evidence to show the

percentage of black workers in the community possessing

the necessary skills and qualifications for the under-

represented positions. Hazelwood School District v. United

States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977);

Williams v. Tallahassee Motors, Inc., 607 F.2d 689 (5th Cir.

1979). In Hazelwood, the Supreme Court approved the use

of comparative statistics showing a narrow labor pool

defined by those qualified for employment to particular

jobs available. The court explained:

When special qualifications are required to fill

particular jobs, comparisons to the general population

(rather than to the smaller group of individuals who

possess the necessary qualifications) may have little

probative value.

Id, at 308 n. 13, 97 S.Ct. at 2742 n. 18.

28a

Mindful of Hazelwood, we nevertheless find the plain-

tiff’s statistics adequate to establish a prima facie case.

First, a prima facie case may be shown without evidence

of qualifications where the inference of discrimination is

supported by a compelling level of racial under-

representation in a sizeable work force. Jones v. Tri-

County Electric Cooperative, Inc., 512 F.2d 1 (5th Cir.

1975); see e.g., United States v. Hayes International Corp.,

456 F.2d 112 (5th Cir. 1972); Parkham v. Southwestern Bell

Telephone Co., 438 F.2d 421 (8th Cir. 1970). In Hayes

International Corp., we noted that when substantial un-

derrepresentation is shown as compared with general

population figures, the burden of proving lack of quali-

fication is on the Company. Moreover, the usefulness of

statistics of this nature “varies with the surrounding facts

and circumstances, which either support or undermine the

inference of discrimination offered by the statistics.”

Williams v. Tallahassee Motors, Inc., at 691; United States

v. Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971). The

Company’s entry level hiring policy is a distinctive cir-

cumstance in this case supporting the inference of dis-

crimination. When a company adopts a policy and prac-

tice of hiring in at low level unskilled jobs and promoting

to upper-level positions based upon training received and

skills developed at the plant itself, it cannot convincingly

challenge the prima facie showing under the Hazelwood

“qualifications” dicta. Where skills are commensurate

with company training, we will approve statistical com-

parisons between racial make-up in key positions and

racial composition in the total work force. See, James v.

Stockham Valves, at 341; Scott v. City of Anniston, at 901.

Because the statistics support the district court finding of

adverse impact upon black employees, the burden shifted

to the Company to explain the racial disparity by proving

job relatedness. Williams v. Tallahassee Motors, Inc.;

Rodriguez v. East Texas Motor Freight, 505 F.2d 40 (5th

Cir. 1974), vacated and remanded on other grounds, 431

29a

U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). Advanced

promotion at the plant was premised on two company

practices found objectionable by the district court—the

administration of qualifying tests for certain positions

and the application of the total assessment program.

Qualifying Tests.

Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h)

provides that it shall not be an unlawful employment

practice:

for an employer to give and to act upon the results of

any professionally developed ability test provided that

such test, its administration or action upon the results

is not designed, intended or used to discriminate

because of race, color, religion, sex or national origin.

When an examination has been shown to affect a

racially disparate impact, the employer must prove that

the test is job related. Albemarle Paper Co. v. Moody, 422

U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Griggs v.

Duke Power Co. The employer does not meet his burden by

establishing merely a rational basis for the test. It must

be validated by a demonstration that the examination is

“appropriate for the selection of qualified applicants for

the job in question.” Washington v. Davis, 426 U.S. at 247,

96 S.Ct. at 2051; Dothard v. Rawlinson, 433 U.S. 321, 97

S.Ct. 2720, 53 L.Ed.2d 786 (1977).

The district court found that the Form C-M Test,

when used in promotion to manufacturing clerical posi-

tions, and the Form P-M Test,” as employed in the

“The examination is a two-part test consisting of 100

questions to be answered within 49 minutes. The questions are

designed to test the applicant’s vocabulary, mathematic and

chart analysis skills. See infra, footnote 16.

“ The Form P-M examination consists of 48 multiple choice

items designed to measure skills in two areas: reading com-

prehension and data interpretation. See infra, footnote 18.

30a

promotion to management positions, had not been proved

to be professionally developed ability tests within the

meaning of 42 U.S.C. § 2000e-2(h). Both tests were

designed in the personnel research department of the

Procter & Gamble Company, Cincinnati, Ohio.

The Company has not met its burden to show valida-

tion of these tests for the purposes cited. A validation

study for the Form C-M Test relating to selection to

manufacturing clerical jobs was conducted in 1975. The

district court noted, however, that the study “found no

statistical or practical significance in the correlation of

test scores and job performance for blacks.” No criterion-

related validation study was shown to support the use of

the Form P-M Test. The court found that the test “lacked

content validity for the majority of job factors deemed

most significant” for the performance of supervisorial

duties.“ In the absence of any company showing that the

tests had been properly validated, the district court did

not err in concluding that the exams had not been shown

to be professionally developed ability tests under section

703(h) of Title VII.

Total Assessment.

Once a prima facie case of discriminatory practices

has been shown, “it becomes the employer’s burden to

demonstrate the job performance validity of its practices.”

The court ordered the Company to devise a C-M Test

which meets the EEOC guidelines concerning criterion-related

validation.

“ The job factors deemed significant for supervisory person -

nel as determined by the Company from the results of question-

naires submitted to 114 managers in Procter & Gamble Co.

plants throughout the nation are: concern for others; satisfac-

tion in the role of a first-line manager; ideas and change;

initiative in problem-solving and decision-making; technical

knowledge of departmental operations; written communications

skills; organization of work of others and follow-up; strength

and firmness; effectiveness under stress; feel for relative impor-

tance of various aspects of work; and willingness to work hard.

3la

Scott v. City of Anniston, at 901; Williams v. Tallahassee

Motors, Inc.; Washington v. Davis. This, the Company has

not done. As the district court noted, ratings on “what

counts” factors such as “desire to do the work well,”

“working well with others,” and “learning the work”

involve substantial subjectivity. Moreover, management

performance appraisals, experience forms, and scheduled

interviews also provide a mechanism for subjective anal-

ysis. As the court explained, these promotional tools

provide raters the “opportunity to choose which events to

emphasize or omit.” Under total assessment, all bidders

for promotion must be reviewed and assessed by manage-

ment personnel at the supervisory level.

Against this backdrop, the district court found that

when this action was instituted in 1974, no black person

had ever been a supervisor at the Company plant. Nor had

any black manager participated as a rater in total assess-

ment for promotion. At the completion of the trial, no

black had acted as a rater in total assessment for promo-

tion in which a final selection had been made. In light of

these and other factors,* the court concluded that total

assessment was not a valid method for evaluating quali-

fications for promotion. We agree. This court has recog-

nized that promotion systems utilizing subjective eval-

uations by all white supervisors provide a ready mecha-

nism for discrimination. Hamilton v. General Motors

% The court also considered overt acts of discrimination

showing active bias against potential black managers. Among

the specific acts found by the trial court were these: a black was

allegedly rejected for a management position because he was

over-qualified; a white supervisor told a non-management em-

ployee that he, the supervisor, was a racist; another white

manager told a black employee that blacks were not capable of

performing the higher level jobs; the plant’s industrial relations

manager stated that blacks need more training than whites

because whites are more accustomed to working in industry; and

the plant manager stated to black employees that whites would

have to approve whomever was selected as the first black

supervisor.

32a

Corp., 606 F.2d 576 (5th Cir. 1979); accord, James v.

Stockham Valves; Rowe v. General Motors Corp., 457 F.2d

848 (5th Cir. 1972). The significant underrepresentation

of blacks in supervisory level management positions, pro-

vides an adequate basis for the district court’s invalidation

of the Company’s total assessment program.

Having discredited the two major mechanisms upon

which advanced promotions were premised, the district

court found discrimination in promotion to key company

positions. We sustain the district court finding of dis-

crimination in promotion to mechanic, lab analyst, manu-

facturing clerical, security guard,” and management posi-

tions.

IV.

Having carefully reviewed the evidence offered to

show discrimination in assignment to the “slide handler”

position, we find no error in the district court’s con-

clusion.”

% While neither total assessment nor legally invalid tests

applied in promotion to security guard positions, the dis-

proportionate underrepresentation of blacks in this position,

unexplained by the Company, was sufficient to support the

district court finding of discrimination. Scott v. City of Anniston;

Claiborne v. Illinois Central Railroad.

* There is no dispute that the slide handler position is one of

the least desirable in the plant. See infra, footnote 7. The district

court found that as of March, 1971, five of six slide handler

positions were held by blacks. A white employee who had been

working as a slide handler was reassigned to an easier and more

desirable repacking job, although he was junior in seniority to

all of the blacks who shared his position. After the slide was

moved to the warehouse, two relatively easy jobs were created

and the two most senior employees working at the slide received

those positions. When one of these two employees was injured, a

white replaced him, despite the fact that a black in the same

position on the slide had more seniority.

38a

On April 1, 1976, the district court held a hearing to

consider entry of a proposed consent decree. In response

to notice of the proposed decree, fifty-two members of the

certified class appeared through separate counsel at the

hearing. These class members objected to the entry of the

proposed consent decree. After hearing arguments from

Fisher, the Company, and the “objectors,” the court dis-

approved the proposed consent decree and set this action

for trial. Prior to trial, the court ordered that an attorney

other than Fisher’s could “represent the objectors in this

class action and need not formerly intervene.” The Com-

pany now challenges the award of reasonable attorney’s

fees to the “objectors” attorney. According to the Com-

pany, the objectors are not “prevailing parties” to this suit

within the meaning of section 706(k) of Title VII, 42

U.S.C. § 2000e-5(k). Section 706(k) provides: “In any

action or proceeding under this [Title] the court, in its

discretion, may allow the prevailing party ...a reasonable

attorney’s fee....”” We have often declared that “an

award of attorneys’ fees and its calculation in a Title VII

action are matters left for the sound discretion of trial

judges.” Claiborne v. Illinois Central Railroad, at 155;

Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437

(5th Cir. 1974); Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (5th Cir. 1974). The Supreme Court in

Christianburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct.

694, 54 L.Ed.2d 648 (1978), perceived two equitable con-

siderations supporting the award of attorney’s fees to

prevailing Title VII plaintiffs:

First, as emphasized so forcefully in Piggie Park,

[Newman v. Piggie Park Enterprises, 390 U.S. 400, 88

S.Ct. 964, 19 L.Ed.2d 1263 (1968) ] the plaintiff is the

chosen instrument of Congress to vindicate ‘a policy

that Congress considered of the highest priority.” 390

34a

U.S. at 402, 88 S.Ct. 964. Second, when a district court

awards counsel fees to a prevailing plaintiff, it is

awarding them aguinst a violator of federal law.

Id. at 418, 98 S.Ct. at 699.

In light of the public rights involved, “the award should be

in such an amount to insure that attorneys will undertake

representation in this type of case.” Baxter v. Savannah

Sugar Refining Corp., at 447.

We are satisfied that under the broad discretion

vested in the court by virtue of section 706(k), the district

court was justified in granting attorney’s fees to the

“objectors.” The objectors were plaintiff class members

who performed a valuable service for the class of which

they were a part. In opposing the consent decree in a case

in which the plaintiffs ultimately prevailed at trial, the

objectors benefited their class and helped to vindicate the

important public rights protected by Title VII. The court

permitted the objectors to participate in the trial of this

cause through their own counsel, without having to for-

mally intervene. ‘he better practice would have been for

the trial court to have formally recognized and certified

the objectors as a subclass, and we conclude that this is

what in fact, though informally, occurred here. Since this

is so, we do not disturb this award. We note, however, that

in following this course under the circumstances of this

case we in no sense countenance any general or unsuper-

vised proliferation of class representation. Here the

matter was called to the court’s attention and passed on

by it, albeit informally. In the normal case, a certified

class is assumed to be sufficiently harmonious and unified

in interest that one set of attorneys can and should

represent it adequately; and just insofar as those at-

torneys fail to do so to such an extent that additional

counsel must appear, the first set must be viewed as

having performed inadequately.

35a

Vi.

Finally, the Company argues that the district court

erroneously attempted to remedy practices not found to be

discriminatory. As noted, the court ordered the Company

to prepare a proposed plan in conformity with the court’s

conclusions. The proposed plan has been withheld pending

the outcome of this appeal. In this opinion we have deait

with the Company’s challenges to those conclusions, and

note simply that the court’s directions regarding the plan

shall be modified to meet the scope of this decision.

AFFIRMANCE AND REMAND

The district court’s judgment with respect to the bona

fide nature of the Company’s seniority system, and the

practices relating to hiring into management, is vacated.

In all other respects the judgment is affirmed. The case is

remanded for proceedings consistent with this opinion.

AFFIRMED in part; VACATED and REMANDED in part.

APPENDIX B

37a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CA 3-74-679-B

DENNIS FISHER

VS.

THE PROCTER & GAMBLE MANUFACTURING Co.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

(filed April 20, 1977)

The above styled and numbered cause came on for

trial before the Court without a jury on January 11, 1977.

Plaintiff Dennis Fisher, Defendant the Procter & Gamble

Manufacturing Company, and the Objectors with their

attorneys were present. Evidence was presented and

arguments heard. The Court, after considering the evi-

dence and exhibits, the pre- and post-trial briefs, and

other papers filed in connection with the cause, finds and

concludes as follows:

FINDINGS OF FACT

1. Plaintiff Dennis Fisher is a black citizen of the

United States and a resident of Dallas, Texas.

2. Defendant The Procter & Gamble Manufacturing

Company is a corporation engaged in interstate com-

merce, organized and existing under the laws of the State

38a

of Ohio, and doing business in the State of Texas. Defend-

ant’s Dallas plant is located at 1226 Loomis Street and

employs over 500 people.

3. Dennis Fisher has been employed at defendant’s

Dallas plant since December 11, 1967.

4. Dennis Fisher filed a charge with the Equal Em-

ployment Opportunity Commission (EEOC) against de-

fendant on March 10, 1971.

5. Dennis Fisher was issued an EEOC “right to sue”

letter on May 24, 1974, and instituted this action in this

Court on July 18, 1974.

6. Dennis Fisher represents the class consisting of all

black persons who presently are employed or since March

10, 1971, have been employed by defendant at its Dallas

plant and those who in the future apply for employment

with defendant at its Dallas plant, who have been or will

be affected adversely by the practices complained of in the

Second Amended Complaint.

7. The Objectors are 52 persons who are part of the

certified class, but who objected to the entry of a Proposed

Consent Decree, which proposed decree this Court dis-

approved by Order of April 1, 1976.

8. The collective bargaining agreement between de-

fendant and the Independent Oil and Chemical Workers

of Dallas (Union) provides that, where ability and merit,

as judged solely by the employer, are approximately equal,

plant seniority is the governing factor in both promotions

and demotions.

9. The collective bargaining agreement provision dis-

cussed in Finding of Fact (F.F.) #8 does not apply to

either management or security guard positions.

10. Ultimately, all promotions must be approved by

both the Industrial Relations Manager and the Plant

Manager.

39a

11. “Total assessment” is the term used to describe a

process, initiated in 1973, whereby applicants for certain

positions are rated and selected for those positions. In

addition to written aptitude tests, the process involves

several elements. One or more managers of the applicant

in his present job fill out forms in which they describe,

generally using examples, their views of the applicant’s

job performance. On the form, those same managers also

make recommendations as to the applicant’s suitability for

the job he is seeking. If two or more managers indicate

that they “do not recommend” the applicant, the assess-

ment will not continue. Other sources, such as the appli-

cant’s Personnel Record Card and Performance Appraisals

by managers, are gathered. The applicant fills out a form

in which he describes experiences, including job-related

experiences, he has had. Two managers, one having

responsibility for the job to be filled and one involved in

employment matters, interview the applicant. Indepen-

dently, the interviewers prepare a profile of the applicant,

rating him on a scale from 1 to 7 on the various “what

counts” factors for the job sought—that is, on the factors

deemed significant to that job’s performance. Also, overall

ratings are given. Finally, the two profiles are melded

and a single overall rating is given. The four rating

possibilities are “strong’’, “acceptable”, “borderline”, and

“weak”’,

12. A rating of 1 to 7 on such “what counts” factors as

“desire to do the work well”, “working well with others”,

and “learning the work” involves substantial subjectivity.

This subjectivity is enhanced when the sources from which

the ratings are made, such as management’s Performance

Appraisals, the interview, and the current managers’

employee description, likewise involve subjectivity and the

opportunity to choose which events to emphasize or omit.

40a

13. The experiences form, filled out by the applicant,

emphasizes writing ability, though the interview allows

deficiencies in that area to be overcome somewhat.

14. When this action was filed, no black manager had

participated as a rater in total assessment for promotion.

At the completion of the trial in this action, no black

manager had been a rater in total assessment for promo-

tion in which a final selection had been made.

15. Generally, under total assessment, a senior appli-

cant rated acceptable will be selected over a junior appli-

cant rated strong, but a junior applicant rated acceptable

will be selected over a senior applicant rated borderline.

16. For other non-management positions and for all

non-management positions before the institution of the

total assessment and testing programs, seniority is and

was the primary factor in decisions on promotions. Prior

to the institution of total assessment for mechanical, lab,

and high level operator jobs, the MA, CM, and PCT tests

were also factors in promotion decisions.

17. Approximately 12.8% of the total workforce in the

Dallas-Fort Worth Standard Metropolitan Statistical

Area is black.

18. No black employees were hired by defendant until

sometime in the 1960’s.

19. The earliest seniority date for a current black

employee at defendant’s plant is August 8, 1966. As of

January 1, 1977, 239 white employees had more seniority

than this most senior biack employee. 118 white employ-

ees have seniority dates in the 1940’s.

20. On January 31, 1966, blacks constituted .5% of

defendant’s total employment. By March 1, 1971, this

percentage had risen to 8.7%. On January 1, 1977, blacks

constituted 14.7% of defendant’s total employment.

4la

21. Those people hired for defendant’s management

positions, including supervisors, are initially hired into

management in two ways: (a) by hiring recent college

graduates from outside the company; and (b) by promo-

tion from non-management positions within the plant.

The bulk of newly hired managers are recent college

graduates from outside the plant, primarily those with

engineering or other technical degrees.

22. Non-management employees being considered for

promotion to management must go through total assess-

ment, including the taking of the PM test.

23. Until sometime in 1970, defendant had never

employed a black manager. On March 1, 1971, one of

defendant’s 77 management employees was black. That is,

blacks constituted 1.3% of management. At the time this

action was filed, one of 63 (1.6%) management positions

was held by a black. At the same time, 11.8% of defend-

ant’s employees were black. On January 1, 1977, 4 of 69

(5.8%) management positions were held by blacks. The

only other black manager that defendant has employed

left in 1972.

24. From September 11, 1970, to January 1, 1977, 33

new managers were hired from outside the plant or

promoted from the non-management ranks. Four

(12.1%) were black. From September 11, 1970, to the time

this action was instituted, there were 17 new managers,

one (5.9%) of whom was black.

25. The position of supervisor, or line manager, is of

critical importance in defendant’s plant, especially in

matters such as promotion, discipline, and good relations,

including racial relations, between management and non-

management and among non-management employees.

When this action was instituted in 1974, no black person

had ever been a supervisor at defendant’s plant. At the

time of trial, two blacks were supervisors.

42a

26. There are 8 positions at the operations manager

level. No black person has ever held any of these positions.

27. In March, 1976, Miles Millsap, defendant’s plant

manager, told Anthony Lowery and Alvin Loftis, two

objectors in this action, that the white employees would

have to approve whomever defendant selected as the first

black supervisor.

28. In 1970, Eugene Fields, who is black, sought a

management position and was rejected, despite his being

qualified for the job. The reason given for the rejection

was that he was overqualified.

29. Usually, a non-management employee seeking

promotion to management must have approximately 20

years experience. In 1976, ten days before a subsequently

postponed trial date in this cause, Gene Washington, a

black, was promoted to management with only 9 years

experience. He is the only black ever to have been

promoted from the non-management ranks.

30. At the time this action was filed, 27 of the 63

(42.9%) management positions were filled by peop's with-

out a 4-year degree.

31. Defendant recruits managers at predominantly

white schools such as The University of Texas and Texas

A & Mevery year, but recruits at Prairie View A & M and

Southern University, both predominantly black colleges,

only periodically, not every year.

32. Six pay levels (A-F) exist for non-management

positions. Beginning with the lowest and progressing to

the highest the levels are: A (Specialist 1); B (Specialist

2); C (Specialist 3); D (Technician 1); E (Technician 2);

and F (Technician 3).

43a

33. With few exceptions, non-management employees

are hired into entry level positions with promotion to

higher level positions being made from a pool of those

non-management employees already working in defend-

ant’s plant.

34. An exception to the policy described in F.F. #33

was made in the case of W.H. Barber. Mr. Barber, who is

white, was hired as a temporary maintenance mechanic at

a D rate on February 22, 1971, and eventually became a

permanent employee.

35. When a vacancy for a non-management position

occurs, notice of the vacancy and intent to fill it is posted.

Those employees who want to be considered for the job

must sign their names on the notice. Also, they must

attend a meeting at which the vacancy will be discussed,

though the vacancy notice does not indicate that attend-

ance is mandatory. Using seniority, defendant selects

from among the applicants who have not withdrawn their

bids a group which then will go through total assessment.

If an acceptable applicant is found in this group, the more

junior applicants will not go through total assessment. If

an acceptable applicant is not found in the first totally

assessed group, defendant, again usin . seniority, selects

another pool of applicants to totally assess. This process

continues until an acceptable bidder is found.

36. On March 1, 1971, blacks constituted 10.1% of the

non-management employees. On January 1, 1977, they

constituted 16.1% of such employees.

37. As of January 1, 1977, 35.5% of defendant’s cur-

rent non-management employees having seniority dates

after July 1, 1966, were black.

38. From March, 1961, to March, 1966, no permanent

non-management employees were hired. However, five

44a

white non-management employees were hired on a

temporary basis and, after March 1, 1966, were given

permanent employee status. Despite numerous job appli-

cations by blacks during the five year hiatus in permanent

hiring, no evidence was presented that any blacks were

hired on a temporary basis during that time.

39. The mechanical, lab analyst, and high level oper-

ator jobs are of critical importance in the operation of

defendant’s plant.

40. One of the 76 (1.3%) mechanical jobs is held by a

black.

41. Non-management employees being considered for

promotion into non-management mechanical jobs must go

through total assessment, including the taking of the MA

test.

42. Of 30 mechanical jobs filled, using the MA test,

from December, 1967, until January 1, 1977, 2 (6.7%) were

filled by blacks. Both of these blacks had 1966 seniority

dates. Of 14 such jobs filled since implementation of total

assessment, one (7.1%) was filled by a black.

43. Blacks hold none of the 22 lab analyst jobs.

44, Non-management employees being considered for

promotion into non-management lab jobs in the main lab

must go through total assessment, including the taking of

the CM test.

45. Of 24 lab analyst jobs filled, using the CM test,

from December, 1967, until January 1, 1977, one (4.2%)

was filled by a black. Since implementation of the total

assessment process for lab analyst jobs, only one job has

been filled and that was by a white.

46. Non-management employees being considered for

promotion into non-management high level operator jobs

must go through total assessment, including the taking of

the PCT and the MA tests.

45a

47. Of 34 high level operator vacancies filled since

implementation of total assessment for high level operator

jobs, 12 (35%) have been filled by blacks. Of the 21 high

level operator vacancies bid between the implementation

of total assessment and the filing of this action, 6 (28.6%)

were filled by blacks.

48. As of March 29, 1971, blacks held none of the 41

clerical jobs. Since then, defendant’s annual EEO-1 forms

(Employer Information Reports) never have indicated

more than one black holding a clerical position. As of

January 19, 1976, only 1 of 29 (3.4%) clerical positions was

filled by a black.

49. Of 8 manufacturing clerical jobs filled, using the

CM test, from December, 1967, to January 1, 1977, none

has been filled by a black.

50. Defendant has never employed a black security

guard.

51. Of 12 security guard jobs bid from September,

1970, until January 1, 1977, only one black was selected,

but he subsequently withdrew his bid.

52. For non-management employees with seniority

dates after July 1, 1966, blacks have higher average

annual earnings than whites.

53. The position of “slide handler” is one of the least

desirable jobs in defendant’s plant.

54. As of March 1, 1971, of the 6 slide handler

positions, 5 (83.3%) were held by blacks. This was at a

time when blacks constituted 8.7% of defendant’s total

employment. See F.F. #20.

55. Monty Walker, a white, who was working as a

slide handler, was reassigned to an easier, more desirable

repacking job, despite his being junior to the blacks, who

constituted all the other people working on the slide.

46a

56. After the slide was moved to the warehouse, two

load former positions—relatively easy jobs—were created

and the two most senior employees got them. When one of

these two people was injured, Zeke Fraley, a white, re-

placed him, despite the fact that Herbert Stewart, a black

in the same position on the slide as Fraley, had more

seniority.

57. Before and during the pendency of this action,

defendant’s management has viewed blacks as inferior to

whites, as exemplified by the following facts:

(a) John Coley, a white, who was the supervisor of

James Robinson, told Robinson that he (Coley) was a

racist;

(b) In 1971, Bill Phillips, a white manager in the

Crisco department, told Clyde Carr, a black employee,

that blacks were not capable of performing the higher

rated jobs;

Coley said he felt himself better than blacks, Bill

James, a manager, said he was opposed to interracial

marriages, and Dave Ricker, a white manager, said

that blacks living in an area make property values

decline;

(d) Max Cox, who is the Industrial Relations

Manager and who is white, said blacks need more

training for positions than whites becauses whites are

more accustomed to working in industry; and

(e) Ina March 9, 1976, management meeting Billi

Smith, a manager, said that preventing non-

management white employees from making racial

slurs would be difficult, since upper management had

made such slurs many times.

47a

58. Incidents periodically have occurred in which

racial slurs have been directed at defendant’s black em-

ployees.

59. Defendant itself has recognized its shortcomings

in the area of racial relations and the difficulties faced by

blacks, as exemplified by the following facts:

(a) Donald Berg, a white manager in the food

packing room, said that, if he were black, he would

find it difficult to work in defendant’s plant or in any

other type of manufacturing firm;

(b) In March, 1976, R. S. Cook, the manufac-

turing manager for the food division at Procter &

Gamble’s main office in Cincinnati, Ohio, told a group

from defendant’s plant that the company had not

been doing enough in its affirmative action programs;

and

Development Department in Procter & Gamble’s

Cincinnati office, submitted a report which, among

other things, said that “[t]he pending court suit has

increased barriers to racial harmony” in defendant’s

plant.

60. Defendant has taken some affirmative steps to

address the problems discussed in F.F. #’s 57, 58, and 59

through management seminars, including seminars ad-

dressing the issue of race through such methods as role

playing and films.

61. The MA, CM (insofar as it is used for lab analyst

positions), and PCT tests have been validated in accor-

dance with the 1970 EEOC Testing and Employment

Selection Guidelines.

62. A 1961 criterion-related validation study for the

CM test relating to selection for manufacturing clerical

48a

positions did not involve separate validation for minority

and non-minority job candidates. .

63. A 1975 criterion-related validation study for the

CM test relating to selection for manufacturing clerical

positions found no statistical or practical significance in

the correlation of test scores and job performance for

blacks or for white males.

64. The PM test has content validity for only certain

components of the job of first line supervisor. It does not

have content validity for the majority of job factors

deemed most significant in the job analyses performed for

supervisorial positions. No criterion-related validation

study has been made for the PM test.

65. In each instance in which plaintiff Dennis Fisher

bid on but was not selected for a job, the employee selected

had more seniority, a higher test score, a higher rating

under tutal assessment, or some combination of these

three elements.

CONCLUSIONS OF LAW

1. Reading plaintiff’s EEOC charge with the liber-

ality required, see, e.g., Tillman v. City of Boaz, 548 F.2d

592 (5th Cir. 1977), and Sanchez v. Standard Brands, Inc.,

431 F.2d 455 (5th Cir. 1970), continuing discrimination by

defendant in all areas involved in this action was charged.

Belt v. Johnson Motor Lines, Inc., 458 F.2d 443 (5th Cir.

1972); Egelston v. State University College at Genesco, 535

F.2d 752 (2d Cir. 1976).

2. Plaintiff’s filing of the EEOC charge was timely.

3. This Court has jurisdiction of this cause under 42

U.S.C. §2000e et seg. (Title VII of the Civil Rights Act of

1964, as amended) and 42 U.S.C. §1981.

4. This cause is brought properly as a class action

pursuant to Federal Rule of Civil Procedure 23(a) and

49a

(b)(2), in that the class is so numerous that joinder of all

members is impracticable; there are questions of law and

fact common to the class; the claims of plaintiff Dennis

Fisher are typical of those of the class he represents; and

Dennis Fisher adequately and fairly protects the interests

of the class.

5. Evidence of events and incidents transpiring prior

to September 10, 1970, is relevant and admissible to show

possible plantwide discriminatory conduct with continu-

ing effects, the probability of the continuation of such

conduct, and the relationship between past actions and

present effects and actions. Swint v. Pullman-Standard,

539 F.2d 77 (5th Cir. 1976); Burns v. Thiokol Chemical

Corp., 483 F.2d 300 (5th Cir. 1973).

6. Miles Millsap’s statement to Anthony Lowery and

Alvin Loftis, concerning white approval of the first black

supervisor, is admissible, and not excludable under Federal

Rule of Evidence 408. See 4 Wigmore, Evidence §1061(c),

39-42 (Chadbourn rev. 1972).

7. In the past, defendant discriminated against

blacks in both hiring and promotions.

8. Defendant does not have a bona fide seniority

system within the meaning of 42 U.S.C. §2000e-2(h).

9. Defendant demonstrated no business necessity for

its policy of recruiting only recent college graduates with

engineering or technical degrees, nor for its policy of

usually requiring 20 years experience of those employees it

considers for promotion from non-management to man-

agement positions.

10. Defendant discriminated against the plaintiff

class in its practices relating to promotion to and hiring

into management.

11. Defendant discriminated against the plaintiff

class in its practices relating to promotion to mechanical

positions.

50a

12. Defendant discriminated against the plaintiff

class in its practices relating to promotion to lab analyst

positions.

13. Defendant did not discriminate against the

plaintiff class ‘n its practices relating to promotion to high

level operator positions.

14. Defendant discriminated against the plaintiff

class in its practices relating to promotion to manufac-

turing clerical positions.

15. Defendant discriminated against the plaintiff

class in its practices relating to promotion to security

guard positions.

16. Defendant did not discriminate against the

plaintiff class in terms of compensation.

17. Defendant discriminated against the plaintiff

class in its practices relating to job assignments by as-

signing blacks to the least desirable jobs.

18. The MA, CM (insofar as it is used for lab analyst

positions), and PCT tests are professionally developed

ability tests within the meaning of 42 U.S.C. §2000e-2(h).

19. The CM test for manufacturing clerical positions

has not been proven to be a professionally developed

ability test within the meaning of 42 U.S.C. §2000e-2(h).

20. The PM test, when not used in conjunction with a

valid total assessment program, has not been proven to be

a professionally developed ability test within the meaning

of 42 U.S.C. §2000e-2(h). See Firefighters Institute for

Racial Equality v. City of St. Louis, 549 F.2d 506, 512 (8th

Cir. 1977).

21. The total assessment program is not a valid

method for evaluating employees’ qualifications for pro-

motion as long as blacks are so disproportionately under-

represented in defendant’s management, especially at the

5la

supervisorial level. See Swint v. Pullman-Standard, 539

F.2d 77, 105 n.72 (5th Cir. 1976) and United States v. City

of Chicago, 549 F.2d 415, 432 (7th Cir. 1977).

22. Plaintiff Dennis Fisher was not discriminated

against because of race in a manner different from that in

which the class was discriminated against.

23. The members of the class of blacks whom defend-

ant discriminated against in its promotional policies

relating to management, mechanical, lab analyst, manu-

facturing clerical, and security guard positions are en-

titled to compensation, which will be determined at a later

hearing. Pettway v. American Cast Iron Pipe Co., 494 F.2d

211, 256-58 (5th Cir. 1974).

24. If defendant continues to use the CM test for

manufacturing clerical positions, it shall, within a reason-

able time, devise a test which fully meets the EEOC

Guidelines concerning criterion-related validation.

25. The PM test shall not be used for selection of non-

management employees for management positions, unless

it is used in conjunction with a valid total assessment

program.

26. Henceforth, defendant must include on any

posted vacancy notice a statement to the effect that

attendance at the meeting of bidders to discuss the

vacancy is mandatory.

27. Within 30 days of the entry of these Findings of

Facts and Conclusions of Law, plaintiff and defendant

shall submit to this Court proposed affirmative action

plans for defendant. The parties may submit an agreed

upon plan instead of separate, proposed plans. Any such

plan or plans shall include provisions relating to: training

programs; opportunities for college training or training at

a technical institute; goals for promotion of blacks into the

positions in which defendant has been found to have

52a

discriminated; clear explanations to the non-management

employees of the selection procedures for promotions,

including explanations of the roles played by the PM, MA,

CM, and PCT tests; disciplinary procedures; plans for

reduction of racial tensions at defendant’s plant; and

plans for making defendant’s management personnel

more aware of and sensitive to the situation of black

employees.

28. The plaintiff class and the Objectors are entitled

to reasonable attorneys’ fees, which will be determined at

a later hearing.

29. Any finding of fact deemed a conclusion of law is

so adopted. Any conclusion of law deemed a finding of

fact is so adopted.

SIGNED and ENTERED this 20 day of April, 1977.

/S/_ [SARAH T. HUGHES]

United States District Judge

APPENDIX C

53a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CA 3-74-679-B

DENNIS FISHER

VS.

THE PROCTER & GAMBLE MANAUFACTURING Co.

JUDGMENT

(Filed April 20, 1977)

On this the 20th day of April, 1977, the Court enters

judgment in the above styled and numbered cause based

on its Findings of Facts and Conclusions of Law this day

filed.

It is ORDERED, ADJUDGED, and DECREED that:

1. Defandant, the Procter & Gamble Manufacturing

Company, is ordered to pay the plaintiff class, represented

by Dennis Fisher, such compensation as may be deter-

mined by this Court at a later hearing for discrimination

in its promotion practices;

2. Defendant, the Procter & Gamble Manufacturing

Company, is ordered to include on any posted vacancy

notice a statement to the effect that attendance at the

meeting of bidders to discuss the vacancy is mandatory;

3. Defendant, the Procter & Gamble Manufacturing

Company, is ordered to devise a test, if it uses a test, for

manufacturing clerical positions which fully meets the

EEOC Guidelines concerning criterion-related validation;

4. Defendant, the Procter & Gamble Manufacturing

Company, is ordered to not use the PM test for selection of

non-management employees for management positions,

unless it is used in conjunction with a valid total assess-

vee

54a

5. Plaintiff Dennis Fisher and defendant, the Procter

& Gamble Manufacturing Company, are directed, within

thirty (30) days to prepare and file either proposed

affirmative action plans or a single affirmative action plan

for defendant, containing the elements delineated in the

Court’s Conclusions of Law;

6. Defendant, the Procter & Gamble Manufacturing

Company, is ordered to pay the attorney for Dennis Fisher

and the class he represents and the attorney for the

Objectors attorneys’ fees, which will be determined by this

Court at a later hearing.

Costs against defendant, the Procter & Gamble Man-

ufactdring Company.

/S/_ [SARAH T. HUGHES]

United States District Judge

APPENDIX D

55a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CA 3-74-679-B

DENNIS FISHER

VS.

THE PROCTER & GAMBLE MANUFACTURING Co.

ORDER AMENDING

FINDINGS OF FACTS AND

CONCLUSIONS OF LAW

(Filed May 6, 1977)

On this the 6th day of May, 1977, came on for

consideration Plaintiff's Motion to Amend Findings of

Fact and a portion of Defendant’s Motion to Amend

Findings of Facts and Conclusions of Law, filed on May 5,

1977.

It is hereby ORDERED, ADJUDGED, and DECREED

that the Court’s Findings of Facts and Conclusions of

Law, entered on April 20, 1977, be amended as follows:

Finding of Fact #22 is amended to read:

“22. Non-management employees being considered

for promotion to management must go through total

assessment, including the taking of the PM test. This

«total assessment differs in some respects from the total

assessment used for promotions to non-management posi-

tions.”

Finding of Fact #52 is amended to read:

“52. For non-management employees with seniority

dates after July 1, 1966, blacks averaged more gross

earnings in 1976 than whites.”

SIGNED and ENTERED this 6th day of May, 1977.

/S/_ [SARAH T. HUGHES]

United States District Judge

APPENDIX E

57a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Civil Action

No. CA 3-74-679-B

DENNIS FISHER

VS.

THE PROCTER & GAMBLE MANUFACTURING Co.

AMENDED JUDGMENT

(Filed May 19, 1977)

Upon request of the Defendant that the Judgment of

this Court be amended to include the certification per-

mitted under 28 U.S.C. §1292(b), the Court on this 19 day

of May, 1977, hereby amends its Judgment, previously

entered in the above styled and numbered cause on April

20, 1977 based on its Findings of Facts and Conclusions of

Law originally filed on April 20, 1977 and subsequently

amended on May 6, 1977, to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that:

1. Defendant, THE PROCTER & GAMBLE MANUFAC-

TURING COMPANY, is ordered to pay the Plaintiff class,

represented by DENNIS FISHER, such compensation as

may be determined by this Court at a later hearing for

discrimination in its promotion practices;

2. Defendant, THE PROCTER & GAMBLE MANUFAC-

TURING COMPANY, is ordered to include on any posted

vacancy notice a statement to the effect that attendance

at the meeting of bidders to discuss the vacancy is manda-

tory;

3. Defendant, THE PRocTER & GAMBLE MANUFAC-

TURING COMPANY, is ordered to devise a test, if it uses a

58a

test, for manufacturing clerical positions which fully

meets the EEOC Guidelines concerning criterion-related

validation;

4. Defendant, THE PROCTER & GAMBLE MANUFAC-

TURING COMPANY, is ordered to net use the PM test for

selection of non-management employees for management

positions, unless it is used in conjunction with a valid total

assessment program;

5. Plaintiff, DENNIS FISHER, and Defendant, THE

PROCTER & GAMBLE MANUFACTURING COMPANY, are di-

rected, within thirty (30) days from April 20, 1977, to

prepare and file either proposed Affirmative Action Plans,

or a single Affirmative Action Plan for Defendant, con-

taining the elements delineated in the Court’s Conclusions

of Law;

6. Defendant, THE PROCTER & GAMBLE MANUFAC-

TURING COMPANY, is ordered to pay the attorney for

DENNIS FISHER and the class he represents and the at-

torney for the Objectors attorneys’ fees, which will be

determined by this Court at a later hearing.

7. Costs against Defendant, THE PROCTER & GAMBLE

MANUFACTURING COMPANY.

This Judgment Order involves controlling questions of

law as to which there is substantial ground for differences

of opinion and an immediate appeal from this Judgment

Order and the Findings of Facts and Conclusions of Law

upon which it is based may materially advance the ulti-

mate termination of the litigation. Therefore, the Court

does hereby CERTIFY this matter as one included within 28

U.S.C. §1292(b).

SIGNED AND ENTERED this 19 day of May, 1977.

/S/_ [SARAH T. HUGHES]

United States District Judge

APPENDIX F

59a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CA 3-74-679-B

DENNIS FISHER

VS.

THE PROCTER & GAMBLE MANUFACTURING Co.

ORDER PROVIDING FOR AN AFFIRMATIVE ACTION PLAN

IN DEFENDANT’S DALLAS PLANT

(filed May 31, 1977)

The Plaintiff Dennis Fisher filed a Complaint on July

18, 1974, against the Defendant Procter & Gamble Manu-

facturing Company (hereinafter sometimes referred to as

the “Company” or “Procter & Gamble”), alleging violation

of Title VII of the Civil Rights Act of 1964, as amended,

and 42 U.S.C. §1981 at Defendant’s Dallas plant.

On April 20, 1977, the Court entered its Findings of

Facts and Conclusions of Law, in which the Court found

that Defendant has discriminated against black persons

on the basis of their race. Based on said Findings and

Conclusions judgment was entered on May 19, 1977,

amending a judgment previously entered on April 20,

1977. In compliance with said judgment, Plaintiff and

Defendant each filed a proposed affirmative action pro-

gram. The Court having considered same ORDERS, AD-

JUDGES, and DECREES that the following affirmative action

program be forthwith implemented at Defendant’s Dallas

plant.

60a

GOALS, TIMETABLES, INTERIM PREFERENTIAL RELIEF

MANAGEMENT POSITIONS

A. Defendant is directed to immediately implement

plans to achieve the following goals:

1. The achievement of work-force parity for black

persons in the company’s management positions on or

before June 30, 1980. (Work-force parity means that the

percentage of blacks in a particular job category is

substantially equivalent to the percentage of blacks in the

company’s total work- force. )

2. The achievement of work force parity for black

persons in line management (supervisor) positions on or

before June 30, 1980.

B. The Court finds that the following interim prefer-

ential relief is necessary in order to remedy the effects of

present and past discrimination against black persons.

1. Of the next three vacancies in any of the eight

positions at the Operations Manager level, at least one

shall be filled by a black person. In the event that a black

person becomes Plant Manager of the Dallas plant, this |

requirement will be deemed to be satisfied.

2. At least one of the next three vacancies in line

manager (or supervisor) positions shall be filled by a black

person,

C. Defendant shall immediately promulgate written

job or position descriptions for each _ distinct

management-level job classification. Copies of such de-

scriptions shall be filed with the Court and served upon

counsel for Plaintiff within 90 days of this Order.

D. Defendant shall promulgate in writing non-

discriminatory qualifications for each distinct

6la

management-level job classification. Copies of such quali-

fications shall be filed with the Court and served upon

counsel for Plaintiff within 90 days of this Order.

E. If any of the present management-level job

classifications are extinguished or if the nature of the job

category changes or if new positions are created, Defend-

ant shall notify and shall provide the Court and counsel for

Plaintiff when applicable, with new or supplemental job

descriptions and/or job qualifications.

F. Defendant shall recruit for management every

year at colleges with a proportionately high black enroll-

ment.

G. Defendant shall train and utilize black persons as

recruiters.

H. Through counseling and other appropriate means,

Defendant shall encourage and assist black non-

management employees to seek promotion into manage-

ment positions.

I. Any black employee who is promoted from non-

management into management shall be entitled to return

to his or her former non-management job or its substan-

tial equivalent with no loss of seniority, in the event that

his or her job performance in the management job is

unsatisfactory. This provision shall not apply if such a

black employee’s job performance in the management job

is unsatisfactory because of excessive absenteeism or in-

tentional failure to try to perform the work satisfactorily.

Additionally, this provision shall remain effective until

Defendant achieves work-force parity for black persons in

its management positions.

J. Defendant shall document all offers of manage-

ment positions made to black persons from outside the

Dallas plant. Defendant shall record (1) the name and

address of the offeree; (2) the date the offer was extended;

62a

(3) the company or institution from which the offeree was

recruited; (4) degrees, if applicable; and (5) if rejected,

the reason given by offeree.

MECHANICAL JOBS

A. Defendant shall implement plans to achieve the

following goals:

1. The achievement of work-force parity for black

persons in the mechanical jobs on or before June 30, 1980.

2 The selection of at least four black persons as

Mechanical Trainees (Tech. I) by August 31, 1977.

LAB ANALYST JOBS

A. Defendant shall implement plans to achieve the

following goals:

1. The achievement of work force parity for black

persons in the Lab Analyst positions on or before June 30,

1980.

B. The Court finds that the following interim prefer-

ential relief is necessary in order to remedy the effects of

present and past discrimination against black persons:

1. At least one of the next three vacancies in the Lab

Analyst positions shall be filled by a black person.

C. Defendant shall, if necessary, develop a Lab

Analyst Trainee position to assist the entry of black

employees into Lab Analyst positions. If such a Lab

Analyst Trainee position is created and black persons are

employed in that position, 9B.1. of “LAB ANALYST JOBS” is

modified so that at least two of the next four vacancies

shall be filled by black persons. This does not modfiy the

requirements of §A.1. of “LAB ANALYST JOBS”.

63a

CLERICAL JOBS

A. Defendant shall implement plans to achieve the

following goals:

--*-} The achievement of work force parity for black

persons in the clerical job classifications on or before June

30, 1980.

2. The selection of black persons to fill at least two of

the next three vacancies in the clerical job classifications.

B. The Court finds that the following interim prefer-

ential relief is necessary to remedy the effects of present

and past discrimination against black persons: Of the next

nine vacancies in the clerical job categories, at least four

shall be filled by black persons.

SECURITY GUARD JOBS

The Court finds that the following interim preferen-

tial relief if necessary in order to remedy the effects of

present and past discrimination against black persons: At

least one of the next two vacancies in the job category of

Security Specialist III shall be filled by a black person.

Il.

TRAINING PROGRAMS AND EDUCATION

A. Defendant will continue to counsel black employ-

ees and encourage them to utilize the Defendant’s Em-

ployee Education Plan for reimburement for appropriate

high school, vocational or trade school or college level

courses. Defendant will also counsel, or arrange for such

counseling through appropriate community resources,

black employees interested in college training with re-

spect to the type and scope of college training to under-

take.

64a

B. Defendant shall amend its Employee Education

Plan, if necessary, to include courses designed to improve

reading, reading comprehension, verbal skills, arithmetic

skills, and vocabularly.

C. Within 30 days from the entry of this Order,

Defendant shall submit to the Court and counsel for

Plaintiff and the Objectors a proposed written commu-

nication to all black employees (and the other employees if

Defendant so desires) explaining the Company’s Employ-

ee Education Plan, including all requirements an employ-

ee must satisfy in order to utilize the plan. Upon Court

approval of the proposed communication, it shall be sent to

all of the Company’s black employees, as well as the other

employees if Defendant so desires.

D. The company shall provide career counseling for all

black employees.

ITT.

DISCIPLINARY PROCEDURES

A. Defendant shall, within 60 days of the entry of

this Order, establish clear written explanations of all

formal and informal rules and regulations, together with

explanations of the disciplinary procedures involved in

enforcing said rules and regulations.

B. Copies of all such rules and regulations, including,

if applicable, the Company’s interpretations of provisions

of the Union contract, shall be maintained in the Defend-

ant’s Personnel Office and made available for inspection

by Defendant’s black employees, as well as other employ-

ees if Defendant so desires.

C. The Company shall within 60 days of the entry of

this Order file with the Court a listing and explanation of

65a

all types of personnel records which it presently maintains

or has maintained since January 1, 1977.

IV.

RACIAL RELATIONS

A. Defendant shall employ a consultant of national

reputation in conjunction with its own personnel to assess

the current situation as well as trends in employee

relationships, including racial relationships, within its

Dallas plant, and to advise in the development of a

program based on the results of such assessment for the

purpose of reducing racial tensions within the plant.

Defendant will develop and implement such a program

which would include provisions for all employees, in-

cluding black employees, to express their ideas and con-

cerns relating to the relationships among its plant em-

ployees. Within 30 days of the entry of this Order, the

Company shall advise the Court and counsel for Plaintiff

and the Objectors of the name and address of the person

that the Company proposes to retain. Plaintiff and

Objectors shall have 10 days in which to file written

objections to the person selected. In the event the Court

determines that any such objections are well-founded the

Court will appoint the consultant. Copies of all reports

and recommendations of the consultant shall be served

upon counsel for Plaintiff and the Objectors.

B. The Company shall immediately communicate to

all employees (including management level employees)

the fact that Defendant will not tolerate racist slurs or

remarks.

C. Defendant shall continue its efforts to promote

racial harmony through such means as management semi-

nars. In planning and executing such programs, Defend-

ant shall seek imput from the black managers at the

Dallas plant.

66a

D. Defendant shall investigate any complaints con-

cerning racist remarks and shall document all such com-

plaints and investigations.

COMMUNICATIONS

A. Within 30 days of the entry of this Order,

Defendant shall hold a policy orientation for all managers

and supervisors. At such orientation session, Defendant

shall explain to the managers and supervisors the terms

and effects of this Order.

B. Within 30 days from the entry of this Order,

Defendant shall file with the Court and serve upon counsel

for Plaintiff and Objectors, a proposed written commu-

nication to the non-management black employees (and to

the other non-management employees if Defendant so

desires) which explains in clear terms the selection proce-

dures utilized by Defendant including the roles played by

the PM, MA, CM, and PCT tests. Upon the Court’s

approval of the proposed communication, it shall be sent to

each of Defendant’s non-management black employees

and to the other non-management employees if Defend-

ant so desires.

VI.

RATE RETENTION

Any black employee who is promoted or transferred

into a management position, a mechanical position, or a

Lab Analyst position shall at no time be paid at a lower

rate than the rate for the job from which he or she was

promoted or transferred. The black employee so promoted

or transferred shall continue to receive those general pay

increases he or she would have received had he or she

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remained in his or her prior job. Rate retention shall

continue until he or she reaches that level in his or her

current job wherein the rate of pay is equal to that in the

job from which he or she transferred. He or she shall then

progress according to the rate of pay in his or her current

job category.

VII.

OVERSEER

A. Within 30 days of entry of this Order, Defendant

shall designate a person to oversee compliance with this

Order. Said person may not be the Industrial Relations

Manager but may be a person from Defendant’s main

office in Cincinnati, Ohio. Counsel for Plaintiff and Objec-

tors may file with the Court written objections to the

designated overseer within 10 days of his designation.

B. In addition to {VII.A. above, the overseer period-

ically shall make himself available to the black employees

for the purpose of considering any allegations of dis-

crimination on a confidential basis.

VIII.

RECORDS AND REPORTS

A. The Company shall maintain adequate records to

establish its compliance with the terms of this Order.

B. Beginning on September 1, 1977, and then on

January 1, 1978, and then on June 30th and January Ist of

each succeeding year until further order of this Court, the

Company shall file with this Court, with copies served upon

counsel for Plaintiff and the Objectors, detailed reports

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summarizing its progress in meeting the requirements of

this Order.

C. Upon receipt of reasonable notice, the Company

shall make available for inspection by counsel for Plaintiff

and the Objectors, during normal working hours, all

records used as a basis for the reports required by this

Order. Counsel for Plaintiff and the Objectors shall have

the right to copy the records referred to in this paragraph.

IX.

JURISDICTION

The Court will retain jurisdiction over this action for

the purpose of effectuating the terms of this Order until

further Order of the Court. At any time after entry of

this Order, Plaintiff and Objectors on due notice to De-

fendant, may move the Court for enforcement of this

Order. Upon a showing of a need for enforcement of this

Order, the Court will order whatever relief it deems

appropriate to insure that no person is denied the rights

which this Order seeks to protect.

SIGNED and ENTERED this 3lst day of May, 1977.

/S/_ [SARAH T. HUGHES]

United States District Judge

APPENDIX G

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

77-2204

Nos. 77-2205

77-2474

D. C. Docket No. CA-3-74-679-B

DENNIS FISHER,

Plaintiff- Appellee,

versus

PROCTER & GAMBLE MANUFACTURING COMPANY,

Defendant- Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

Before THORNBERRY, GEE and HATCHETT, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Northern District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered

and adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby,

affirmed in part and vacated in part; and that this cause

be, and the same is hereby remanded to the said District

Court in accordance with the opinion of this Court;

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IT IS FURTHER ORDERED that the defendant-

appellant pay to the plaintiff-appellee the costs on appeal,

to be taxed by t

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