Appendix — Payne v. Travenol Laboratories, Inc.
Supreme Court brief1982
Ask Donna
What actually matters in this document.
Text
United States District Court,
N. D. MISssSIssIPPt,
Dexta DIvIsIOn
No. DC 72-13-S
Writ Mae Payne, ef al,
Plaintiffs,
Vv.
TRAVENOL LABORATORIES, INC., ef al.,
Defendants.
Fes. 19, 1976.
MEMORANDUM OF DECISION
ORMA R. SMITH, District Judge.
Following a two-week bench trial, this employment dis-
crimination action is now before the court for decision on the
merits.
The suit was commenced March 2, 1972, by the filing of
complaint by three individual plaintiffs seeking to represent a
class of persons allegedly subjected to racial discrimination at
the hands of the defendants. The scope of the plaintiff class
was subsequently broadened by the addition of allegations of
sex discrimination. Of the original named plaintiffs, one was a
black, male employee at defendants’ Cleveland, Mississippi,
facility and two were black, female applicants for employment
at the defendant’s Cleveland plant.
Defendants in the case are Travenol Laboratories, Inc.,
and Baxter Laboratories, Inc. Because Travenol is a wholly-
owned subsidiary of Baxter, the court will make no attempt to
differentiate between the defendants and will refer to them
2a
indiscriminately as “Travenol”, “Baxter”, or simply “the de-
fendants”.
The course to trial and determination on the merits was
long and arduous. During the months following the filing of
complaint, the court was required to rule upon a motion to
strike jury demand (which was granted), a motion to certify as
a class action (which was granted), a motion to dismiss and/or
for summary judgment (which was denied), a motion for a
preliminary injunction (which was denied) and various other
motions concerning discovery and the substitution of parties.
On or about November 15, 1973, counsel approached the court
and requested proceedings in the case be held in abeyance
pending the outcome of settlement negotiations. Negotiations
dragged on until June of 1974, at which time they collapsed.
During the summer of 1974, the parties resumed vigorous
discovery. The court bifurcated the trial of the case, deferring
consideration of the appropriate relief to be afforded plaintiffs,
if any, until after the court had determined if defendants’
conduct about which plaintiffs complained is or was in con-
travention of Title VII of the Civil Rights Act of 1964.' The
liability portion of the trial began March 3, 1975, and con-
cluded March 14, 1975. However, the end of the trial
unfortunately did not mark the end of the litigation of the
matter of liability. Voluminous and time-consuming post-trial
motions filed on behalf of both plaintiffs and defendants
required disposition by the court prior to consideration of the
merits.
In the course of the three-year period between filing of
complaint and commencement of trial, the cast of the named
plaintiffs changed substantially. Two of the original named
plaintiffs, James Williams and Alma Jean Williams, sought and
received permission of the court to withdraw as parties. Willie
Mae Payne remains the only original named plaintiff in the
lawsuit. In 1973, the court sustained a motion for leave to
intervene filed on behalf of Delilah Cherry and Birdie Griffin.
142 U.S.C. § 2000¢ ef seq.
3a
Thereafter, the case proceeded to trial with Ms. Payne, Ms.
Cherry, Ms. Griffin, and the class which they represent oppo-
sing the defendants, Travenol and Baxter.
_ Although she has since moved to Chicago, Illinois, Willie
Mae Payne was, at the times pertinent to the issues now before
the court for determination, a black female resident of the
Cleveland, Mississippi area in which the defendants’ facility is
located. There was some controversy as to when Ms. Payne
initially applied for employment at the Baxter plant; however
the parties have stipulated that she did so at least as early as
March 17, 1970. Although Ms. Payne has no more than seven
years of formal schooling, she obtained a tenth grade rating on
the General Educational Development (GED) test on January
19, 1970. Ms. Payne was never hired by the defendants.
Delilah Cherry is a black female resident of the Cleveland,
Mississippi area. At the time Ms. Cherry claims she was
subjected to discrimination at the hands of the defendants, she
had completed only eight years of formal education and had
obtained a certificate of tenth grade equivalency on a GED test
in 1967. Although she initially sought employment at the
Baxter plant at least as early as 1970,2 Ms. Cherry had no
success in obtaining a job with the defendants until some time
after the institution of the instant litigation. She is presently
employed by the defendants.
There was a degree of confusion as to the facts surrounding
the claim of plaintiff Birdie Lee Griffin. Prior to trial, counsel
plaintiffs were ultimately referred to Travenol, but only Ms. Cherry
successful in obtaining employment.
4a
the Birdie Lee Griffin who was the subject of the stipulations
was the daughter and namesake of the Birdie Lee Griffin who
was a witness and party in this cause. Accordingly, the facts set
forth in the stipulations as to Ms. Griffin have no application to
this lawsuit.
The correct facts, as the court finds them to be from her
testimony at trial, are that Birdie Lee Griffin is a forty-eight
year old black woman currently residing in the Cleveland,
Mississippi area. Ms. Griffin completed eleven years of formal
education and has attained a twelfth-grade equivalency on the
GED. Ms. Griffin first applied for a job with Travenol in 1966.
Although she was referred to Baxter by Mississippi State
Employment Service (MSES), Ms. Griffin was never offered a
job at the Cleveland plant.
Each of the named plaintiffs filed discrimination charges
with the Equal Employment Opportunity Commission
(EEOC). Ms. Payne lodged two charges, one each in February
and March of 1970. Named as respondents in these charges
were Baxter Laboratories and MSES. These charges related
primarily to Travenol’s education requirement, the use of MSES
as an exclusive source of applicants, and claims of racial
discrimination. The EEOC investigated Ms. Payne’s allegations
and, on March 15, 1971, issued findings of fact to the effect that
reasonable cause existed to believe that Baxter’s practices
resulted in discrimination against blacks substantially as alleged
by Ms. Payne. A right to sue letter was issued Ms. Payne on
December 28, 1971, as to MSES, and on September 6, 1972, as
to Baxter.
Ms. Cherry also filed two charges with the EEOC naming
Baxter and MSES as respondents. The first charge, lodged
August 14, 1970, inferred that white job applicants at the
Travenol plant were preferred to black. The second charge,
signed by Ms. Cherry on January 12, 1971, contained only the
simple allegation that Travenol refused to hire Ms. Cherry
because she is black. The EEOC investigation conducted in
response to Ms. Cherry’s charges resulted in a finding that
reasonable cause existed to believe Travenol was then engaged
in unlawful employment practices. This finding was based
Sa
almost entirely upon Travenol’s requirement that each job
applicant possess at least a tenth grade education or an
equivalent score on the GED test. A right to sue letter was
issued to the attorney for Ms. Cherry by EEOC on June 6, 1973.
EEOC. The first was received by the Commission on August
28, 1970, and the second was executed by Ms. Griffin on
January 12, 1971. Both of Ms. Griffin’s charges related to racial
discrimination. She received a right to sue letter, through her
attorney, from EEOC on June 6, 1973.
In their complaint, plaintiffs sought injunctive relief and
damages in the nature of back-pay to remedy what they allege
is defendants’ past, present, and future discrimination
against
blacks and women. Plaintiffs maintain that the defendants’ use
of the tenth grade education requirement violates Title VII
insomuch as the requirement has a distinctly disparate effect on
blacks in the Cleveland, Mississippi area and cannot be justified
as a business necessity. Plaintiffs also attack what they claim
was defendants’ Practice of “estricting the better-paying jobs to
the two classifications of defendants’ production-line workers?
discourages inter-job transfers and perpetuates the effects of
past discrimination. Plaintiffs also included in the complaint a
charge that the mannsz in which Travenol management hires
and promotes its clerical and professional staff unlawfully
discriminates against blacks.
As was indicated earlier, the court certified this action as
one which may be maintained on behalf of a plaintiff class as
required in Fed.R.Civ.P.23(c) and tentatively defined the class
as follows:
All present, past, and future black female em-
ployees and all present, past, and future black female
applicants for employment at the facility operated by
As will be discussed in greater detail infra, Travenol groups its
production line workers into “assemblers” and “material handlers”. The
proof in the case shows that material handlers are substantially better paid
than assemblers.
6a
the defendants at Cleveland, Mississippi, subject,
however, to this limitation, that is to say, all black
female applicants for employment at said facility
prior to March 3, 1970, and all black female employ-
ees whose employment terminated prior to March 3,
1970, are excluded from the class; the class shall be
subject to the further limitation that all black female
applicants who lack a tenth grade education or
equivalency or who were not referred for employ-
ment at the Cleveland facility by the Mississippi State
Employment Service during the period such referral
was required, are excluded from the class.
Although perhaps not strictly necessary, the court deemed
it desirable that, pursuant to Fed.R.Civ.P. 23(c)(2), notice be
furnished members of the above-defined class. The notice was
through the mail to those whose identities were known to
plaintiffs’ counsel, and through publication to those unknown to
counsel. It appears that approximately 1300 class members
received notice of the pendency of the action through the
mailing. Because some of the responses to the notice evince as
apparent misunderstanding as to the basic nature of the matter,
both plaintiffs and defendants moved the court to require some
additional or supplemental notice to prospective class members.
Defendants sought to have the court modify the class notice
from the “opt-out” to the “opt-in” form. Plaintiffs requested a
“clarifying notice” be sent to each of the approximately 400
members of the plaintiff class who had responded to the court’s
original notice by seeking exclusion from the class. The court
determined to follow neither course proposed by counsel but,
instead, entered an order deferring consideration of the advis-
ability of requiring an additional class notice until suc, times as —
the question of the defendants’ liability has been resolved.
RACE DISCRIMINATION
Baxter’s involvement in Mississippi began in 1950, when,
pursuant to a legislative program of the State of Mississippi
designed to encourage the immigration of industries into the
7a
state (Balance Agriculture With Industry—BAW1), the defen-
dants established a facility in Cleveland, Mississippi. Construc-
tion and periodic expansion of the Cleveland plant was fi-
nanced in part through bonds issued by the City of Cleveland
under the BAWI program. Approval by the city voters was a
consists pr ‘ily of coordinating the flow of materials along
the assembly iine and the distribution of materials to various
work stations along the line in accordance with production
Of the approximately 1200 persons employed at the Trav-
enol plant in Cleveland, some 900 occupy either assembler or
The employment practices attacked in the complaint have
evolved since defendants’ Cleveland facility began operation in
July of 1950. From 1950 until 1966, Mr. Olin Taylor was
ment as to the standards which he was to employ in deciding
8a
which applicants to hire. His decisions were based mainly upon
subjective factors and community references or recommenda-
tions played an important role in the hiring process. The most
frequent source of references and recommendations was the
industrial development committee of the Cleveland Chamber of
Commerce. There were no blacks on this committee during the
periods when it made references or recommendations. Refer-
ences were given heavy emphasis until the late 1950's or early
1960’s, at which time their importance began to decline.
When Mr. Taylor began to rely less upon community
references and recommendations in the late 1950’s or early
1960's, he concurrently began to rely more heavily upon his
ee ee ee
applicant for employment. One of these subjective factors was
Mr. Taylor’s belief that close relatives of an employee with a
good record would likely be good employees and, conversely,
close relatives of an employee with a poor work record would
likely be poor employees.
Prior to 1964, the defendant’s work force was composed
entirely of whites except for custodial or janitorial jobs. This
exclusion of blacks from noncustodial jobs was based in part
upon conformity to local racial traditions.
At some point during 1964, and subsequent to the passage
of Title VII, Mr. Taylor requested the Cleveland office of MSES
to perform a survey of the noncustodial jobs at the Travenol
plant and to recommend changes or alterations to the hiring
process which would bring blacks into noncustodial positions
and jobs as operatives on the production line. Following their
study, MSES recommended that the defendants impose a
requirement that prospective applicants possess at least a
twelfth grade education. Mr. Taylor rejected this recommenda-
tion as too restrictive and, instead, Travenol adopted a tenth
grade standard for prospective employees. A tenth grade GED
equivalency would also satisfy this requirement.
At the time of the imposition of the tenth grade require-
ment, February of 1965, Travenol employed four blacks as
material handlers. Each had been promoted from a custodial
9a
position to a position on the production line. The defendants
had not, prior to 1965, initially hired any blacks as operatives.
In February 1965, Mr. Taylor determined to use MSES as
the
Prospective employees satisfying the MSES standards,
including the tenth grade requirement, were referred to the
Travenol plant for an interview with Mr. Taylor. The impres-
sion which Taylor gained at this interview, coupled with the
recommendation of plant employees, determined the appli-
cant’s success or failure in landing a job with Travenol.
Between 1965 and 1971, the defendants customarily contacted
one of their black employees, Julius Lucas, to ascertain his
opinion of prospective black employees.
In 1967, Mr. Taylor was succeeded as personnel manager
by James K. Lesley. Mr. Taylor supplied Mr. Lesley with the
names of persons in the local community who could serve as
references for job applicants. Lesley’s tenure with Travenol
was brief, terminating in April 1968. Mr. Lesley was succeeded
as personnel manager by James E. Self on July 15, 1968. Mr.
Taylor, who was still in defendant’s employ, did not give Mr.
Self instructions as to how to conduct interviews with applicants
since he considered Mr. Self’s background in personnel matters
sufficient for performance of the duties of personnel manager at
the plant. Mr. Self served as personnel manager at the
Cleveland plant from July 15, 1968 to August 31, 1974.
During Mr. Self’s tenure, hiring decisions as to persons
referred by MSES were based primarily on subjective factors.
The qualifications considered included personal cleanliness,
general alertness, and comprehension. The personnel manager
did not have one set of interview questions which he used in
each and every interview, the questions asked varied among the
applicants.
10a
Although Travenol abandoned its policy requiring that all
applicants for jobs as operatives be referred by MSES in the
Fall of 1971,4 it has continued in effect the Tenth grade
education requirement for operatives on the production line.
The greater portion of the evidence offered at the trial,
including expert testimony, tables, and statistical displays, was
addressed to the issue of the effect of the tenth grade education
requirement. Statistics of all kind and expert analysis of
statistical evidence ad infinitum were received into evidence.
The voluminous nature of the documentary evidence thus
introduced, as well as counsels’ heated debate as to the proper
interpretation of each item in evidence tended to confuse rather
than enlighten. To engage in an extensive discussion of the
evidence in this regard would result in an opinion beyond all
reasonable bounds. Accordingly, the court’s discussion of the
issue will be brief and to some extent conclusory.
RACIAL EFFECT OF TENTH GRADE
EDUCATION REQUIREMENT
Lamentations aside, it falls to the court to determine, in
reverse order, whether the defendants’ educational requirement
has been “shown to be significantly related to successful job
performance” and whether the requirement “operate[s] to
disqualify Negroes at a substantially higher rate than white
applicants”. Griggs v. Duke Power Co., 401 U.S. 424, 426, 91
S.Ct. 849, 851, 28 L.Ed.2d 158, 161 (1971).
Because there are no available U.S. Census Bureau figures
showing the number of blacks and whites in Mississippi with
ten or more years of education, the parties stipulated that the
relative racial effect of the tenth grade requirement used by
defendants is as great as the relative effect of a ninth grade
requirement. Using the ninth grade figures, the 1970 census
“In response to information received by defendants’ attorneys to the
effect that a lawsuit would soon be initiated charging that MSES's Cleveland
office referred job applicants in a racially discnminatory manner, defendants
notified MSES on November 5, 1971, that Travenol would no longer utilize
the services of MSES.
report for the State ot Mississippi clearly shows the education
requirement has a substantially disproportionate adverse effect
upon blacks. In the county in which defendant's plant is
located, for example, 81.6% of the black males in the county
over 25 years of age had less than 9 years of education. Of the
black females in the county over 25, 72.9% had fewer than 9
years of education. The comparable figures for whites were
29.6% for males and 20.8% for females.
Defendants’ only attempt to blunt the effect of the Census
Bureau figures was to speculate that the educational gap
between blacks and whites would be considerably narrower if
figures were available which included GED equivalencies in
addition to formal education. No concrete proof was offered in
support of this contention and the court is not inclined to
believe, absent some showing, that blacks would avail them-
selves of the GED program to a greater extent than whites 'r
numbers so large as to significantly reduce the great disparity
apparent in the Census Bureau figures. Considering all the
evidence, the court has concluded that plaintiffs have shown in
@ most convincing manner that Travenol’s tenth grade or
equivalency require.aent disqualifies substantially more black
applicants than white.
As might be expected, the majority of proof introduced by
defendants was in support of their assertion that the nature of
the product manufactured by them at their Cleveland plant
dictates a literate and alert work force, a condition which can be
assured only through use of a screening process which includes
the tenth grade education requirement. Simply stated, defen-
dants claim the requirement is a business necessity. In the
opinion of the court, the proof in the case shows otherwise.
Assemblers and material handlers work from place to
place on the production line and must be familiar with each job
involved. They are required, at times, to keep records and to
add, subtract, and multiply. They must be alert, attentive,
flexible and must be able to read, with an understanding of
what they have read, and to follow instructions. Generally,
material handlers and assemblers learn their respective duties
l2a
from on-the-job training. The parties stipulated that the
Operative positions do not require ‘any particular sort of pre-
vious employment on the part of the incumbent.
It is defendants’ position that the high speed of the
production line on which the bottles are filled with the in-
travenous solutions requires a particular alertness and attentive-
ness on the part of the employee assigned to line operations.
Decisions affecting quality must be made quickly as the produc-
tion line progresses. Accordingly, defendants maintain that
operatives must possess sound judgment in order to appreciate
the potential consequences of their actions.
Because of the nature of their product and its intimate
effect on human life, Travenol management has made every
attempt to build quality control consciousness into each job at
the plant. The potentiality for disaster inherent in a mislabelled
product in the drug industry dictates use of the tenth grade
requirement as a necessary and effective screening device for
the selection of competent employees, so defendants argue.
Turning again to Griggs, the court finds the following language
from that opinion highly instructive on this point:
“Nothing in [Title VII] precludes the use of
testing or measuring procedures; obviously they are
useful. What Congress has forbidden is giving these
devices and m<chanisms controlling force unless they
are demonst ably a reasonable measure of job per-
formance. Congycss has not commanded that the less
qualified be preferred over the better qualified simply
because of minority origins. Far from disparaging
job qualifications as such, Congress has made such
qualifications the controlling factor, so that race,
religion, nationality, and sex become irrelevant.
What Congress has commanded is that any tests used
must measure the person for the job and not the
person in the abstract.” 401 U.S. at 436, 91 S.Ct. at
856, 28 L.Ed.2d at 167.
After a full consideration of all of the evidence on the
issue, the court is of the opinion, and so holds, that Travenol’s
tenth grade educational requirement does not measure the
person for the op zative job at its Cleveland plant.
13a
Every condition of liability set forth by the Court in Griggs
is to be found in this case. That is, the operative jobs at
defendants’ plant were reserved exclusively for and occupied
exclusively by whites prior to passage of Title VII. The
education requirement without question has a substantially
more adverse effect upon black applicants than upon white
applicants. And, from a familiarity with the nature of the
operative jobs at the Travenol plant acquired through two
weeks of hearings on the matter, the court is convinced the
educational requirement has not been “shown to be signifi-
cantly related to successful job performance.” Griggs, supra, 401
US. at 426, 91 S.Ct. at 851, 28 L.Ed.2d at 161 [emphasis
added }.
In concluding that the education requirement is not job
related, the court considers it highly pertinent that the standard
was ot adopted until the defendants began desegregating their
work force in order to comply with the Civil Rights Act of 1964.
United States v. Georgia Power Co., 474 F.2d 906, 912 ( Sth Cir.
1$73).§ Although the Cleveland plant had operated success-
fully for more than fifteen years without an educational policy
of any sort in regard to the employment process, in 1965
Travenol determined to establish the tenth grade requirement
for all noncustodial jobs, including the assembler and material
handler positions which make up more than three quarters of
Travenol’s entire work force.
The court is also assisted in reaching a decision on the
legality of defendants’ education requirement by consideration
of the EEOC’s own guidelines concerning educational pre-
requisites for employment.® Application of the EEOC’s inter-
5 Although not cited as frequently in this opinion, the Georgia Power
opinion was actually of more benefit to the court in determining the merits in
this case than was the Griggs opinion. First, the defendants in Georgia Power
actually presented a business necessity defense, something which was merely
contemplated by the Court in Griggs. Second, the Georgia Power opinion dealt
specifically with a minimum education requirement, 474 F.2d at 918-19,
whereas Griggs dealt principally with a requirement of a minimum score on
an ability test.
*“The administrative interpretation of [Title VII] by the [EEOC] is
entitled to great deference.” Griggs, supra, 401 U.S. at 433-34, 91 S.Ct. at 854,
28 L.Ed.2d at 165.
i4a
pretation of Title VII to the facts in the case at bar, as the court
finds them to be, likewise compels a holding that use of the
tenth grade requirements constitutes unlawful discrimination
against black applicants or prospective black applicants at
defendants’ Cleveland facility. 29 C.F.R. § 1607.1 ef seq.
The court’s holding is not to be interpreted as precluding
defendants from adopting methods of testing o1 « ther measur-
ing procedures to predict an applicant’s ability ‘o effect.vely
perform the duties of an operative at defendants’ plant. The
court appreciates the fact that personnel assigned to these
positions must be able to read with some degree of com-
prehension and be capable of performing certain mathematical
calculations. However, where, as here, the crude benchmark
selected by an employer to insure employees possess the ability
to read and write and add and subtract operates to substantially
and disproportionately burden minority applicants and has
been shown to relate to job performance in only the most
remote sense, use of that benchmark is proscribed by Title VII.
THE OVERALL EFFECT OF DEFENDANTS’ HIRING
PRACTICES FOR OPERATIVE POSITIONS
The record reflects that once an applicant for an operative
job at Travenol has hurdled the tenth grade barrier, the hiring
decision is based primarily on subjective factors. These job
decisions are made by defendants’ personnel managers without
written instructions or directives from corporate headquarters.
Among applicants for these positions who met the requirement
of referral by MSES while it was in effect, the defendant hired
proportionately fewer blacks. Defendants’ records reflect that
for the period from April, 1971 through August, 1974, one of
every three white applicants for operative positions at Travenol
was hired, but only one of every six black applicants was hired.
This disparate result reflects the combined effect of a tenth
grade requirement and of the defendants’ subjective dis-
The defendants’ records indicate that in May, 1964, all
operatives were of the white race. By March of 1966, more
than a year after the implementation of the tenth grade
1Sa
education requirement and nearly two years after the passage
of the Civil Rights Act of 1964, the defendants’ operative force
was still approximately 84% white. In February of 1969, the
picture had not changed to any substantial degree and 82% of
the male operatives were white while 89.8% of the female
operatives were white. In March, 1970, during the period in
which the EEOC charges which are pertinent to this case were
lodged against defendants and at a time when the charges were
under investigation by the EEOC, the company’s records show
that 76.6% of the male operatives were white and 82.8% of the
female operatives were white.
The racial makeup of Travenol’s operative force changed
significantly between 1970 and 1973. By March of 1973, 54.1%
of the male operatives were white and 70.1% of the female
operatives were white. The court cannot ignore the implication
that the real incentive for the meaningful progress in integration
of the operative work force which the defendants achieved
between 1970 and 1973 was furnished by the plaintiffs’ charges
with the EEOC and the subsequent institution of this lawsuit.
By February of 1974, 37.4% of the defendants’ male
operatives were white as were 57.5% of the female operatives.
The 1970 Census Report indicates that in Bolivar County white
comprised 52.2% of the male population 18 years of age and
older and 46.2% of the female.
While the above figures disclose a commendable degree of
progress by the defendants, especially in the very recent past, in
bringing blacks into the operative work force in numbers
approaching the racial composition of the community, they also
disclose significant underrepresentation of blacks in the oper-
ative work force during the early years in dispute in this case,
1970 and 1971.
TWELFTH GRADE REQUIREMENT
The defendants presently require a twelfth grade education
for all office and clerical jobs, which include mail room
duplicating clerk, telephone operator/receptionist, secretary,
inventory clerk, accounting clerk, steno-clerk, and keypunch
l6a
and data processing operator. The twelfth grade education
requirement also applies to all technician jobs in the plant,
including maintenance scheduler, molding technician, release
coordinator, release coordinator (solutions), pharmaceutical
chemical laboratory technician, chemical plant laboratory tech-
nician, standard technician in the industrial engineering depart-
ment and molding specialist. Also subject to the twelfth grade
requirement are anprentice mechanic jobs of all kinds, although
the requirement does not apply to persons who have completed
a course of training in a vocational-technical school, or to
persons with military experience in mechanical fields. All
supervisory jobs, from group leader up, require a high school
diploma, including the operative supervisors.
The defendants have not validated, in accordance with the
EEOC or the Office of Federal Contract Compliance (OFCC)
guidelines, the twelfth grade education requirement now in
effect at their Cleveland plant.
Although there is a substantial turnover among office and
clerical employees, these jobs have, since the opening of the
plant, been held exclusively or disproportionately by whites.
The precise date of the adoption of the twelfth grade require-
ment is unclear; however, it was adopted sometime subsequent
to passage of the Civil Rights Act of 1964. Incumbent
employees are not required to satisfy the education requirement
as a condition of continued employment. It goes without saying
that the beneficiaries of that policy were and are over-
whelmingly white.
The court must, of course, approach the issue of whether
defendants’ high school diploma requirement contravenes Title
VII in the same manner as the legality of the tenth grade
requirement was approached.
The question of whether the diploma requirement operates
to disqualify blacks in substantially greater numbers than
whites is, as was the same inquiry regarding the tenth grade
standard, easily resolved. In Bolivar County in 1970, this
requirement disqualified 91.9% of black males over 25 and
88.9% of the black females over 25, but only 47.2% of white
males and 41.9% of white females of this age. As with the tenth
17a
grade requirement, there is no evidence that such a large
number of black persons possess twelfth grade equivalencies or
GED diplomas, relative to whites possessing such credentials,
so as to eliminate or reduce the disproportionately adverse
impact of this requirement on blacks.
In response to an interrogatory propounded to them by
plaintiffs, defendants outlined the duties of the office and
clerical workers of whom a high school diploma is required.
These positions include telephone operator/receptionist, key
punch and data processing operator, secretary, and mail room
and duplicating clerk. Upon close examination of these duties,
it does not appear to the court that there is a tangible
relationship between the duties of the great majority of defen-
dants’ office and clerical staff and any particular level of
education. This is especially so regarding the duties of the
telephone operator/receptionist and the mail room and dupli-
cating clerk. Lack of a diploma would not conclusively
demonstrate that an applicant failed to possess the quali-
fications necessary to efficiently fulfill the duties of office and
clerical workers in defendants’ employ, just as possession of a
twelfth grade education would not of itself demonstrate that an
applicant is qualified for one of these jobs.
Since the institution of the high school diploma standard,
the defendants have not considered the use of any alternative to
that particular requirement as a screening device. In view of
the grossly disparate effect of the requirement on the black
members of the labor pool in the Cleveland, Mississippi area
the court cannot condone its continued use absent some efforts
by defendants to discover and employ some other effective
standard with a more racially neutral impact.”
7 Although it appears that the education requirement was not completely
to blame, defendants’ office and clerical work force was overwhelmingly
white as late as six months prior to trial. Between April 1, 1971 and August,
1974, seventy-eight whites and forty-one blacks applied for office or clerical
jobs at the Cleveland pliant. Ten of the one hundred nineteen applicants were
ultimately hired. All ten were white. Between the opening of the defendants’
plant in 1950 and August of 1974, no black was hired for an office or clerical
job. Defendants have, since 1966, integrated their office and clerical work
(footnote continues)
18a
Defendants also require a high school diploma of those
employees who will be considered for promotion to supervisory
positions and of those applicants for employment in technician
jobs at defendants’ plant. Regarding the technician job,
defendants maintain that the education requirement is essential
to ensure the persons hired for those positions possess the
qualities necessary to successfully discharge the duties of the
job. The qualities which defendants claim they seek in persons
to be employed as technicians are alertness, judgment, com-
prehension, adaptability, responsibility and initiative. Defen-
dants further argue that their supervisors must possess the same
attributes as technicians plus a certain degree of leadership
ability in order to effectively perform their duties.
Although there is no doubt that possession of the
aforementioned attributes which defendants desire in the per-
sons whom they employ as supervisors and technicians are
important, if not absolutely necessary, qualifications, the court
perceives no direct relationship between the possession of a
high school diploma and the possession of any or all of these
qualities. As with the tenth grade requirement, the defendants
are simply employing too crude a standard in view of the all but
undisputed adverse effect upon blacks.
COLLEGE DEGREE REQUIREMENT
Defendants presently require an applicant for the job of
scheduling analyst, traffic analyst, or systems analyst possess a
college degree; however, the degree need not be in any
particular discipline or major.
Again, the 1970 Census Report for Mississippi demon-
strates that this requirement has a substantial adverse impact on
blacks. In Bolivar County in 1970, for example, 14.7% of the
(footnote continued)
force to some extent—less than ten percent is black—by transferring black
persons employed in other capacities into office and clerical jobs. Defendants
have hired some black applicants with clerical qualifications, but have
assigned them to work as operatives on the production line.
FAILURE TO POST OR ANNOUNCE VA-
CANCIES IN JOBS ABOVE THE MATERIAL
HANDLER AND ASSEMBLER LEVEL
Since the supervisory, clerical, and technician work force, as
20a
well as the management, at Travenol’s Mississippi facility has
been and remains overwhelmingly white, the exposure to job
vacancy information is much greater among white employees
than among black. Travenol’s failure to post notice of va-
cancies impedes the access of the company’s black employees to
the better paying and more desirable jobs.
DISCRIMINATION IN PROMOTION
The most important criteria for promotion to jobs above
the level of operative are an employee’s length of service,
possession of the requisite amount of education and the opinion
of the employee held by his or her supervisor and certain
officials of the personnel department. Because of past and
present hiring discrimination against blacks, reliance on length
of service in making promotions has a disproportionately
adverse impact upon blacks’ prospects of promotion. The racial
make-up of the defendants’ noncustodial work force, exclusive
of the operatives, is reflected in the following statistics:
Job Level No. %White No. %White No. % White
Officials and Managers........ 13 100% 24 100% 49 100%
Professionals 0 — 118 100% 2 100%
Technicians 25 100% 27 100% 66 97.0%
Office and Clerical ............... 24 100% 23 95.7% 33 97.0%
Craftsmen 4 100% 18 100% 32 100%
Feb., 1969 March, 1970 March, 197!
Job Level No. %White No. % White No. % White
Officials and Managers........ 52 100% 52 100% 48 100%
Professionals 31 96.8% 40 97.5% 47 97.9%
Technicians Si 98.0% 14 100% 12 100%
Office and Clerical ............... 29 96.6% 33 970% 35 943%
2la
March, 1972 March, 1973 Feb., 1974
Job Level No. % White No. % White No. % White
Officials and Managers........ 52 100% 47 97.9% 53 %.2%
’ Professionals 52 942% 4 92.5% 43 88.4%
Technicians 12 100% 16 100% 2 95.0%
Office and Clerical ............... 38 94.7% 34 94.1% 38 92.1%
Craftsmen 79 93.7% 76 934% 94 86.2%
All in all, the court has concluded that the procedures for
promotion which defendants employ tend to perpetuate the
past discrimination suffered by blacks at defendants’ Cleveland
plant. All the criteria used in the promotion process, while
racially neutral on their face, suffer from this failing. Reliance
upon length of service must have some adverse effect upon
blacks because of their prior exclusion from defendants’ non-
custodial work force. Use of the twelfth grade requirement has
a clearly adverse effect upon blacks in and around Cleveland,
Mississippi as was seen earlier. And dependence upon the
recommendation of defendants’ predominantly white super-
visory force is a “ready mechanism” to further impede black
access to the supervisory ranks. Pettway v. American Cast Iron
Pipe Co., 494 F.2d 211, 240-43 (Sth Cir. 1974); Rowe vv.
General Motors Corp., 457 F.2d 348, 359 (Sth Cir. 1972). The
court is of the opinion that, at the minimum, defendants should
be required to refrain from use of the twelfth-grade education
requirement and to develop and utilize some objective criteria
for selection of operatives to be promoted to supervisory
positions which will be racially neutral both on their face and in
effect. Pettway, supra, at 241.
The overall impression of the defendants’ operation of
their Cleveland plant which the court acquired at the trial in
this case is one of well intentioned management attempting to
deal with job applicants and employees, equally on a case by
case, or individual basis; however, the employment policies
which defendants adopted in apparent good faith have had the
effect of substantially impeding the entry of blacks into the
company’s work force. The full extent of the cumulative effect
of these policies is perhaps not yet appreciated by Travenol
22a
management, but the statistics brought forth in this case cannot
fail to convince an objective observer that employment
opportunities at Travenol’s Cleveland plant were certainly, and
to some extent remain, far from equal at the times pertinent to
this case.
While it is no doubt true that a great deal of the segregated
nature of defendants’ operation in Cleveland may be traced to
tn enh Gentian hich has historicall ted
American society in general, by passage and implementation of
the Civil Rights Act of 1964, the Congress of the United States
work force of the nation’s industries on an equal footing with
persons of the majority race. As the Supreme Court has stated:
The language of Title VII makes plain the
purpose of Congress to assure equality of employ-
ment opportunities and to eliminate those dis-.
criminatory practices and devices which have fos-
tered racially stratified job environments to the dis-
advantage of minority citizens. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817,
1823, 36 L.Ed.2d 668, 676 ( 1973).
On the record in this case, the court is constrained to hold
that Travenol’s employment practices, particularly prior to
1973, were not consistent with the requirements of Title VII and
its underlying purposes and goals. Accordingly, it will be
necessary for defendants to make some adjustments in their
employment practices in order to comply with the law of the
land. ;
SEX DISCRIMINATION
From February of 1965 until 1968, the master job order
form used by the Cleveland office of the state employment
services (MSES), specified “male” as a requirement for the
material handler positions at the Travenol plant and “female”
for the assembler positions. At some point during the summer
of 1968, Travenol’s personnel manager visited the Cleveland
1971. Defendants did, however, in December 1970, provide
female assemblers an opportunity to transfer to material han-
dler positions. Two female assemblers accepted the invitation
to transfer. Later, in 1971, a number of female assemblers
became material handlers, but ultimately all chose to return to
the assembler position.
By the fall of 1972, women made up 100 percent of the
compensated at a substantially lower rate of pay than materia
gy Prepay ets mee oN
tions at defendants’ plant is known as the “hooks” job. The
hooks posi are occupied by material handlers whose chief
job duty is to place empty bottles on and remove filed bottles
from the production line. The hooks positions are found only in
the solution filling and solution packing departments of the
plant. Of the approximately two hundred material handlers
employed at defendants’ Cleveland plant, about half are as-
signed to the filling and packing departments. Approximately
half the material handlers in these departments—forty to fifty
individuals—are assigned to the hooks jobs.
® Historically, the assembler pay rate has been closely related to that of
the custodial or janitorial staff. In 1965, assemblers were paid four cents per
hour more than custodians while material handlers were paid twenty-seven
cents per hour more than assemblers. Since 1965, the assembler pay rate has
remained tied to that of the custodial work force while the gap between the
material handler and assembier pay rates has widened considerably. In 1974,
assemblers were paid only three cents per hour more than custodians but
material handlers were paid forty-six cents per hour more than assemblers.
As of July 5, 1974, the starting pay rate for material handlers was $3.11
per hour, for assemblers $2.65, and for custodial employees $2.62 per hour.
24a
Although there was no policy concerning assignments to
the hooks positions prior to 1966, at some point subsequent to
that time a practice was established whereby those material
handlers performing the hooks job would have the first op-
tion—the right of first refusal—at any vacancies which might
develop in the other material handler positions within the filling
and packing departments. As might be imagined, this policy
became necessary because the physical exertion inherent in the
hooks positions caused them to be regarded among the employ-
ees as somewhat less desirable than the other materia) handier
jobs.
When a vacancy develops in a material handler’s job,
defendants ordinarily announce its existence to all persons then
working as assemblers or material handlers. Each material
handler interested in a lateral transfer and each assembler
interested in upgrading to a material handlers jod may request
a transfer and/or promotion. However, material handlers in
the hooks positions are given first refusal on the vacancy.
Hooks workers very rarely decline offers to transfer to non-
hooks positions. This right of first refusal has the effect of
transforming any material handler vacancy into a vacancy on
the hooks jobs.
Placing the matter in context and considering all the
evidence offered a trial the court, as fact finder, has concluded
that the defendants, intentionally or otherwise, have structured
the material handler iobs at their Cleveland plant so that while
the vast majority of them require little heavy lifting, there are a
few positions—particularly the hooks jobs—which required a
great deal of heavy lifting. The prospect of facing the require-
ments of the duties of a hooks worker has been an almost
foolproof method of blocking the entry of females into the
material handler work force. Of the thirteen females initially
assigned as material handlers who quit their jobs because of
physical inability to perform, eleven—or 84.5%—were assigned
to the hooks positions. Among the forty-four females assem-
blers who declined promotion to material handler between
August, 1971 and April, 1973, thirty-nine—or 88.6%—turned
ae
TO PREGNANCY
® The company policy in this regard is set forth in the following language:
“Maternity leaves of absence will be unpaid until such time as it
is definitely determined that applicable law requi:es otherwise.”
26a
Travenol maintains a salary continuation plan for the
employees at its Cleveland plant which provides for payments
at varying rates for certain categories for employees in the event
of a disability precluding gainful employment. Although the
plan provides for wage continuation during period of :<impo-
rary disability due to other non-occupatioaai causes, it does not
provide payments for temporary pregnancy-related disabilities
or for inability to work due to the pregnancy itself. However,
the pian does provide for payments for disabilities caused by
male gender-linked conditions, such as circumcision and
hemophilia, and some disabilities more common among males,
such as gout and prostatectomy.
Defendants argue that including payment for temporary
pregnancy-related disabilities within the coverage of the salary
continuation plan would substantially increase the costs of the
plan and result in fewer benefits for all employees. The EEOC
regulations on this point, which are entitled to “great defer-
ence”, appear to counter defendants’ argument neatly.
It shall not be a defense under title VII to a
charge of sex discrimination in [fringe] benefits that
the cost of such benefits is greater with respect to one
sex than the other. 29 C.F.R. § 1604.9.
Although there has as yet been no ruling by the Supreme
Court on the question of whether the exclusion of pregnancy-
related disabilities from fringe benefit programs—such as an
income protection plan—maintained by an employer trans-
gresses the terms of Title VII, the Court addressed a related,
albeit distinguishable, issue in Geduldig v. Aiello, 417 U.S. 484,
94 S.Ct. 2485, 41 L.Ed.2d 256 (1974). In Aiello, the court held
that the State of California did not violate the Equal Protection
Clause of the Fourteenth Amendment by failing to include
disabilities relating to normal pregnancy under the coverage of
.ts statewide and completely employee funded disability insur-
ance program. ‘
Although defendants argue that Aiello is dispositive of the
pregnancy disability issues here, the court is more inclined to
agree with the analysis of Aiello contained in Wetzel v. Liberty
Mut. Ins. Co., 511 F.2d 199 (3rd Cir. 1975), cert. granted, 421
27a
U.S. 987, 95 S.Ct. 1989, 44 L.Ed.2d 476," if for no other reason
but that in Aiello the standard against which defendants’
conduct was measured was a constitutional one whereas here it
is statutory (Title VII). Two other appellate courts have
similarly i Aiello. Communications Workers v. Ameri-
can Tel. and Tel. Co., 513 F.2d 1024, 1030-31 (2nd Cir. 1975);
Gilbert v. General Elec. Co., 519 F.2d 661, 665-67 (4th Cir.
1975). Accordingly, the court is of the opinion that, in order to
comply with Title VII, Travenol must extend full and equal
coverage of all its fringe benefit programs to women. Particu-
larly, the disability leave and salary continuation programs
must be altered so as to discontinue disparate treatment of
pregnant employees, pregnancy, and pregnancy-related dis-
abilities.
SENIORITY RIGHTS
Having found defendants’ hiring and promotion policies
violative of Title VII as to both blacks and females, the court
must finally address the legality of the procedure employed at
the Cleveland plant to determine which employees will be
affected in the event of a lay-off or other reduction in the work
force.
a te tn htieisiltiaees: Diiliaalts Chains tinea
never experienced a lay-off until 1972. As a matter of fact, prior
to 1972 the defendants had not even formulated a plan or
procedure for use in the event of a lay-off. Not surprisingly, the
lay-off policy adopted in 1972 was the customary “last
hired/ first fired” standard.
The 1972 lay-off at the Cleveland plant had a dis-
proportionately adverse effect upon black females. At the time
of the lay-off, there were 1068 persons employed as operatives
at Travenol’s Cleveland plant. A total of 225 persons were laid-
off in the course of the reduction in work force. Of the 306
% Although the Supreme Court's ultimate disposition of Wetzel would be
of great benefit in determining the issues in this case relating to pregnancy, the
court does not feel justified in delaying decision on the point pending the
outcome of Wetzel.
28a
males employed as operatives at the time, 56, or only 15% of
the male work force, were detrimentally affected by the lay-off.
Of the 566 white female operatives employed at the time, 87, or
only 15.4% of the white female operative work force, were laid-
off in the course of the reduction in employees. But of the 196
black females employed as operatives at the time of the lay-off,
41.8%, or 82 black women, were adversely affected.
It appears that the law concerning lay-offs which dis-
proportionately affect females and minorities is in an even more
unsettled state than that concerning pregnancy disabilities, if
such is possible. Of course, the court has not been left com-
pletely adrift for, as the Fifth Circuit has said, in an employ-
ment discrimination case, it is the duty of the district court in
the exercise of its discretion, “to carry out within practicable
limits the purpose of Title VII, which is to make the dis-
criminatee whole and to remedy the effects of past dis-
crimination.” Franks v. Bowman Trans. Co., 495 F.2d 398, 414
(5th Cir. 1974), cert. granted, 420 U.S. 989, 95 S.Ct. 1421, 43
L.Ed.2d 669 (1975). In the context of considering the legality
of a seniority system of an employer which has been found, at
some point in the past, to have engaged in unlawful employ-
ment practices, the difficulty arises in determining whether the
employees now seeking relief from operation of the seniority
plan are, in fact, discriminatees under Title VII.
In this circuit, this issue was most recently addressed in
Watkins v. United Steel Workers, 516 F.2d 41 (5th Cir. 1975).
In Watkins, the court refused to disturb the operation of a last
hired/first fired lay-off plan, meticulously couching its holding
in the following language:
We hold that, regardless of an earlier history of
employment discrimination, when present hiring
practices are nondiscriminatory and have been for
over ten years, an employer’s use of a long-
established seniority system for determining who will
be laid-off, and who will be rehired, adopted without
intent to discriminate, is not a violation of Title VII or
§ 1981 [of Title 42 of the U.S. Code], even though
the use of the seniority system results in the discharge
il
29a
of more blacks than whites to the point of eliminating
blacks for the work force, where the individual
employees who suffer lay-off under the system have
_ not themselves been the subject of prior employment
discrimination. 516 F.2d at 44-45.
The holding in Watkins is inapplicable to the instant case
for many reasons; however, it does point out the various factors
which must be considered when determining whether a senior-
ity system somehow fails to comply with Title VII. In the case
at bar, the court has found that the employer has a recent
history of employment discrimination in the hiring process as to
both race (education requirements) and sex (exclusion of -
females from the material handler work force). In fact, the
court has determined that the employer here is presently
engaging in some unlawful employment practices as to both
females and blacks. Here, in contrast to Watkins, the seniority
system employed in the event of layoff is of recent origins,
having been initially instituted in 1972. Further, it is clear that
some of the employees who would be and were affected in the
event of a lay-off have themselves been the victims of prior
discrimination in hiring practices. For example, it appears likely
that, absent the tenth-grade education requirement which the
court has found unlawful under Title VII, Ms. Cherry’s plant-
wide seniority would date from 1970, and that of Ms. Griffin
from 1966.
Pending the decision of the Supreme Court in Franks,
supra, it is apparently the law in this circuit that only those
black and/or female employees who have been prevented from
attaining their “rightful place” of employment as individuals by
their employer’s unlawful practices are entitled to any relief
from a last hired/first fired lay-off system.'' In other words,
only those members of the plaintiff class in this case who can
show that, but for Travenol’s unlawful discrimination, they
would have acquired such seniority rights as to afford them to
some degree of insulation from the adverse effects of a lay-off
"! Apparently such is also the law in the Second Circuit. See Chance v.
Board of Examiners, 534 F.2d 993 (2nd Cir. 1976), 44 U.S.L.W. 2343 (Jan.
19, 1976).
3a
are entitled to any relief from the across-the-board operation of
the seniority system. Because such a determination may require
a case-by-case examination as to the factual situation of each
member of the class, it is impossible for the court to frame any
sort of relief at this juncture, having thus far inquired into the
merits of the case as to the existence of unlawful discriminatory
practices only. However, it is clear at this point that some
modification of the last hired/first fired lay-off policy will be
required in order to afford the black victims of the tenth and
twelfth grade requirements and the female victims of the job
assignment discrimination their rightful places within the struc-
ture of the seniority system.
CONCLUSION
By way of summary, the court has determined that, for the
reasons set forth in this opinion, an injunction should be issued
prohibiting defendants from requiring a tenth grade education
(or GED equivalency) of applicants for operative positions;
barring defendants from requiring a twelfth grade education
(or GED equivalency) of applicants for office and clerical jobs,
technician jobs, and supervisory positions; and enjoining Trav-
enol from requiring a college degree as a qualification for the
jobs of systems, traffic, or scheduling analyst. The court will
also enter an order directing defendants to include pregnancy
and pregnancy-related disabilities under the coverage provided
in the salary continuation plan currently in effect on the same
basis as all other disabilities. However, either because the
record has not yet been sufficiently developed or because the
court does not intend to undertake to assume the management
of defendants’ plant on a day-to-day basis, the court is not
presently in a position to rule on the backpay question, the
specific alterations to the defendants’ seniority system which are
necessary to afford certain employees their “rightful places”, or
the question of modification of the manner in which employees
are assigned to the hooks positions in the solution packing and
filling departments. On these issues, the court has determined
to require the parties to submit suggestions and proposals as to
how the court should approach disposition of these questions.
An order will be entered accordingly.
3la
United States Court of Appeals,
Firts Circuit
No. 76-1801.
Wiuie Mae Payne, ef al,
Plaintiffs-Appellees,
Vv.
TRAVENOL LABORATORIES, INC.
and BaxTer LABORATORIES, INC.,
Defendants-Appellants.
As Amended on Denial of Rehearing
and Rehearing En Banc
March 23, 1978.
Before THORNBERRY, AINSWORTH and RONEY,
Circuit Judges.
RONEY, Circuit Judge:
This Title VII class action appeal involves four disputed
paragraphs of an injunction. The first paragraph, being a
general injunction against employment discrimination on the
basis of “color, race or sex,” violates Fed.R.Civ.P. 65(d),
which requires specificity and detail in injunctive orders. It must
be set aside. The next three paragraphs involve educational
employment requirements of tenth grade, twelfth grade, and
college degree for various jobs, which requirements are alleged
to discriminate against prospective black employees. Because
plaintiffs lack standing to contest the tenth grade requirement,
the injunctive relief ordered in respect to that education require-
ment is set aside. The relief ordered as to the twelfth grade and
college degree requirements is supported by the record, and is
affirmed. Both parties agree that a fifth paragraph relating to
32a
coverage for pregnancy and related disabilities must be vacated
in light of General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct.
401, 50 L.Ed.2d 343 (1976). Because the district court’s
opinion has been published, it is unnecessary to relate again all
of the details of this lawsuit. Payne v. Travenol Laboratories,
Inc., 416 F.Supp. 248 (N.D.Miss.1976).
General “Obey the Law” Injunction
Plaintiffs contend that a general injunction in this case
should be permitted because the defendants’ discrimination at
the Cleveland, Mississippi, pharmaceutical manufacturing plant
has been long, varied, and imaginative. Specific relief can be
structured for the named plaintiffs, however, and the general
relief in favor of a class of “all present, past and future black
female employees and applicants at the Cleveland plant”
carries the order beyond that permitted by the rules.
The paragraph enjoined defendants from discriminating
on the basis of color, race, or sex in employment practices,
prohibiting defendants from:
(1) Discriminating on the basis of color, race, or
sex in employment practices or conditions of employ-
ment in defendants’ Cleveland, Mississippi facility,
against the named plaintiffs in the above captioned
action or either of them, or any member of the class
which they represent, as such class is defined in the
court’s memorandum of opinion this day released in
said action.
This paragraph clearly fails to satisfy the requirement that
an injunction “be specific in terms” and “describe in reasonable
detail ... the act or acts sought to be restrained ....”
Fed.R.Civ.P. 65(d). This command of specificity is a reflection
of the seriousness of the consequences which may flow from a
violation of an injunctive order. See Pasadena City Board of
Education v. Spangler, 427 U.S. 424, 438-39, 96 S.Ct. 2697,
2706, 49 L.Ed.2d 599 (1976). The word “discriminating,” like
the word “monopolizing” in Schine Chain Theatres, Inc. v.
United States, 334 U.S. 110, 125-26, 68 S.Ct. 947, 92 L.Ed.
33a
1245 ( 1948), is too general. The provision is more specific than
Title VII itself only in that it does not prohibit employment
discrimination based on religion and natural origin. See 42
U.S.C.A. § 2000e-2. Such “obey the law” injunctions cannot be
sustained. See, e. g., NLRB v. Express Publishing Co., 312 US.
426, 435-36, 61 S.Ct. 693, 85 L.Ed. 930 (1941); Russell C.
House Transfer & Storage Co. v. United States, 189 F.2d 349,
351 (Sth Cir. 1951).
Tenth Grade Requirement: Standing
The second paragraph prohibited defendants from:
(2) Requiring a tenth grade education (or its
equivalency on a General Education Development
[GED] test) of applicants for employment for oper-
ative positions in defendants’ said facility.
Defendants attack this part of the injunction on the ground
that the three named plaintiffs lack standing to question the
legality of the tenth grade requirement. At the time crucial to
the issue of standing, when the complaint was filed, all three of
the named plaintiffs satisfied the tenth grade education require-
ment. Indeed, the trial court found that each of the named
plaintiffs had fulfilled the requirement prior to submitting
applications at the Cleveland plant. Payne v. Travenol Labora-
tories, Inc., supra, 416 F.Supp. at 251, 252. Thus plaintiffs can
hardly argue that their rejections resulted from the imposition
of a discriminatory education standard.
To meet the requirement for standing under Article III, a
plaintiff must establish either that the asserted injury was in fact
the consequence of the defendant's action or that prospective
relief will remove the harm. Warth v. Seldin, 422 U.S. 490, 505,
95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). As this Court recently
noted in Thurston v. Dekle, $31 F.2d 1264 (5th Cir. 1976):
The fact that some members of the class may have
had standing to raise this claim is irrelevant. ...
[T]he necessary requirement is for a named plaintiff
to have standing at the time the litigation is filed. We
are unaware of any case where any federal court has
34a
reached a substantive issue absent a named plaintiff
who had standing at the time the action was filed.
Id. at 1269-70 (emphasis in original ). Here, none of the named
plaintiffs nor any member of the class had standing to challenge
the tenth grade education requirement. From the class of “all
past, present and future black female employees and appli-
cants” the district judge excluded “all black female applicants
who lack a tenth grade education or equivalency.” Thus, unlike
the situation presented by broadly defined Title VII classes
without defined exclusions, no member of the class could claim
to be aggrieved by the education requirement.
Citing Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.
1968), plaintiffs argue that a named plaintiff should not be
forced to remain unqualified for potential employment during
claim nor that of the class. If an employer could negate an
employee’s standing to challenge discriminatory employment
practices by the simple expendient of offering him unilaterally
the relief he seeks for the class, the individual-initiated enforce-
ment structure of Title VII would be seriously jeopardized.
Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976).
The principle, however, does not apply to the instant facts.
Plaintiffs, due to no act of Travenol, possessed tenth grade
educations and therefore lacked standing at the time suit was
E
This case must be distinguished from those in which the
named plaintiffs may have little qualifications for a particular
job, without regard to the disqualifying requirement they
attack, such as the analyst jobs discussed in the portion of this
opinion dealing with Travenol’s college degree requirements.
Here the named plaintiffs and each member of the class were
qualified on the precise requirement which they seek to set
35a
Plaintiffs also attempt to establish standing by noting that
during at least 80 of the 90 days preceding the January 29, -
1970, filing of plaintiff Willie Mae Payne’s first EEOC charge,
she failed to satisfy the tenth grade education requirement. No
evidence appears in the record to suggest that Ms. Payne
applied for employment during this 80-day period. Plaintiffs
argue that the question whether Ms. Payne applied is irrelevant
in light of the recent Supreme Court case of International
Brotherhood of Teamsters v. United States, 431 U.S. 324, 97
S.Ct. 1843, 52 L.Ed.2d 396 (1977), which holds that seniority
relief should not be denied to a class member who did not
apply for a job when applying would be futile because of the
employer’s discriminatory practices. In this case, however, the
trial court’s definition of the class removed from consideration
all applications for employment submitted to Travenol prior to
ap" ao that che cimmation peter Ghesete is ienstovent en
this appeal.
Because we hold that plaintiffs lacked standing to chal-
lenge the tenth grade education requirement, we do not address
Travenol’s alternative contentions, first, that plaintiffs failed to
prove the requirement had a disparate impact on blacks and,
second, that the requirement was justified by business necessity.
Twelfth Grade Requirement
The third injunctive paragraph enjoins defendants from:
(3) Requiring a twelfth grade education (or its
GED equivalency) as a condition of employment in
Office, clerical, technician and supervisory positions in
defendants’ said facility.
In respect to his provision, defendants contend that the
court measured the degree of disparate impact by an incorrect
statistical referent. Travenol, citing Robinson v. City of Dallas,
514 F.2d 1271 (Sth Cir. 1975), argues that the trial judge
should have drawn his statistics from Travenol’s operative work
force rather than the general population because most of the
Positions requiring twelfth grade educations are filled through
the promotion of assemblers and material handlers. The
36a
evidence in this case, however, shows that although a large
majority of the employees occupying positions subject to the
twelfth grade requirement were promoted from operative jobs,
a not insignificant number were hired from the general popu-
lation. The trial court’s consideration of general population
data was therefore not improper. Evidence in the record amply
supports the trial court’s findings of disparate impact and lack
of business necessity. The third paragraph of the injunction is
therefore affirmed.
College Degree Requirement
The fourth injunctive paragraph enjoins defendants from:
(4) Requiring a college degree as a qualification
for the positions of systems, traffic, or scheduling
analyst, in defendants’ said facility.
Travenol challenges this part of the injunction on two
grounds. First, it maintains that plaintiffs failed to prove the
discriminatory impact of the college degree requirement. Trav-
enol employed only five analysts subject to the college degree
requirement and urges that positions having so few incumbents
cannot properly be subject to statistical proofs of disparate
impact. The proper focus when determining the disparate
impact of an employment condition is on those excluded by the
requirement, not on the number of positions to be filled as
Travenol suggests. See Green v. Missouri Pacific Railroad, 523
F.2d 1290, 1294 (8th Cir. 1975). The record contains ample
evidence that the college degree requirement, not adopted until
1968, rendered “ineligible [for employment] a markedly dis-
proportionate number of Negroes ....” Griggs v. Duke Power
Co., 401 U.S. 424, 429, 91 S.Ct. 849, 852, 28 L.Ed.2d 158
(1971). The defendants failed to prove that the requirement
was justified by business necessity.
Second, Travenol maintains that plaintiffs’ class action
cannot properly extend to the employment practices applicable
to analyst positions. In short, Travenol argues that the level of
capability required for these positions is such that, even absent
the college degree requirement, plaintiffs would never be
:
:
2
bers suffering from different practices motivated by the same
. W. T. Grant Co., 518 F.2d 543 (4th Cir.
1975); see Long v. Sapp, 502 F.2d 34 (Sth Cir. 1974); Jack v.
American Linen Supply Co., 498 F.2d 122 (Sth Cir. 1974);
Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th
paragraphs (3) and (4). Each party will bear his own costs in
connection with this appeal.
REVERSED AND VACATED IN PART AFFIRMED
IN PART.
38a
United States District Court,
N. D. MISssIssIPPt,
Deta DIvIsION
No. DC 72-13-S-P
Writ Mase Payne, ef al,
Plaintiffs,
Vv.
TRAVENOL LABORATORIES, INC., ef ai,
Defendants.
ORDER
Upon due consideration of the Report and Recommenda-
tion of the United States Magistrate entered herein on July 24,
1980, and the objections of the parties thereto, the court finds
that said objections are not well taken, and it is accordingly
ORDERED:
That the Report and Recommendation of the United
States Magistrate is hereby adopted as the opinion of the court.
This, 18th day of August, 1980.
/s/ Orma R. SMITH
Senior Judge
United States District Court
39a
United States District Court,
N. D. Mississippi,
Deta DIvIsion
No. DC 72-13-S-P
Wiuit Mae Payne, ef ai.,
Plaintiffs,
This action was tried before the court on March 3-14, 1975.
Findings of Fact and Conclusions of Law were entered on
February 19, 1976, and an injunction against some of the
practices found to be discriminatory was also entered on that
date. The defendants thereafter took an appeal from the entry
of the injunction, and the injunction was affirmed in part and
reversed in part. Report and Recommendation of the United
States Magistrate having been filed pursuant to the order of
reference entered on January 24, 1979, and having this date
been adopted by the court as its opinion, it is hereby
ORDERED, ADJUDGED AND DECREED:
1. The court will retain jurisdiction over this case for two
years from this date, provided that all litigation concerning
back pay to class members has been concluded by such time.
Reporting requirements shall terminate upon the expiration of
this court’s retention of jurisdiction.
2. The defendants shall continue to obey the provisions of
paragraphs 3 and 4 of the injunction entered herein on
February 19, 1976.
40a
3. The defendants shall not permit their personnel or
supervisory officials to engage in subjective discrimination on
the basis of race, and shall not permit such officials to engage in
subjective discrimination on the basis of sex, in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq., or of 42 U.S.C. § 1981, in hiring and promotion decisions.
4. During the period of resntion of jurisdiction, the
defendants shall not impose any new, facially-neutral selection
criteria for hiring, transfer, or promotion unless such are
adopted in accordance with the provisions of the Uniform
Guidelines on Employee Selection } FRReReER, 29 C.F.R.
$§ 1607.1 et seq.
5. The defendants shall not require any applicant or
employee to have a 12th-grade education or 12th-grade G.E.D.
equivalency certificate as a condition of employiment in an
Apprentice Mechanic position.
6. The defendants shall inform the Mississippi State
Employment Service of all vacancies to be filled by hire, in jobs
above the level of Material Handler and of Assembler, so that
information as to these vacancies may be spread more widely
among blacks and women.
7. The defendants shall post notices, at every place at
which they take applications for employment, stating the name,
shift and pay rate of every job category in which there is a
vacancy to be filled by hire. In the case of Material Handler
jobs, the type of job which is vacant, and the extent of the
physical effort required by that job, shall be stated. Applicants
shall be allowed to examine the defendant’s position descrip-
tions for any position which is then being posted as available to
be filled by hire, and shall be informed of this right.
8.(a) Within 60 days from the entry of this Decree, the
defendants shall write to all unhired applicant members of the
plaintiff class of whom they have knowledge who applied for
employment prior to February 19, 1976, inviting them to
reapply if they are still interested in employment with the
defendants. Such class members responding to this notice shall
be given priority in hiring over other applicants, as long as they
4la
keep their applicants active, (1) until they have been dis-
qualified, for every position customarily filled by hire, according
to objective, job-related criteria, (2) until they have been hired
in a noncustodial job category, or (3) until they have rejected
an offer of employment in.a noncustodial job category. The
defendants shall keep a record of all reponses to this invitation,
and of their actions thereon.
(b) Plaintiff Griffin shall be given first priority for consid-
eration for employment under the provisions of sub-paragraph
(a).
(c) Such unhired applicants and present or former em-
ployee class members, whose prior application forms indicate
either clerical skills or interest in clerical work shall be in-
formed, as part of the notice described in sub-paragraph (a), of
the right to reapply for clerical jobs. The reapplicants respond -
ing to this notice shall be given priority in hiring for clerical jobs
over other applicants for such jobs, as long as they keep their
applications active, (1) until they have been disqualified for
every clerical job category customarily filled by hire or by
promotion of hourly-rated employees, according to objective,
job-related criteria, (2) until they have been hired or promoted
into such a clerical job category, or (3) until they have rejected
an offer of employment or of promotion into such a clerical job
category. The defendants shall keep a record of all responses to
this invitation, and of its actions thereon.
9. (a) The defendants shall continue to use the job posting
procedure for hourly jobs which became effective on April 1,
1980, other than the six-month waiting period for eligibility for
promotions contained in part 4.05.2 of the procedure, use of
which shall be terminated. This provision shall not be con-
strued so as to prevent the defendants from disqualifying any
employee from consideration for upgrade or transfer on the
basis of objective, job-related criteria. During the posting
period, employees shall be allowed to examine the defendants’
position description for the positions which are posted. The
posting shall inform them of this right.
42a
(b) The defendants shall use the job posting procedure
described in sub-paragraph (a), as modified therein, for sala-
ried job categories which have traditionally been filled by
persons hired locally, as well as for hourly job categories.
(c) The defendants shall not give present or former
Material Handlers any advantage over other employees in
filling Group Leader or other supervisory positions.
10. (a) Individual notice in form approved by the court
shall be mailed by defendants to each class member laid off
from hourly employment and not recalled, and provided to
each class member presently employed in an hourly position,
who applied for employment prior to February 19, 1976 and
was not hired by that date, advising of such class members’
possible entitlement to constructive seniority, and providing
Opportunity to claim such. The notice shall state that failure to
claim constructive seniority shall constitute a waiver of such.
(b) Counsel for plaintiffs shall direct the compliance of
constructive seniority list of all class members affirmatively
responding to the notices provided in accordance with para-
graphs 8.(a) and 10.(a), and shall state for each such class
member her name, date of hire, if applicable, and date of first
recorded application for employment with the defendants. In
order to compile the constructive seniority list, plaintiffs’ counsel
and persons under their supervision shall be given access to all
application forms for hourly employment for the years 1970-
1975, and a list of names and dates of hire of hourly workers
for such years. Each such class member’s presumptive con-
structive seniority date shall be computed by determining the
average waiting period before hire for white applicants during
her application year and adjusting her hire date by the differ-
ence between such waiting period before hire and her actual
waiting period before hire, if greater. The defendants may for
any reason, they deem sufficient contest this presumption. If
they do so, they shall provide a short, plain statement of their
reasons for contending that the employee would not have been
such a date. Copies of the list and of the defendants’ statement
shall be filed with the clerk and served on opposing counsel.
(c) Counsel shall confer and attempt to agree on the
wording of a notice, and of the form to be enclosed therewith,
members laid off and not recalled and included on the construc-
tive seniority list, and given upon completion of their probation-
ary period to all class members hired in the future and included
on the constructive seniority list. Failing agreement of counsel,
each party shall then submit a proposed letter and the court
shall then decide upon its final form. The notice shall explain
the purposes of a constructive seniority date, shall state the date
of her first recorded application for employment with the
defendants, shall state her constructive seniority date and the
method of its calculation by plaintiffs, shall inform the employ-
ee of any contest by the defendants to her presumptive
constructive seniority date and of its factual basis, shall briefiy
advise the employee of the benefit of a presumption in proving
a claim, and shall advise the employee of her options which can
be exercised by filling out the form enc'osed therewith and
sending it to counsel for plaintiffs within 30 days after provision
of the notice to the class member. The options are:
( 1) to assert her right to the presumptive constructive
seniority date as calculated;
(2) to seek an earlier constructive seniority date; or
(3) to accept the defendants’ proposed alternative
constructive seniority date, if any.
The notice shall state that counsel for plaintiffs shall be
available to answer inquiries at designated times and places. If
44a
the employee rejects the defendants’ proposed date, the form
shall request that she set forth any facts she may have available
in response to the defendants’ factual contentions. Copies of
the forms reviewed by counsel for plaintiffs shail be provided to
the defendants.
(d) Counsel for plaintiffs shall seek to obtain as many
agreements as possible as to constructive seniority dates, but
shall not have the right to compromise, without specific consent,
the constructive seniority date of any class member who has
submitted the above-described form.
(e) Any remaining disputes as to each employee’s con-
structive seniority date shall be resolved by the court.
(f) Constructive seniority shall be used for all purposes for
which seniority is now used or may hereafter be used, including
all competitive uses of seniority and all uses of seniority to
determine entitlements to benefits.
11. Any class member who is entitled to constructive
seniority under the provisions of paragraph 10 as result of
discriminatory delay in her hire, and who has been laid off and
not been recalled as of the effective date of this Decree, shall be
recalled in accordance with her constructive seniority date and
the plant or constructive seniority dates of the other employees
laid off. The employees whose seniority is to be compared are
the employees in competition for recall with the class members
in question.
12. The defendants shall designate an official who will
have responsibility for securing compliance with this Decree,
and such designated officia! shall review or supervise the
processing of employment forms and applications.
13. The defendants shall post copies of this Decree in
conspicuous locations throughout their plant.
14. Within 15 days after the end of each calendar quarter,
the defendants shall file with the court a list of all persons
promoted from one job category to another within the previous
calendar quarter, including the name, race, sex, and old and
new job titles and pay rates of each such employee. With this
list, they shall also file a list of all initial assignments in the
45a
calendar quarter, including the name, race, sex, job title and
pay rate of each person initially assigned. Once each year
following the entry of this Decree, the defendants shall file with
the court a statement of the steps they have taken to comply
with each of its provisions. Copies of such documents shall be
served upon counsel for plaintiffs.
15. The provisions of this Decree apply only to the
defendants’ facility at Cleveland, Mississippi.
This, the 18th day of August, 1980.
/s/ Orma R. SMITH
Orma R. Smith, Senior Judge
United States District Court
46a
United States Court of Appeals,
FirtH Circulr
No. 80-3764
WILLIE MAE PAYNE, ef al.,
Plaintiffs- Appellees
Cross-Appellants,
v.
TRAVENOL LABORATORIES, INC.
and BAXTER LABORATORIES, INC.,
Defendants-Appellants
Cross-Appellees.
April 22, 1982.
Before CLARK, Chief Judge, GOLDBERG and WIL-
LIAMS, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
For the second time, we are asked to resolve some of the
issues arising in this protracted employment discrimination class
action between Willie Mae Payne and Travenol Laboratories,
Inc. The district court issued a decree on August 18, 1980. The
decree, while leaving unfinished the back pay segment of this
case, largely concludes the formulation of injunctive relief.
Both parties have appealed urging numerous errors, major and
minor.’ Having journeyed deep into the record of this case to
assess the merits of both parties’ objections, we conclude that
the bulk of the decree of the district court should be affirmed.
We disagree with certain aspects of the decree, however, and
therefore remand the case for further proceedings.
‘In this opinion we shall refer to Payne as the plaintiff or the appellant,
and to Travenol as the defendant or the appellee.
47a
1 BACKGROUND
Nearly a decade old at the time of this appeal, this case
began on March 2, 1972 when Willie Mae Payne, a black
female, and several other named plaintiffs obtained right-to-sue
letters and filed suit under Title VII, 42 U.S.C. § 2000e et seg.
and also filed claims under 42 U.S.C. § 1981 against Travenol
Laboratories. Payne attacked a battery of Travenol’s employ-
fe pe ey emg ey a one
packaged on an assembly line by employees called “oper-
pay is only slightly above the janitorial or custodial staff. The
assembler and material handler positions require no special
Travenol employed no blacks at its plant until prodded by
the affirmative action office of the Navy in 1964 or 1965. At
that point, Travenol began to hire blacks. Simultaneously,
Travenol required all applicants to be screened and referred by
the Mississippi State Employment Service (MSES) and im-
posed a requirement that all applicants have a tenth-grade
education or General Equivalency Diploma. Travenol then
Until 1968, Travenol had MSES refer only males for the
material handler position and females for the assembler posi-
tion. Travenol discontinued its reliance on MSES in 1971, but
retained the tenth-grade requirement. Travenol also employs
clerks, technicians, and managers. These positions have been
filled both by promotions and by outside hiring. Travenol
required a twelfth-grade education or General Equivalency
48a
Diploma for some of these positions and a college degree for
others. Travenol’s staff above the operative level was almost
exclusively white until 1974.
In 1975 the case was tried on the issue of liability, Payne
representing a class of black females. The district court
rendered its decision in 1976, finding that Travenol had dis-
criminated on the basis of race and sex.? The court enjoined
certain employment practices and directed the parties to submit
suggestions on further relief, including constructive seniority
and backpay.
On appeal, we vacated two aspects of the injunction and
affirmed two others.? First, we held that the district court’s
blanket injunction against Travenol not to discriminate on the
basis of race or gender in its employment practices was not
specific enough to satisfy Federal Rule of Civil Procedure
65(d). Second, we held that no named plaintiff had standing
to challenge Travenol’s requirement of a tenth grade education
for its entry-level assembly-line positions and vacated the
district court’s conclusion that the tenth-grade requirement
violated Title VII. Third, we affirmed the district court’s
injunction against Travenol’s use of a twelfth-grade require-
ment for certain positions above entry-level. Fourth, we
affirmed the injunction against Travenol’s college degree
requirement for other, higher-level positions.‘
After our decision in Payne I, the district court directed
that a magistrate hear the parties’ suggestions for ‘urther relief
and devise a recommended order. After ruling on numerous
discovery skirmishes, the magistrate prepared a report and
2 The district court’s opinion on Travenol's liability is reported in Payne
v. Travenol Laboratories, Inc., 416 F Supp. 248 (N.D.Miss. 1976), affirmed in
part and reversed and vacated in part, 565 F.2d 895 (Sth Cir. 1978), cert.
denied, 439 U.S. 835, 99 C.St. 118, 58 L.Ed.2d 131 (1978).
3565 F.2d 895 (Sth Cir. 1978), cert. denied, 439 U.S. 835, 99 S.Ct. 118,
$8 L.Ed.2d 131 (1978).
“Both parties agreed that a paragraph of the injunction concerning
«sability coverage for pregnancy had to be vacated in the light of General
Eiectric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976).
See Payne |, 565 F.2d at 897.
Paragraphs four, five, six, seven, and nine spell out more
specific actions that Travenol must take to remedy its dis-
criminatory hiring and promotion practices. Paragraph four,
for example. prohibits Travenol from establishing new facially-
neutral job prerequisites except in accord with guidelines
promulgated by the Equal Employment Opportunity Commis-
Paragraph eight provides that Travenol must write to all
unhired applicant class members who had applied by February
19, 1976, and invite them to reapply for work at Travenol.
Those class members who respond are to be given priority over
other applicants until they have refused an offer, accepted an
offer, or been rejected on legitimate grounds. Travenol is also
criminatory reasons, and employee class members whose date
i discrimination. Paragraph eleven
2
q
b
!
g
50a
provides for the use of an employee class member’s constructive
seniority date in recalling employees from layoff. The remain-
ing paragraphs provide the details for administering the decree.
Both parties object to portions of the decree. First, Payne
erroneously excluded black males from the class she represents
and also because it erroneously established March 3, 1970 as
the opening date of the class. She requests that we include
black males in the class and move the opening date of the class
back to the period of limitations for Title VII and for § 1981.
Second, Travenol argues that the plaintiffs failed to prove
discrimination in hiring or promotions, and asks us to reverse
any relief in the decree on these issues. Payne argues that she
proved discrimination in areas in which the district court
erroneously denied her relief, and asks us to broaden the decree
accordingly. Third, both parties lodge various objections to the
form of the decree. Travenol claims that the decree affords too
much relief, if discrimination was properly found. Payne
argues that the decree affords too little relief. Our appellate
jurisdiction to review this interlocutory decree rests on 28
U.S.C. § 1292(a)( 1). We address each issue in turn.
Il. LIMITATIONS ON THE CLASS CERTIFIED
BY THE DISTRICT COURT
The district court certified a class in 1972 to include all
black female employees and applicants at Travenol’s plant, but
limited the class to exclude all applicants who applied before
March 3, 1970, and did not reapply thereafter. As initially
certified, the class also included black male employees and
applicants, but in 1974 the court granted the defendant's
motion to exclude black males from the class. The court made
its class certification final in December, 1976, and authorized an
interlocutory appeal of this order under 28 U.S.C.A. § 1292(b),
but wo octined to assays the egpeet. The grant of injunctive
Sla
relief that we review today, theref»re, awards relief only to
those members of the class finally certified by order of the
district court in December, 1976.5
Payne argues that the district court denied injunctive relief
to two groups of persons who were shown at trial to be victims
of discrimination. These two groups are black males, and
applicants who applied before March 3, 1970 but not after that
date. Both groups were denied relief because they fell outside
of the confines of the class certified by the district court. Payne
“urges us to reverse these limitations on the class in order to
afford full relief for all those entitled to it.
Before we may address these arguments, however, we must
decide whether our jurisdiction to hear this interlocutory appeal
from the grant or denial of an injunction encompasses the
power to review the definition of a class, when injunctive relief
was denied to persons excluded from the class. Travenol
o_o our jurisdiction, claiming that under Gardner v.
Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57
BASE 200 (A000), chan coitntion euentems ent on
heard on interlocutory appeal. Because we find that the
appellees read Gardner too broadly, we reject their arguments
and conclude that the definition of the class may be reviewed to
the extent that it led to the denial of injunctive relief.
§ The district court certified the following class:
All present, past, and future black female employees and all
Present, past and future black female applicants for employment
at the facility operated by the defendants at Cleveland, Mis-
sissippi, subject, however, to this limitation, that is to say, all
52a
A. Jurisdiction to Review the Definition of the Class
In Gardner v. Westinghouse Broadcasting Co., supra, the
plaintiff brought a Title VII suit on behalf of herself and all
female applicants and employees who might be subject to sex
discrimination by the defendant employer. After the district
court denied a pretrial motion for class certification, the plaintiff
immediately appealed under 28 U.S.C. § 1292(a)(1), arguing
that the refusal to certify the class effectively denied her much
of the injunctive relief she sought. Refusing to allow the
appeal, the Supreme Court held that a pretrial denial of class
certification was not appealable as a refusal of injunctive relief
“under section 1292(a)(1). The Court noted that section
1292(a)(1) creates an exception to the policy against inter-
locutory and fragmentary appeals. The purpose of this ex-
ception is to give litigants a chance to gain effective review of
orders with irreparable consequences. Concluding that the
denial of class certification at the outset of the lawsuit does not
carry a threat of irreparable harm, the Court declined to place
class certification questions in the category of refusals of
injunctive relief that may be appealed before judgment on the
merits.
We address a different question than the one faced by the
Supreme Court in Gardner. Here, the district court conducted a
trial on the merits, granted an injunction, and withheld portions
of injunctive relief because of the definition of the class. The
appellant does not seek to appeal the ruling on the composition
of the class as an independent matter. Rather, she challenges
the district court’s denial of injunctive relief, which, in turn,
requires her to attack the order that led to the denial. That
order was the district court’s certification of the class. Our
established power to review the denial of injunctive relief
embraces the power to review the orders that underpin this
denial.
The Gardner Court recognized that it was not presented
with the question we answer today, and it limited its holding to
the facts before it. In a footnote, the Court distinguished
Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d
164 (7th Cir. 1976) (en banc), cert. denied, 429 U.S. 986, 97
S.Ct. 506, 50 L.Ed.2d 598 (1976), in which the Seventh Circuit
53a
reviewed the district court’s denial of class certification when
that denial led to the refusal of a preliminary injunction. 437
U.S. at 479 n.3. This appeal fits the Jenkins mold rather than
Gardner. We agree with the Jenkins court.* To hold that
section 1292(a)(1) does not permit interlocutory appeals of
denials of class certification, even if injunctive relief might
thereby be compromised, is one thing; to hold that section
1292(a)(1) does not permit review of the district court’s
We recently observed that otherwise unappealable orders
may be reviewed when necessary to review a denial of in-
junctive relief. Gould v. Control Laser Corp., 650 F.2d 617, 621,
n.7 (Sth Cir. 1981). The Supreme Court has gone even further
in authorizing review of otherwise unappealable orders in a
case properly before a Court of Appeals to review a preliminary
injunction ruling. In Deckert v. Independence Shares Corpo-
ration, 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940), the
district court had denied the defendants’ motions to dismiss,
i
i
it
f
ii
if
lt
i
it
|
!
i
i
54a
Appeals “properly examined the interlocutory order denying
the motions to dismiss, although generally it could consider
such an order only on appeai from a final decision.” 311 U.S. at
287, 61 S.Ct. at 232. We have followed Deckert in Myers v.
Gilman Paper Corp., 544 F.2d 837, 847 (Sth Cir. 1977), cert.
dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59 (1977),
modified on other grounds, 556 F.2d 758 ( 5th Cir. 1977), and in
Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086 ( Sth Cir.
1973). We need not rely here on the theory of Deckert,
however. The questions concerning c!ass certification that
Payne raises are directly tied to the partial denial of an
injunction that is properly before us. We therefore have power
to resolve the questions of class definition as an incident of our
review of the injunction. Accord: Adashunas v. Negley, 626
F.2d 600, 602-03 (7th Cir. 1980).
B. Black males
We now turn to Payne’s challenge to the exclusion of black
males from the class. To place this challenge in perspective we
review the history of the district court’s treatment of the class as
it bears on this issue. This case was filed as a class action on
March 2, 1972, by three named plaintiffs: two black females,
Willie Mae Payne and Alma Jean Williams, and one black
male, James Williams. The complaint alleged that Travenol
discriminated against all three and the class they represented on
the basis of race. On November 16, 1972, the court condi-
tionally certified the plaintiff class to include all black applicants
and employees.
55a
On May |, 1973 the court permitted Willie Mae Payne to
amend her complaint. The amended complaint alleged sex
discrimination as well as race discrimination. On May 8, 1973,
the court granted James Williams’ motion to withdraw from the
case because of his religious views. More than one year later,
on July 31, 1973, two black females, Delilah Cherry and Birdie
Lee Griffin, were permitted to intervene in the case alleging
race and sex discrimination. These developments prompted the
defendants to move the district court to redefine the class, and
on December 20, 1974, the district court did so. The new class
excluded black males, and other changes were made in the
composition of the class.”
The district court made no written findings on its reasons
for excluding black males, but the transcript of a hearing on the
issue reveals that the district court was swayed by two factors.
First, the district court noted that no ‘nale plaintiff remained in
the case after James Williams’ withdrawal. The only remaining
plaintiffs were black females. Second, the court believed that a
conflict existed between the interests of black males and the
biack female plaintiffs who sought to represent them. The
black females charged sex discrimination in the assignment of
material handlers. According to the court, this created a
conflict because to the extent that females proved sex dis-
crimination, the interests of males would be impaired.* The
court thus concluded that black females could not adequately
represent the interests of black males.
? The plaintiffs had sought in the trial court to represent white females.
The district court denied the motion on December 20, 1974, and the plaintiifs
do not challenge that ruling on this appeal.
® The district court stated: “I think there is too much conflict between the
males and the females in this situation for them to represent a class which
would involve black. males, or males of either race. There is a controversy in
this case with reference to whether or not females should be permitted to be
employed in the position of material handler in the plant, because they have
always been assigned to and employed in the assembly part of the plant, and
in that category which carries, as | understand it, a lower rate of pay. If these
black female plaintiffs are going to get into a controversy with males, either
white or black, then I don’t think they can represent the male population of
the plant so far as males or [sic] concerned, or for that matter any males who
may have any interests in retaining their jobs as material handlers.”
56a
After this ruling, counsel for the plaintiffs requested that
ro ements remat tre On December 8, 1976,
after trial, the court made its class-definition order final.
The appellants contest the redefinition of the class to
exclude black males on two grounds. First, Payne denies the
existence of a conflict between black females and black males
that warrants excluding males from the class. Second, Payne
argues that black males had a stake in the litigation because of
their provisional inclusion in the class, see Sosna v. Iowa, 419
USS. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), and the district
court had an obligation to protect their interest. The district
court, therefore, should have sent notice to black males to
permit one to intervene as a plaintiff. Had this been done, the
class could have been subdivided to remove the conflict be-
tween the interests of black females and black males.
The first inquiry must be whether the district court erred in
denying that black females may represent a class including
black males in a mixed sex and race discrimination suit. The
district court’s decision on the scope of the class can be
overturned only for abuse of discretion. McGowan v. Faulkner
Concrete Pipe Co., 659 F.2d 554, 559 ( Sth Cir. 1981); Zeidman
v. J. Ray McDermott & Co., 651 F.2d 1030, 1038-39 (5th Cir.
1981); Walker v. Jim Dandy Co., 638 F.2d 1330, 1334 ( Sth Cir.
1981).
We start with the language of Rule 23. Under Rule 23(a)
one of the four prerequisites to a class action is that “the
representative parties will fairly and adequately protect the
interests of the class.”® Fed.R.Civ.P 23(a). The claim that
black females hold interests in conflict with the interests of
black males, if true, is sufficient to defeat the adequacy of their
® All four prerequisites of Rule 23( a) must be met before certification of
a class is appropriate. Huff v. N.D. Cass Co., 485 F.2d 710 (Sth Cir. 1973)
(en banc). Of course, the court must go on to decide if the further
requirements of Rule 23(b) are satisfied before certifying the class.
57a
representation. “It is axiomatic that a putative representative
cannot adequately protect the class if his interests
antagonistic to or in conflict with the i
purports to represent.” 7 C. Wright & A. Miller, Federal
Practice & Procedure § 1768 at 638 (1972); Johnson v. Georgia
Highway Express, Inc., 417 F.2d 1122, 1125 (Sth Cir. 1969).
Of course, in an employment discrimination case the court
must interpret Rule 23 to accommodate the substantive policies
of Title VII. See Vuyanich v. Republic National Bank of Dallas,
82 F.R‘D. 420 (N.D.Tex.1979). We have repeatedly upheld
the maintenance of across-the-board Title VII class actions in
which, for example, an employee complaining of race dis-
crimination represents not only other employees but also appli-
cants suffering similar discrimination.‘° An across-the-board
Title VII attack requires only that there be a sufficient “nexus”
between the claims of the named plaintiff and the claims of the
class. Payne 1, 565 F.2d at 900. Yet, while Title VII policies
support a broad reading of Rule 23, they do not justify the
jettison of the cardinal principle that a class representative may
not head a class including persons whose interests substantially
conflict with his or her own. East Texas Motor Freight System,
Inc. v. Rodriguez, 431 U.S. 395, 405, 97 S.Ct. 1891, 1897, 52
L.Ed.2d 453 (1977).
The conflict found by the district court here is straight-
forward: the female plaintiffs asserted that Travenol dis-
criminates against females by typically assigning them to the
lower-paying job of assembler while typically assigning males
to the higher-paying job of material handler. The females,
therefore, sought to establish that males were favored at their
© See Phillips v. Joint Legislative Committee, 637 F.2d 1014 (Sth Cir.
1981); Falcon v. General Telephone Company of the Southwest, 626 F.2d 369
(Sth Cir. 1980), vacated and remanded on other grounds, 450 U.S. 1036, 101
S.Ct. 1752, 68 L.Ed.2d 234 (1981), reinstated in part and remanded in part,
647 F.2d 633 (1981), cert. granted, US. 102 S.Ct. 668, 70
L.Ed.2d 637 (1981); Long v. Sapp, 502 F.2d 34 (Sth Cir. 1974); Carr v.
Conoco Plastics, Inc., 423 F.2d 57 ( Sth Cir. 1970), cert. denied, 400 U.S. 951,
91 S.Ct. 241, 27 L.Ed.2d 257 (1970); Johnson v. Georgia Highwe~ Express,
supra. We upheld the right of the plaintiffs in this case to prosecute an across-
the-board Title VII action in Payne I, 567 F.2d at 900.
58a
expense. This claim plainly draws the interests of males into
conflict with the interests of females.'' We are aware of no case
holding that a black female plaintiff is an adequate representa-
tive of black males in a sex and race discrimination suit when
the interests of the two groups conflict. '2 On the contrary, a host
of district courts have refused to permit black females to
represent black males in class actions alleging both race and sex
discrimination when a conflict of interest appears. "9
A court should not lightly reject a black female’s claim to
represent all blacks and all females in a sex and race dis-
crimination suit. Rather than determine the question of conflict
abstractly, the court must examine the interlacing allegations of
race and sex discrimination to determine whether an actual
conflict exists. For example, if a black female plaintiff argues
“On the one hand, [the black female plaintiff] would argue that
defendant's policies and practices discriminated in favor of males, including
black males, and against females. At the same time, she would claim that
defendant favored whites, including white females, over blacks. In light of
these conflicting positions, plaintiff would not be an adequate representative
of either black males or white females.” Colston v. Maryland Cup Corp., 26
F.R .Serv.2d 940, 943 (D.Md.1978).
% The only Circuit to have ruled on the propriety of a black female
representing blacks and females in a mixed sex and race discrimination suit is
the Eighth. In Donaldson v. Pillsbury, $54 F.2d 825 (8th Cir. 1977), cert.
denied, 434 U.S. 856, 98 S.Ct. 177, 54 L.Ed.2d 128 (1977), the Court held
that a black female alleging both race and sex discrimination had claims that
were typical of all female and all black employees and, therefore, she could
represent them. “Typicality” under Rule 23(a)(3) was the sole issue in the
case; the Court did not discuss possible conflicts of interest between the
Rule 23(a)(4). Moreover, the plaintiff in Donaldson alleged that the
defendant employer favored white men at the expense of both blacks and
females. 554 F.2d at 830. Thus, the conflict we find here was not present in
Donaldson.
13 See Strong v. Arkansas Blue Cross & Blue Shield, Inc., 87 F.R.D. 496
(E.D.Ark.1980); Hammons v. Folger Coffee, Inc. 87 F.RD. 600
(W.D.Mo.1980); Edmondson v. Simon, 86 F.R.D. 375 (N.D.II1.1980);
Vuyanich v. Republic National Bank of Dallas, 82 FRD. 420
(N.D.Tex.1979); Colston v. Maryland Cup Corp., 26 F.RServ.2d 940
(D.Md.1978); Droughn v. FMC Corp., 74 F.R.D. 639 (E.D.Pa.1977);
Martinez v. Bechtel Corp., 21 F.R.Serv.2d 85 (N.D.Cal.1975); Arey v.
Providence Hospital, 55 F.R.D. 62 (D.D.C.1972).
59a
that the employer favors white males to the detriment of both
representation of both groups. See Donaldson v. Pillsbury, 554
F.2d 825 (8th Cir. 1977), cert. denied, 434 U.S. 856, 98 S.Ct.
~ 177, 54 L.Ed.2d 128 (1977); Vugyanich v. Republic National
Bank of Dallas, supra, 82 F.R.D. at 435. In this case, however,
the district court found an actual conflict of interests and we see
no error in this conclusion.
The plaintiffs argue that because both blacks and women
were adequately represented at trial, the existence of a possible
conflict between the two before trial is not relevant. We reject
this argument. It is true that the court’s responsibility to assess
the adequacy of representation is an ongoing one. The district
court may decertify a class after trial if plaintiff's trial perform-
ance showed him or her to be an inadequate class representa-
tive. Johnson v. Uncle Ben’s, Inc., 628 F.2d 419 (5th Cir.
1980), vacated and remanded on other grounds, 451 U.S. 902,
101 S.Ct. 1967, 68 L.Ed.2d 290 (1981). But the trial court is
not required to hypothesize about the effect of an actual conflict
of interests on the adequacy of plaintiffs’ representation. It is
Se en ae
outset of the trial.
The plaintiffs also argue that black males have no “legally
cognizable” interest in perpetuating sex discrimination at Tra-
venol’s plant, and we agree. But black males do have an
interest in representation of their interestc with undivided
loyalty. The existence vel non of sex discrimination is at issue in
this case. Black males are entitled to a class representative who
is free from a desire to prove a claim that will impair their
interests.
Finally, the plaintiffs contend that we must balance the
harms to black males flowing from their inclusion in the class
against the harms flowing from their exclusion. Payne main-
tains that the harms of excluding black males overshadow the
potential harms of including them. The district court’s ruling
deprives black males of the benefits accorded to class members,
including constructive seniority and back pay. To include them
in the class despite the conflict of interest, Payne argues, would
60a
-have brought them much less harm. This argument diverts
attention from the proper inquiry under Rule 23. Rule 23
forces a court to measure the adequacy of representation
because of the sensitive considerations involved in binding
parties not before the court to a judgment won or lost by class
representatives. See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct.
115, 85 L.Ed. 22 (1940). A court need not look beyond the
issues in the suit before it to determine when a conflict of
interest precludes adequate representation. We conclude,
therefore, that the district court was within its discretion in
excluding black males from the class.
Ordinarily, if a court discerns a conflict like the one in this
case, the proper solution is to create subclasses of persons
whose interests are in accord. Oatis v. Crown Zellerbach Corp.,
398 F.2d 496, 499 (Sth Cir. 1968). Of course, each subclass
must be headed by a person who claims the same injury as the
subclass, but who lacks the fatal conflict. See East Texas Motor
Freight System, Inc. v. Rodriguez, supra; Johnson v. American
Credit Co., 581 F.2d 526, 532-33 (Sth Cir. 1978). In this case,
after the sole black male plaintiff, James Williams, withdrew
from the case, no named plaintiff existed to head a class of
black males. Payne therefore argues that having provisionally
included black males in the class, the district court owed black
males a duty to send them notice of their pending exclusion
from the case to allow one of them to step forward to intervene.
We do not find this obligation in the law.
Rule 23 requires a district court to give notice to absent
class members of developments in the suit in only two situ-
ations. The first is when the court certifies a class under Rule
23(b)(3) because of common questions of law or fact that
predominate over other aspects of the suit and render a class
action the appropriate vehicle to resolve the claims.
Fed.R.Civ.P. 23(c)(2); Eisen v. Carlisle & Jacquelin, 417 U.S.
156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The second is
when a class action is to be dismissed or compromised.
Fed.R.Civ.P. 23(¢).'4 In all other cases, notice lies within the
“4 The plaintiffs have not argued that the redefinition of the class in this
case is a dismissal within the meaning of Rule 23(¢), and we do not consider
it to be one.
6la
district court’s discretion. Fed.R.Civ.P. 23(d)(2). The district
court thus had discretionary power to give black males notice of
their impending exit from the case. Such action in general is to
be encouraged." We cannot say, however, that the court
transgressed its authority in failing to recruit a new black male
plaintiff to intervene to permit subdivision of the class. C7.
United States Parole Commission v. Geraghty, 445 U.S. 388, 100
S.Ct. 1202, 1214, 63 L.Ed.2d 479 (1980) (after denying class
certification, a district court must give the representative of the
plaintiff class an opportunity to propose subclasses, but has no
obligation to construct them itself).
Were we to accept Payne’s reasoning, a district court that
provisionally certified a class but later concluded that the
existing class representative was inadequate would have to send
notice soliciting a new class representative. Plainly, that is not
the rule in this Circuit, see Johnson v. Uncle Ben's, Inc., supra,
628 F.2d at 423, nor should it be. The rule that Payne proposes
would shift a burden onto the district court that properly
remains with the plaintiff..° Only if the black males had
S$ In Silva v. Vowell, 621 F.2d 640, 649 ( Sth Cir. 1980) ( quoting Johnson
v. American Credit Co., supra, 581 F.2d at 533 n.13), cert. denied, 449 US.
1125, 101 S.Ct. 941, 67 L.Ed.2d 111 (1981), we stated that if the court had
found no named plaintiff qualified to represent a subciass, “the court could
have considered ‘whether it is in the interest of justice and judicial economy to
postpone dismissal as to the subclass for a specified period in which members
a ea ety eer gate ene gy med d
intervention and thereby save the subclass action." ” In Sullivan v. Winn-
Dixie Greenville Inc., 62 F.R.D. 370, 377 (D.S.C.1974), the court followed
this procedure but did not require notice to the subclass members. Bul see
Alexander v. Avco Corp., 380 F.Supp. 1282, 1286 (N.D.Tenn. 1974), (the
court gave notice to class members to give them an opportunity to intervene
as individuals before dismissing the class action) modified, 565 F.2d 1364
(6th Cir. 1977), cert. denied, 436 U.S. 946, 98 S.Ct. 2849, 56 L.Ed.2d 787
(1978).
® At oral argument, plaintiffs’ counsel advised this Court that counsel
failed to seek a black male plaintiff to intervene on his own because of doubts
that attorneys for the plaintiffs could freely communicate with class members.
Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 ( 1981)
made clear that a district court may not curtail communications between the
attorney for the plaintiff and class members, at least in the absence of specific
findings that such an order is appropriate or necessary to prevent abuses. 101
(footnote continues)
62a
received notice of their initial inclusion in the class, had relied
on the class suit to protect their rights, and would be prejudiced
as a practical matter by exclusion from the class might the
district court be obligated to take some action to safeguard their
interests. See Seligson v. Plum Tree, Inc., 61 F.R.D. 343, 346
(E.D.Pa.1973); Berse v. Berman, 60 F.R.D. 414, 416
(S.D.N.Y. 1973). Here, there is no showing that black males
relied to their detriment on the district court’s provisional
inclusion of them in the class. In the absence of such a'showing,
we decline to hold that the district court abused its discretion in
failing to give them notice. In sum, the district court on this
record was justified in its discretion in believing that recruiting
black males after the one black male had dropped out almost
two years before would constitute the stimulation of a new law
suit by the court rather than a continuation of the old.
C. Opening date for class membership
We now take up Payne’s argument that injunctive relief
was improperly limited because the district court fixed an
incorrect opening date for membership in the class. The district
court limited the class to black females who applied at Travenol
after March 3, 1970. Neither party is certain why the district
court chose this date, and the court itself gave no reason. Payne
urges us to move the date back to include all applications within
the limitations periods for both Title VII and Section 1981.
Travenol resists any extension and maintains that despite some
difficulties in the date chosen by the district court, there is no
abuse of the court’s discretion. We are persuaded that the court
did abuse its discretion in choosing the opening date, although
our analysis differs from either of the parties’.
The opening date for membership in a class for a Title VII
claim should be set by reference to the earliest charge filed by a
named plaintiff. Laffey v. Northwest Airlines, Inc., 567 F.2d
(footnote continued)
S.Ct. at 2193. Although in 1974 the plaintiffs lacked the guidance of Gulf Oil,
nothing in the record indicates that the plaintiffs asked the district court to
allow them to communicate with the class. We cannot impose a duty on the
district court to fill the void created by the plaintiffs’ failure to press their
rights to communicate with persons excluded from the class.
63a
429, 472 (D.C.Cir.1976) cert. denied, 434 U.S. 1086, 98 S.Ct.
1281, 55 L.Ed.2d 792 (1978); Wetzel v. Liberty Mutual Insur-
ance Co., 508 F.2d 239, 246 (3d Cir. 1975), cert. denied, 421
US. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). See also
Crawford v. Western Electric Co., 614 F.2d 1300, 1309 ( Sth Cir.
1980). But see Chisholm v. United States Postal Service, 665
plaintiff could collect back pay). Here, that plaintiff is Willie
Mae Payne, who filed her first charge on January 29, 1970.'7
For Title VII purposes, Payne can represent a class that
includes all qualifying’® black female applicants who could
anyway, applied, and was refused a job. She filed two charges with the
EEOC, the first on January 29, 1970 because of Travenol’s rejection of her on
that date, then on March 3, 1970, because of Travenol’s rejection of her again
on February 24. On March 17, 1970, Payne was referred by MSES and was
refused employment a third time. No charge appears to have been filed in
reference to the March |7 application. Nothing in the record indicates that
abundant instances over the four years. Her first EEOC charge is dated
August 28, 1970. Like the other two plaintiffs, che filed a second charge,
which the EEOC received on January 12, 1971
64a
Laffey v. nace sae Aygo any Inc., supra; Wetzel v. Liberty
ead pantad Sawn be, 1 720 008. a od .
1970). Thus, the opening date for the Title VII i
crimination class, counting back ninety days from the date of
the January 29 charge, is October 31, 1969. All black females
district court’s later date cannot be sustained.2'
For the Title VII sex discrimination claim, the opening
date of the class is October 31, 1969, the same date as for the
the date Payne filed her charge. Thus, the sex discrimination
2 The statute was amended in 1972 to provide for a 180-day charge
filing period. See Equal Emplayment Opportunity Act of 1972, Pub.L.No. 92-
261, 86 Stat. 113, codified at 42 US.C.A. § 2000e.
We hold that the ninety-day charge-filing period, which was in effect
before the 1972 amendments to Title VII, should govern this case. We reach
this conclusion even though the right-to-sue letter on the charge that we use to
set the opening date of the class was not issued until September 6, 1972, after
the effective date of 1972 amendments on March 24, 1972. Because Payne's
amended complaint relates back to the date of the original complaint,
Fed.R.Civ.P. 15(c), this case clearly was not pending with the EEOC on the
effective date of the 1972 amendments. Therefore, the ninety day period is
binding on Payne and the class she represents.
21 The court apparently chose this date because it was the date of Payne's
second EEOC charge. When the original complaint in federal court was filed
on May 2, 1972, Payne did not allege having filed charges with the EEOC on
January 29, 1970; only the March 3 charge was mentioned in the complaint.
The district court certified the class conditionally on November 16, 1972.
Payne's amended complaint, filed May 3, 1973, did allege having filed a
charge with the EEOC on January 29, 1970, but the district court failed to
modify the opening date of the class to reflect the amended complaint. In any
event, the court should have set the opening date of the class to include all
persons who could have filed charges when Payne did instead of setting the
opening date of the class on the date when she filed her charge.
65a
claims take in a class of black female employees or applicants
beginning on October 31, 1969.
Our inquiry is not ended here, however, because the
plaintiffs alleged violations of 42 U.S.C.A. § 1981 as well as
violations of Title VII. Although both of these statutes apply to
employment discrimination cases, they have independent rem-
edies and independent statutes of limitations. See Johnson v.
Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44
L.Ed.2d 295 (1975). Though both the district court's decision
on liability and our earlier decision in this case failed to
mention Section 1981, there can be no doubt that the Section
1981 claim was properly pleaded and adjudicated. The decree
that we review today enjoins subjective employment practices
in violation of Section 1981, a ruling that must be premised on a
finding of Section 1981 liability. We therefore examine what
the appropriate Section 1981 class opening date should be. Cy.
McWilliams v. Escambia County School Board, 658 F.2d 326
(Sth Cir. 1981) (the Court separately examined whether a
charge had been timely filed under Title VII and whether the
acts complained of occurred within the statute of limitations for
Section 1981 and Section 1983 before concluding that all claims
were time-barred); Crawford v. Western Electric Co., supra,
614 F.2d at 1309. Petty v. Peoples Gas Light and Coke Co., 86
F.R.D. 336, 342-43 (N.D.I1.1979).
Statutes of limitations for Section 1981 actions ordinarily
are borrowed from state law. Johnson v. Railway Express
Agency, supra, 421 U.S. at 462, 95 S.Ct. at 1721. In Truvillion vy.
King’s Daughters Hospital, 614 F.2d $20 (Sth Cir. 1980), we
held that a Section 1981 claim for a discriminatory refusal-to-
hire is governed by the six-year Mississippi general statute of
limitations.22 614 F.2d at 528. At least one of the named
plaintiffs here, Birdie Lee Griffin, applied for a job with
Travenol in 1966 after receiving an MSES referral, and was
refused employment. Payne v. Travenol Laboratories, Inc., 416
F.Supp. at 252. Thus, if the proof supports it the plaintiffs may
2 Mississippi Code Annotated, Section |5-1-49 (1972) provides:
All actions for which no other period of limitations is prescribed
shall be commenced within six years next after the cause of such
action accrued, and not after.
66a
represent a Section 1981 race discrimination class that begins
six years before the date when the complaint was filed in 1972,
or March 2, 1966. Section 1981, of course, does not embrace
sex discrimination claims, Bobo v. ITT, Continental Baking Co.,
662 F.2d 340 (Sth Cir. 1981).
Ill. PROOF OF DISCRIMINATION
We come now to the merits of the plaintiffs’ claim that
Travenol’s hiring, job assignment, promotion, and pay practices
were discriminatory.2° The district court found for the plaintiffs
on most but not all liability issues. On appeal, the plaintiffs
charge error in the district court’s failure to find discrimination
on the remaining issues. But for the educational requirements
that we struck down in Payne I, 565 F.2d at 899-900, the
defendant contends that the district court erred in finding any
discrimination at all. We take up each issue in turn.
A. Discrimination in hiring.
At the outset, we note one difficulty in assessing the proof
of discrimination in hiring. When this case was tried, the
plaintiffs principally, though not exclusively, strived to prove
that Travenol’s hiring of operatives discriminated against
blacks because of the minimum requirement of a tenth-grade
education. See Payne v. Travenol Laboratories, Inc., 416
2 The plaintiffs alleged discrimination in four areas that are relevant to
this appeal:
1. Discrimination in hiring into entry level positions. Trav-
enol did not hire blacks at the same rate as whites, comparing
applicant flow to hires.
2. Discrimination in initial assignment of those hired.
Travenol assigned blacks disproportionately to custodial rather
than operative work.
3. Discrimination in promotions. Travenol hindered the
advancement of women from assembler to materia! handler, and
offered both women and blacks scarcely any opportunsty for
promotion above the operative level.
4. Discrimination in merit pay. Travenol paid \ess to blacks
and women in positions above the operative level for which the
salary is determined subjectively through the merit system.
67a
F.Supp. at 255. Proof of such disparate impact discrimination
under Title VII is governed by Griggs v. Duke Power Co., 401
U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Griggs holds
that a facially neutral employment practice that imposes a
greater burden on one group than another violates Title VII
unless the employer establishes that the practice arises from
business necessity. A disparate impact plaintiff need not show
intentional discrimination. 401 U.S. at 430-32, 91 S.Ct. at 853-
54. A large quantity of Payne’s evidence was aimed precisely at
the Griggs elements of proof. Of course, Payne also introduced
testimony and statistics undertaking to show the opportunity for
and the existence of subjective, intentional discrimination in
Travenol’s hiring process—disparate treatment.
Confronted with this evidence, the district court found that
Travenol hired proportionately fewer blacks, stating: “This
disparate result reflects the effect of a tenth-grade requirement
and of the defendants’ subjective discrimination.” 416 ©.Supp.
at 248. The district court then struck down the tenth grade
requirement, rejecting Travenol’s business necessity defense. In
Payne |, we reversed the injunction against the tenth-grade
requirement, holding that no named plaintiff had standing to
challenge it because each had a tenth grade education during
the relevant period. 565 F.2d at 898-99.24
2 In Payne I, Payne argued that she had standing to challenge the tenth
grade requirement because she lacked a tenth-grade equivalency for 80 of the
90 days preceding her January 29, 1970 EEOC charge. We rejected this
argument, reasoning that “the trial court's definition of the class removed
from consideration all applications for employment submitted to Travenol
prior to March 3, 1970, so that the situation prior thereto is irrelevant on this
appeal.” 565 F.2d at 899.
The opinion in Payne / reveals that the parties did make some reference
to the earlier suggested date of January 29, 1970, and a reference back to a
period of up to ninety days preceding that date. It must be concluded,
therefore, that the issue of the establishment of March 3, 1970, by the district
court as the beginning date for applications of members of the class was
considered by the Court in Payne / and became as a result of its holding the
critical date for the class as it related to the tenth grade requirement. If the
members
precise
of the class felt at that time that the decision was wrong because the
date was wrong and that, therefore, they did have members of the
the tenth
68a
The removal of the tenth-grade requirement issue trans-
formed this case dramatically. As Travenol properly contends,
the case must now be analyzed as a disparate treatment case
rather than a disparate impact case. In a disparate impact cas?.
the plaintiff need not prove intent to discriminate, while in a
disparate treatment case, such proof is crucial. International
Brotherhood of Teamsters v. United States, 431 U.S. 324, 335
n.15, 97 S.Ct. 1843, 1854, n.15, 52 L.Ed.2d 396 (1977). The
plaintiffs’ proof must now be tested under disparate treatment
principles.
With the removal of the tenth-grade requirement as an
issue in this case, Payne’s essential challenge is that Travenol’s
subjective interviewing process led to discrimination. Payne
does not assert that Travenol applied distinct, facially neutral
criteria to candidates in the interview that operate dis-
proportionately to exclude blacks. Rather, Payne points to the
absence of objective criteria and the resultant opportunity to
discriminate subjectively in Travenol’s hiring. In support of the
contention that Travenol discriminated in hiring, Payne recites
the history of Travenol’s hiring, which reveals substantial pre-
Act discrimination, and compares applicant flow to actual hires,
stressing the consistently lower proportion of blacks than whites
hired. Payne also adverts to individual instances of dis-
crimination. This evidence falls into the classic pattern of a
classwide disparate treatment case. See Hazlewood School
District v. United States, 433 US. 299, 97 S.Ct. 2736, 53
(footnote continued)
rehearing to this Court at the end of Payne J. Otherwise, the holding became
and still continues to be the law of the case (Conway v. Chemical Leaman
Tank Lines, 644 F.2d 1059 (Sth Cir. 1981)) on that one issue. The parties
cannot now be heard to urge that the tenth grade requirement as it relates to
the class can be based upon a commencing date other than the one which was
before the Court and upon which the Court clearly relied in making its
lecisi
This conclusion is buttressed by the fact that the issue of the validity and
application of the tenth grade requirement was not raised upon the current
appeal and is not before us. We, therefore, have considered the matter as to
the proper date for the inception of the class only as it applies to issues other
a That issue is foreclosed by
layne I.
69a
L.Ed.2d 768 ( 1977); International Brotherhood of Teamsters v.
United States, supra; Wilkins v. University of Houston, 654 F.2d
388, 394-95 (Sth Cir. 1981); Phillips v. Joint Legislative
Committee, 637 F.2d 1014, 1024-26 (Sth Cir. 1981).
Travenol’s interviewing cannot be viewéd as a neutral
practice with a disparate effect thus subject to Griggs v. Duke
Power Co., supra, as Payne argues. Hiring processes that rely
heavily on subjective interviewing provide an opportunity for
the intentional discrimination that lies at the heart of a dis-
parate treatment case. Payne does not urge that Travenol has
violated Title VII by seeking alert, capable operative workers;
rather she charges that Travenol masked its intentional dis-
crimination by purporting to screen applicants for these quali-
ties while actually discriminating on the basis of race. Subjec-
tive discrimination in interviewing or in similar evaluation
processess has repeatedly been held to fall into the disparate
treatment branch of Title VII law. See Hazlewood School
District, supra, 433 U.S. at 304, 97 S.Ct. at 2739-40; Pouncy v.
Prudential Insurance Co., 668 F.2d 795, at 801 (5th Cir. 1982)
(subjective evaluation of employees is not a selection procedure
tested under the disparate impact model); Wilkins v. University
of Houston, supra, 654 F.2d at 394-94; Phillips v. Joint Legisla-
tive Committee, supra.
Because this case now raises claims of classwide disparate
treatment, we must evaluate the evidence in light of standards
established by the Supreme Court in such cases in Teamsters
and Hazelwood. See Pouncy v. Prudential Insurance Co., supra.
Teamsters and Hazelwood establish that in a Title VII disparate
treatment class action, the plaintiff has the burden of proving a
prima facie case that the defendant’s regular practice was to
discriminate intentionally against a protected class. The burden
may be met solely with statistics if they show a sufficiently great
disparity between the employer’s treatment of blacks and of
whites—a disparate result. In such circumstances, statistics
alone justify an inference of discriminatory motive. See Village
of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563-64, 50 L.Ed.2d
450 (1971). The statistical showing of disparate result may
70a
also be buttressed with evidence of a history of discrimination
practiced by the employer, individual instances of dis-
crimination, and opportunities to discriminate that exist in the
employer’s decision-making processes. If the statistical dis-
parity is insufficient alone to establish a prima facie case, the
plaintiff may get over his or her initial hurdle by combining
See EEOC v. American National Bank, 652 F.2d 1176 ( 4th Cir.
1981).
Once the plaintiff has shown a prima facie case that the
employer has pursued a policy of discrimination, the employer
may undertake to rebut this showing. The rebuttal can proceed
along two fronts. First, proof that the plaintiff's statistics are
inaccurate or insignificant may dispel the plaintiff's proof of
disparate result. For example, the employer may show that the
disparity between the percentage of minorities in his work force
ans in the general population results from discrimination
before the enactment of Title VII. Second, the employer may
seek “to provide a nondiscriminatory explanation for the
apparently discriminatory result.” Teamsters, 431 U.S. at 360
n.46, 97 S.Ct. at 1867 n.46. General assertions of good faith or
of hiring only the best applicants, however, are insufficient to
meet this burden. Jd. at 342 n.24, 97 S.Ct. at 1858 n.24. If the
employer fails to rebut the plaintiffs case, the district court may
conclude that Title VII has been violated. Jd. at 361, 97 S.Ct. at
1867.
Discriminatory treatment claims under § 1981 are mea-
sured by the same standards that apply to discriminatory
treatment claims under Title VII. Rivera v. City of Wiciita
Falls, 665 F.2d 531, 534 n.4 (Sth Cir. 1982); McWilliams vy.
Escambia County School Board, 658 F.2d 326 (Sth Cir. 1981).
Thus, we apply the Teamsters pattern of proof to the § 1981
claims as well as the Title VII claims in this case.
The defendants argue that hecause this is a disparate
treatment case, the burdens of proof and production must
conform to the model established by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), and Texas Department of Community
7la
Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d
207 ( 1981 ).25 We have held, however, that McDonnell Douglas
and Burdine establish the model of proof only for an individual
disparate treatment case. In a class action we adhere to the
pattern of proof set out in Teamsters and Hazelwood. Our cases
have recognized the distinction between individual and class
claims of disparate treatment, see Phillips v. Joint Legislative
Committee, supra, 637 F.2d at 1024-27 (Sth Cir. 1981), and
bave consistently applied the Teamsters model of proof to the
class claims, e.g. Markey v. Tenneco Oil Co., 635 F.2d 497, 499
(Sth Cir. 1981). Nothing in Burdine, a single-plaintiff case,
suggests that the Court intended Burdine procedures to supp-
lant the procedures for proving classwide disparate treatment
announced in Teamsters and Hazelwood. See Vuyanich vy.
Republic National Bank of Dallas, 521 F.Supp. 656
(N.D.Tex.1981).
We now turn to the question whether the district court’s
findings support an inference of classwide disparate treatment
under Teamsters. In answering this question we recite the
statistical and other facts reported in the opinion of the district
court that can, if supported in the record, establish dis-
crimination absent the tenth-grade requirement. Travenol
asserts that the district court made a finding of discrimination
only by overlaying the disparate effects of the tenth-grade
education requirement and the subjective screening accom-
plished through interviewing. Because the district court never
considered the independent effect of inter ewing, Travenol
maintains, there is no finding that interviewing, without regard
to the tenth-grade requirement, is discriminatory. The district
25 Burdine holds that an individual seeking to prove discriminatory
treatment must establish a prima facie case according to McDonnell- Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The
defendant then has the evidentiary burden of articulating a reasonably
specific, legitimate reason for its action. If the defendant meets this burden,
the plaintiff then must show that the defendant's reason is a pretext for
. discrimination. See McWilliams v. Escambia County School Board, 658 F.2d
326 ( Sth Cir. 1981).
The Third and the Ninth Circuits have applied Burdine to Title VII class
actions. See Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981) (en banc);
Piva v. Xerox Corp., 654 F.2d 591 (9th Cir. 1981).
72a
court’s findings, by its own admission, are “brief and to some
extent conclusory.” 416 F.Supp. at 255. Nevertheless, we
believe that they are adequate to support a conclusion of
classwide discrimination, without regard for the tenth-grade
requirement. —
First, the district court found that Travenol hired
proportionately fewer blacks than whites from candidates re-
ferred by MSES.2®° Because MSES referred only candidates
possessing a tenth-grade education, this finding is untouched by
our holding in Payne I that the plaintiffs could not challenge the
tenth-grade requirement. The district court also found that
after Travenol ceased to require referral from MSES, its hiring
continued to exclude blacks disproportionately.2” This finding
reflects both Travenol’s imposition of the tenth-grade require-
ment and its subjective discrimination. The court, therefore,
did not state how much of Travenol’s disproportionate ex-
clusion of blacks was attributable to subjective discrimination,
but its finding clearly implies that some of it resulted from such
discrimination.
In addition to these findings, the court relied on work-force
statistics.2® These statistics show a slow rise in the percentage of
blacks in Travenol’s plant from 1964, when there were none, to
28 JT» district court cited no statistics to support this finding of disparate
result. — . consider later whether this finding is clearly erroneous in light of
the statis..cs submitted by the parties.
27 The court found that Travenol hired one of three white applicants but
only one of six biack applicants between April 1971 and August 1974.
28 The statistics relied on by the court showed the following percentages
of whites in the operative work force.
Percentage of the
operative work force
Year that was white:
All Male Female
1964 100 — _
1966 84 _ on
1969 _ 82% 89.8%
1970 — 16.6% 82.8%
1973 — 54.1% 70.1%
1974 _ 37.4% 57.5%
73a
1971, when blacks composed nearly 25% of male operatives
and slightly more than 20% of the female operatives. After
1972, when the plaintiffs filed suit, the percentage of blacks
grew rapidly.
Thus, the district court clearly found that Travenol’s hiring
had a disparate result, even without regard to the tenth-grade
requirement. Although its statistical findings are not elaborate
enough to permit us to conclude that Payne established a prima
facie case through statistics alone, the court also made histori-
cal, circumstantial, and individual findings that buttress the
statistics. The findings of disparate result coalesce with Trav-
enol’s history of discrimination, the opportunities in its hiring
process to discriminate, and individual instances of dis-
crimination, all to establish a prima facie case.
Travenol’s entire work force, but for custodial positions,
was exclusively white until 1964.29 Before 1964, Travenol hired
persons, without regard to educational requirements, based on
subjective impressions gained through interviewing. Commun-
ity references were used heavily in the plant’s early years, but
took on less importance in the 1960s. Following the passage of
Title VII in 1964, the plant’s personnel manager sought the
assistance of MSES in evaluating how Travenol could bring
blacks into the operative work force. MSES performed a study
and recommended that Travenol require a twelfth-grade educa-
tion for operative positions. Travenol refused to set such a high
standard, instead requiring a tenth-grade education or GED. It
is unclear why Travenol decided that it needed any educational
requirement for the first time only after the passage of Title VII.
Travenol also invoked the services of MSES to screen and refer
applicants to the plant.
Between 1965 and 1971 Travenol considered only those
applicants referred by MSES. The referred applicants were then
interviewed by the plant’s personnel manager. Travenol’s per-
sonnel manager between 1965 and 1967 hired applicants based
2 Although liability under Title VII cannot rest on Travenol’s pre-Act
discrimination, its conduct before 1964 is relevant to the interpretation of
post-Act disparate results. See Hazelwood School District, supra, 433 US. at
309 n.15, 97 S.Ct. at 2742 2.15.
74a
on his interview impression and the recommendation of plant
employees whom he consulted about the applicants. The first
personnel manager initiated a practice of consulting a black
employee, Julius Lucas, about black applicants, and this prac-
tice was continued by his successors until 1971. The personnel
manager during 1967 and 1968 consulted members of the local
community as references to supplement his reaction to appli-
cants gained through interviewing. The personnel manager
from 1968 to 1974 made his hiring decisions almost exclusively
by his subjective impression at the interview.*° At no time either
before or after Title VII’s enactment did Travenol give its
personnel managers written instructions on standards to apply
in hiring.
The district court also found that all three of the named
plaintiffs belonged to a racial minority, were qualified for the
operative position they sought, and were rejected by Travenol.
It is also abundantly clear from the district court’s opinion that
Travenol continued to hire white applicants for operative
positions after these rejections. Thus, each named plaintiff
fulfilled the four-part test of establishing a prima facie case
under McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 ( 1973).3' There is no indication in
the district court’s findings that Travenol rebutted the infer-
ences of individual discrimination that arose from the plaintiffs’
showings.
3° The factors considered by the third personnel manager were alleged to
be “personal cleanliness, general alertness, and comprehension.” No fixed list
of questions was used to measure these qualities; the questions varied from
to applicant.
3* Under McDonnell-Douglas the plaintiff may establish a prima facie
case of individual disparate treatment by showing: “(i) that he belongs to a
racial minority; (ii) that he applied and was qualified for a job for which the
employer was seeking applicants; (iii) that, despite his qualification, he was
rejected; and (iv) that, after his rejection, the position remained open and the
employer continued to seek applicants from persons of complainant's quali-
fications.” 411 U.S. at 802, 93 S.Ct. at 1824. By noting that the named
plaintiffs satisfied the McDonnell-Douglas criteria, we do not imply that proof
of individual instances of discrimination presented to support a case of
classwide discrimination must conform to McDonnell- Douglas.
75a
These findings, evaluated in light of Teamsters, establish a
strong prima facie case of disparate treatment, absent the tenth-
grade requirement. The burden then fell on Travenol to rebut
the plaintiffs’ showing. The district court, however, made no
findings that appear to us to blunt the plaintiffs’ evidence. We
conclude, therefore, that if the district court’s findings are
supported by the evidence, we are compelled to hold that
Travenol’s hiring violated Title VII and Section 1981.
We have now decided that the district court’s findings, if
correct, warrant a conclusion that unlawful discrimination
actually occurred. We now turn to evidence of discrimination
in hiring to see if it supports the district court’s findings of fact.
In assessing this evidence, we apply the clearly erroneous
standard to the district court’s subsidiary findings of fact.
Rivera v. City of Wichita Falls, 665 F.2d at 535-36. Danner v.
United States Civil Service Commission, 635 F.2d 427, 430-31
(5th Cir. 1981).
Travenol asserts that the district court’s finding of a
disparate result in hiring is clearly erroneous in that it is
unsupported by competent statistical evidence. Travenol
argues that all the statistics in the record on applicant flow
combine applicants who had a tenth-grade education and
applicants who were without a tenth-grade education. [If
Travenol were correct, the district court’s finding of a disparate
result in hiring that was the product of discrimination in
interviewing could not be sustained. The statistics in the record,
however, amply support the district court’s findings and we may
not set them aside as clearly erroneous.
First, Payne introduced statistics that show that between
November 1969 and November 1971, Travenol hired only
24.3% of black females applicants referred by MSES for
operative positions and 21.0% of black males, while hiring
76a
44.3% of the white males and 51.7% of the white females.%?
Payne’s evidence also shows that between 1970 and 1974,
Travenol hired 44.9% of white operative-job applicants with a
tenth-grade education, but only 25% of black applicants sim-
32 The following chart presents the breakdown of applicants and hires:
Rates of Referred by MSES,
from November 3, 1969 November 24, 1971
-_ oo ae White Black
Males Males Females Females
Total Applicants Referred... 293 138 $03 sa
Total Referrals Hired .......... 130 29 260 107
43% 210% S17 243%
The calculation of standard deviations though not essential, see Rivera v.
City of Wichita Falls, 665 F.2d at 545, n.21, is extremely useful. Absent
explanation, standard deviations of greater than three generally signal
discrimination, see Hazelwood School Dist., 433 U.S. at 311 0.17, 97 S.Ct. at
2743 0.17. Standard deviation analysis here reveals that the discrepancy
between black and white hires is probative of discrimination. The observed
number of hires is 7.54 standard deviations fewer than the expected number.
The “standard deviation” is a way to calculate the likelihood that chance
is responsible for the difference between a predicted result and an actual
result. See Castaneda v. Partida, 430 U.S. 482, 496 n.17, 97 S.Ct. 1272, 1281
n.17, $1 L.Ed.2d 498. For example, if we flip a penny one hundred times, we
expect that fifty will be heads and fifty tails. If 51 flips out of 100 produce
heads, we chalk it up to chance. But long before we get to 99 flips out of 100
producing heads, we suspect the penny. Standard deviation analysis is the
mathematical means of expressing how likely it is that the penny is suspect.
For hiring discrimination, the standard deviation is calculated by taking the
square root of the product of the number of applicants hired times the
probability of hiring a minority times the probability of hiring non-minority.
In our penny example, the standard deviation is the square root of 100 times
-5 (the probability of heads) times .5 (the probability of tails), or 5. If 100
flips yield 40 heads, the observed value falls two standard deviations below
the expected value. The probability of this happening by chance is less than
five times in 100. Equal Employment Opportunity Comm. v. American Natl.
Bank, 652 F.2d 1176, 1192 (4th Cir. 1981). The probability of 100 flips
yielding 35 heads—or 3 standard deviations below the expected value—is less
than one in 100. Jd. Statisticians tend to discard chance as an explanation for
a result when deviations from the expected value approach two standard
deviations. /d.
77a
ilarly qualified.*%* More specific statistics indicate that the dis-
proportionate exclusion of blacks continued but was tapering
towards the end of this period. In 1972 to 1974, Travenol hired
26.1% of the qualified white applicants while hiring 21.5% of
the qualified black applicants.** The record contains no appli-
cant flow statistics for the period between 1974 and 1976,
although the decree includes class members up to February 19,
1976, the date when the district court rendered its decision on
Travenol contends that flaws in Payne’s statistics render
them incompetent to support the district court’s findings. We
do not agree that the picture of discrimination suggested by
these statistics is a mirage. While Travenol has exposed defects
and gaps in the plaintiffs’ statistics, none of them are fatal.
ee ee
Hires in Operative Jobs, 1970-74............. 664 548
% Hired 44.9% 25.0%
Calculation of standard deviations reveals that the observed number of
black hires is 10.28 standard deviations fewer than the expected number.
» oe
Applicants for Operative Jobs With a
10th Grade Education, 1972-74... 63%6 1,658
Hires in Operative Jobs, 1972-74............. 66 356
% Hired SS 26.1% 21.5%
The disparity, though less than earlier years, is still significant: the
aumber of black hires falls short of the expected value by more than two
standard deviations.
78a
Travenol lodges several objections to the MSES statistics
for 1969-1971. First, Travenol argues that the MSES data omit
three months of statistics for material handlers and nine months
for assemblers. We have condemned “extravagant extra-
polation” from small samples, Hester v. Southern Railway Co.,
for interviews. Travenol also departs from the record when it
79a
always keep records of hires. In fact, the testimony reveals that
the opposite is true.
Travenol next objects to the applicant flow data from 1971
to 1974. Travenol’s leading attack is that the figures are marred
by duplicate applications. Rebecca Allen, the secretary for
Travenol’s personnel director, testified that approximately 25%
of the applications in the applicant flow charts were duplicates.
Relying on Robinson v. Union Carbide Corp., 538 F.2d 652, 658
(Sth Cir. 1976), Travenol contends that this lewel of duplicates
precludes the use of applicant flow statistics.
This contention, however, is too broad. First, Robinson
reached the conclusion that applicant-flow statistics were in-
adequate on the basis of testimony not only that duplicates
existed but also that some applicants filled out three or four
applications a month. This degree of repetition might well
render applicant-flow statistics suspect. Rebecca Allen’s esti-
mate that approximately 25% of the applications were dupli-
cates, however, does not. Her earlier testimony established that
only when an application expired did an applicant have to fill
out a new application; otherwise the old application was
renewed.35 Second, and more important, Rebecca Allen specif-
ically testified that she did not know whether black duplicates
exceeded white duplicates. Thus, there was no testimony that
black duplicates occurred at a greater rate than white dupli-
cates, and we are unwilling to make such an assumption
without evidence in the record to support it. Therefore,
Rebecca Allen’s estimate of duplicates is not enough to render
_the applicant flow statistics incompetent.
- Travenol also contends that comparisons between black
and white rates of hire are not relevant because they fail to
isolate class members: black females. Travenol relies on
Jefferies v. Harris County Community Action Association, 615
38 Applications remained current for ninety days in |974 and later years.
Before 1974, applications were considered current for thirty days.
%* Even if we assume that 25% of the applications were duplicates,
Travenol still hired 59.8% of the white applications while hiring only 33.3% of
the black applicants between |970 and 1974.
F.2d 1025 (Sth Cir. 1980). Jefferies does not support this
contention. In Jefferies we held that a black female plaintiff is
entitled to prove that she suffered discrimination as a
about their own means of transportation, particularly if the
applicant received a low interview rating. Thus, Travenol
cannot show thai applicants it screened out in the interview
lacked transportation. Moreover, the sample from which the
defendant drew its conclusions excluded one-fourth of all
applications for the time it covered. The defendant’s witness
82a
population comparisons when, as here, a greater percentage of
qualified blacks apply for work than qualified whites. Travenol
has an obligation not to discriminate illegally among applicants
who present themselves for work. Because of the heavy minor-
ity applicant flow, Travenol cannot show that it discharged this
obligation by presenting evidence that the composition of its
work force mirrored that of the qualified general population.
Travenol’s final line of defense against a finding of dis-
crimination is to argue that interviewing was necessary to select
alert, capable workers for its plant Travenol produces and
packages drugs, largely intravenous solutions. There is, there-
fore, obvious danger to human life if ihe drugs are con-
taminated or improperly labeled. Travenol argues that only
through subjective interviewing could it secure qualified work-
ers. We recognize Travenol’s interest in minimizing the risk of
hiring careless employees. But to recognize this interest is not to
sanction the discriminatory practices demonstrated by the
plaintiffs’ evidence.
We have repeatedly held that “hiring procedures [that]
rely heavily on the subjective judgments of its executives from
personal interviews [create] a procedure that can easily be used
to mask racially motivated hiring decisions.” Phillips v. Joint
Legislative Committee, supra, 637 F.2d at 1026. This is
particularly true when an all-white supervisory staff conducts
the interviews, Pettway v. American Cast Iron Pipe Co., 494
F.2d 211, 240 (Sth Cir. 1974); Rowe v. General Motors Corp.,
457 F.2d 348, 359 (Sth Cir. 1972). Travenol’s occasional
consultation of a black employee does not alter the control
exercised by the white personnel staff. Travenol’s assertion that
interviewing was necessary amounts to no more than a claim
that Travenol used interviewing to select only the best appli-
cants. The Supreme Court rejected such a defense in Team-
sters, and we similarly reject it here. Except as noted, we affirm
the district court’s award of relief for discrimination in hiring.
B. Discrimination in Initial Assignments
We now address the claim that Travenol discriminated in
the initial assignment of those hired. Payne argues that the
83a
district court erred in denying injunctive relief against the
disproportionate assignment of blacks to custodial jobs. The
district court’s 1976 opinion makes no findings or conclusions
on discrimination in this area. The magistrate’s 1980 report
and recommendation for further relief rejected Payne’s requesi,
finding no statistical foundation for it, and the district court
adopted the report as its own opinion. We agree that the
plaintiffs’ evidence is not sufficient.
The magistrate noted that as of November 30, 1979, blacks
composed 61.9% of all operatives and 70.8% of all custodians.
Believing this disparity to be insignificant, the magistrate
denied injunctive relief. We do not hold that an 8.9% disparity
is necessarily insignificant. We agree, however, that the
disparity between the percentage of minorities in Travenol’s
operative work force and the percentage in its custodial work
force does not make out a prima facie case. While a concentra-
tion of minorities in the lower echelons of an organization
ordinarily is probative of discrimination, here there is no
showing that those assigned to the custodial work force had a
tenth grade education, and were thus qualifed for operative
work when that requirement was in effect. Moreover, the
disparity between the percentage of blacks in operative work
and in custodial work has been steadily narrowing.2* We are
therefore unable to draw conclusions on Travenol’s assignment
policies from bare work force statistics.
% The plaintiffs prepared the following chart from Travenol’s EEO-!
reports:
Date of Job Number Number
EEO-! Cate- of of Black
Report gories Employees Employees ‘% Black
November 30, Operatives 1,532 880 57.4%
1977 Service 87 67 77.0%
Workers
November 30, Operatives 1,097 658 60.0%
1978 Service 63 48 76.2%
Workers
November 30. Operatives 1,109 687 61.9%
1979 Service 65 46 70.8%
84a
The only other statistics cited by plaintiffs show that
between 1967 and 1974 Travenol assigned 6.8 of the blacks
hired for entry level work to custodial jobs, while assigning only
0.7% of the whites to custodial jobs. These figures are
suggestive but do not persuade us that Travenol discriminated
in initial assignments of custodial workers. First, the sample is
very small; Travenol averaged seven assignments to custodial
work each year during the period covered by these statistics.
Second, the plaintiffs admit that half of the blacks assigned to
custodial work lacked a tenth-grade education and, therefore,
were not eligible for operative positions. These factors consid-
erably erode the strength of the plaintiffs’ proof on this point
and the district court did not err in refusing to grant injunctive
relief.
C. Discrimination in Promotions
In this section we address Payne’s contention that Travenol
structured its procedure for advancing from assembler to
material handler in a fashion that discriminated against fe-
males, and her contention that black females suffered dis-
crimination in promotions above the operative level.
1. The “Hooks” Position
Payne claims that female assemblers were impeded from
entry into the material handler work force by the defendant’s
use of the “hooks” position as the entry job. At the time of the
trial in 1976, Travenol had a material handler position that
required lifting many bottles on and off the production line with
plastic devices called “hooks.” The “hooks” enabled a user to
lift more bottles at a time than could be lifted by hand. The
hooks position was arduous; it Gemanded more sustained heavy
lifting than any other material handler slot. When filling
material handler vacancies other than the hooks, Travenol gave
priority to hooks bidders even though any operative employee
could bid for the position. Since hooks workers rarely declined
the opportunity to transfer, “[t]}his right of first refusal »a[d]
the effect of transforming any material handler vacancy into a
vacancy on the ‘hooks’ jobs.” 416 F.Supp. at 262. The district
court also found that females were deterred from applying for
material handler positions, and those who did were forced by
85a
the hooks position to retreat back to assembler jobs much more
often than men. The court therefore concluded that the use of
the hooks position as the entry into material handling unlaw-
fully discriminated against females.
In response to a Food and Drug Administration in-
vestigation in 1975 Travenol abolished the hooks position and
replaced it with the “bottle stack on, bottle stack off” position.
The “bottle stack” position also involves putting bottles on the
line and taking them off, but is less physically taxing than the
former hooks position. Travenol also ceased to give bottle
stackers priority in bidding for other material handler positions.
Travenol denies that the hooks position did discriminate against
women, and maintains that in any event the new bottle stack
position is not sexually discriminatory. We affirm the district
court’s conclusion that the hooks position discriminated against
females, but agree with Travenol that its modifications of this
position remove its discriminatory character.%
The plaintiffs presented statistics that more females leave
the bottle stack position than men. The plaintiffs also presented
testimony of two females who were loath to accept bottle stack
positions because they require much more physical effort than
other material handler positions. While this evidence indicates
that bottle stacking is still undesirable, we have no warrant for
overturning the magistrate
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.