# Appendix — American Cast Iron Pipe Co. v. Pettway > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0175%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1247 ## Text 82-1074 Office -Sunreme Court, U.S. ViLei IN THE DEC 23 1982 SUPREME COURT OF THE UNITED STATES, °° October Term, 1982 ~ RS nesses AMERICAN CAST IRON PIPE COMPANY, Petitioner, vs. RUSH PETTWAY, et al., Respondents APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT J. FrReperic INGRAM 1600 Bank for Savings Building Birmingham, Alabama 35203 (205) 251-3000 Counsel of Record for Petitioner, American Cast Iron Pipe Company D. Frank Davis JoserpH W. LETZER F. A. Flowers, III 1600 Bank for Savings Building Birmingham, Alabama 35203 (205) 251-3000 Attorneys for Petitioner, American Cast Iron Pipe Company OF COUNSEL: THOMAS, TALIAFERRO, FORMAN, BURR & MURRAY 1600 Bank for Savings Building Birmingham, Alabama 35203 (205) 251-3000 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1982 SG vanieidareadeandioncs AMERICAN CAST IRON PIPE COMPANY, Petitioner, vs. RUSH PETTWAY, et al., Respondents PETITION FOR A WRIT OF CERTIORARI APPENDIX TO TO THE UNITED STATES COURT OF APPEALS Appendix Appendix Appendix Appendix Appendix Appendix FOR THE ELEVENTH CIRCUIT TABLE OF CONTENTS A — Opinion of U.S. Court of Appeals, 5th Cir., dated April 29, 1974 (“Pettway III’) B — Opinion of U.S. Court of Appeals, 5th Cir., dated July 24, 1978 (“Pettway IV") . C — Order of Referral to Special Master, dated July 20, 1981 D — Order of U.S. Court of Appeals, 5th Cir., dated August 19, 1981 ___... F. — Opinion of U.S. Court of Appeals, 11th Cir., dated July 15, 1982 F — Order of U.S. Court of Appeals, 11th Cir., dated September 27, 1982 Page A-l A-93 A-208 _A-209 A-211 A-229 APPENDIX A Opinion of U.S. Court of Appeals, Sth Cir., dated April 29, 1974 (“Pettway IIT”) Ael Rush PETTWAY et al., etc., Plaintiffs-Appellants, v. AMERICAN CAST IRON PIPE COMPANY, Defendant-Appellee, United States Equal Employment Opportunity Commission, Intervenor. No. 73-1163. United States Court of Appeals, Fifth Circuit. April 29, 1974. Rehearing and Rehearing En Banc Denied May 22, 1974. Black employees of a manufacturer of cast iron and ductile iron pipe and fittings brought a class civil rights action for equitable relief and damages, including back pay, for various allegedly discriminatory employment practices. The United States District Court for the Northern District of Alabama, at Birmingham, Seybourne H. Lynne, J., ordered and approved a plan for desegregating a governing board of the employer, 332 F.Supp. 811, but, in a separate opinion, denied all other requested relief except attorney fees and costs, and the em- ployees appealed. The Court of Appeals, Tuttle, Circuit Judge, held inter alia, that testing and educational requirements which had been imposed by the employer in the past for hiring, pro- motion and transfer and entry into the employer's apprentice and on-the-job training programs had been discriminatory as having an adverse effect upon the employment opportunities of blacks; that the consequences of such past discrimination were currently being carried forward by otherwise neutral prac- tices of departmental seniority and bidding and posting pro- cedures which determined promotion, age requirements for entry into the company’s apprentice programs and departmen- tal bidding utilized for selection of on-the-job trainees; and that both injunctive relief and the award of back pay were therefore justified. A-2 Reversed and remanded for further proceedings. Bell, Circuit Judge, concurred specially and filed opinion. Before TUTTLE, BELL and GOLDBERG, Circuit Judges. TUTTLE, Circuit Judge: This complex, class action employment discrimination suit was filed on May 13, 1966 under the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., and 42 U.S.C.A. § 1981. The racial discrimination charges are derived from complaints filed on November 22, 1965 with the Equal Employment Opportunity Commission. Introduction Although the path of this law suit is strewn with the corpses of intermediate decisions,’ the posture of the present cases on appeal will hopefully allow final resolution. In order to accom- plish this the opinion must unfortunately be long and complex. On July 22, 1969 plaintiffs requested a restraining order to prevent the defendant from vacating the offices of several black employees on the Auxiliary Board, a company governing board composed of black employees, and a declaratory judgment that segregation of black and white employees on two governing boards is in violation of Title VII, 42 U.S.C.A. § 2000e et seq. The district court agreed with the plaintiffs and directed the defendant to prepare a plan to eliminate the racial restrictions on the Board of Operatives, the Board of white employees, and to disestablish the separate black Auxiliary Board. The court adopted the defendant's reorganization plan, overruling the ob- 1In addition to the suits under discussion, the following actions have evolved. The district court dismissed the initial complaint on March 10, 1967 because the EEOC had failed to attempt conciliation prior to the filing of the case with the district court. On appeal with several other actions, we reversed. Dent v. St. Louis-San Francisco Railway Co., 406 F.2d $99 (5th Cir. 1969). During the pendency of appeal, the defendant dis- charged one of the named plaintiffs. After the district court denied relief to this plaintiff, we reversed, directing the district court to order that this plaintiff be reinstated, back pay be awarded, and any necessary protective orders be issued. Pettway and Wrenn v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969). A:3 jections filed by the plaintiffs. 332 F.Supp. 811 (N.D. Ala. 1970). When the emplovee discrimination charges were tried in October, 1971, the district court held that the testing conducted by the company did not pass muster under Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and had an adverse impact on the employment oppor- tunities of black employees. The district court, nevertheless. then denied all requested relief, except for an award of attor- ney's fees and costs. The plaintiffs-appellants appeal from these two decisions on the following grounds: (1) refusal to enjoin the company from requiring improper test and educational requirements, (2) fail- ure to require restructuring of the departmental seniority sys. tem and the posting and bidding procedure for job vacancies based on the departmental seniority system, (3) failure to or- der red circling and advance entry for discriminatees,? (4) re- fusal to require changes in the apprenticeship and on-the-job training in the crafts programs, (5) refusal to remedy unlaw- ful exclusion of blacks from supervisory positions, (6) granting inadequate relief in desegregating the company’s employees management board, and (7) failure to award back pay. Defendant-appellee, American Cast Iron Pipe Co., incorpo- rated under the laws of the State of Georgia with its principle place of business in Birmingham, Alabama, is engaged in the production of cast iron and ductile ironpipe and fittings and various other miscellaneous cast iron and steel products. As of August 12, 1971, the company emploved 2,551 persons of whom 927 were black.* Plaintiffs-appellants have brought this action on their own 2The terms “red circling” and “advance entry” will be defined in the discussion infra. *The company employed 1,792 persons in 1965, approximately equally divided between blacks and whites. The total employment for the com- pany enjoyed continual increase up to 1970. The number of blacks em- ployed, however, decreased until 1969 and in August, 1971 only slightly exceeded the 1965 level, while the number of white employees had almost doubled. \4 behalf and on the behalf of other persons similarly situated pursuant to Federal Rules of Civil Procedure 28 (b) (2) 4 The class of persons represented by plaintitfs-appellants are “those negro employees of defendant emploved as of May 13, 1966 and negro persons who have been emploved subsequent to May 13, 1466 who have been, continued to he. or in the future will be denied equal employment opportunities by defendant on the ground of race or color.’ As discussed supra, appellants are requesting extensive relief from the present impact of past intentional discrimination and illegal testing and educational requirements utilized by the company-defendant from December. 1964 until March 25, 1971, relief from certain present discriminatory practices, and relief from the inadequate remedy granted by the district court de- segregating the employee management boards. The district court demied their requests. We reverse in part, affirm in part, and remand.® I. COMPANY ORGANIZATION AND EMPLOYMENT PRACTICES A. Company Organization 1. Departments. The company’s operations are organized into various departments. There are five primary production departments, each having separate and distinct functions from the other. They consist of: (1) the mono-cast department con- taining three pipe shops for the production of cast iron and ductile iron pipe; (2) the fittings foundry which produces be- tween 35,000 to 40,000 different accessories to complement the ‘In their original complaint. plaintiffs had filed their class action pur- suant to Rule 23(b) (3). Under an order of the district court requiring that the class alleged be defined clearly and particularly, the plainuffs amended their complaint to allege a Rule 23(b) (2) class action and presented a list of names of the members of the class, to the best of their knowledge, to the district court. 5From this statement from plaintiffs’ amended complaint defining the class represented, it is clear that we are not concerned with discriminatory hiring procedures and their remedy. *Our holdings and the relief directed are granted both under Title VII and section 1981 unless otherwise stated. A5 pipe produced in the pipe shops; (3) the steel foundry which produces steel tubes and castings of various alloys and shapes: (4) the melting department which melts all of the hot metal required by the mono-cast department, the fittings foundry, and the steel foundry; (5) the steel pipe foundry which pro- duces steel pipe from steel skelp. In addition, there is a ma- chine shop which performs all the labor required on items pro- duced in the steel foundry, the fittings foundry, and the mono- cast department, as well as replacement maintenance on all machinery. Four of these departments—all except the steel pipe foundry and the machine shop—have emploved the majority of black employees within the company between 196% and 1971. The company also has service departments consisting of the general yards department, central stores, the shipping depart- ment, electrical department, maintenance department, inspec- tion department, and the construction department. These de- partments perform services in the receipt of raw materials, the shipment of finished products, and various maintenance func. tions in the company’s operations. Of these departments, the general yards, shipping, and construction departments have had substantial numbers of black emplovees.”. The machine, electri. cal, maintenance, and inspection departments consist principal: ly of the higher skilled jobs and craft positions with a small turnover in personnel. Fewer blacks have been employed in these departments.® 2. Wage progression and advancement. The method of ad- vancement within these departments is a wage progression schedule, a ladder cf pay groups, embracing one or more jobs. The company alleges that these are job-to-job sequences with functional relationship. The appellants argue that the com- pany admitted that no formal, functional lines of job progres. sions have ever been maintained, Until 196% the company maintained twenty-three pay groups, but on February 19, 1968, the structure was consolidated into fifteen pay groups: (a) groups .-8 include the unskilled and semi-skilled functions; "See chart B infra. "See chart B infra. A-6 (b) groups 9 and 10 contain the more sembskilled positions, (©) group I) is the skilled non-craft, technical and clerical po- sitions; (d) groups 12 and 13 are the skilled craft and tec hnical jobs; (e) group 14 includes the secondary supervisory, and group 15, the primary supervisory positions (leadmen and fore men). The district court found that “the overwhelming ma jority of the black emplovees historically were and continue to be employed in the pay groups 1-8 jobs in the various depart. ments and particularly in the mono-cast 1, 2, and %, and foun. dry.” (Emphasis added) .* lh. EF m ploy ment Practtoes 1. Intentional discrimination, Untl 1961) the company formally maintained exclusively black jobs and exclusively white jobs? Departments were not totally segregated, but there were predominantly black and predominantly white de- partments. When Presidential Fxecutive Order No, 10925 made such a policy unlawful in 1961, the company terminated this practice. The resulting employment segregated profile, however, was preserved until 1963 by economic conditions re- quiring lay-offs and subsequent rehiring of laid-off workers. The process of lay-off and rehiring meant that any movement of black employees into traditional white jobs would come to Plaintiffs’ exhibit 6, “total number of employees by race within each pay group as of August 15, 1971" (two months before trial), indicates pay group stratification along racial lines. Over 95°) of the company's black employees work in pay groups 1-8 jobs, while only $0%, of white employees hold these positions. See chart C infra. Discrimination prior to the effective date of Title VII, July 2, 1965, can be considered under two theories. Since the appellant's allegations are also made under 42 US.C.A. § 1981, employment practices prior to 1965 may be examined. Secondly, this court specificaily explained in United States v. Jacksonville Terminal, 451 F.2d 418, 441 (5th Cir, 1971), cert. denied, 1406 U.S, 906, 92 8. Cr. 1607, $1 L.Ed.2d 815 (1972), and affirmed in Burns ¥. Thiokol Chemical Corp., 483 F.2d $00 (5th Cir, 1973), that preact discriminatory conduct is highly relevant, especially, when considering neutral practices under Tithe VII alleged to carry forward past discriminatory effects. See United States v, Dillon Supply Co, 429 F.2d 800 (4th Cir, 1970) AZ an end. As lay-offs occurred, the emplovees with the least de- partmental seniority, ¢. g. the newly hired, promoted, or trans: ferred black employees, would be either (1) furloughed, if newly hired, or (2) dropped back into the department from which they transferred, as they retained former departmental seniority in that department for lay-off purposes.’ As produc: tion increased in 1964, and re-employment of blacks might normally be expected to increase, the company instituted its illegal testing and educational requirements. As of 1963 black emplovees constituted about half the work force of the com. pany, but only three blacks earned more than any white pro- duction workers, and few if any jobs had racially mixed staffing. 2. Hiring. Sometime prior to 1960, the company had insti- tuted a hiring requirement of a high school education or its equivalent for all white applicants. By 1960 white applicants were also required to pass a screening test battery and a physi- cal examination. Black applicants employed prior to 1964 were only required to pass the physical examination. In 1964, after a compliance review under Order No. 10925 by the Department of Army and Office of Federal Contract Compliance, the com- pany was informed that to be eligible for federal contracts it could no longer maintain different standards for hiring black and white applicants. The company at that time extended the testing and education criteria to black applicants. These stan- dards for /aring remained in effect until 1971. However, the company eliminated test requirements as well as the criterion of a high school education or its equivalent for hiring into pay groups 1-4 on July 14, 1969"? The failure of blacks successfully to hurdle these qualifying barners had resulted, between 1965 and 1964, in the decrease in the number of black employees in ''We note that in Rowe v. G. M. C., 457 F.2d 348, $57.958 (5th Cir 1972), this court rejected this as an ameliorating variable justifying a seniority system which, during the “ebb and flow” of lay-offs and rehiring. required black employees to once again “go to the foot of the line.” The company thought it would be in a better position, as a participant in the national program, to employ persons among the hard core un- employed. A-8 the plant from 869 to 791, while the number of white em- ployees increased from 923 to 2,162." 4. Promotion and transfer, In December, 1964, the company initiated a testing requirement for promotion within or be- tween any pay groups and for transfer between departments."* Achievement levels (test cutoff scores) were established using the California Survey of Mental Maturity Tests. To be eligible for position in a particular pay group, an employee had to ob- tain a test score corresponding to the specified achievement level. The company determined that the tests’ recommended national norms were too high for the company's purposes. Therefore, the company in an effort to establish its own stan- dards of norm selected 100 average performers from its em- ployees to take the test. This was used to determine what achievement levels to assign to various jobs within the com- pany's pay grades. Ninety-eight of the 100 selected employees took the test. Seventy-five were black: and twenty-three were white. This testing program for promotion was reviewed by Dr. Brimm of the Department of Army and Office of Federal Contracts Compliance and praised as one of the best systems in the companies he had visited on compliance reviews. On February 19, 1968, the company eliminated the testing criterion for promotion within the first eight pay grades.’® In addition to employee complaints concerning these testing re- quirements, the company determined that ability of employees to perform functions in these pay grades could be established by on-the-job observation without detriment to the company. Requisite achievement levels for hiring and for promotion or transfer within or without a department to positions in pay 'SThe black/white ratio went from just under 50/50 to about 25/75. “The testing program for promotion was carefully explained to all employees. It was solely voluntary. And employees were allowed to retake the test every twelve months to attempt to improve their achievement level. In addition to the testing, departmental seniority was a factor in determining promotion. ‘The company, however, continued to require testing for new hirees in pay groups 1-8 until July 14, 1969, as well as the requirement of the high school educational or its equivalent. AY groups %15 were retained, however. The company eliminated all testing in March, 1971. Currently, the company simply tries the person, selected under the bidding procedure on the basis of departmental seniority or plant seniority and ability, on the job and evaluates his performance in determining the promo- tion. 4. Testing and educational requirements, A testing prereq- uisite was required for hiring, promotion and transfer, and entry into the apprentice and on-the-job training programs. A high school education or its equivalent was a criterion, as well, for being hired or entry into the apprentice program. Concerning the testing conducted by the company, the dis- trict court concluded: The history of the testing, as they existed and were admin- istered by defendant from July 2, 1965,'® to March 25, 1971, recorded in the findings of fact, supra, is convincing that they were not discriminatorily applied to defendant black employees. Thetr adverse impact on the employ- ment opportunities of blacks is equally clear. Judged by the standard established by Griggs v. Duke Power Com- pany, 401 U.S, 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), they could not pass muster. (Emphasis added) .” The Supreme Court in facing a high school education and testing requirement in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), stated: ... The Act [Title VII} proscribes not only overt discrimi- nation but also practices that are fair in form, but dis- criminatory in operation. The touchstone is business ne- cessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job per- formance, the practice is prohibited. '®We note that although the district court specifies July 2, 1965, it also stated that the testing for promotion purposes began in December, 1964. Discriminatory employment practices prior to the effective date of Title VI, July 2, 1965, are relevant in determining allegedly present effect from past discrimination. See note 10, supra at 7. ‘It is unclerr whether the district court meant both the testing and educational requirements or just the testing. The EEOC guidelines define testing to include an educational requirement. 29 C.F.R. § 1607.2. A-10 On the record before us, neither the high school com- pletion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaning: ful study of their relationship to job-performance ability. . [Bjut good intent or absence of discriminatory in- tent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds’ for mi- nority groups and are unrelated to measuring job capabil- ity. The Company's lack of discriminatory intent is sug- gested by special efforts to help the undereducated em- ployees through Company financing of two-thirds the cost of tuition for high school training. But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation, More than that, Con- gress has placed on the employer the burden of showing that any given requirement must have a manifest relation- ship to the employment in question, 401 U.S. at 431-432. The appellees do not challenge the district. court's con- clusions under Griggs concerning their testing. We affirm and will discuss more fully the grounds supporting the court's de- cision. The testimony both by appellants’ witnesses and the company's witnesses indicated that the testing and educational requirements had resulted in fewer black employees being em- ployed between 1965 and 1969 and fewer black employees be- ing promoted between 1965 and 1971. The statistics from these periods depict the same prima facie pattern, and support the district court's conclusion of adverse effect."* This dispropor: tionate impact on black applicants and employees shifts the burden of demonstrating job-relatedness to the company under Griggs. The company made no attempt to validate any of the num- We discuss extensively the testimony and the statistics infra. Charts A, B, C, D, and E, infra should be examined. All ber of tests utilized,'® except the California Test of Mental Maturity. The trial court found this showing inadequate under Griggs. We concur, In United States v. Georgia Power Co., 474 F.2d 906° (Sth Cir, 19735), this Court passed specifically on the proper valida- tion procedure for employment tests. Although recognizing that ‘a test is not valid or invalid per se, but must be evaluated in the setting in which it is used" (/d. at 912), we note that the company has at no time attempted to validate its tests un- der the FEOC guidelines, 29 C.F.R, 1607, CCH Employment Practices © 4010, which we found mandatory in Georgia Power.” The company’s efforts to establish achievement levels which have a relationship to job performance are less accept: able than the procedure held inadequate in Georgia Power?! Td, at 912-918. Although it is unclear whether the district court ruled on the high school education standard for /iring purposes? we ‘For promotion and transfer purposes, beginning in 1964, the district court found that the company utilized the California Test of Mental Maturity. The record indicates that this test or a shortened excerpt from it was also used as one of the primary determinants for hiring and entry into the apprentice and on-the-job training programs, An aptitude test was additionally required for a craft rate (pay groups 12 and 13) or equivalent job, ¢. g. apprentice and on-the-job training programs. 20This Court stated: “This requirement to treat the guidelines as expressing Congressional intent obviously was intended as an answer to the question at issue in Griges—When can tests, which are shown to have discriminatory results, be used? .. . Nevertheless, these guidelines undeniably provide a valid framework for determining whether a validation study manifests that a particular test predicts reasonable job suitability. Their guidance value is such that we hold they should be followed absent a showing that some cogent reason exists for noncompliance.” 474 F.2d at 913. 21We recognize that the validation procedure of the California Test of Mental Maturity set forth at trial by the company was conducted in 1964, before the Griggs or the Georgia Power decisions. However, the company asserted at trial that this procedure and the approval of Dr. Brimm of the Office of Federal Contract Compliance satisfied the legal standard for employment testing. Since Griggs and Georgia Power are the legal standards, we cannot agree that they have been met. 22Since the high school education, or its equivalent, criterion for entry into the apprentice program is an open issue on this appeal, we will post- pone analysis until 11(B) (1) and III(A). A-12 think that this educational requirement cannot “pass muster” under Griggs, either. Johnson v. Goodyear Tire & Rubber Co., 5 Cir. 491 F.2d 1364 [No. 73-1712 March 27, 1974]; United States v. Georgia Power Company, 474 F.2d at 918-919; United Staies v. Consolidated Copper Co., 6 EPD © 8918 (D. Ariz. 1973). Given the adverse effect, the company had the burden of showing job relatedness. As we stated in Georgia Power: There [in Griggs], the court explicitly held that the use of a high school requirement which has a disproportionate racial impact and has not been proven to be a predictor of ultimate job success controverts the congressional mandate of Title VII.4 As with Georgia Power's testing program, supra, the issue here is whether or not the company has made a sufficient showing to manifest a relationship be- tween its educational requirement and its job characteris- tics. 474 F.2d at 918." The company offered no evidence to satisfy this burden. Lastly, we wish to point out here, as was true also in Georgia Power a large percentage of the current employees (August 12, 1971), 56°, of the black employees and 12% of the white employees, are enjoying job success without a high school di- ploma.” See Griggs v. Duke Power Co., 401 U.S. at 431-432. 23The Supreme Court in Griggs stated: “History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accom- plishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the commonsense proposition that they are not to become masters of reality.” 401 U.S. at 433. 24In note 14, the Court pointed out that such an educational require- ment, also, ran afoul of the Equal Employment Opportunity Commission's guidelines. The EEOC defines “testing” to include an educational criterion and requires similar validation. 29 C.F.R. §§ 1607.2, 1607.4. 25474 F.2d at 918-919. 26For example, there are seventy-five white employees who without completion of a high school education make over $4.00 an hour. As chart E infra, indicates, $4.00 an hour is well above the average pay rate in most departments. A-13 The company ended its formal policy of segregation of black and white jobs in 1961, although its immediate effect lingered until 1963. The improper testing for hiring, promotion and transfer, and admittance into the apprentice and on-the-job training programs, as well as the educational criterion for hiring were terminated on March 31, 1971. We have affirmed the district court's holding that the testing. and ourselves have found that the educational criterion, fail under the standards of Griggs. We agree with the district court that these discrimi- natory practices had an “adverse impact on the employment opportunities of blacks.” The issues are now threefold: (1) Did the district court err in denying an injunction against the future imposition of testing and educational standards? (2) If there is present effect in the company’s neutral employ- ment practices as a result of the past discrimination, what re- lief is required? and (3) Are there continuing, present dis- criminatory practices? II. PRESENT ADVERSE EFFECT AND PRESENT DISCRIMINATION Appellants assert that the consequence of the past intentional exclusion and of the illegal testing and educational standards is currently carried forward by: (1) the neutral practices of the departmental seniority and the bidding and posting procedure which determine promotion; (2) the age requirement for entry into the apprentice program, which black employees who were denied this opportunity in the past cannot now meet; and (3) the departmental bidding utilized for the selection of on- the-jcs trainees. In addition, the continued educational pre- requisite for entry into the apprentice program and the purely subjective criteria to be applied by all-white department super- intendents for selection of supervisory personnel are challenged as present discriminatory practices. \-l4 \. Promotion=—The Seniority System and Posting and Bidding Procedure 1. Effect of present neutral practices. Beginning January 1, 1971, the company instituted a policy of posting vacancies above pas group 3 and adopted a bidding procedure for filling these vacancies.” The job vacancies are first posted for bidding for three days within the department. Basic qualifications, 1.e. ability, and departmental seniority control the selection from the bidders. If no qualified employee within the department bids, then the company posts the vacancy plant-wide. A trans- ferring employee retains his former seniority for purposes of returning to his former department in case of lay-off within the new department. But he does not carry over any of his accumulated seniority for purposes of departmental promotion — a basic unit or job seniority type.2* See Note, Title VII, Seniority Discrimination, and the Incumbent Negro, 80 Harv. L. Rev. 1260, 1263-66 (1967) . Because of the company’s wage progression structure, a trans- ferring emplovee may move from a higher to a lower paying position.?® In fact, an employee who has progressed substan- tially within pay groups in one department and then transfers to a different department to enhance his chances for eventual advancement. higher pay, or better working conditions will usually be required to endure a loss of seniority and a wage cut as a condition of transfer. 27Before 1971 the company did not have a systematic written procedure for filing vacancies. Promotions within a department went to the senior department employee in the pay group at the immediately lower level. Departmental superintendents, who were all white, determined which employee got the promotion. Evidently, the company discouraged transfers between different departments. Promotions within a department and transfers to pay group 9 or above, of course, were still subject to the testing standards until March 25, 1971. 2*T he district court stated that a tranferring employee is given one year's credit for wage progression purposes, and, also, permitted credit for any (raining or past experience for a job within the higher pay group which he has now obtained. 29See note $0, infra at 223. Ald \ppellants assert that invidious discrimination prior to 1963, and the illegal testing and educational requirements from 1964 through 1971, have resulted in racial stratification between de- partments and jobs within departments (and consequently in salary). This stratification is a manifestation of these past prac: tices which have (1) excluded the majority of black workers from positions in predominantly white departments thereby absolutely preventing their obtaining of seniority there; and (2) if not excluded, deferred initial entry into these depart: ments, thereby curtailing the seniority of black employees in these departments and hampering their promotion to higher paying positions, Therefore, appellants’ argument is that this stratification of black employees into the lower paying depart. ments and jobs, caused by past discriminatory practices, is presently effectuated through the departmental seniority system and bidding and posting procedure. The departmental seniority system has this locking-in effect because the black transferee would have to forfeit seniority and pay rate” in order to transfer and because the black transferee to a predominantly white department would be unable to com- pete equally for promotion based on departmental seniority with a white employee, in the department at the time of the transfer, of equal or less plant seniority. Black employees with- in predominantly white departments, who were unable to gain entry into the department prior to 1971, because of their race, as swiftly as white workers, would also be harmed in greater proportion by lay-offs or reductions in force." For purposes of wage rate progression only, a transferee is allowed one year's credit. For promotion, lay-offs, or reductions in force, a trans feree is treated within the department as a “new man.” The retention of one year's credit for pay group purposes does not reduce substantially the deterrence to transfer of this class of black em- plovees because their employment with the company extends over a long period of time. For example, a list of 623 class members was submitted to the district court in 1969. Even then, four years ago, these employees had substantial plant-wide seniority, Further, every employee has to serve a six month probation period before being eligible for a promotion. "The court in United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971), aptly described these hurts: A-16 Under the bidding and posting procedure, only if no quali- fied employee within a department bids after three davs is a vacancy posted plant-wide. This process continues to freeze in the stratification in two ways. First, those black employees pre- viously excluded from the higher paying departments because of their race will be denied these promotion opportunities in favor of those white employees in the department, Secondly, those black workers, who, although deterred because of their race, have obtained a foothold in a predominantly white de- partment cannot compete equally on the basis of departmental seniority with white employees, who were able to gain entrance to the department earlier. Therefore, conclude appellants, the departmental seniority system deters black employees from transferring because of the inhibitors of losing seniority and pay grade while the bidding and posting procedure most often prevents even the considera. tion of the majority of black workers for a position within a predominantly white department. And both practices operate to handicap black employees in intra-departmental promotion “In order to transfer to a formerly ‘white’ department these employees were required to suffer an economic penalty, forfeiture of seniority rights and pay levels earned in the ‘black’ department. The former was due to the use of departmental seniority, the latter to the fact that the transferee'’s new job was at a low paid entry level in the new depart: ment. Thus, to obtain an opportunity that had been denied them be- cause of race, these employees had to be willing to give up what was already theirs because of service in the plant. Second, a transferee to a ‘white’ department would never be able to reach the level of a white employee already there. For example, if a black and a white employee had been hired at the same time and the latter had been assigned to the more desirable ‘white’ department, but the black had not been so assigned, the white started to accumulate department or unit seniority in that department but the black did not. Even if the black was given the chance years later to transfer into the ‘white’ department, the earlier discriminatory job assignment had denied him the chance to earn seniority up to that time in the ‘white’ department. Therefore, the use of departmental or unit seniority for purposes of promotion in the formerly ‘white’ department continued the effect of the earlier dis- criminatory practice.” /d. at 658. See United States v. N. L. Industries, Inc., 479 F.2d $54, $58-366 (8th Cir. 1973); United States v. Jacksonville Terminal Co., supra, 451 F.2d at 453. Al7 for the higher paving, skilled jobs.? We agree with appellants that if past discriminatory employment practices have resulted in racial stratification in pay, jobs, and departments, the present effect is to lock in, as discussed above, black employees.® 2. Effect of past discriminatory practices. The next step is to determine whether there was racial segregation along pay, job, and department lines. While there was substantial viva voce evidence on the issue of the impact of past discriminatory practices, the appellants primarily relied on statistical evidence. Introducing black white comparative employment statistics from 1963, 1965, 1969, and 1971, dealing with salary, jobs, and departments, the appellants demonstrated a pattern of racial stratification between departments and within departments by the derogation of black employees into the lower paying, non- skilled pay groups. This statistical pattern considered in light of the past intentional] discrimination and the illegal testing re- quirement, coupled with the hurdles to black employees pre- sented by the departmental seniority system and the handicaps under the bidding procedure, present a prima facie case of pres- ent effect of past discrimination in the company’s promotion and transfer process.* Cf, McDonnell Douglas Corp. v. Green, 324 unit seniority system, by its nature, allows the most advantages to employees with the greatest unit seniority, See Cooper and Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1603 (1969) . MJohnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 1364; Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir, 1978); Head v. Timken Roller Bearing Co., 486 F.2d 870, 875-876, n. 7 (6th Cir. 1978); United States v. N. L. Industries, Inc., supra, 479 F.2d at $58-366; United States v. Georgia Power Co., supra, 474 F.2d 906, 926-927; United States v. Jacksonville Terminal Co., supra, 451 F.2d 418; Long v. Georgia Kraft Co., 450 F.2d 557 (5th Cir. 1971); Robinson v. Lorillard Corp., 444 F.2d 791, 795-800 (4th Cir. 1971), cert. dismissed, 404 U.S, 1006, 92 S.Ct. 573, $0 L.Ed. 2d 655 (1971); Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 (5th Cir, 1969); Stamps v. Detroit Edison Co., 365 F.Supp. 87 (E.D.Mich.1973); United States v. Virginia Electric and Power Company, $27 F.Supp. 1084 (E£.D.Va.1971); Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.Va.1968) “Statistical evidence in Title VII cases has often been given critical weight in this Circuit, Johnson v. Goodyear Tire & Rubber Co., supra, A-l8 111 U.S. 792, 800-807, 93 S.Ct. 1817, 36 L.Fd.2d 668 (1973). In relying on this method of statistical proof, we first examine the total black white employment figures for the years 1963, 19] F.2d at 1871-1873; Ochoa v. Monsanto Co., $35 F.Supp 58 (S.D.Tex. 1971), aff'd per curiam, 473 F.2d $18, 319 (5th Cir, 1973) (“Accord statistical evidence great and oft-times decisive weight’); Rowe v. General Motors Corporation, supra, 457 F.2d at 356-358 (statistics have “critical, if not decisive, significance—certainly at least in putting on the employer" the burden of justifying the disparity); United States v. Hayes Inter: national Corp., 456 F.2d 112, 120 (5th Cir. 1972) (‘these lopsided ratios are not conclusive proof of past or present discriminatory hiring practices; however, they do present a prima facie case.) , United States v. Jackson: ville Terminal Co., supra, 451 F.2d at 424-486, 441-442 (5th Cir, 1971) (‘although the statistics do not establish a prima facie case of discrimi: nation, .. . absent explanatory evidence in testimony, the statistics indi. cated that officials have impliedly equated job qualifications with race.’) ; United States v. Hayes International Corp., 415 F.2d 1088, 1048 (5th Cir. 1969, (‘the employment statistics discussed, supra, . . . amply demon- strated a preliminary showing that the company’s hiring practice violated Title VIE"). Other circuits agree, Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1877, 1882 (4th Cir, 1972), cert. denied, 409 U.S. 82, 93 8.Ct. $19, $4 L.Ed.2d 246 (1972); Carter v. Gallagher, 452 F.2d $15 (8th Cir, 1971), cert. denied, 406 U.S, 950, 92 $.Ct, 2045, $2 L.Ed.2d $98 (1972); United States v. Ironworkers Local 86, 448 F.2d 544, 550 (9th Cir), cert. denied, 404 U.S. 984, 92 S.Ct. 447, $0 L.Ed.2d $67 (1971) ; United States v. National Lead Co,, 438 F.2d 985 (8th Cir, 1971); Parham \. Southwestern Bell Telephone Co, 198 F.2d t2h, 426 (8th Cir, 1970); Jones v. Lee Way Motor Freight, Inc., 491 F.2d 245, 247 (10th Cir, 1970), cert. denied, 401 U.S, 954, 91 §.Ct, 972, 28 L.Ed.2d 287 (1971). But see, Heard v. Mueller Co., 464 F.2d 190 (6 Cir, 1972); Russell v. American Tobacco Co., $74 F.Supp. 286, 5 EPD © 8447 (M.D.N.C.1973). See gener ally, Fiss. A Theory of Fair Employment Laws, $8 U.Chi.L.Rev, 235, 268-81 (1971). The courts have most often utilized this empirical proof in discrimina: tory hiring situations. The courts have based a finding of adverse impact on data showing the percentages of blacks and whites hired as compared to the percentages of each in the available population. The statistical disparity is held to create a prima facie showing of discriminatory impact and thus invokes a requirement that the job relatedness of the overall selection process be established. FE. g., United States v. Hayes International Corp., supra, 456 F.2d at 120; United States v. Ironworkers Local 86, supra. Some courts have gone a statistical step further. The Eighth Circuit in Parham, supra, ruled that a gross disparity between the number of minority workers in an employer's work force (less than 2%), and the number in the overall population (21% of the state population) can prove discrimination “per se.” See Rios v. Enterprise Association Steamfitters, Local 638, $26 F.Supp. 198 (S.D.N.Y.1971). A-19 1965 through 1971. Between 1965 and 1969, the period when the testing and educational requirements were prerequisites for all pay groups, the number of black workers decreased from approximately one-half to one-third of the company's work force, correspondingly the number of white employees in- creased. The company admitted and the district court® found that this decrease resulted from the impact of the testing and Chart A: Employment Totals by Race YEAR BLACK WHITE 1963 878 797 1965 869 923 1966 B45 1606 1967 820 1766 1968 798 1878 1969 781 2162 1970 112) 2115 1971 927 1624 educational requirements.” It was not until 1969-70, when the company dropped its testing and educational requirements for jobs in the 1-8 pay groups, that the percentage of black em- ployees for the company began to increase. By 1970, 1971 the company’s work force again was approximately 50° black. Testimony by company officials and a finding by the district court establish what the empirical proof clearly reveals, a sub- stantial disparity in the number of blacks hired between 1964 and 1969 when testing and educational standards were required for all pay grades. Since the same test, California Test of Men- The district court stated: “During the 1964-69 period, when all applicants were subject to the educational and testing standards, more whites than blacks were em- ployed because a greater percentage of black applicants were unable to meet these requirements.” %*There was no allegation that this resulted from fewer black applicants. We take judicial notice of the substantial black population of Jefferson County, Alabama and Birmingham, Alabama from whence the company draws most of its work force. A-20 tal Maturity, was employed both in the determination for hir- ing and for promotion, its adverse impact on black applicants is highly relevant in weighing its adverse impact on the promo- tional opportunities of black employees. Hiring statistics indicate that black applicants fared substan- tially worse than white applicants on the testing. So too the actual achievement of black workers on the mental maturity test reveal lower scoring than white employees of the company as of September, 1971. For example, in the five departments” Chart B: Employees By Department And Race 1/1/63 1/27/65 919 69 8/15/71 Department B OW B OW a, B OW Mono-Cast $59 104 $11 138 $43 338 $69 310 Fittings Foundry 234 185 242 234 222 344 245 296 Melting 60 26 67 70 74 «107 77 =108 Maintenance 9 67 9 74 6 87 9 90 Technical Division 6 25 6 51 6 60 - = Bolt Department $021 2418 2738 29 «(37 Shipping Department $5 21 40 #19 22. = «8 30.034 General Yards 156 12 1418 7? 19 20 Construction 20 25 19 33 26 42 27 3=«56 Steel Foundry $5 28 $4 65 $2 58 36S 5 Plant Protection 0 13 a. 1 15 = _ Engineering 0 2 0 3 0 2 0 2 Finance Division 4 16 4 6 3 5 3 4 Personnel 19 2 20 2 19 7 18 28 Storage 0 5 0 6 1 17 3: 62 Medical 5 0 Research 2 6 Lab 4 q Shopping Center 2 4 | 3 0 1 - - Machine Shop $9 201 - - $8 318 49 379 Electrical 1 41 1 47 1 54 4 73 Inspection 1 34 Steel Pipe 2 4! 1 69 1 $5 Production Control 0 8 0 2 Purchasing 37These departments were mono-cast ($70 black, 314 white), foundry (245 black, 304 white), melting (77 black, 112 white), machine shop (50 black, $80 white), steel foundry (36 black, 55 white) . A-2] Chart C: Employees By Race Within Each Pay Group as of August 15, 1971 %, of % of Pay No. of ”%, of Total No. of ™, of Total Group Blacks Blacks In Plant Whites Whites In Plant l 54 (3.68) (1.35) 134 (8.42) (5.33) 2 $6 (3.89) (1.43) 22 (1.37) (875) 5 $36 (36.31) (13.36) 185 = (11.64) (7.36) 4 122 = (138.19) (4.85) 44 (2.76) (1.75) 5 B4 (9.09) (3.34) 26 (1.63) (1.08) 6 125 = (13.51) (4.96) 55 ($.46) (2.19) 7 110s (11.89) (4.57) 55 (3.46) (2.19) 8 $5 (3.79) (1.39) 52 (3.27) (2.07) 9 25 (2.49) (.904) 278 = (17.49) (11.06) 10 2 (.216) (.079) 49 (3.07) (1.95) 1 9 (.971) (.358) 104 (6.67) (4.13) 12 7 (.757) (.278) 436 (28.43) (17.38) 13 0 24 (1.51) (.959) 14 0 60 (3.77) (2.89) 15 0 61 (3.81) (2.42) 16 0 ] (.039) 17 (other) 2 (.216) (.079) 5 (186) TOTAL 925 1,589 ’ containing 80°, of the black workers, the black employees’ scores averaged in the 0-9, 10-19, or 20-29 percentile while white employees scores averaged in either the 40-49 or 50-100 per- cenule in every department. Having observed that black employees performed less well on the tests than white employees, we must make a comparison of the black white employment data by departments and within departments by pay rate to discover if the impact of the illegal testing (scoring lower) was to lock black workers into lower paying, non-skill departments and lower paying jobs in all de- partments. The statistics from 1963 to 1965 indicate almost complete stratification of black employees within the non-craft departments, mono-cast, fittings foundry melting, bolt, ship ping, steel foundry, and general yards, and white employees in the more craft oriented, highly skilled departments, mainte- nance, machine shop, electrical, inspection, and steel pipe. A-22 Within departments, black employees occupied predominantly the 1-8 pay groups and white employees the 9-15 pay groups.” Between 1965 and 1969, the data indicates less black white stratification, but the district court found that this was not due to advancement by black into previously predominant white employee positions. Rather, as the total black white hiring figures indicated, the increased hiring of whites and decrease in the number of blacks led to the placement of whites into the previous lower paying, predominantly black departments and positions. The district court further pointed out that the black employees during this period could not qualify under the testing for transfer or promotion. Between 1969 and 1971, the statistics demonstrate a rise in the number of black employees in the pay givups 1-8. It was in February, 1968 that the testing requirement for positions in these pay ranges was removed; and in March, 1971 testing for all purposes was halted by the company. These statistical showings are corroborated by the testimony of Mr. Phelps, the Employment Manager and Administrator of the tests, who stated:** Q. I said are you familiar with the fact that in taking the tests blacks score less favorably than whites? Yes. In all departments, is that correct? I can't answer that positively. What is your best judgment? . Yes. This historical, statistical summary indicates a discriminatory pattern against black employees — (1) assignment to lower pay- ing non-skill departments and (2) assignment to lower paying jobs within all departments. As of August 15, 1971 the tradi- tional predominantly black departments, monocast, fittings >OrOQ> 38See the district court's findings infra at 227. %Every other company official who testified, the Vice-President and Works Manager and the Superintendents of the Pipe Foundry, Machine Shop, and Steel Foundry, agreed that black employees scored less well than white employees. A-25 foundry, melting, bolt, shipping, steel foundry, and general yards, contained approximately 81°; of the black workers of the company.” The higher paying, traditionally white depart- ments, maintenance, machine shop, electrical, inspection, and steel pipe, contained only 7° of the black employees although 17.6°) of the total white work force was employed in these departments. While the extreme stratification by pay rate along racial lines of 1963" was blurred by the influx of large number of white employees into the traditionally lower paying black positions from 1965 to 1969, there was no sign of movement of blacks into higher paying jobs.” The district court's findings reflect this fact. The district court examined eight key departments to demonstrate that job types were segregated with blacks occu- pying the lower paying positions. The court concluded: The number of all black jobs decreased through 1969 as the number of mixed jobs increased due to the movement of whites into lower paying black jobs. From 1963 through 1969, the number of all white jobs remained approximate- “In 1963 when racial stratification was present because of the formal discriminatory policy of the company prior to 1961, these departments also contained 61% of the company’s black employees. While this can be somewhat explained by the newly hired blacks between 1969 and 1971, this does not explain the absence of blacks from the higher paying depart: ments and higher paying jobs. "In 1963, jobs in all departments were segregated on a racial basis with whites holding only the higher paying jobs and blacks holding only the lower paying jobs. For example, in the mono-cast department, where $59 of 869 black employees work, no black employee earned over $2.65 per hour, while no white employee earned less than $2.65 per hour. In the fittings foundry, only three of the 254 blacks earned above $2.31 per hour while the lowest rate paid to any of the 185 white employees was $2.65 per hour. In the machine shop, every white employee (201 total) earned at least $41 more than the highest of the thirty-nine blacks. The other departments reflected the same pattern. “The comparative earnings charts submitted by appellee to contradict appellants’ empirical assertions that black employees were derogated to the lower pay groups suffers from this variable. The newly hired white employees during this period were placed into the lower paying previously black jobs. Since they received low annual salaries, the greater earnings of white employees than black employees of comparable seniority was masked. Ald ly constant. Promotion of blacks to the higher paying white jobs, for reasons suggested above [testing and educa tional requirements}, was not being accomplished. The chart drawn up by the court reflects that in 1963 not a single type of job in any of the eight key departments was held by both white and black employees; 213 positions were totally segregated. The data from 1969 indicates that there were fifty: Chart D: Segregation By Types Of Jobs a 2 Department Year All B AlW #B/W_~ Total Foundry 1963 38 34 0 72 1965 37 $0 6 73 1969 18 29 21 68 197] 19 24 22 65 Melting 1963 20 18 0 53 1965 1] 16 1] 38 1969 9 17 16 42 197) 6 14 18 $8 Steel Foundry 1963 18 19 0 $7 1965 14 22 4 40 1969 i) 23 1 48 1971 9 20 12 41 Machine Shop 1963 5 19 0 24 1965 - - - ~ 1969 5 1] 4 20 1971 5 26 4 56 Construction 1963 2 9 0 1 1965 $ 1 0 14 1969 6 15 0 21 1971 7 21 0 28 Shipping 1963 6 6 0 12 1965 9 6 0 15 1969 7 10 $ 20 1971 8 1] 5 22 Personnel 1963 9 2 0 1} 1965 9 2 0 11 1969 8 4 0 12 1971 - _ - - Technical 1963 4 0 0 18 1965 5 10 0 18 1969 5 5 0 6 1971 1 ! 0 2 A-25 Chart F: The Racial Distribution and Salary of Employees By Department As Of August 12, 1971° Blacks whites Accumu- Accumu- Ave Avg. lating % Ave. lating % Wage ~ 8 Wage Of Blacks Wage Of Whites In In of in Work of In Work Department Dept 5-3 Dept Blacks Force 2 Whites Force Inspection $3.83 l 29% $2.78 0.1% $4.0 $3.86 231% Maintenance $79 9 XM $.29 | 93 5.84 78 Machine Shop $.65 50 =«11,7 $.08 65 $79 $.72 $1.1 Electrical 5.63 4 51 2.98 69 74 $67 35.6 Steel Pipe $638 l 29 $.28 7.0 33 $64 376 General Stores $57 2 8.7 $.38 72 21 $59 $89 Construction $43 27 «31.8 $.01 10.1 58 $63 425 General Yards 5.38 i9) «475 $22 122 21 $52 438 Shipping 5.36 $0 469 $06 155 34 $63 459 Steel Foundry §.$2 $6 = 396 $16 194 55 $453 493 Foundry $28 247 44.7 $03 462 $05 $48 680 Melting $.27 75 399 $14 544 118 $35 749 Monocast $16 $71 542 $08 94,7 $14 $.26 942 Bolt $1) 20 345 291 %9 $8 $22 %65 Personnel, 5.04 18 38.1 295 984 23 $09 979 Gen. Plant Total 905 1595 *All of ACIPCO's departments are included in this chart except those depart: ments having less than 15 employees: Industrial Engineering, Production Con- trol, Medical, Research, Laboratory, Purchasing, Finance and Engineering de- partment. In total, 33 whites and 15 blacks are employed in these departments. five racially mixed positions and 177 all white or all black positions. But the pertinent indicium for the period 1965-1969 is that the previous all black positions were being integrated by the influx of white personnel rather than any upward move- ment by black employees. In 1965 there were eighty-six all black jobs; in 1969 these were reduced to sixty jobs.” A total of thirty-four positions were integrated during this period. In other words, twenty-six of the thirty-four jobs were integrated by the movement of white employees or applicants into previ- ously all black jobs. As late as 1971, only fifty-nine of 232 jobs were integrated — only 25% of the total. The district court had earlier pointed out that black em- ployees were placed into positions in the lower paid groups: “The machine shop figures were eliminated from this computation be- cause of the missing 1965 data. A-26 Although there were and continued to be blacks in sub- stantially all the departments, the overwhelming majority of the black employees historically were and continued to be employed in the Pay Group 1-8 jobs in the various de- partments and particularly in the Mono-Cast 1, 2 and 3, Foundry. This finding coupled with plaintiff's chart comparing the aver- age wage of blacks and average wage of whites in all the de- partments firmly establish that black workers were forced into lower paying positions within the company. For example, just in terms of gross comparisons, 95.35°) of the black employees and 36.03°7, of the white employees were in pay groups 1-8, while 63.91% of the white employees and only 4.65°7 of the black employees were in pay groups 9-16. The district court, while agreeing that appellants’ statis- tics revealed racial stratification, found that this resulted from factors other than past discriminatory employment practices.“ The district court sifted out the following variables which were held to undermine appellants’ empirical conclusions that black employees were locked in the lower paying jobs and depart- ments:* “The district court stated: “Understandably, plaintiffs rely heavily upon statistics to support an inference of invidious discrimination. But this is not a voter registration, jury selection, or school desegregation case. Thus the familiar platitude: ‘In the problem of racial discrimination, statistics often tell much, and courts listen,’ Alabama v. United States, 304 F.2d 583, 586 (5th Cir. 1962), is not an unmitigated evidentiary windfall. In the area of em- ployment, with its complexities and variables, statistics must be analyzed with careful attention both to supportive and opposing facts.” While we reject the district court's conclusion that statistics have a lesser role in employment discrimination cases than these other types of litigation (see note 34, supra at 225) we do agree that complexities and variables require close scrutiny of empirical proof. Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 1364. Specifically in regard to the locking-in issue, the district court declared: “Black employees cannot be heard to complain that they were locked in a particular job when they were not qualified to perform a job in a higher pay group. The record is replete with evidence of black em- ployees who have refused promotions, requested demotions, declined training opportunities, and failed or refused to bid on higher paying jobs, thus voluntarily freezing themselves in the lower paying ones.” A-27 (1) Voluntary refusal of training opportunities which are prerequisite to promotion; (2) Voluntary refusal of promotions; (3) Lack of requisite qualifications; (4) The failure to request promotions; (5) Poor job performances which have defeated promotion or resulted in demotion: (6) Voluntary transfers to lower job classifications; (7) Availability or a lack of job vacancies: and (8) Lack of motivation. The variables suggested by the district court, when examined in light of our own and the appellants’ critical analysis, do not, however, weigh heavily enough to lessen the appellants’ empiri- cal conclusions. The district court points to the refusal of 573 black employees to accept promotions from 1965 to 1971. But 554 black employees accepted offered promotions.” In addi- tion, the testimony concerning the promotions offered indi- cated that these positions were often less desirable than the employee's current position, being more physically menial and paying little more with limited future advancement opportuni- ties. Also, for employees who had substantial seniority, and had consequently reached the top of their pay groups, a pro- motion involving transfer to a higher paying department would result in a cut in pay and beginning as a new man in the de- partment. See United States v. N. L. Industries, supra, 479 F. 2d at 362. For the court to state that the black emplovees were unquali- fied is inconsistent with its conclusion that the testing was ille- gal under Griggs. For the testing and seniority were the only objective criterion utilized for promotion and transfer. Before January 1, 1971 (the date of the initiation of the posting and bidding procedure) , the department superintendents utilized “During this period 854 white employees accepted promotions. There was no information breakdowns on how many refused promotions. Without information on the percentage of white employees refusing promotions and the types of promotions offered white employees, we think the district court's statistic inconclusive. A-28 their subjective judgment in determining which qualified testing and departmental seniority) employees filled job va- cancies. We note that these supervisory positions are held by all-white employees. We considered this type of subjective evaluation in Rowe v. General Motors Corp., supra, 457 F.2d at 359, stating: All we do today is recognize that promotion transfer procedures which depend almost entirely upon the subjec- tive evaluation and favorable recommendation of the im- mediate foreman are a ready mechanism for discrimination against Blacks. ... We and others have expressed a skepti- cism that Black persons dependen: directly on decisive rec- ommendations from Whites can expect non-discriminatory action. A similar view to the trial court's was put forward by the dis- trict court in United States v. Jacksonville Terminal Co., supra, 451 F.2d 418, which had rejected the government's statistics be- cause of their failure to evaluate competing black and white employees upon individual qualifications and accepted un- adorned statements by the employer that they hired or pro- moted the best qualified persons available. We stated: The trial judge's pronouncement cannot function as a general rule. It becomes valid only when the employer or union evidentially demonstrates that objective criteria per- tinent to the particular job are the determinants of who is “best qualified.” Jd. at 442. The employee make up of the steel pipe department also belies this conclusion. It is the highest paying primary produc- tion department (mono-cast, foundry, steel foundry, melting, and steel pipe) but has very few black workers, one as compared to thirty-five white employees. (See chart B, supra at 227). Since there are only a few craft positions in this department, the logical conclusion is that black workers were excluded by discriminatory practices. The court cites a lack of requests for promotions, and yet, until January 1, 1971 when the formal posting and bidding A-29 procedure was initiated, there was no method by which black employees (or any employee) could request promotion.” Dur- ing this period, promotion was, in effect, determined by all white supervisors; a practice we noted in Rowe which could have racial emphasis. This is particularly of importance con- sidering the testimony reflecting a number of promotion re- quests by black employees which were never acted upon by the white foremen and department superintendents. Moreover, we deem appropriate the court's holding in United States v. N. L. Industries, Inc., supra, 479 F.2d 354: National Lead’s contention that the reason black em- ployees were not promoted to supervisory positions was be- cause they did not “ask” to be promoted is without merit. Nothing in the record indicates that white employees were required to make such a request. In any case, a black em- ployee with knowledge of the nominal number of black foremen, the Company's past discriminatory policies, and the current practice of promotion via the recommendation of an incumbent foreman could hardly be expected to make a meaningless request indicating his willingness to be promoted. Sheet Metal Workers [United States v. Sheet Metal Workers], supra [8 Cir.), 416 F.2d [123] at 132; Car- ter, supra, 452 F.2d at 331; see Parham, supra, 433 F.2d at 427. Id. at 369. "Courts have condemned procedures for promotion and job assignment which are not objective and uniform. F.g., Brown v. Gaston County Dyeing Machine Corp., supra, 457 F.2d 1377; United States v. Dillon Supply Corp., 429 F.2d 800 (4th Cir. 1970). In Brown the court stated: “Here, in the absence of objective criteria applied to all workers alike, the statistics indicate that race is the only identifiable factor explaining the disparity between the jobs held by white employees and those held by black employees... . “Moreover, the record discloses that notices of vacancies are not posted, and news of them is passed along by word of mouth. When job classifications are as segregated as they are in this company, delay in learning about a vacancy in an all white category may in itself dis- criminate against a black employee who hears of it only after it has been filled. This practice resembles the lack of a formal transfer system which we criticized in Dillon. 429 F.2d at 802, 804." 457 F.2d at 1383. A-30 Further, there was testimony at trial by a department superin- tendent™ that after the passage of the Civil Rights Act of 1964 (Tithe VII) the company received a “flood” of requests from black employees for more skilled positions. Of course, most were rebuffed by their failure to qualify under the illegal test- ing. In addition, during the first ten months in which the formal posting and bidding procedure operated, the testing and educational requirements having been terminated for the last six of these months, 41°, (107) of the 251 jobs bid for depart- mentally and plant-wide were won by black employees.” The single foundation for the district court's conclusion that black employees were performing poorly on the job is the fig: ures that from July 5, 1965 through October 1, 1971, seventy- six black employees were demoted. But during the same period 143 white employees were demoted.” In addition, the testi: mony at trial indicates that demotions were often due to work cut backs rather than poor job performance.’ This demotion statistic concerning black employees is at the least nebulous and at the most negative in support of the court's conclusion. The only mention in the record of a voluntary transfer to a lower job classification was in reference to physical disabilities which required the employee to request a less physically wear- ing job. It was stated, however, that the company had a prac- tice of allowing older employees, black and white, to accept “The superintendent of the mono-cast department gave this testimony. The mono-cast department is the largest of the company's departments - with 651 employees. It has always contained the majority of black em- ployees in the plant (currently 40.3%) . “There are no totals on how many of the 1,854 bidders were black employees. “Black employees composed approximately just over one-third of the total employees of the company during this period. "The superintendent of the melting department, 118 white employees and 101 black, stated that between July, 1965 and October 1, 1971, twenty- five white and twenty-nine black employees were demoted because of curtailment of operations. Under a departmental seniority system, the employees with the smallest amount of time would be laid off and the employee above him dropped down into his position. These twenty-nine were included in the total number of seventy-six blacks demoted. A-SI Chart F: Class Enrollment By Race White Black Emplovees Emplovees 1964° 116 134 1965 $2 22 1966°° - _ 1967 134 12 1968 92 19 1969 109 10 * In 1964 the classes were conducted on a segregated basis. **The district court did not provide statistics for 1966. lower paving, less physically demanding positions without a re- duction in pay rate. As to the unavailability of job vacancies contention, the dis- trict court, itself, pointed out that between 1965 and 1970 em. ployment at the company increased by 1.444 jobs, not including turnovers, Advancement opportunities were correspondingly increased during this period of rapid economic development. The sole ground for the district court's conclusion of lack of motivation on the part of black workers appears to be lack of black enrollment in classes conducted by the company to aid in achieving higher scores in the testing.? But the statistics for these classes indicate that it was not until 1967 that black en- rollment began to fall off. In light of the discriminatory impact of this illegal testing, it may be that blacks simply realized that the testing was stacked against them. This lack of motivation conclusion also comes in the face of the testimony by a company management employee concerning the ‘ flood” of black appli- cants for more skilled jobs after the passage of Title VII. Fur- This conclusion by the district court also conflicts with a finding of initiative on the part of some black employees. ‘The court stated, “Some black employees who failed to score well on the test exercised initiative to take further training with the defendant's assistance, and subsequently improved their test scores and advanced into higher paying jobs.” A-32 ther, the intense organization of black employees” and contin- ued interest in this and past litigation’ demonstrates that the black employees of the company are interested in opportunities for better pay and more highly skilled jobs. In brief, the district court held that the statistical demonstra- tion of the derogation of black employees to lower paying jobs and departments resulted from black employees’ refusal of pro- motion and training opportunities, lack of qualifications, fail- ure to request promotions, poor job performance, transfer to lower pay groups, lack of job vacancies, and lack of motivation, We find that this holding was “clearly erroneous.” Humphrey v. Southwestern Portland Cement Co., 5 Cir. 488 F.2d 691 (1974). Not only are these variable too numerally diminutive to rebut the distinct disparity in the black white employment data.’ but analysis and the evidence have disclosed that these variables have no substantial validity.” S3Manvy of the employees in the class of plaintiffs, here, are members of the Equal Employment Opportunity Committee. This was a committee formed by a majority of black employees of the company in 1965. And 718 charges from class members have been filed with the Equal Employ- ment Opportunity Commission, ‘This is the third time in five years that the plaintiffs have been before us. $5C/. Ochoa v. Monsanto Company, supra, 473 F.2d at 320 (“But the smallness of the numbers demonstrates that the Court was not compelled to allow such statisti¢al showing to set in train the usual presumptions or to make a finding of preference thereon.”). “In reviewing the trial court's determination, we are bound by the standard of Rule 52(a) of the Federal Rules of Civil Procedure: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Although Judge Learned Hand was correct in stating, “It is idle to try to define the meaning of the phrase ‘clearly erroneous,’ ” (United States v. Aluminum Co., 148 F.2d 416, 498 (2d Cir. 1945)) this Court aptly phrased a workable formula in Chaney v. City of Galveston, $68 F.2d 774 (5th Cir. 1966) : “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. . . . It is well settled that in order for a reviewing court to set aside findings of fact by a trial court sitting without a jury, it must be clearly demon- strated that such findings are without adequate evidentiary support in ASS % Conclusion concerning the promotion procedure, The statistical prcture drawn here is similar to that which this Court found persuasive in United States ¥. Jacksonville Terminal, supra, 491 b.2d 418, Under attack by the government there was 4 promotion system with a bidding procedure based on a rigid craft or class seniority similar to the bidding and depart- mental seniority systems at issue here.” This Court stated: .. » [T)hey [statistics] do prove that employment at the facility is approximately equally divided between whites and blacks, that whites generally occupy the higher paying positions and that blacks hold the lower paying jobs. ld, at 441. Similarly, the work force here is approximately 50% black with the black employees occupying the lower paying jobs and de- partments. Likewise, the jobs and departments here and in Jacksonville Terminal have been segregated both by prior for- mal discrimination and present effect. the record, or were induced by an erroneous view of the law, and the burden of showing that the findings are clearly erroneous is on the one attacking them.” Jd. at 776, See United States v. United States Gypsum Co., $33 U.S. $64, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Baggett v. Richardson, 473 F.2d 863, 865 (5th Cir. 1973); Hodgson v. American Bank of Commerce, 447 F.2d 416, 419 (5th Cir, 1971). See generally, 5A Moore's Federal Practice © 52.08 [1) (2d Ed. 1969). The findings reviewed here do not involve conclusions based on the credibility of witnesses giving conflicting testimony. Dillon v. M. S, Oriental Inventor, 426 F.2d 977 (Sth Cir.), cert. denied, 400 U.S, 905, 91 §. Ct. 140, 27 L.Ed.2d 140 (1970). Rather at issue is the weight of evidence supporting the trial court's findings. We have determined that these find. ings are “without adequate evidentiary support” and therefore are “left with a definite and firm conviction” that the district court was mistaken. The Terminal maintained thirty-five seniority craft romers. Within each roster jobs were broken down into classes which differed in pay and function, Ordinarily collective bargaining agreements precluded use of seniority acquired on one roster to bid for a job vacancy on another roster, In some cases, the same was true for interclass transfers. Vacancies were posted within the particular craft or class, and craft seniority primarily determined the winning bidder. /d. at 427. AM The statistics also show that almost all Terminal jobs were held exclusively either by whites or by blacks before July 2, 1965, and that this division has continued, with few ex- ceptions, after that date... . Teiminal records disclosed that the persistence of “black” and “white jobs — what- ever their formal denotation — has not been caused by failure to hire new personnel... . Moreover, as noted ear- lier, all blacks hised dusing this period, have become Por- ters. Promotions too have occurred, Blacks have gained a few supervisory positions in the Baggage and Mail Depart- ment and two Helper jobs in other departments. “In racial discrimination cases, statistics often demonstrate more than the testimony of many witnesses, and they should be given roper effect by the courts.” Jones v. Lee Way Motor reight, Inc., supra, 431 F.2d at 247; accord, Bing v. Road- way Express, Inc,, 5 Cir, 1971, 444 F.2d 687 [1971]; Lea v, Cone Mills Corp., M.D.N.C, 1969, 301 F.Supp. 97, 102 aff'd., 4 Cir, 1971, 438 F.2d 86, Jd. at 442. The district court there also rejected the statistical showing, finding that the employer had simply “hired or promoted the best qualified persons available for the particular jobs.” This Court reversed. We cannot accept the assumption that the Government's statistics have no probative force: 1. ¢., “[t}he Government's failure or refusal to undertake a comparative evaluation of the entitlement to job vacancies of competing Negroes and whites, upon the basis of individual qualifications, leaves the record without probative evidence to support [the con- tention that black employees were not even considered for jobs to which whites were promoted or for which they were hired].”” 316 F.Supp. at 581. The trial judge's pronounce. ment cannot function as a general rule. It becomes valid only when the employer or union evidentially demon- strates that objective criteria pertinent to the particular job or the determinants of who is “best qualified.” Jd. at 442. This Court then went on to strike down the craft and seniority system because it restricted te “transfer and promotion oppor- tunities of incumbent black employees.” Jd. at 453. ASS We have condemned similar promotion systems based on job seniority which operated to perpetuate past discrimination in Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1375-1874; United States v. Georgia Power Co., supra, 474 F.2d 906; Long v. Georgia Kraft Co., supra, 450 F.2d 557; Local 189, United Papermakers & Paperworkers v. United States, supra, 416 F.2d 980. Likewise, other courts have found tainted de- partmental or job-type seniority systems, utilized for promotion purposes, which effectuated discrimination. United States v. N. L. Industries, Inc., supra, 479 F.2d at 358-360; United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971) ; Robin- son v. Lorillard Corp., supra, 444 F.2d at 795-800; Griggs v. Duke Power Co., 420 F.2d 1225, 1286-1237 (4th Cir, 1970), rev'd on other grounds, 401 U.S. 424, 91 $.Ct. 849, 28 L.Ed.2d 158 (1971); United States v. Virginia Electric and Power Com- pany, supra, $27 F.Supp. 1087; Clark v. American Marine Corp., $04 F.Supp. 60% (E.D. La. 1969) . The appellants have made a strong showing (1) that the company had a formal policy of discrimination prior to 1961 which lingered until 1963; (2) that the company maintained illegal testing and educational requirements from 1964 to 1971; and (3) that the employment statistics from 1963 until 1971 reflect that black employees have been derogated to the lower paying, non-skill departments and to the lower paying positions in all departments because of these past discriminatory employ- ment practices. As we demonstrated above these variables cited by the trial court to explain the statistics, do not, on analysis, undermine the large statistical disparity between black/white employees’ departments, positions, and pay rate. We have ob- served that the departmental seniority system deters black em- ployees, by their loss of seniority and pay rate, from transfer- ring and that the posting and bidding procedure, requiring initial consideration of persons within the department, often may prevent even the application of the majority of black em- ployees for a job vacancy in the higher paying, predominantly white departments. In addition, both practices operate to hand- icap black employees in intradepartmental promotion because A-36 past discrimination was an impediment to black employees ac- quisition of seniority in these departments. Therefore, the neu- tral practices of the departmental seniority system and the post- ing and bidding procedure carry forward into the present the stratification of black employees into lower paying, non-skill departments and jobs resulting from past discrimination. Neu- tral employment practices perpetuating past discrimination were condemned by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. at 430. Affirmative relief is mandated by our decisions in Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d at 1371, n. 34; United States v. Georgia Power Co., supra, 474 F.2d at 927; and Local 189, United Papermakers & Paperworkers v. United States, supra, 416 F.2d at 990-991." B. Apprentice Program and On-The-Job Training The company provides its employees an opportunity to train for the highly skilled, higher paying craft jobs through an ap- prentice program or on-the-job training (journeymen). The company maintains these programs for the following crafts: mechanic, machinist, electrician, carpenter, molder, pattern maker, welder, scale mechanic, brick layer, plumber, and tin- smith. The departments in which most of the craft jobs are lo- cated are the machine shop, electrical department, construction department, and maintenance department. 1. Apprenticeship. Only incumbent employees are eligible Full enjoyment of Title VII rights sometimes requires that the court remedy the present effects of past discrimination. See Louisiana v. United States, $80 U.S. 145, 154, 85 S.Ct. 817, 18 L.Ed.2d 709 (1965). This includes both redressing the continuing effects of discriminatory seniority systems, Local 189, United Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969); United States v. Jacksonville Terminal Co., supra; United States v. Hayes International Corp., supra (5 Cir., 456 F.2d 112}, and affirmative action to alter a seniority system which is not discriminatory on its face. If the present seniority system in fact operates to lock in the effects of past discrimination, it is subject to judicial alteration under Title VII. Local 53, International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047, 1052 (5th Cir. 1969); Local 189, supra, at 991 of 416 F.2d." 474 F.2d at 927. A-37 for the apprentice program. Applicants are required to have the following qualifications: (1) a high school education or its equivalent, (2) employment in the same department and/or trade for a minimum of six months, (3) prior to March 31, 1971, achievement of the fiftieth percentile on the California Test of Mental Maturity and a passing score on all aptitude tests for the particular skill or craft, (4) under twenty-six years of age or under thirty years of age for those applicants having served in the military. Once selected for an apprenticeship, the trainee has to complete an 8,000 hour course, approximately three and one-half to four years. During this time, the em- ployee receives a starting salary at a pay rate 3, but works up to the higher rate of 11. After finishing the apprenticeship and after being placed into a craft position, the employee is eligible for a pay rate 12 or 13. Appellants assert (1) that the continued high school educa- tion or its equivalent requirement constitutes a present dis- criminatory practice and (2) that the past intentional exclusion of black employees from craft jobs and the illegal testing has a continuing adverse impact under current neutral practices. Concerning the apprentice program, the district court de- clared: “Defendant has practiced no invidious racial discrimi- nation in the administration of its apprenticeship and journey- man programs.” We reverse this finding as “clearly erro- neous.’ We agree with appellants that the educational requirement is not neutral This standard, itself, is a present discrimi- natory practice if it has a disproportionate impact on black applicants. Griggs v. Duke Power Co., supra; United States v. Georgia Power Co., supra, 474 F.2d at 918-919; United States v. Inspirational Consolidated Copper Co., supra, 6 EPD § 8918. From 1915 until the time of the trial, only one black em- ployee had ever participated in the apprentice program, while 208 white employees have done so. Moreover, from 1915 until 1961, the total exclusion of black employees from craft WSee note 56, supra at 254. A-38 jobs was a culpable company policy. We have previously dis- cussed the district court's finding that the large majority of black employees have historically and continue to be within the lowest pay groups, 1-8. This educational criterion must continue to have an adverse impact on black employees because 56%, do not have a high school diploma.” Because of this dis- proportionate impact, the burden shifts to the company to dem- onstrate that their high school education or equivalent require- ment for entry into the apprentice program is “job related.” Griggs v. Duke Power Co., supra; United States v. Georgia Power Co., supra; United States v. Inspirational Consolidated Copper, supra.” The company's response was that their educational standard was not a high school diploma or its equivalent, rather a cri- terion used to select applicants who had obtained a sufficient educational level to successfully complete the International Correspondence courses relating to the craft for which they were entering an apprenticeship. The district court's finding that a high school education or its equivalent was a prerequi- site for the apprentice program rebuts this assertion. Moreover, the company's own policy statement defining their apprentice program states as a qualification — “high school graduate or equivalent.” We do, however, construe this argument as both an attempt to show “job relatedness” and “business necessity.” In order to show job relatedness, Griggs stated that a re- quirement must “bear a demonstrable relationship to success- ful performance of the jobs for which it was used.” 401 U.S. at 431. Here, we understand the company to mean that a certain reading level and familiarity with study techniques is necessary to participate in the course work of the apprentice program. Of the white employees, 12% do not have a high school diploma. *'Under the EEOC guidelines, 29 C.F.R. § 1607.2, an educational re- quirement is defined as a test. The company made no attempt to validate this requirement under these guidelines which we mandated in Georgia Power, supra, 474 F.2d at 913. ®We will postpone our analysis of business necessity until II] (A), deal- ing with the required remedial changes in the apprentice program. A-39 This cannot be equated with a requirement for a high school education or its equivalent. This Court, in fact, affirmed a district court's condemnation of a similar rationale for a high school educational criterion in Georgia Power: The justification offered at trial for the requirement was very weak. As the district court observed: “At best, the only justification for this requirement is the obvious eventual need for above-average ability to read and comprehend the increasingly technical maintenance manuals, the training bulletins, operating instructions, forms and the like demanded by the sophisticated indus- try.... In such a context, the high school education re- quirement cannot be said to be reasonably related to job performance. This is not to say that such requirements are not desirable .. . it simply means that the ‘diploma test’ cannot be used to measure the qualities. Many high school courses needed for a diploma (history, literature, physical education, etc.) are not necessary for these abilities. A new reading and comprehension test . . . might legitimately be used for this job need.” 474 F.2d at 918, Here just as in Georgia Power, there are employees who have had substantial job success and advancement without a high school education.” For example, there are seventy-five white employees,™ without a high school education, receiving over $4.00 an hour. Of the approximate fifty foremen and forty to fifty leadmen in the plant, twelve foremen and eight leadmen are among this seventy-five. Sixteen of this group are machin- ists in the machine shop, a highly skilled, craft department; and two are electricians. The high proficiency level established by this standard not only precludes qualified employees but ®In Georgia Power we observed: “Many employees without high school displomas have mastered the technical literature and many of the highest-ranking personnel in the company did not pass the ‘diploma test,’ including 47 of 100 foremen, supervisors, and chief division operators in the Atlanta and Macon operating division.” 474 F.2d at 918-919. “There is only one black employee in the whole plant whose pay rate exceeds $4.00 an hour. A-40 also is not refined sufficiently to measure the ability sought by the company. As the Supreme Court promulgated in Griggs and this Court stated in Georgia Power, “the use of a high school requirement which has a disproportionate racial impact and has not been proven to be a predictor of ultimate job suc- cess controverts the congressional mandate of Title VII." 474 F.2d at 918. Assuming past discrimination has illegally denied present employees training opportunities, the question becomes: do present neutral prerequisites for entry into and completion of the apprentice program continue to deny these injured em- ployees rightful benefits. The neutral prerequisites challenged by appellants are the age requirement and the length of the apprenticeship.” Appellants argue that the application of the age requirement has the consequence of continuing to exclude from the apprentice program all black employees who are em- ployed and reached the age of twenty-five or twenty-nine before the company cc sed its official segregation in 1961. Addition- ally excluded are those blacks barred by the testing program, who reached the age of twenty-five or twenty-nine before the company ceased its testing program in 1971. Therefore, appel- The question whether the educational criterion operated, independ- ently with the testing, to produce this disparity can be answered in the affirmative. The inferences on this issue are unlike the question of the consequences, independent of the testing, of the subjective discretion of the white department superintendents who did all the selecting of super- visory personnel infra. The fact that this criterion is objective and acts automatically to eliminate non-high school graduates, coupled with the large percentage of blacks without a high school education and the implication that white employees without high school educations have advanced into responsible and skilled positions in all departments, are sufficient to refute this objection. Appellants also challenge the six month prerequisite service within the craft department. They argue that because of the long exclusion of black employees from craft departments, this selection criterion perpetu- aes past discrimination. We agree with this conclusion. However, the record and finding of fact by the district court reflect that employees are selected from throughout the plant and then evaluated for six months on the job within a craft department; rather than being selected only from employees within the craft department. A-41 lants conclude that this age requirement perpetuates into the present effects of past discrimination and is unlawful.” Appellants deduce that the impact of past discriminatory practices in the apprentice program is blatant from the histori- cal and statistical showing, recited above. In addition, appel- lants point to the testimony by company officials, stating that the effect of the tests and educational requirement was to screen out blacks from the apprentice program. The historical formal exclusion and the statistical and testimonial evidence demon- strating disproportionate exclusion of blacks by the testing and educational requirements, when combined with the continuing use of the high school education or its equivalent standard and the present age requirement and lengthy apprenticeship term, constitutes not merely a prima facie case, but conclusive proof® of present effect from past discrimination.” 2. On-the-job training. Prior to March, 1971, to qualify for on-the-job training for journeyman status in a craft posi- tion, an applicant had to (1) meet the specified testing require- ments, the same mental maturity test and aptitude test required for the apprentice program, (2) have three year’s experience in a craft department or related craft job, and (3) be selected by the (all-white) supervisory employee group for the program. The company currently relies on a bid system for entry into the on-the-job training program. Under this procedure bids are taken within the craft department and the senior qualified man is selected. Only if no bids from qualified men are received from within the departments are employees from outside the ®See note 38 and accompanying text, supra at 224. That a holding of conclusive proof is warranted, we cite our statement in United States v. Jacksonville Terminal Co., supra, 451 F.2d at 442: “Absent explanatory evidence and testimony, the statistics indicate that officials have impliedly equated job qualification with race. See id. (United States v. Sheet Metal Workers Local 36, supra 416 F.2d) at 127; Lea v. Cone Mills Corp., M.D.N.C.1969, 301 F.2d 97, 102. In a Title VII case, such implications are important. When combined with other evidence and testimony, they may be conclusive.” (Emphasis added) . "See note 34, for the proposition that some courts have held that statistics alone may demonstrate conclusive proof of discrimination. A-42 department allowed to compete. In either case the final selec- tion is determined by the all-white supervisory group. After the trainee has had six years’ experience and if his departmen- tal superintendent recommends him to the apprentice commit- tee, the trainee is eligible for the intermediate craft salary rate. After an additional year’s experience, the trainee is eligible for the craft rate (pay group 12 or 13). Appellants argue that the present bidding system and the length of the training program lock in black employees dero- gated to lower paying, unskilled jobs by past discrimination. The district court, as quoted above, held that the defendant had not violated Title VII or section 1981 in administering its journeyman program. We reverse this holding as “clearly er- roneous.”’”° We accepted, supra II(A), the court's and appellants’ statis- tical conclusion that black employees had been restricted to jobs in non-craft departments and in the 1-8 pay groups con- taining no craft or craft related positions, first by the formal exclusion prior to 1961 and then by the testing requirement from 1964 until 1971. To focus even further on this finding, appellants cite the employment data for pay groups 12 and 13, encompassing craft and technical positions. This data compiled two months before trial indicated only seven blacks, .76% of black employees, had reached pay group 12; none had obtained a group 13 position. At this time, 436 white employees, 28.4% of the total, occupied group 12 jobs, and twenty-four, 1.5% of the total, held group 13 jobs. An additional factor relied on by appellants is the selection on the subjective evaluation by the all-white supervisory force, both a past and a present prerequi- site to entry into the training program. Rowe v. General Mo- tors Corp., supra, 457 F.2d at 359 (“we and others have ex- pressed a skepticism that Black persons dependent directly on decisive recommendations from Whites can expect non-discrim- inatory action.’’) ” See note 56, supra at 234. "Appellants do not challenge this subjective judgment by all-white supervisory group as an independent, present discriminatory practice. A438 The intentional discrimination by the company from 1915 until 1961 totally excluded black employees from the on-the- job training program, From 1964 until 1971, the testing con- tinued to restrict black employees from craft departments and from craft jobs and craft related positions. We also recognize the discriminatory potential of subjective evaluation of blacks by the all-white supervisory groups.” Therefore, we are com- pelled again to find that past discrimination has had an adverse impact upon black employees’ employment opportunities which is carried forward by neutral, current practices. The bidding procedure presently in effect would require black employees long denied this training opportunity in the past, to suffer a loss of seniority and cut in salary for admittance and participa- tion in this training program. The requirement that bids from within the craft departments be given initial, primary consid- eration must fail in light of the proof demonstrating that a large majority of black employees have been excluded from these departments. In addition, a lengthy training program of six years will continue to exclude black eimployees from craft positions for an unnecessarily longer period. Appellants have presented prima facie evidence of the present effect of past dis- crimination, thus requiring affirmative relief.” Cf. McDonnell Douglas Corp. v. Green, supra, 411 U.S, at 800-807. C. Supervisory Positions The appellants question the absence of black employees from the supervisory positions of leadmen and foremen. The district court made the following finding of fact concerning this absence: Out of a rer mony | fifty leadmen, only three have been black. Defendant has never had a black foreman. Rather it is a factor used to bolster their conclusion as to the impact of neutral practices resulting from past discrimination. "For a detailed discussion of the use of subjective criteria in judgment, see text and accompanying footnotes infra at 240-242. See note 58, supra at 236. A-44 However, the court drew no specific conclusion of law on the issue of discrimination, other than a general recital at the end of its opinion” that the plaintiffs were not entitled to any other relief. The leadman is the worker who sets the pace for his unit of workers, The general practice is to choose the foreman from the ranks of the leadmen. Prior to March, 1971, there were two qualifications for the positions of leadmen and foremen. First, the candidate had to have obtained the requisite testing achievement. Secondly, the department superintendents, who have always been white, then selected the “best qualified” of these individuals, This selection was based on their subjective judgment rather than objective criteria, The testimony at trial indicated that there were approximately forty to fifty leadmen, of which one was black. Of the approximate fifty foremen none were black. The statistical disparity presented in this case combined with the illegal testing and a subjective standard applied by all-white department supervisors would normally present a conclusive showing of present discrimination, The company, however, ter- minated their testing requirement for these positions in March, 1971, which was six months prior to the trial in October, 1971. The question for us is whether selection on the basis of sub- jective judgment of all-white superintendents operates inde- pendently of the testing to discriminate and helped produce this disparity. In Rowe v. General Motors Corp., supra, 457 F.2d 340, this Court admonished an employer for allowing possible discrimi- natory subjective evaluation by all-white supervisors in the pro- motion of black employees. This Court cautioned: ... [HJad to acknowledge that the methods for promotion / transfer at GMAD would enable an individual foreman, if ™The statistical finding by the district court of three black employees as leadmen is an overstatement as the record and the briefs on appeal of all parties indicate that only one black employee has been advanced into a supervisory position as a leadman. A-45 he were so inclined, to exercise racial discrimination in his selection of candidates for promotion/transfer, and that, under the social structure of the times and place, Blacks may very well have been hindered in obtaining recommen- dations from their foremen since there is no familial or so- cial association between these two groups. All we do today is recognize that promotion transfer procedures which de- pend almost entirely upon the subjective evaluation and favorable recommendation of the immediate foreman are a ready mechanism for discrimination against Blacks much of which can be covertly concealed and, for that matter, not really known to management, We and others have ex- pressed a skepticism that Black persons dependent directly on decisive recommendations from Whites can expect non- discriminatory action. 457 F.2d at 359, In the past, this Court has ordered the development of objective criteria in order to eliminate the possible discrimination inher- ent within subjective employment determinations.” Local 53 of the International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir, 1969) . In cases involving similarly alleged racial discrimination for promotions to supervisory positions, courts have acted on a See Browr v. Gaston County Dyeing Machine Co., supra, 457 F.2d at 1382-1983 (“klusive, purely subjective standards must give way to objectivity if statistical indicia of discrimination are to be refuted.” ; United States v. Bethlehem Steel Corp., supra, 446 F.2d at 655. Subjective discretion by all-white supervisory personnel is comparable to that found suspicious in jury discrimination suits. In Turner v. Fouche, 396 U.S. $46, 90 S.Ct. 532, 24 L-Ed.2d 567 (1970), the Supreme Court con- cluded: “In sum, the appellants demonstrated a substantial disparity between the percentages of Negro residents in the county as a whole and of Negroes on the newly constituted jury list. They further demonstrated that the disparity originated, at least in past, at the one point in the selection process where jury commissioners invoked their subjective judgment rather than objective criteria. The appellants thereby made out a prima facie case of jury discrimination, and the burden fell on the appellees to overcome it.” Jd. at 360. This Court had earlier found jury commissioners’ subjective judgment failing in Pullum v. Greene, 396 F.2d 251, 257 (5th Cir. 1968). See gener- ally, Jury Discrimination In the South: A Rv uedy?, 8 Colum.]. of L-Soc. Prob.589 (1972). A-46 showing equal to that made by the appellants here.”* In United States v. N. L. Industries, supra, 479 F.2d 354, the court stated; The inference of discrimination provided by the statis- tics is reinforced by the Company's method of selecting foremen, The Company's promotional plan is very similar to that used by General Motors Corporation in Rowe, supra, 457 F.2d 348. In that plan the foreman’s recom- mendation was the indispensible, single most iniportant element in the promotional process; there were no written instructions to foremen as to the qualifications desired; standards that were set were vague and subjective; hourly si were not notified of promotional opportunities; and there were no safeguards in the procedure to prevent discrimination. We think evidence indicating that out of about 100 fore- men only three are black, that these three black foremen are in charge of only Labor department emplovees, that a biack foreman has never been in charge of white employees in this bargaining unit, that one of thirty-six employees promoted to foreman since 1965 was black, that a pool of qualified black employees exist, and that white employees with less qualifications have been promoted to foreman positions presents a prima facie case of racial discrimina- tion that has not been rebutted by the Company. Id. at 368. And in Russell v. American Tobacco Co., supra, 5 EPD € 8447, the court pointed to the holdings of Brown v. Gaston County Dyeing Machine Company, supra, 457 F.2d 1377, and Rowe v. General Motors Corp., supra, 457 F.2d 348, condemning the lack of objective criteria in the face of a statistical disparity in job promotion as discrimination. The court then concluded: 6In addition to the cases discussed herein, see Stamps v. Detroit Edison Co., supra, 365 F.Supp. at 112-118; Young v. Edgcomb Steel Co., 363 F.Supp. 961, 969-970, 971 (M.D.N.C.1973). The Equal Employment Op- portunity Commission has entered findings of discrimination in promotion to supervisory positions where a highly subjective promotion system has had a disproportional impact on minority group employees CCH EEOC Decisions € 6252, ¢ 6228 (1973). A47 In the instant case, the figures from the Leaf operation can hardly be surpassed. Of 63 white employees in Leaf (60 regular, 3 seasonal) , 27 are foremen. Only 23 regular white employees are not supervisors. Therefore, 45 per cent of all regular whites are supervisors. In considering the same figures for blacks, there are 3 supervisors (76 regular, 124 seasonal). Out of 76 blacks, 3 are su isors. Even figuring it out to one decimal point, only 3.9 per cent of the regular blacks are supervisors. There figures would chafed the conscience of this Court, even if objective cri- teria were fully in use, which has not been demonstrated. This lack of objective guidelines and written criteria are some indicia of discrimination. 5 EPD € 8447 at 7191-92. The record reveals evidence of at least two black employees who, prior to March, 1971, had the requisite qualifications for leadmen or foremen but had been denied promotion.” In ad- dition, the record reflects that while many whites had been appointed as “relief leadmen,’* no black employees have had such an opportunity. Testimony by two department super- visors, however, indicated that since the testing qualification was dropped, black employees in these departments, steel foun- dry and mono-cast, are qualified and are under consideration for these supervisory positions. We are uncertain whether the Booker T. Powell had made the highest posible sore on the qualify- ing test, had a high school and one and one-half years college education, had worked for the company since 1954, and had extensive experience in many of the jobs in the cleaning shed (the mono-cast department). More: over, he had even requested consideration for a leadman position. Further testimony also implied that Willie Dunn was qualified. He had obtained the prerequisite scores, had taught at the company's night school, had attended metallurgy courses on off hours, and was deemed qualified by company officials. Evidently, although the record is con- fusing on this point, pressure from both white employees and and black employees, concerning his upgrading, caused a mental treak- down. He is now on medical pension. While there is no formal training for these supervisory positions, testi- mony demonstrates that, at least in the mono-cast department, temporary vacancies occur because of vacation, sickness, business and other reasons every week. “Relief” leadmen are appointed from those under considera- tion for permanent promotion to these positions A-48 consideration of black employees since the testing was termi- nated, stems from awareness, stimulated by this and other law suits, by the company of possible legal sanctions, or whether the illegal testing alone had created this discriminatory barrier, and now qualified black employees are being considered. Therefore, we are remanding this issue, the independent effect of subjective evaluation by all-white superintendents, to the dis- trict court.” On remand, we point out three indicia, among others, which the district court should examine, First, as to whether there are more examples of black employees who were able to hurdle the illegal testing barriers to these supervisory positions, but then were disqualified under the subjective criteria utilized by the department superintendents.” Secondly, the court should note whether less qualified white employees have been ap- pointed leadmen or foremen both prior to March, 1971 and since that time. Finally, the court should obtain evidence of the operation of this subjective standard applied by white su- pervisors since the trial." III. ELIEF In fashioning an appropriate remedy for employment dis- crimination, Congress has granted courts plenary equitable power under both Title VII, 42 U.S.C.A. § 2000e-5(g) (Supp. By remanding, we do not mean to close off any back pay award for a black employee, like Booker T. Powell, who might be able to put forward a back pay claim for a supervisory position. "We note that because of the nature of these supervisory positions there is a slow turnover. Consequently, only a few cases of discretionary over may constitute sufficient proof considering the statistical disparity already existing. "The district court should make specific findings on the assertion in appellee's brief, stating: “While outside the record, the Company feels it appropriate to advise the Court that currently the Company has two black foremen and five black leadmen.” Appeliee's Response to the Brief of United States Equal Employment Opportunity Commission as Amicus Curiae at 8. " AAY 1973). and section 1981." Most courts, and expecially our Circuit, have applied this equitable relief within the framework of the “rightful place” theory.’ In Georgia Power, this Court explained: “Most courts, in molding appropriate remedies, have adhered to the ‘rightful place’ theory, according to which blacks are assured the first opportunity to move into the next vacancies in positions which they would have occupied but for wrongful discrimination and which they are qualified to fill. Note, Title VII, Seniority Discrimination and the Incumbent Negro, 80 Harv. L. Rev. 1260, 1268 n. 2 (1967) ."" 474 F.2d at 927. We agree that: ‘This is the theory which should be ap- plied here.” Jd. Before moving to the necessary corrective measures, there is need to define the class of employees to whom these remedies "This provision states, in part: “(g) If the court finds that the respondent has intentionally en- gaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organiza- tion, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commision.” See Local 189, Papermakers & Paperworkers v. United States, supra, 416 F.2d at 996-997. This Court has always recognized the importance of granting full relief in Tithe VII cases. E. g., United States v. Georgia Power Co., supra, 474 F.2d at 927; Vogler v. McCarty, 451 F.2d 1236, 1238-1239 (5th Cir. 1971). "See Boudreaux v. Baton Rouge Marine Contracting Company, 437 F.2d 1011 (5th Cir. 1971); Sanders v. Dobbs Houses, Inc., 451 F.2d 1097 (Sth Cir. 1970), cert. denied, 401 U.S, 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Lazard v. Boeing Company, 322 F.Supp. 343, 345-546 (E.D.La. 1971); Tolbert v. Western Electric, 56 F.R.D. 108, 115-116 (N.D.Ga.1972). “This theory of relief for employment discrimination was explicated in Note, Tithe VII, Seniority Discrimination and the Incumbent Negro, 80 Harv.L.Rev. 1260 (1967), first applied by our Circuit in United States v. Local 189, United Papermakers & Paperworkers, 50! F.Supp. 906 (E.D.La. 1969), aff'd, 416 F.2d at 988, and recently endorsed in Bing v. Roadway Express, Inc., spre, 485 F.2d at 450-451; and United States v. Georgia Power Co., supra, 474 F.2d at 926-927. A-50 are applicable. The district court, before trial, approved this suit as a class action within Rule 28(b) (2). This class in- cludes black employees, both named and unnamed, who have filed or not filed complaints with the Equal Employment Op- portunity Commission, Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert. denied, 405 U.S. 916, 92 S.Ct. 931, 30 L.Ed.2d 785 (1972) (section 1981); Jenkins v. United Gas Corporation, 400 F.2d 28 (5th Cir. 1968) (Title VII); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) (Title VII). Specifically, this class is composed of black em- ployees of the company employed prior to March 8, 1971, ter- mination date of the testing and educational requirements for pay groups 9-16, and also embraces those black ereployees hired after March 8, 1971 harmed by present discriminatory practices. A. Enjoining the Testing and Educational Requirements The district court recognized that the testing and edu- cational criteria had a detrimental impact on black applicants and employees as a class. An injunction against the resumption of such practices was denied because the company had elimi- nated the educational hiring requirement and all testing in March, 1971. We find no abuse of discretion in the district court's refusal to grant such an injunction. Cf. Parham v. Southwestern Bell Telephone Co., supra, 433 F.2d at 429-430. However, the high school educational criterion for ad- mittance to the apprentice program remains in use. It was ear- lier held violative of Title VII and section 1981. At that point we reserved the discussion of the “business necessity’ justifica- tion. This doctrine has evolved to except those few employ- ment practices, which are non-intentionally discriminatory or neutral, but perpetuate the consequences of past discrimina- “See note 4 and accompanying text, supra at 217. See 11(C) (1), supra. The appellants are not challenging job-related- ness of the course work required by the apprentice program, only the high school educational or equivalent requirement. See Buckner v. Goodyear Tire and Rubber Co., 389 F.Supp. 1108, 1122-1125 (N.D.Ala.1972) . A5l tion, because of their overriding business necessity.” See Griggs ¥. Duke Power Co., supra, 401 U.S, at 431-432; United States v. N. L. Industries, supra, 479 F.2d at 364-366; Robinson vy. Lorillard Corp., supra, 444 F.2d at 797-798, Once a discrimi- natory result is demonstrated, the defendant has the burden to justify a practice under a “business necessity." The nature and requirements of this burden were correctly outlined in Robinson v. Lorillard Corp., supra, 444 F.2d at 798: Collectively these cases conclusively establish that the ap- plicable test is not merely whether there exists a business purpose for adhering to a challenged practice. The test is whether there exists an overriding legitimate business pur- pose such that the practice is necessary to the safe and effi- cient operation of the business. Thus, the business pur- se must be sufficiently compelling to override any racial impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose ad- *7In United States v. St. LouisSan Francisco Railway Co., supra, 464 F.2d $01, the Eighth Circuit Court of Appeals, en banc, explained: “However, this doctrine of business necessity which has arisen as an exception to the amenability of discriminatory practices, ‘connotes an irresistible demand.’ The system in question must not only foster safety and efficiency, but must be essential to that goal. United States v. Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir. 1971); United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, $1 L.Ed.2d 815 (1972). In other words, there must be no acceptable alternative that will accomplish that goal ‘equally well with a lesser differential racial impact.’ Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed. 2d 655 (1971); accord United States v. Beth- lehem Steel Corp., supra, 446 F.2d at 662.” Id. at $08. “Rowe v. G. M. C., supra, 457 F.2d at $55 nm. 14; United States v. Jack- sonville Terminal Co., supra, 451 F.2d at 451; Long v. Georgia Kraft Co., supra, 450 F.2d at 562, Bing v. Roadway Express, Inc., supra, 444 F.2d at 690-691; Local 189, United Papermak. & Paperwork. v. United States, supra, 416 F.2d at 989-990. "The determinants under the Robinson formulation have essentially been applied by this Court, dressed in different wording, in United States ¥. Jacksonville Terminal Co., supra, 451 F.2d at 451; and Local 189, United Papermak. & Paperwork. v. United States, supra, 416 F.2d at 989. A-52 vanced, or accomplish it equally well with lesser differen- tial racial impact. As our holding supra makes clear, a high school diploma or equivalent criterion does not effectively measure the read- ing and study skills necessary for the course work required by the apprenticeship. There are also alternative methods, such as a validated reading test suggested by the district court in Georgia Power,” which would have a lesser racial impact. Moreover, since there is a large demonstration of successful em- ployee achievement without a high school diploma, a discrimi- natory standard, by definition, cannot be a ‘‘business necessity.” We, therefore, conclude that the district court should enjoin the continued use of a high school educational requirement for entrance into the apprentice program. B. Restructuring and Promotion Procedures 1. Business necessity. The company argues “business ne- cessity” to justify the continued use of its promotion prac- tices — seniority and the posting and bidding procedures. The company insists that its jobs are functionally related, so that service in each position provides necessary training for the next higher job in a line of progression within a department. In United States v. Jacksonville Terminal Co., supra, 451 F.2d 418, this Court explained the heavy nature of the defendant's burden to justify a discriminatory seniority system: .. . We have no doubt that the seniority systems and re- strictions currently enforced at the Terminal contributed to its safe and efticient operation. Nevertheless, as the Second Circuit most recently explained, “the ‘business ne- cessity’ doctrine must mean more than that transfer and seniority policy serve legitimate management functions. Otherwise, all but the most blatantly discrimina plans would be excused even if they perpetuated the effects of past discrimination. * * * Necessity connotes an irresistible demand. To be preserved, the seniority and transfer sys- tem must not only directly foster safety and efficiency of 474 F.2d at 918. A-53 a plant, but also be essential to those goals. * * * If the legitimate ends of safety and efficiency can be served by a reasonably available alternative system with less discrimi- natory effect, then the present policies may not be contin- ued.” United States v. Bethlehem Steel Corp., 2d Cir. 1971, 446 F.2d 652, 662 [1971]. In other words, manage- ment convenience and business necessity are not synony- mous. Thus the Terminal was required to prove not only that the seniority systems and restrictions promote safe and efficient operation but also that they are essential to these goals. Jd. at 451. Under the three prongs of the Robinson standard,” the busi- ness purpose, training to insure safe and efficient plant opera- tion, must be “sufficiently compelling to override any racial impact;" the department seniority system must effectively and efficiently carry out its training purpose; and there must be no alternate acceptable practice of accomplishing this training. In an industry involving sophisticated machining processes such as many of the operations of this company, training of employees for skilled positions is a necessary function for the continued economic life of the business. However, a departmental senior- ity system is effective and efficient as an instruction program only as to those positions in a line of progression where the jobs below them on the ladder serve as prerequisite training steps.™ 91444 F.2d at 798, n. 6 and 7. “In Robinson v. Lorillard Corp., supra, the company justified their departmental seniority system by asserting “that employees will perform a job more efficientlyy if they have prior experience in other jobs within the same department.” /d. at 799. In rejecting it, the court made the following caveat: “Finally, it is difficult to imagine how even the necessity for job pro- gression could constitute [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0175%3A2. Public record. Not legal advice.