Shipp v TN Department of Employment Security Brief for Appellants

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

No. 76-1515

ERONEOUS SHIPP, et al.,

Plaintiffs-Appellants, 

vs.

MEMPHIS AREA OFFICE, TENNESSEE DEPARTMENT 
OF EMPLOYMENT SECURITY, et al.,

y Defendants-Appellees.

Appeal From The United States District Court for the 
Western District of Tennessee, Western Division

BRIEF FOR APPELLANTS

WILLIAM E. CALDWELL 
520 Woodward Bldg.
733 Fifteenth Street:, N.W. 
Washington, D.C. 20005

JACK GREENBERG 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

ELIJAH NOEL, JR.
Ratner, Sugarmon, Lucas & Salky 
525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Plaintiffs-Appellants



INDEX

Questions Presented ................................. 1

Statement of the Case ............................... 3

Summary of Argument ................................  7

ARGUMENT ............................................  10

I. The Defendants Engaged In Unlawful 
Discrimination In Their Treatment
of Applicants for Referrals, Placement,
and Other Services ......................  10

(1) Plaintiff's Prima Facie Case ......  11

(2) The Evidence in Rebuttal ..........  36

(3) The Opinion of the District Court .. 49

II. The Defendants Engaged In Unlawful 
Discrimination In The Hiring and 
Promotion of Employees At The
Memphis Area Office of TDES ............. 53

III. The District Court Erred In Failing 
To Direct The Defendants To Take 
Effective Action To Discover, And 
Withhold Service From, Employers Which
Engage In Racial Discrimination ........  78

IV. The District Court Erred in Dismissing
Plaintiff's Individual Claim ............ 86

(1) The Absence of Specific Findings ... 86

(2) The Class-wide Discrimination .....  93

CONCLUSION ..........................................  95

Page

-l-



TABLE OF AUTHORITIES

Cases:

Page

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.
1973) ............................................ 85

Afro-American Patrolmen's League v. Davis, 503
F .2d 296 (6th Cir. 1974) ................ 30, 31, 59, 64, 74

Albemarle Paper Company v. Moody, 432 U.S.
40 5 (19 7 5) ....................................... 50 , 61, 69, 76

Bridgeport Guardians v. Members of Bridgeport 
Civil Service Commission, 482 F.2d 1333 
(2d Cir. 1973) ................................... 59

Brown v. Gaston County Dyeing Machine Co.,
457 F .2d 1377 (4th Cir. 1972) ................... 36

Carter v. Gallagher, 452 F.2d 315 (8th Cir.
1971) ............................................ 36

Causey v. Ford Motor Co., 516 F.2d 416
(5th Cir. 1975) .................................. 52

Commonwealth of Pennsylvania v. Flaherty, 11 EPD
fl 10,624 (W.D. Pa. 1975) ........................ 66

Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975) .. 74
E.E.O.C. v. Detroit Edison Co., 515 F.2d 306

(6th Cir. 1975) .................................. 34, 35, 64

Franklin v. Troxel Manufacturing Co., 501 F.2d
1013 (6th Cir. 1974) ............................  10, 49, 94

Gaston County v. United States, 395 U.S. 285
(1969) ........................................... 47

Green v. County School Board of New Kent County,
391 U.S. 430 (1968) .............................. 25

Griggs v. Duke Power Company, 401 U.S. 424 (1971) .. 46, 50, 61,
74, 76

Johnson v. Goodyear Tire and Rubber Co., 491
F .2d 1370 (5th Cir. 1974) ....................... 66

-ii-



92

63

92

94

35

47

69

51

66

31

55

35

74

67

92

59

Johnson v. Railway Express Agency, 421 U.S.
454 (1975) .......................................

League of United Latin American Citizens v.
City of Santa Ana, 11 EPD f 10,818
(C.D. Cal. 1976) .................................

McClanahan v. Mathews. 440 F.2d 320
(6th Cir. 1971) ..................................

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) ...........................................

Meadows v. Ford Motor Co., 510 F.2d 939
(6th Cir. 1975) ..................................

Northcross v. Board of Education of Memphis
City Schools, 466 F.2d 890 (6th Cir. 1972) .....

Officers for Justice v. Civil Service
Commission, 11 EPD 5 10,618 (N.D. Cal. 1975) ....

Palmer v. General Mill, Inc., 513 F.2d 1023
(6th Cir. 1975) ..................................

Pettway v. American Cast Iron Pipe Co.,
494 F .2d 211 (5th Cir. 1974) ....................

Rowe v. General Motors Corp., 457 F.2d 348
(5th Cir. 1972) ..................................

Rolfe v. County Board of Education, 391 F.2d 77
(6th Cir. 1968) ..................................

Senter v. General Motors Co., 11 EPD «[ 10,741
(6th Cir. 1976) ................. ................

Sims v. Sheet Metal Workers, 489 F.2d 1023
(6th Cir. 1973) ........................ 28, 51, 53,

Stamps v. Detroit Edison Co., 365 F.Supp. 87
(S.D. Mich. 1973) ................................

United States v. Claycraft Co., 408 F.2d 366
(6th Cir. 1969) ..................................

United States v. Georgia Power Co., 474 F.2d
906 (5th Cir. 1973) ..............................

-in-



Page

United States v. Hazlewood School District,
11 EPD 5 10,854 (8th Cir. 1976) .................  31

United States v. Jacksonville Terminal Co.,
451 F.2d 418 (5th Cir. 1971) ....................  52

United States v. Masonry Contractors Ass'n
of Memphis, 497 F.2d 871 (6th Cir. 1974) .......  34

Wade v. Mississippi Cooperative Extension 
- Service, EPD J 10,770 (5th Cir. 1976) ..........  28, 52

Walston v. County School Board of Nansemond
County, 492 F.2d 919 (4th Cir. 1974) ............ 64

Watkins v. Scott Paper Co., 530 F.2d 1159
(5th Cir. 1976) .................................36, 63, 65, 66

I
i

Statutes:
i

42 U.S.C. § 1981 ....................................  6, 92
42 U.S.C. § 1988 ....................................  6

42 U.S.C. § 2000d ...................................  7, 7g

42 U.S.C. § 2000e- (5) (f) ...........................  6

42 U.S.C. § 4700 ...... .............................  71

Tenn. Code Anno. §8-3208 ...........................  62

Tenn. Code Anno. §8-3209 ...........................  62

Regulations:

5 C.FoR. § 900 ......................................  72
29 C.F.R. § 1607.11 ................................. 66

29 C.F.R. part 31 ...................................  7g

-iv-



Page

Other Authorities:

Federal Rules of Civil Procedure, Rule 52(a) ......  51# 92

5A Moore's Federal Practice «[ 52.06 [2] ............. 92

U.S. Civil Service Commission, Guidelines for
Evaluation of Employment Practices (1974) ......  72

U.S. Civil Service Commission, Guidelines for
Affirmative Action (1972) .......................  72*

U.S. Commission on Civil Rights, The Federal 
Civil Rights Enforcement Effort —  1974
V. 5, To Eliminate Employment Discrimination .... 74

4

j
1

J

-V-



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

No. 76-1515

ERONEOUS SHIPP, et al..
Plaint if fs-Appe Hants, 

vs.
MEMPHIS AREA OFFICE, TENNESSEE DEPARTMENT 

OF EMPLOYMENT SECURITY, et al.,
Defendants-Appellees.

Appeal From The United States District Court for the 
Western District of Tennessee, Western Division

BRIEF FOR APPELLANTS 

Questions Presented

1. (a) Did plaintiff demonstrate a prima facie case 

of unlawful discrimination in referrals, etc., by the 

defendant employment service?
(b) If so, did the defendants adequately rebut that 

prima facie case?
2. Did the District Court err in failing to enjoin use 

of the tests relied on by the defendants in hiring and 

promotion?

3. Did the District Court err in failing to require



the defendants to take additional steps to assure they did 
not serve employers who engage in unlawful discrimination?

4. Did the District Court err in dismissing plaintiff's 

individual claim?

-2-



STATEMENT OF THE CASE

Plaintiff is a black citizen who on several occasions 

in the 1960's sought the assistance of the Memphis Area 

Office of the Tennessee Department of Employment Security 

("TDES") in obtaining employment. TDES is the Tennessee 

state agency affiliated with and wholly funded by the
_L_/United States Employment and Training Administration and 

provides a free employment referral service to Tennessee 

residents. In the spring of 1969 plaintiff filed a timely 

charge with the Equal Employment Opportunity Commission 

alleging that TDES had unlawfully engaged in discrimination on 

the basis of race. After an investigation the Commission found 

there was probable cause to believe TDES had engaged in discrimina
2Jtion in violation of Title VII of the 1964 Civil Rights Act.

In August 1971, the Commission issued to plaintiff a right 
to sue letter.

This class action was commenced on September 16, 1971, in 

the United States District Court for the Western 

District of Tennessee. Jurisdiction over this action was 

alleged to exist under 42 U.S.C. § 1988 to enforce 42 U.S.C.

§§ 1981-85, and under 42 U.S.C. § 2000e-5(f). The latter 

provision, contained in the 1964 Civil Rights Act, applied 

to state employment services the strictures of Title VII

1 / Formerly the United States Employment Service.

_2_/ Complaint, 5 IV; Answer, 51V; 7a, 16a.

-3 -



prohibiting discrimination on the basis of race, sex and 

national origin. On September 12, 1973, the complaint 

was amended to allege with greater specificity the

forms of systematic discrimination in which plaintiff claimed 
TDES had engaged, and to join as defendants the Tennessee 

Department of Personnel and the Commissioner of Personnel of 

Tennessee. On March 20, 1974, the complaint was further 

amended to allege jurisdiction under Title VI of the 1964 

Civil Rights Act, 42 U.S.C. § 2000d.

Extensive discovery was conducted in 1972 and 1973,
_3/including depositions of numerous employees of TDES. The 

defendants furnished to plaintiff's counsel computer tapes 

containing certain data on referrals between 1972 and 1973. 

These tapes were subject to computer analysis and the results4_yembodied in a number of print-outs. On March 20-22, 1974, 

a hearing was held before the Hon. Harry W. Wellford on 

plaintiff's individual claim; plaintiff also presented his 
case-in-chief in support of the class action claim. The 

hearing was then recessed to permit the defendants to prepare 

their response to the class action aspect of the case. At 

the conclusion of this March, 1974 hearing the Court indicated 
that Shipp's individual claim would only be resolved after 

completion of evidence regarding and in the context of the
_5_/class action issues. On June 13, 1974, the District Court,

Exhibits 80-92; 574a-726a.

Exhibits 59-69.
Hearing of March 22, 1974, pp. 129-130.

-4-



in declining to grant a defense motion for a directed verdict,

indicated that it would "consider entering a judgment in the

Shipp case". On June 18, 1974, counsel for plaintiff wrote

Judge Wellford reiterating their understanding and desire

that the individual claim be decided only after and in the

context of the decision on the class action. As a precaution

counsel expressly asked:

If the Court should determine, prior 
to presentation of the defendants 1 case­
in-chief on the class action allegations, 
to decide the individual plaintiff's 
claim, we would appreciate an opportunity 
to present a supporting brief and/or pro­
posed findings of fact and conclusions of 
law. 6/

The District Judge never responded to this letter, 
and the defendants made no subsequent request that the in­

dividual claim be decided prior to the class action claim.

On December 20, 1974, without any subsequent proceedings or 

filings, the District Court entered sua sponte a 5 page
udecision dismissing Shipp's individual claim.

On April 23, 1975, another hearing was held before 

Judge Wellford on the merits of the class action. The 

defendants presented their case-in-chief, consisting of 

the testimony of a single expert and two exhibits, and 
plaintiff offered additional evidence in rebuttal. There­

after both parties submitted proposed findings of fact and
also

conclusions of law. Plaintiff/moved for reconsideration of

6 / See Motion to Reconsider Order of December 24, 1974 ; 988a.

7 / Order of December 20, 1974; 740a-744a.

_5_



the December 20, 1974, order dismissing the individual 

claim. On September 25, 1975, the District Court entered 

a Memorandum Opinion ruling for the defendants on all class 

action issues, and awarding costs against plaintiff. The 

Distri-ct Court also reaffirmed its dismissal of the in­

dividual claim. A timely notice of appeal was filed on 

October 23, 1975.
Because of the complexity of the evidence in this 

case, the relevant facts are set out in the appropriate 
parts of the Argument.

-6-



SUMMARY OF ARGUMENT

I. The defendant TDES was shown to refer white applicants 

to jobs averaging 38 cents an hour more than the jobs to which 
blacks were referred. Among applicants with the same occupa­

tion, such as carpenter or secretary, whites were consistently 

referred to higher paying jobs. This wage disparity existed 

among referrals to trainee jobs requiring no experience. There 

was a substantial number of jobs, all with low wages, to which 

virtually all referrals were black. White applicants were 

generally referred in disproportionate numbers to high paying 

industries, while blacks were referred in disproportionate 

numbers to low paying industries. The defendants' practice 

of referring women to lower paying jobs than men had an adverse 

impact on blacks because of the large number of black female 

applicants. These patterns of disparities were the result of 
the subjective and often standardless discretion exercised 

by interviewers at TDES, almost all of whom were white. The 
evidence was clearly sufficient to establish a prima facie 
case of discrimination in referral.

The defendants attempted to rebut this evidence by 

urging that half of the disparity was due to the fact that 
the group of black applicants included more women and more 

persons with limited education. They also urged that the 

remaining wage disparity occurred because blacks had less 

skill and experience. The record, however, contained no 

substantial evidence of differences in skill and experience 

sufficient to explain the pervasive pattern of disparities.

-7-



Blacks were referred to lower paying jobs than equally 

educated whites, and there was no evidence as to the 

job relatedness of education requirements. -The defendants' 

practice of discrimination against women could not be relied 

upon to explain away apparent discrimination against blacks.

II. Black employees at TDES remain largely confined to 

lower paying positions such as interviewing clerk, employ­

ment agent, and typist; the higher paying positions which 
control the pattern of referrals, interviewers,managers,

and employer relations representatives, are virtually all 
white. This is the result of tests administered by the 

Department of Personnel, which were conceded to have an 

adverse impact on blacks. No evidence was offered that 

these tests were job related.

TDES now requires a cut-off score on the tests 

substantially higher than that applied to whites in the past. 

The practice of naming most interviewers from within the 

agency, employed when the lower level jobs were predominantly 

white, was discontinued when the lower level jobs became pre­

dominantly black. The Department of Personnel acknowledged 

that the cut-off scores eliminated applicants who were in fact 
qualified for the jobs at issue. These practices all violate 

Title VII.

III. Although TDES is forbidden by law to provide service 

to employers who engage in unlawful discrimination, TDES has 

only refused service to 2 or 3 employers. TDES does not seek 
from E.E.O.C. or other agencies information about discriminatory

-a-



employers, and makes no effort to solicit complaints from 

applicants rejected by employers. TDES maintains an 

official policy of not inquiring whether the tests used 
by employers violate Title VII.

IV. TDES officials refused to refer plaintiff to a 

job although they had previously referred two less qualified 

whites. The District Court made no express findings as to 

why they had done so, although it apparently believed that, 

unknown to TDES at the time of the initial refusal, the job 

was already filled. In view of the conflicting evidence, 

the court's failure to make such findings was reversible 

error. Even if the job had in fact been filled at the time, 

the defendants would still be liable for punitive damages 
under 42 U.S.C. § 1981. The individual claim must be re­

manded for specific findings in light, inter alia of the 

pattern of class wide discrimination in referrals.

-9-



ARGUMENT

I. THE DEFENDANTS ENGAGED IN UNLAWFUL DISCRIMINATION 
IN THEIR TREATMENT OF APPLICANTS FOR REFERRALS,
PLACEMENT, AND OTHER SERVICES

The complaint in this action alleges that the 

Memphis Office of TDES discriminated on the basis of race 

in the services it provided to applicants seeking assistance 

in finding jobs. The complaint charged specifically that 

the defendants had, inter alia, (a) classified and referred 

black applicants for badly paid menial jobs regardless of 

their actual abilities, (b) applied a more stringent standard 
to blacks than to whites in making referrals to well paid 
or interesting jobs, (c) given preference to less skilled, 

experienced or recent white applicants over blacks who were 

more skilled or experienced or who had made application for 

referral at an earlier date, (d) referred only blacks to 

certain poorly paid menial jobs. Despite the length and 

complexity of the record before him, Judge Wellford failed 

to make with regard to the controlling issues the specific 

findings of fact and conclusions of law required by Rule 

52(a), Federal Rules of Civil Procedure, or to analyze 

that evidence in the manner prescribed by McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973); Franklin v. Troxel 

Manufacturing Co., 501 F.2d 1013 (6th Cir. 1974). Accordingly 
it is necessary to review the evidence in substantial detail.

-10-



(1) Plaintiff's Prima Facie Case
(a) TDES was first established in 1936 in the wake of 

the Depression. From the outset it operated on a racially 

segregated basis. In 1938 the Memphis branch of the service 
operated three referral offices. There were two white offices 
on Union Street, one housing the Industrial Division and 

another the Commercial and Professional Division. A "Colored 

Office" was established on South Second Street, and housed

the Negro Men's Division and the Domestic Service. Racially

identified job orders were accepted during this period.

Although the South Second Street office was operated exclusively

for blacks, TDES did not employ blacks to work at that office
10 /

until about 1950. In 1958 the white offices were moved to a 

new building at 1295 Poplar Avenue, which TDES continues to 

operate. In 1960 the Colored Office was moved to South Main 

Street, and its name changed to the "Domestic and Labor Office." 

That office handled orders for casual and domestic labor, 
which in the Dictionary of Occupational Titles ("DOT") are 

coded as service jobs (DOT 3); farm jobs were subsequently
added (DOT 4

8 / Exhibits 1A, IF.
9 / See Exhibit 1 F, p. 24.

10/ Exhibit 83, Deposition of Jessie Webb, pp. 3-4 Exhibit 
84, Deposition of Cecil McDonald, p. 5; Exhibit 87, Deposition 
of George Murphy, pp. 3, 12; 628a-629a, 640a, 697a, 698a.
11/ Exhibit 77, Deposition of Edna Flynn, p. 9-10; 549a-550a.

_L/

- l l -



On June 1, 1962, a month prior to scheduled hearings

regarding TDES by the United States Commission on Civil Rights,

TDES announced that it was ending its policy of discrimination.

Under the reorganization plan explained to the Commission,

clerical, managerial and professional jobs, as well as skilled

and semi-skilled industrial jobs, were to be handled only at

the Poplar Avenue office, as in the past, although blacks

could now use this service. White unskilled workers, however,
could be referred only by the Poplar Avenue office, and Plack

unskilled workers only by the Main Street office. The Main

Street office was to handle "labor and domestic job orders."
There were no plans to change the office staff assignments,

pursuant to which no blacks (other than a janitor and a maid)
worked at Poplar Avenue, and the Main Street office was staffed

12/
in part by blacks but supervised by whites. In 1967 the 

Domestic and Casual Labor Office moved to Monroe Street, 

where it remained until 1969. Despite the 1962 announcement, 

and the adoption of the 1964 Civil Rights Act, that office
11/

continued to serve the "great portion of the black traffic."

In 1969 the office on Monroe Street was closed and its functions 

and employees moved to the Poplar Avenue office.

12/ Exhibit 26 ; 496a-507a.

13/ Exhibit 79, Deposition of Edna Flynn, p. 13; 551a.

-12-



Prior to 1970 the staff at TDES specialized in 

particular occupations and jobs. When an employer called 
to place a job order, he would be referred to the inter­

viewer who handled that type of position. Similarly, an 
applicant seeking referral would be sent to the interviewer 

responsible for the type of position sought. The applicant 

would give the interviewer a written application, and the 

interviewer filed the application and later searched his files 
of job orders for an appropriate vacancy. Then, as now, both 

applicants and job orders were given a six digit number (e.g. 

608.281) corresponding to a particular job description in 

the Dictionary of Occupational Titles, and these numbers 

could be used to match applicants to appropriate vacancies. 

This first digit of the DOT code signified a general occu­

pational classification (e.g. 2 is clerical and sales, 3 
is service).

In 1970 this procedure was substantially altered. 
The job order-taking was separated from the interviewing 

and referral process. Orders were thereafter taken by an 

employer relations representative, and placed in a computer, 
known as a Job Bank. Interviewers, who had access to the 

information on the computer, ceased to specialize in particu­

lar occupation and dealt with any applicants in their office 

regardless of what position the applicant was seeking. In 

addition the list of available jobs was made directly avail­

able to applicants in the Poplar Avenue office, first in 

the form of a book of computer print-outs, and, later, on

-13-



microfiche cards that were used with a viewer. The print­

out and cards were organized by DOT code, which the applicant 

could use to find a vacancy in which he might be interested.

Once an applicant has filled out an application and received 

a DOT code based on his skills and experience, he can either 
go directly to the Job Bank viewers to look at available 

openings or seek assistance from a counselor or interviewer.
If an applicant finds a job for which he wishes to apply, he 
goes to an interviewer and asks to be referred to that job.
If the applicant is referred to a job he is given a job Bank 

referral slip to present to the employer. The employer indicates 

on the slip what action he took on the referral and returns

it to TDES.



(b) A systematic analysis was made of all referrals

made by TDES from July 1972 through June 1973. Because

of the volume and complexity of this data a series of tables

summarizing the information therein is set out in the appendix 

to this brief. A total of 51,955 referrals were made by the 

defendant during this period; of those 35,358, or 68.1%, were
JA/

black. The average hourly wage of the jobs to which blacks 
and women were referred was substantially below those of the 

jobs to which whites and men were referred.
Average Wage of Job 
To Which Referred 15/

Type of Applicant Average Wage

Whites
Blacks

Difference

$2.47 
2.09 
.38 '

White Males 
Black Males 

Difference

2.56
2.25
.31

White Females 
Black Females 

Difference

2.25
1.77
.48

Men
Women

Difference

2.35
1.89
.46

This 38 cents an hour overall disparity between black and 

white applicants was the result of four specific disparities.

14/ Exhibit 39, p. 2. Since some applicants were referred 
to more than 1 job, and there were cases in which more than 
one applicant was referred for a single vacancy, the number 
of applicants seeking the assistance of TDES during this 
period, and the number of job orders received by TDES, was 
substantially less than 51,955; 517a.

15/ Exhibit 39, p. 3; 519a.

-15-



First, black applicants with a particular 6 digit 

DOT code were consistently referred to jobs which paid less 

than the jobs to which whites with the same DOT code, and 

skills, were being referred. Typical examples of differing 
wage rates for males with the same occupation included the 

following:
Average Wage of Referrals 16J  

Selected Major Male Occupations

Applicant Occupation
Shipping and Receiving Clerk
Commodities Salesmen
Arc Welder
Carpenter
Trash Collector
Loader

White
Males

Black
Males Difference

$2.53 $2.36 $ .17
3.06 2.61 .45
3.37 3.06 .31
3.21 2.79 .42
2.44 2.25 .19
2.41 2.26 .15

the same DOT code:A similar pattern existed among women with

Average Wage of Referrals 17/
Selected Major Female Occupations

White Black
Applicant Occupation Females Females Difference

Secretary $2.62 $2.25 $ .37
Key Punch Operator 2.42 2.23 .19
Record Clerk 2.17 2.02 .15
Char Woman 1.98 1.56 .40
Hand Packer 2.05 1.81 .14
Electrical Unit Assembler 2.42 2.10 .32

Since under the TDES system an applicant could not be given the
18/

DOT code for loader, etc. unless "fully experienced," no legiti­
mate explanation for these differences is readily apparent.

16/ See Table 6 .
17/ See Table 8 .
18/ See Exhibit 82, Deposition of Evelyn Ryan. pp. 20-23. An 
applicant who lacked the requisite experience would be given a 
different code with an X in it. 6l9a-622a.

-16-



No comparable gap exists nationally between black and white

females in the same occupation. See Table 10.

There were 16 occupations involving over 40 referrals each in

which the average hourly wage for white males exceeded
19/

that for black males by more than $.50. There were no such

occupations in which the wages of black males enjoyed such

an advantage. The few instances in which black wages were

higher were generally poorly paid jobs to which over 90%
20/

of the referrals were black.

A similar pattern emerged when a comparison was

made of blacks and whites who worked in the same industry.
21/

In virtually every major industry the wages of the jobs 

to which blacks were referred was lower than that of white 

jobs.

Average Wage of Referrals 
Selected Major Industries ̂

Amount By Which Average White 
Wage Exceeded Average Black Wage

Industry Males Females

Building Construction $ .33 $ .48
Other Construction .15 .38
Food Manufacturing .31 1.02
Chemical Manufacturing .48 .22
Wholesale trade .17 .28
Retail - General .01 .16
Retail - Restaurants .16 .04
Business Services .42 .20

19/ See Table 11.

20/ E.g. porter (410 blacks, 12 whites), janitor (206 blacks, 
10 whites), waitress (819 blacks, 88 whites) and hotel maid 
(177 blacks, 4 whites). The average wage for all of these 
jobs was under $2.00 an hour.
21/ The sole exceptions were maids and, inexplicably, female 
truck drivers. "Major" denotes over 1000 referrals.
22/ See Table 25. The industries are those listed 
in the Standard Industrial Classifications.

-17-



A similar pattern existed with the 10 major DOT occupation 
23/

groups. Such disparate treatment of blacks and whites with

the same skills and occupations is among the -practices for-
24/

bidden by the Department of Labor.
25/

Second, there are 13 major jobs to which over 90%

of the referrals were black. These included domestic worker

(100% black), laundress and laundryman (99.73% black), clothes

presser (98.27% black), hotel maid (97.86% black), short order

cook (97.33% black) and janitor (95.41% black). Approximately

1 out of every 6 black applicants was referred to one of these 
26/

black jobs. The average wage of the vacancies in these jobs

23/ Table 1.

24/ The Solicitor's Analysis of 29 C.F.R. part 31 cites as 
an example of impermissible "Discrimination in Selection 
and Referral to Job Openings": "Minority Applicants are
referred to auto mechanic's jobs paying $4.50 an hour whereas 
white applicants are referred to auto mechanic's jobs paying 
$5.75 an hour." Exhibit 18, p. 9; 459a. At TDES the average re­
ferral rates for auto mechanics (DOT 620,281) was $2.50 
for white males, $2.42 for black males, and $2.17 for black 
females. Exhibit 67, p.090.

25/ i.e., involving at least 40 referrals.

26/ Among the 18,155 black applicants with DOT codes 3,619 
were referred to these 13 jobs. The referral rate among 
applicants without DOT codes is not known. See Table 14.
Only 1 in 65 white applicants was referred to any of these 
jobs.

-18-



to which blacks were referred was a mere $1.60 an hour.

The handful of whites referred to these jobs, however, were
22/sent to jobs averaging $1.92 an hour.

Third, whites were referred in disproportionate 

numbers to highly paid jobs and occupation groups, and 

blacks were referred in disproportionate numbers to poorly 

paid jobs and occupation groups. Among men the two highest 

paid occupation groups are structural work ($2.69 an hour) 

and professional, technical and managerial ($3.21 an hour); 

35.7% of all white men were referred to jobs in these occu­

pations, compared to only 13.6% of black men. Conversely, 

14.7% of black men but only 4.8% of white men are referred 

to the worst paid occupation group, service jobs ($2.00 an 

hour). A majority of all jobs to which women were referred 

were either service jobs ($2.14 an hour) or clerical and 

sales jobs ($1.53 an hour). 68.3% of white women were

referred to clerical and sales jobs, compared to only 21.4%
of black women; 57.5% of black women were referred to service

28/
jobs, but only 11.7% of white women. A similar pattern of re­

ferral exists among high and low paid jobs within the same
2_9/

occupation groups.

27/ Table 14. 207 blacks were referred to general cook jobs
averaging $1.73 an hour; the 15 whites referred to such jobs 
averaged $2.19 an hour. Forty blacks were referred to jobs as 
car wash attendants averaging $1.67 an hour; the 3 whites re­
ferred to such jobs averaged $2.02 an hour. Fifty-seven blacks 
were referred to jobs as clothes pressers averaging $1.71 an 
hour; one white was referred to such a job at $2.00 an hour.
2 8/ See Tables 3, 4, 5 7, 9.

See Table 25.

-19-



Fourth, there is a clear pattern of discrimination 

against women which, because of the proportionally larger 

number of black women, has a particularly adverse impact on

blacks. As was noted, supra, average male wages exceed 

average female wages by $.46 an hour. Out of 64 DOT jobs

in which more than 40 referrals were made, men received a
30/

higher average wage in 58. The most important occupation 

groups for women are service, clerical and sales, which 

account for 79.2% of all female referrals. Among the 17 

jobs in these categories with over 100 referrals, the 

average wage rates for men are more in every category.

The jobs in which men were referred to higher paying posi­

tions included the following:

Average Wage of Referrals 31/
Selected Service, Clerical and Sales Jobs

Description
Average Male 
____Wage____

Average Female 
____Wage______  Difference

Secretary $3.08 $2.50 $ .58
Typist 2.77 2.11 . 66
File Clerk 2.90 2.52 .38
Clerk Typist 2.47 2.00 .47
Salesperson - general 2.86 1.89 .97
Cashier-checker 2.80 1.87 .93
Waiter-Waitress 1.74 1.51 .23
Cook - general 2.18 1.59 .59
Switchboard Operator 2.43 2.05 .38

Similarly, among industrial jobs where a majority of the appli­

cants referred were women, men consistently were referred to

30/ See Exhibit 67.
Table 12.

-20-



better paying jobs. As the defense expert witness noted, 

this disparate treatment of women has the effect of widen­

ing the gap between black and white wages because of the 

disproportionate number of blacks who are women.

32/ Thus male sewing machine operators were referred to 
jobs averaging $2.22 an hour, and women were referred to 
jobs averaging $1.71 an hour. Table 13.

33/ see p. 30, n. 66, infra. Among applicants with DOT 
codes 38.4% of the blacks were women, but only 22.9% of 
the whites were women. See Table 1.

-21-



(c) This pattern of disparate treatment was directly- 

related to the structure and procedures at the TDES office.

(i) The 1969 merger of black and white offices 
was neither complete nor permanent. In the Poplar Avenue 

office the old distinctions reemerged as a separation of the 
office into three functional divisions: (1) Casual, Domestic

and Farm Labor, which handles the jobs that were the traditional
34/responsibility of the black office on Main and Monroe Streets,—

(2) Commercial, Professional and Technical, which handles the

jobs that were traditionally the exclusive province of the
35/white Poplar Avenue office,—  and (3) Industrial, which 

handles the remaining jobs. Functional divisions soon became
physical. The Casual, Domestic and Farm Labor section was

36/
located in a separate building known as the Poplar Annex.

The 1969 merger, which for the first time brought large numbers

of black and white applicants into the same office, was followed by
37/

a "noticeable loss of white applicants." And in 1973 the 

Commercial, Professional and Technical division was moved out 

of the Poplar Avenue office to a new office on North Cleveland

34 / This apparently corresponds, roughly, to DOT codes 3 and 4.

35 / This apparently corresponds, roughly, to DOT Codes 0,
1 and 2 ,

36 / This apparently occurred in 1970.

37/ Exhibit 88, Deposition of Raymond Neal, p.53, 706a.

-22-



Street. The three divisions, thus separated, serve clientels 

of differing racial composition. The North Cleveland office 

serves an applicant group which is equally divided between whites

and blacks, and which includes about three-fourths of all white
38/

females and one third of all white males who come to TDES. The
Poplar Annex serves a group that is 99% black, including one

3 9/
half of all black females. The main Poplar office is about 

two-thirds black.
This physical separation has a critical impact on referral

patterns. Despite the basic purpose of the Job Bank system, to

make all jobs readily available to all applicants, the three
offices maintain separate lists of jobs. Orders for Casual, Domestic

and Farm labor go directly to the Poplar Annex, and information
about their jobs are not sent to the Job Bank computer "until all

,,40/the people have been referred and the order is closed or filled"

The Annex does not have a viewer which would permit applicants 

there to consider jobs served by the other offices. The TDES 

Equal Employment Opportunity representative asked that a viewer 

with commercial, professional and technical jobs be kept at Poplar
42/

Avenue when that division moved to North Cleveland Street/

38/ Exhibit 91, Deposition of Charles Rudford, 733a. Of 1407 
white females with DOT codes, 1035 are in DOT codes 0, 1 and 2.

39/ Exhibit 91, Deposition of Charles Radford, 734a. Of 6981 
black females with DOT codes, 4022 are in DOT codes 3 and 4.
See Table 4.
40/ Exhibit 88, Deposition of Raymond Neal, p.62. This is 
done solely for record keeping purposes. 707a.

41/ Exhibit 84, Deposition of Cecil McDonald, p.28, 641a.
42/ Exhibit 88, Deposition of Raymond Neal, p.29, 705a.

-23-



but the Poplar Avenue office did not in fact have coDies 
of the microfiche cards describing those jobs. Since

each office keeps its own applications there are thus three

sets of job orders and three sets of applications.

The referral patterns described supra, pp.18-19, 

stem in large measure from this division of offices, orders, 

and applications. if a black woman goes to the Poplar Annex 

she is not referred to a clerical or sales job because that 

office has no such orders. If a white woman goes to North 

Cleveland Street she knows she will not be referred to a 

job as a maid or a laundress because that office has no such 

orders. Blacks who file applications at the Poplar office 

or Annex are not considered for commercial, professional 

or technical jobs that may subsequently arise because the 

interviewers at North Cleveland Street do not have those appli- 

tions. The job bank system functions only within the main 

office for industrial jobs; otherwise the system remains 

as segregated as it was prior to the 1969 merger. Although 

there is evidence suggesting that TDES officials may steer 

black and whites to the Annex and North Cleveland offices,

A2/ Exhibit 82, Deposition of Evelyn Ryan, p. 42, 626a.

-24-



AA'
respectively, those officials are no less culpable if 

applicants are merely following the patterns established 

in years of overt segregation or choosing to mix with the 

applicant group of their own color. In either case TDES 

has failed to establish a unitary employment service.

Green v. County School Board of New Kent County, 391 U.S. 

430 (1968) .

(ii) If a black applicant at the Poplar Avenue 

office finds on a microfiche card a job order in which he 

is interested, he cannot simply apply to the employer in­

volved. The microfiche card available to applicants does 

not disclose the identity or address of the employer who 

placed the order; that information is found on a separate 

set of cards to which only the interviewers,virtually all 

of whom are white, have access. The applicant must there­

fore ask an interviewer to tell him the identity of the 

employer and refer him to the job.

The interviewers, however, do not refer to a vacancy 

all applicants who want to apply. On the contrary, the 

general practice is to refer only those applicants whom the

44/ See testimony of Emma Batchlor, March 22, 1974, pp.
4-8, 336a-340a.

-25-



Thus the inter-interviewer believes are "qualified", 

viewer has a veto over who will and will not be able to 

apply to an employer for a particular job. In exercising 

that control the interviewer is, as a practical matter, 

free to apply the standards strictly to one applicant 

and to decide for another applicant to disregard a re­

quirement or call the employer and try to persuade him to

45/

45/ Hearing of March 20, 1974, p. 172, 154a; Hearing of March
21, 1972, pp. 110-111, 244a-245a; Exhibit 81, Deposition of 

Leland Dow, pp. 20, 23, 603a, 606a; Exhibit 88, Deposition of 
Raymond Neal, p. 20, 703a; Exhibit 91, Deposition of Charles 
Radford, pp. 65, 70-71, 708a. Jessie T. Webb, an employment 
counselor, testified she tried to persuade applicants that they
should not seek referrals to jobs for which they were un­
qualified. She indicated she would refer an applicant 
she believed unqualified if he insisted on it despite 
her attempted persuasion, but she could recall no in­
stance in which this actually occurred. Exhibit 83, 
pp. 20-24, 630a-634a.

-26-



waive it. In some cases, such as a requirement of 

experience, the interviewer exercises broad and un­

reviewed subjective judgment as to whether a previous 

job is sufficiently recent and similar to the vacancy 

to qualify. In plaintiff's individual case, for example, 

the interviewer referred to twowhites who did not meet 

the age or education requirements and then refused to 

refer Shipp on the ground his experience in shipping did not 

include knowledge of local shpping rates. See pp. 86-87 , 

infra.

Analysis of the TDES referral data revealed that 

employer education requirements were in fact being applied 

in an unequal manner. Interviewers chose to disregard 

those requirements and refer undereducated whites in far 

greater proportions than they did for blacks. Thus, 

approximately 7.0% of whites with less than ninth grade 

education were referred to jobs requiring 9-11 years, com­

pared to only 2.7% of blacks. About 15.0% of whites who

4 6 /

46/ See e.g. Hearing of March 22, 1974, pp. 23-25, 363a-365a.



had not graduated from high school were referred to

jobs requiring a high school diploma, compared to only

6.2% of the blacks without degrees. Conversely, the

proportion of blacks referred to jobs for which they

had more education than required was several times greater
47/

than the proportion of whites so referred. Such unequal 

application of job requirements is clearly unlawful.

Sims v. Sheet Metal Workers. 489 F.2d 1023, 1026 (6th Cir. 

1973); Wade v. Mississippi Cooperative Extension Service, 

11 EPD 510,770, p. 7236 (5th Cir. 1976).

(iii) An applicant can only use the Job Bank 

system to pick a possible job if there is a vacancy in his 

field on the day he visits TDES. Some jobs or industries 

place such a large number of job orders that there is 

likely to be one on a microfiche card when the applicant 

is at the office. For other jobs and industries this is 

not the case; the applicant leaves his application form 

on file in the hope that an appropriate order will be 

received. Each interviewer spends a certain amount of

47/ See Tables 17-21.

-28-



time each week conducting file searches, trying to locate

an applicant who has or approximates the qualifications
48/

for hard to fill or less common jobs. The assistant

manager of the Memphis office conceded there was a "possibility
49/

for discrimination in this situation." That is partic­

ularly so because there is no standard for determining 

which of the qualified applicants an interviewer will con­

tact about or refer to the job. One official said the

interviewer would "try to match up the best applicant"
50/

but that there was "no standard procedure'.' Other witnesses

48/ Hearing of March 20, 1974, pp. 110- 176-78, 129a, 155a- 
157a; Hearing of March 22, 1974, Testimony of Emma Batchlor, 
pp. 22, 40-43, 351a, 353a-356a; Exhibit 81, Deposition of 
Leland Dow, pp. 23-27, 30-34, 606a-610a, 613a-617a; Exhibit 
82, Deposition of Evelyn Ryan, pp. 29-31, 623a-625a; Exhibit 
87, Deposition of Lois B. Farmer, pp. 29, 30-31, 699a, 700a- 
701a.
49/ Exhibit 91, Deposition of Charles Redford, p. 129, 737a.

50/ Exhibit 81, Deposition of Leland Dow, p. 30, 613a.

- 2 9 -



said they believed the practice would be to give

priority to someone the interviewer had seen personally
11/

and remembered. This Court has repeatedly condemned

selection processes which thus place the critical decision 

in the hands of a largely white group bound to apply no 

fixed standard. Afro American Patrolmens League v. Davis.

503 F.2d 294, 303 (6th Cir. 1974); Senter v. General Motors 

Corp., 11 EPD 510,841, p. 7094 (6th Cir. 1976).

The danger of this system is well illustrated by 

plaintiff's first visit to TDES in 1964, when all orders 

were filled by file search. Plaintiff had completed several 

years as an Air Force officer, had several years' experience 

managing a large air cargo terminal and supervising a score 

of employees, and had just received a Masters degree in 

Business Administration from Columbia University. His 

education alone put him in the top 1% of all TDES applicants. 

Had plaintiff been white, his degree, combined with his mana­

gerial experience, would have made him one of the most 

sought after and easily placed applicants in TDES' files. 

Plaintiff was never referred to a single job.

_5J/Exhibit 82, Deposition of Evelyn Ryan, p. 30, 624a; Exhibit 
87, Deposition of Lois B. Farmer, p. 30, 700a.

-30-



(iv) Even if a file search, or approval of 

request for referral, is handled in a non-discriminatory 

manner, they both depend for their fairness on the accuracy of 

the DOT code assigned to the applicant. If a black em­

ployee with skill and experience was mistakenly coded for 

a job below his actual abilities, his application would not 

be picked out on a file search and an interviewer would 

conclude he was unqualified for work which he was in fact 

able to do. The DOT classification which the white inter­

viewers gave to black applicants was thus critical to the 

integrity of the entire referral process; given the sub­

jective and unreviewed nature of that classification decision, 

it was also one fraught with potential for discrimination.

See Afro American Patrolmens League v. Davis, 503 F.2d 294,

300 (6th Cir. 1974); Rowe v. General Motors Corp., 457 F.2d 

348, 358-59 (5th Cir.); United States v. Hazelwood School 

District. 11 EPD 510,854, p. 7577 (8th Cir. 1976).

The pattern of classifications clearly suggested that 

this subjective discretion had been misused. Among car­

penters, for example, 76.6% of the blacks were classified 

as "carpenter helpers" compared to 53% of the whites. 

Similarly, 52.6% of blacks with experience in sheet metal 

working were classified as helpers, compared to only 27.2%

- 31 -



of the whites. Maintenance men employed in buildings 

earn substantially less than maintenance men in 

factories; of black maintenance men only 25% were

classified for factory maintenance work, compared to 46%
§2/

of whites. Only about half of all applicants were

assigned DOT codes, and the use of those codes tended to

increase the disparity in referral wages. Blacks with

DOT codes were referred to jobs paying $.54 an hour less

than whites with DOT codes, a differential substantially
53/

greater than the differential for all applicants.

52/ Table 15.

53/ Compare Table 1 with Exhibit 39, 518a.



(d) Plaintiff also introduced evidence showing that 

these disparities could not be explained in terms of either 

education or training requirements.

The difference between black and white wages re­

mained even when education was taken into account.

Differences in Average Wage of Referral 
By Education54/

Education White Males v. 
Black Males

White Females v. 
Black Females

Males v 
Females

0-8 years $ .23 $.10 .54
9-11 years .34 .23 .47
High School 

Graduate .23 .52 .39
Over 12 years .03 .13 .45

Total .31 00•si*• .46

Although whites on the average had more years of education
than blacks, the wage disparity existed at every level.
Moreover an increase in education did not necessarily guarantee

55/
a significant increase in wages. Although females had, on56/
the average, more education than males, they earned less, and
the disparity existed at all levels of education. Females
with more than 12 years of education averaged about the same

57/
referral wage as males of the same race with 0-8 years.

54/ Exhibit 39

55/ Black males with 0-8 years of education averaged only 
$.05 an hour less than black males with 9-11 years. White 
males who had more than 12 years of education averaged only 
$.04 more than white male high school graduates. And 
white females who had more than 12 years of education averaged 
less than white female high school graduates. Id.

56/ See Exhibit 66.

57/ Exhibit 39, p. 3. White females over 12 years averaged 
$2.20, compared to $2.25 for white males with 0-8 years. Black 
females with over 12 years averaged $2.07, compared to $2.02 
for black males with 0-8 years, 519a.

-33-



There were 21 jobs to which whites with 0-8 years of education
wgje referred to higher paying positions than black high school 
graduates. See Table 23.

Plaintiff also showed that the referral wage dis­

parity between blacks and whites existed even among appli­

cants to jobs for which no experience of any kind was 
required. Exhibit 43 revealed the average wage rates for 

trainee jobs requiring no experience in 11 major DOT occu­

pation groups. The average referral wage for whites was 

$.31 higher than for blacks, only slightly less than the 

difference/referrals to all jobs. Moreover the same pattern 

of referring whites to better paying industries emerged.

56.2% of all white females were referred to trainee jobs
58/

in stenography, typing and filing, compared to only 17.0% of

black females. 47.3% of black females were referred to trainee jobs
53/

in food and beverage preparation and service, compared to
60/

only 14.6% of white females.
This evidence was far more than required to establish 

a prima facie case of discrimination. The $.38 an hour dif­

ference in average black and white referral rates might alone 

have been sufficient to meet plaintiff's burden. United 

States v. Masonry Contractors Ass'n of Memphis, 497 F.2d 

8 71, 875 (6th Cir. 1974); E.E.O.C. v. Detroit Edison, 515

F . 2d 301, 313 (6th Cir. 1975). "An employee is at an inherent

58/ DOT 20, average female wage $2.13 an hour. 

sq/ DOT 31, average female wage $1.28 an hour. 

60/ Exhibit 43, 526a-527a.

-34-



disadvantage in gathering hard evidence of employment dis­

crimination, particularly when the discrimination is plant­

wide in scope. It is for this reason that we generally 
acknowledge the value of statistical evidence in establishing 

a prima facie case." Senter v. General Motors Co., 11 EPD 

5 10,741, p. 7093 (6th Cir. 1976). In this case plaintiff 

not only proved this overall wage difference, but unearthed 

a detailed and systematic pattern of disparities in the type 

of jobs to which blacks and whites were referred and in the 

wages of jobs for blacks and whites in the same occupation, 

pp. 16-21 , supra, explained the various opportunities for

discrimination which had been used to produce this pattern, 

pp. 22-32 , supra, and showed that the disparities could

not be explained by possibly legitimate considerations. In 

the face of this showing the District Court had no choice 

but to hold the defendants guilty of discrimination unless 

they could, by clear and convincing evidence, rebut in all 

relevant particulars this palpable violation of Title VII. 
E.E.O.C. v . Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975) 
Meadows v . Ford Motor Co., 510 F.2d 939 (6th Cir. 1975).

-35-



(2) The Evidence In Rebuttal

Plaintiff having established a prima facie

case of discrimination, the burden of persuasion shifted

to TDES to demonstrate that there were nondiscriminatory

reasons for the observed disparity. Watkins v. Scott

Paper Co., 530 F.2d 1159, 1192 (5th Cir. 1976). To meet

that burden an employer (or referral service) must show

(1) that the disparity was due to differences in skills,

experience, or other criterion, (2) that the criterion was

job related, and (3) that the use of these criterion in

no way perpetuated the effects of past discrimination.
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 225

n.34 (5th Cir. 1974); Brown v. Gaston County Dyeing Machine

Co., 457 F.2d 1377, 1382 (4th Cir.) cert. denied 409 U.S.

982 (1972); Carter v. Gallagher, 452 F.2d 315 (8th Cir.
1971) cert, denied 406 U.S. 950 (1972) .

TDES1 defense consisted of the testimony of Dr.

Bernard Siskin, an associate professor of statistics at

Temple University. That testimony, accompanied by a written6ly
statement and several tables, consisted of his own explana­
tion of some of the data introduced by plaintiff, a commen­

tary on the testimony of plaintiff's expert, and a statistical 

analysis of some of the plaintiff's data. Dr. Siskin never

61/ Exhibits 94 and 95, 892a-900a.

-36-



visited the TDES office, did not examine the original

individual records of referrals, and made no inquiry into
62/

the history of TDES itself. He was offered and accepted

only as "an expert in the area of the statistical analysis
63/

and inferences that may be drawn from statistical data."

Siskin's testimony dealt with three major issues.
First, he explained he had performed a "regression analysis"

on the referral data to determine what applicant characteristics

correlated significantly with differing levels of wages. This

was done by (a) computing, with all other characteristics fixed,

the difference in wage rate associated with a given variable

characteristic,e.g., how much more men's rate was than women's

among white, college educated, 25-30 year old non-veterans;
and then (b) averaging this difference for all combinations of
the fixed characteristics. The resulting figure represented,

loosely speaking, how much the wages varied with the variable

characteristic, all other (specified) things being equal. The

analysis could not, of course, explain why there was a correlation
64/

between the varying characteristic and referral wages.

Plaintiff's data had showed that, on the average, white 

applicants had been referred to jobs paying $.38 an hour more than

62/ Hearing of April 23, 1975, p.152, 756a.

63/ id., p. 159, 763a.

64/ See Exhibit 95, "Wage Rates of Referrals;" Exhibit 94, 
Hearing of April 23, 1975, pp. 252-258, 856a-862a.

-37-



those to which blacks were referred. Siskin testified his 
analysis yielded the following results:

Effects of the Given Variables
65/

Upon the Wage of Referrals

Variable Effect
Sex -$.41
Education +$.14 per year of education

Veteran +$.12

Age -+$.06 per year old 
-$.0008 per year old squared

Race -$.18
Siskin explained this meant that, with the other variables held 

constant, referral wage rates were higher for men than for 
women (by $.41 an hour), for whites than for blacks (by $.18 

an hour), for veterans than for non-veterans (by $.12 an hour), 

and for the better educated (at a rate that rose with education). 

Wage rates rose with age until the applicant reached 38, and then 
declined.

Siskin urged that real difference is wages between blacks

and whites was really only $.18; blacks did worse than that,

overall, not because they were black, but because they had "less

education, they are more likely to be female and less likely 66 /
to be veterans."11" Siskin concluded that it was "reasonable"

65/ Exhibit 94, 893a; Exhibit 95, Wage Rates of Referrals, 898a,

66/ Hearing of April 23, 1975, 793a; Exhibit 95, "Wage Rates 
of Referrals," 897a-899a.

-38-



and "logical" to conclude that the remaining $.18 differ­

ential was due, not to discrimination, but to differences
67/

in skill and experience.

Second, Siskin reviewed the wages differences 

in Exhibits 40-43, pertaining to referrals to trainee 

jobs, and .argued that these differences as well were 

probably due to differences in "education, experience, 

veterans benefits," and the other variables noted above.

He explained that, statistically speaking, the wage dif­

ferences of from $.11 to $.41 an hour revealed by these 

tables, was not significant. And he argued that, even

though these were jobs for which no experience was required,
68 /

the employees would "really prefer" an experienced applicant.
Third, Siskin emphasized that plaintiffs data had

showed that, for the year in question, the referral-to-

placement ratio for blacks, the number of blacks referred

out compared to the number who got jobs, was higher than

for whites. Siskin offered two conflicting explanations,
that blacks are given greater exposure 
to employment possibilities or opportu­
nities by the Employment Service than 
are whites ;69 /

or that

blacks referred to jobs by the Employment 
Service are rejected by employers at a dis­
proportionate rate relative to whites and

67/ Hearing of April 23, 1975, 794a, 795a, 860; Exhibit 
95, "Wage Rates of Referrals, p. 7.
68/ Hearing of April 23, 1974, 772a-794a; Exhibit 95, pp. 3-5. 
69/ Exhibit 95, p. 2-4.

-39-



racial disparity evidently exists 
in the occupation structure of the 
Memphis labor market. These facts 
suggest that the employers may be 
practicing racial discrimination 
. . . .70 /

Siskin insisted, however, that such discrimination by
11/employers was none of the defendants' concern.

This evidence was insufficient to rebut plaintiff's 

prima facie case for several distinct reasons.

(1) The evidence adduced by defendants purported 

to explain only disparate treatment in the types of jobs 
to which blacks and whites were referred. Siskin's testimony 

neither bore on nor offered any defense to the fact that blacks 

and whites with the same DOT code, and skill, were being referred 

to jobs with different wage levels. See pp. 16-18, supra. While 
Siskin argued that a randomly selected black was less likely 

to be qualified for a skilled job such as a shipping clerk or 

carpenter, he never suggested that those blacks who were ship­
ping clerks and carpenters would be less skilled or experienced 

72 /
than whites. The evidence revealed that whites were better 

paid than blacks in the same DOT category regardless of whether 

the category was predominantly white (e.g. professional, technical 

and clerical) or predominantly black (e.g. service). The evidence

70/ Id., "Wage Rates of Referrals,” pp. 8-9, 899a-900a.

71/ Id., see also Hearing of April 23, 1975, pp. 166-67, 
220-21, 242-48,. 700a-701a, 824a-825a, 846a-852a.

72/ Indeed, given the historic barriers that have existed 
to minority entry into these jobs, it would be reasonable 
to expect those blacks who had entered them to be unusually 
skilled and motivated.

-40-



adduced by defendants suggested no legitimate explanation 

for this disparity. Nor did the defendants offer any 

legitimate explanation for a variety of other discrimina­

tory practices, including referring only blacks to certain 
types of jobs, referring disproportionate numbers of whites 
to jobs for which they were educationally ungualifed, re­
ferring disproportionate numbers of blacks to jobs for 

which they were educationally over qualified, etc. See 

pp. 18, 27-28, supra.

(2) There was no substantial evidence that black 

applicants at TDES actually had a lower level of skills and 

experience than white applicants. Siskin suggested this might 

be the case if one assumed the distribution of skills and 

experience among black and white applicants was exactly the 

same as among the Memphis labor force as a whole. But as 

Siskin himself recognized, that assumption is without founda­

tion. Siskin noted that professionals and managers, the major

high skill white category, are "considerably less likely to
73/

use Employment Security" than others. Equally important, 

proportionally speaking blacks are over 7 times as likely as
74/whites to use TDES, and thus the sample of the workforce doing 

so is skewed in some unknown manner. Beyond his hypothesis 

concerning the Memphis work force Siskin could offer no reason 

for believing black applicants were less skilled or experienced;

TkJ Exhibit 95, p. 1, n.l, 894a.
74/ Non-whites constitute approximately 30% of the work force 
in the Memphis area, and 69.8% of the TDES applicants. Exhibit 
39. Black females are over 10 times as likely to apply to TDES 
as white females.

-41-



he had deliberately refrained from conducting any studying 

of the defendants 1 records to see if there were actual dif­

ferences in skills or experience.

If the composition of the regional work force were 

accepted as proof of the skills of actual applicants, it would 

constitute a defense to every case of discrimination in hiring. 
There is not a major city in the country in which blacks as 

a whole are not significantly less trained and experienced 

than whites. No court has ever suggested that an employer 

could justify or explain disparate treatment of black applicants 
on such a flimsy basis.

(3) Siskin's explanation of Exhibits 41-43 was pre­

mised on the assumption that jobs for which experience was 

helpful would be better paid, and that this difference in 

wage level accounted for the difference in the wages of the 

jobs to which blacks and whites were referred. If that were 

so wages for trainee jobs requiring no experience would be 

far lower than wages for all jobs, since the latter group

includes large numbers of jobs which are not open to trainees
21/and for which experience is necessary. And, if the proportion 

of blacks without experience is lower than among whites, the 

difference between black and white wages should be far smaller 

among trainees than among total referrals. In fact, however, 
neither hypothesis is supported by the data.

75/ Trainee jobs requiring no experience accounted for only 
40% of the jobs in the 11 DOT categories which are covered 
by Exhibits 43 and 55.

-42-



76/
Average Wage Rates 
Selected DOT Codes

All Referrals
Trainee Jobs 
No Experience 
Required

White Males $2.40 $2.41
Black Males 2.16 2.17

Difference .24 .24

White Females 2.13 2.05
Black Females 1.64 1.64

Difference .49 .39

All Whites 2.34 2.33
All Blacks 2.01 2.03

Difference .33 .30
Contrary to Siskin's assumption, inexperienced trainee wages 

were equal to or greater than ordinary referral rates 

for all groups other than white females, and removing ex­

perience requirements had only a marginal effect on the gap be­

tween black and white wages.

(4) In explaining the substantial wage difference 

for whites and blacks referred to trainee jobs requiring no 

experience, Siskin hypothesized that, although the employers

involved did not require experience, large numbers of the
77/

employers involved in fact desired experience. Although 

76/ Exhibits 43, 55, 526a-527a.

21/ Exhibit 95, p. 5; Transcript of Hearing of April 23, 1975, p. 174, 778a.

-43-



there were 11,748 referrals to such jobs the only evidence 
offered in support of this hypothesis was a sample print 

out showing 2 instances in which such a desire had been
23/

expressed. The defendants offered no testimony by TDES 

employees with personal knowledge as to the frequency of 
such requests. Although the records of the job orders in 

question were in the defendants' possession, TDES did not 

offer into evidence either the records themselves, a sum­

mary of their content, or a computer analysis thereof.

Such a selective presentation was clearly insufficient 

to meet the defendants' burden of establishing that experience 

or skill was actually desired by the employers.

(5) Siskin speculated that the difference in the 

referral ratio revealed by plaintiff's study might have 

been caused by a systematic TDES practice of trying to 

assist blacks by referring them to high paying jobs for 

which they were not qualified. He hypothesized that a black 
applicant would receive a series of progressively less attrac­

tive referrals until a position was found for which the appli-
79/

cant's qualifications were adequate. On this hypothesis, it 

was noted, the wages of the jobs in which blacks were placed 

would be substantially lower than the average rate for the 
positions to which they were referred, and the gulf between 

black and white placement wages significantly greater than 

that for referral wages. Not a shred of evidence was introduced

ip/ Exhibits 72 (A) and (B) . The two trainee jobs involved 
were for a janitor (DOT 382.884) and a security guard (DOT 
372.868). Blacks constitute 95.4% of the referrals to the 
jobs with the former code and 76.9% of the referrals to jobs 
with the latter. See Exhibit 67, pp. 067, 068.
JJL/ Hearing of April 23, 1975, pp. 166-67, 220-21 * a a'
ST5a. _ 4 4 _



to support this hypothesis, and the defendants did not produce 

from their files a single instance in which a black had re­

ceived a series of referrals in the manner theorized.

Documents in the possession of the defendants belied
80/

this speculation. The TDES computerized report for the year

ending January 31, 1972, showed that well educated applicants
required more referrals than the uneducated, that welfare clients

sent to TDES were placed very easily, and that applicants
classified as lacking minimal amounts of education, skill or

experience required fewer referrals than ordinary clients.

Although plaintiff's study showed blacks had a lower referral

to placement ratio for the year ending June 1973, the TDES

report showed whites had a higher ratio for the year ending 
81/

January, 1972; the variation suggesting the difference is

of little significance. The difference between the wages

of blacks and whites actually placed was slightly smaller

than the difference in the rates of the jobs to which they 
82/

were referred.

(6) The regression analysis prepared by Dr. Siskin 
was legally inadequate for several reasons.

80/ The report in question was disclosed to plaintiffs as 
part of discovery and is reprinted as Table 26.

81/ See Table 27.
82/ The difference in the average placement wage, as revealed 
by Table 26, was approximately $.34. The difference in the 
average referral wages, as revealed by Exhibit 39 was $.38. 
The change may be due to inflation, since the first figure is 
for the year ending in January, 1972, and the latter for the 
year ending in June, 1973.

-45-



(a) The major independent variable used by Siskin 

to reduce the difference between black and white applicants 

was sex. Siskin's analysis showed that, all other things 
being equal, female applicants were referred to jobs paying 

$.41 an hour less than males. Since there was a dispropor­
tionate number of black females, this "explained" a large 

part of the apparent difference between blacks and whites.

While this exercise was statistically interesting, from a 

legal perspective it was simply an assertion that the de­

fendants were really discriminating on the basis of sex 

rather than race, and that this merely happened to have an 

adverse impact on blacks. That is not a defense cognizable 

under Title VII.

(b) The second variable relied on by Siskin was

education, which his analysis suggested increased referral

wages at the rate of $.18 per year of education. Since, as

Siskin stressed, black applicants tended to be less well
83/

educated than whites, this also helped to "explain" the 

lower wages paid to blacks. That explanation is precisely 

the adverse impact which under Title VII triggers a require­

ment that the defendant prove the use of an education standard 

is job-related. Griggs v. Duke Power Co., 401 U.S. 424 (1971). 
Dr. Siskin expressly noted that his analysis,

83/ Exhibit 95, p. 5, 898a.

-46-



does not imply validity to the 
education requirement. However, 
the employment Service simply 
makes referrals to employers it 
does not hire. The question of 
the validity of education must fall 
on the employer not the Employment 
Service which tries to fill a job 
order.

There was, however, no evidence that less educated applicants

were referred to poorly paid jobs due to employer requirements
rather than criterion formulated by TDES employees. Even if

that were the case, Siskin was wrong in his assumption that

TDES could serve with impunity employers which used education
requirements that violated Title VII. See pp. 78-85, infra.

The reliance of this state agency on the inferior education
of blacks must be considered in light of the role of other

arms of the state in maintaining a segregated and inferior

black school system throughout most of this century. See

Northcross v . Board of Education of Memphis City Schools,

466 F .2d 890 (6th Cir. 1972); Gaston County v. United States,

395 U.S. 285 (1969). Similarly, in view of the defendant's

admitted past discrimination, and of its importance to the

black community in Memphis, it would at the least be difficult

for TDES to establish it was in no sense responsible for the

allegedly lower levels of black skills and experience. The

sole defense witness conceded he had no idea what role TDES

might have had "in the past in perpetuating or establishing
discrimination [or a] discriminatory pattern in the labor 

85/
market."

Id., n.Hearing 9.of April 23, 1975, pp. 261-62, 865a-866a.

-47-



(c) The regression analysis was able to "explain" 

only half of the $.38 an hour wage difference between black 

and white referrals. It still revealed that, even holding 

constant sex, education, veteran status, and age, blacks 
still were referred to jobs paying $.18 an hour less than 

whites. Although Siskin believed this difference was due to 

differences in skill, experience, and "special education," 

there is nothing in the record to support such a belief.

The evidence offered by TDES in defense of this 
action was palpably inadequate to meet its burden of per­

vasion that there were nondiscriminatory reasons for the 

observed disparity.

-48-



(3) The Opinion of the District Court

The Memorandum Opinion of the District Court

failed to resolve the controlling factual and legal issues,

or to make the structured analysis of the evidence required

by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

The only reference to the possible existence of a prima

facie case was the following statement:

There was a significant dispute between 
sincere experts who testified in this 
cause as to the effect of statistical 
studies and analysis and not only whether 
they indicated a prima facie case of 
employment discrimination, but also 
whether they indicated racial discrimina­
tion at all as to the effect of TDES 
services when factors of skill, education 
and experience were taken into account.86/

The opinion is devoted largely to an incomplete and not
87/

entirely consistent summary of the evidence. Compare Franklin v 
Troxel Mfg. Co., 501 F .2d .1013 (6th_ Cir .. 1974) .

The limited findings of the District Court were
equivocal, inconsistent, and tangential to the central issues 
of the case. The court noted there had been some "good faith"

86/ Memorandum Opinion, September 25, 1975, pp. 15-16, 1008a-09a

87/ The opinion, at page 12, relies on Dr. Siskin for the 
proposition that "it is almost three times more likely that 
a white applicant is high-skilled than a black is high- 
skilled." Two pages later the opinion states, "whites who 
apply at the Memphis Office of TDES are almost twice as 
likely to have high skill experience than blacks." P. 14.
The record in fact contained no evidence as to the actual 
skills and experience of black and white applicants.
Compare 1005a with 1007a.

-A9-



efforts by management "although not entirely effective, to

alleviate effects of past discrimination within the internal

structure of the office and in its impact on the Memphis

employment community," and "to eradicate past effects of
88/

segregation and discrimination." Manifestly the existence

of such ineffective good faith efforts was not a defense

to the underlying cause of action. See Griggs v. Duke Power

Co. , 401 U.S. 4 2 4 , 4 3 2 - 33 (1971); Albemarle Paper Co. v.
Moody, 422 U.S. 405 (1975). Paradoxically, having thus
noted the existence of past discrimination by TDES and its

impact on the community, the court also stated it could "not

find any basis to attribute to the Memphis Office of TDES

a realistic causative force" in the alleged differences in

experience and education, which the court blamed instead

on "the community itself, and the private sources of em- 
89/

ployment." The impact of TDES1s discrimination on community 

employment patterns, noted on page 14 of the opinion, was 

forgotten by page 15. And the widespread private discrimina­

tion relied on at p. 15 was forgotten when the court, con­

fronted by evidence that TDES had terminated service to only two 

or three employers in recent memory, failed to compel TDES to 
comply with its statutory duty not to do business with dis­

criminatory employers. See pp. 78-85, infra.

88/ id., pp. 15-16, 1008a-1009a.

89/ Id., p. 16, 1009a.

-50-



The class action portion of the opinion concludes 

with the statement:

Plaintiff has failed to show that present 
referral policies and practices of the 
defendants have an unlawful discriminatory 
impact upon black applicants now, or that 
they perpetuate past effects of racial 
discrimination for which defendants may be 
deemed responsible. 90/

This is precisely the sort of general conclusive holding, 

inextricably intertwining questions of law and fact, which 

Rule 52(a), Federal Rules of Civil Procedure, was adopted 

to avoid. It is impossible to determine what legal standard 

the District Court applied in determining what impacts were 

sufficiently discriminatory to be ’hnlawful" and when an 

employment service which had engaged in past discrimination 
could be "deemed responsible" for differences in experience 

between blacks and whites. It does not reveal what the 

District Court thought about the complex patterns of dif­

ferences in referrals revealed above. The failure of the 

District Court to make specific and detailed findings of 
fact would alone require reversal of the judgment below.

See pp. 86-92, infra.
In the instant case, however, the record consists 

largely of evidence of disparate treatment which was essentially 

uncontested. The controlling question on appeal is what con­

clusions must, as a matter of law, be drawn from that record. 

Palmer v. General Mills, Inc.,513 F.2d 1040, 1043 (6th Cir.

1975); Sims v. Sheet Metal Workers, 489 F.2d 1023, 1027 (6th

gn/ Id., p. 17, 1010a.

-51-



Cir. 1973). For the reasons noted above, plaintiffs clearly 

met their burden of establishing a prima facie case, and the 

defendants failed to rebut it in any relevant particular.

Under these circumstances the ultimate question of whether 

the defendants were guilty of unlawful discrimination must 

be resolved in favor of plaintiffs. Wade v. Mississippi 

Cooperative Extension Service, 528 F.2d 508, 517, 11 EPD

5[ 10,770, p. 7234 (5th Cir. 1976) ; United States v. Jacksonville 
Terminal Co., 451 F.2d 418, 423-24 (5th Cir. 1971); Causey v. 
Ford Motor Co., 516 F.2d 416, 420-21 (5th Cir. 1975). The 

decision below should be reversed and the case remanded to 

the District Court with instructions to fashion appropriate 

relief.

-52-



II. THE DEFENDANTS ENGAGED IN UNLAWFUL DISCRIMINATION 
IN THE HIRING AND PROMOTION OF EMPLOYEES AT THE 
MEMPHIS AREA OFFICE OF TDES

Because of the nature of the referral system
operated by the defendants, particularly the broad and often

standardless discretion accorded to interviewers, see pp, 25-32,
supra. the identity and attitudes of TDES personnel, especially

interviewers, was and is of paramount importance to individuals

seeking non-discriminatory treatment of their applications
91/

for referral. Plaintiff's Complaint and Amended Supplemental 
92/

Complaint both specifically alleged that the defendants had 

engaged in racial discrimination in the hiring and promotion 

of TDES personnel, and that this was a major cause of the 

discrimination in referrals described above. Compare Sims 

v. Sheet Metal Workers, 489 F.2d 1023, 1026 (6th Cir. 1973).

91/ The Complaint after alleging in detail discrimination 
in referrals, claimed the defendants were "discriminating 
against Negro applicants for employment by or promotion 
with, Tennessee Employment, and thereby establishing and 
maintaining an employment service whose employee's are 
prejudiced against Negro applicants and therefore engage 
in or permit other discriminatory practices described 
hereinabove." Complaint 5 V(l), 8a.

92/ The Amended and Supplemental Complaint alleged: "The
racially discriminatory policies and practices of defendant 
. . ., are the direct and proximate result in part of 
the exclusion of black persons from, or the limitation of 
black persons in, employment in certain critical positions 
within the Memphis Area Office. For example, of the office's 
approximately 50 interviewers, many of whom are directly 
responsible for the referral of applicants to job openings 
and others of whom (all of these are white) are responsible 
for dealing with employers placing job orders, over 90% are 
white, although numerous black persons, both within and 
without the Memphis Area Office, are equally or more qualified 
to perform the same duties. Other positions within the Office 
are occupied exclusively or almost so by blacks." Pp. 2-3, 
34a-35a.

-53-



In 1962, although TDES claimed to have ended

its practice of operating separate offices for white and

black applicants, the staffs remained essentially segregated.

At the "formerly" white Poplar Avenue office, all 82

employees, other than the maid and janitor, were white. At

the "formerly" black South Main Street office there were

24 black employees and 10 whites. At the Poplar Avenue

Office all 48 full and part-time interviewers were white;
at the South Main Street office 19 of the 25 full and part

93/
time interviewers were black. Despite the segregation, 

blacks constituted 26.0% of the interviewers employed by

TDES in Memphis in 1962. In 1966 whites were still 46 of
94/

the 48 . Poplar Avenue employees.

In 1967 the South Main Street Office was replaced 

by an office of equal size at 1328 Monroe Street; the new 

office was staffed with employees from Poplar Avenue, newly
95/

hired individuals, and only "part of the staff of Main Street."

93/ Exhibit 26, Hearings Before the United States Commission 
on Civil Rights, p. 234 (1962). When asked whether in 1962 
TDES intended to assign blacks to the Poplar Avenue office,
Mr. Dow answered, "I cannot state that because I do not know 
what the policy or the plan is in that regard." Id., pp. 220- 
221, 500a.

qA / Exhibit 29, p. 41.
95/ Exhibit 81, Deposition of Leland B. Dow, Jr., pp. 7-8, 
590a-591a.

-54-



In 1969 the Monroe Street office was merged into the

Poplar Avenue office. By 1974, as a result of these

mergers, only 15.7% of the black interviewers employed
in 1962 were still working for TDES, compared to 50.0%96/
of the white interviewers. Cf. Rolfe v. County Board of 

Education of Lincoln Road, 391 F.2d 77 (6th Cir. 1968).
When this case came to trial in March, 1974, the 

TDES employees in Memphis were, for the most part, segre­
gated into identifiably white and black jobs.

Job Assignments
Memphis Office Employees of TDES, 1974 

Jobs Categories With More 
Than 5 Employees 97/

Job Category White Employees Black Employees
Managerial 15 2
Interviewer 45 4
Employer Relations 

Representative 10 1
Counselor 18 9
Employment Agent 1 17
Interviewing Clerk 1 5
Typist 5 12
Since 1962 blacks had fallen from 26.0% of the interviewers

(19 of 73) to 8.2% (4 of 49) . This decline was the result,

not only of the loss of the 1962 black interviewers,

.96/ Of the 54 full and part time 1962 white interviewers,
16 were still employed as interviewers and 11 held higher 
positions. Of the 19 full and part time 1962 black inter­
viewers, only 3 remained with TDES. Exhibit 2B, 427a-429a.

97/ Exhibit 3, Analysis of Appendix D to Interrogatory 
Answers. Managerial includes supervising interviewer.

-55-



but also of a clear pattern of discrimination in hiring

and promotion into the various job categories in the

years immediately prior to trial.

Promotions and Hires After January 1, 1970 
Memphis Area Office of TDES 98/

Job Category White Employees Black Employees
Managerial 9 1
Interviewer 17 1
Employee Relations 

Representative 7 1
Counselor 8 7
Employment Agent 1 12
Interviewing Clerk 0 1
Typist 3 8
From September 16, 1969, when this action was filed, until

the close of discovery, the defendants hired 20 interviewers,
99/

of whom only 1 was black. The exclusion of blacks from the

ranks of interviewers guaranteed similar exclusion from jobs

as managers and employer relations representatives which are
100/

traditionally filled by promoting interviewers. This hiring 

pattern was clearly aggravating rather than reducing the 

exclusion of blacks from jobs as managers, interviewers and

_98/ Exhibits ID, 2 B. Although the trial of plaintiff's 
case was held in March, 1974, the discovery was completed 
earlier and includes hire and promotion data only through 
1973 .
99/ Exhibit 2B, 427a-429a.
300/ Exhibit 2 B. 85.0% managers, 72.7% of the employer 
relations representatives, and 56.5% of the counselors had 
earlier served as interviewers, 430a-434a, 437a.

-56-



loy
employer relations representatives.

Selection of employees for all of those predomi­

nantly white jobs is made on the basis of tests prepared 

by the Tennessee Department of Personnel. The test for

interviewer positions consists solely of a written exam- 102/
ination; the score of applicants for other positions is a 

combination of the result of such a written test plus a 

certain number of additional points based on education 

and experience. When a vacancy arises within TDES the

Department of Personnel provides a certified list of those individuals
with scores high enough to be eligible for the job. TDES may

then appoint any person on a list of eligibles; TDES is not
obligated to consider or interview all of the eligibles, and

there are no written standards delineating how the choice
10?

among the eligibles is to be made.

101/'Because a majority of counselors jobs have in the past been 
filled by former interviewers, the declining number of black 
interviewers will inevitably lead to a reduction in the number 
of black counselors. Since 1970 5 of the 7 blacks named as 
counselors had previously served as interviewers; during this 
same period only 1 new black interviewer was hired. Since there 
are now only 4 black interviewers left in TDES, the number of 
blacks promoted from interviewer to counselor is certain to 
decline.

102/ This was not always so. See pp. 66-69, infra.
in?/ See generally Transcript of Hearing of March 20, 1974,
pp. 88-132, 107a-150a; Exhibit 92, Deposition of Robert Chaffin,
642a-687a.

-57-



The Department of Personnel keeps no records of
. 104/the test scores by race of black and white applicants.

The Department's Director of Intergovernmental and Employee

Relations, however, candidly conceded "the top end of the
105/

score system to be disproportionately white". Because of

this acknowledged impact of the written tests state personnel

officials steer qualified minority applicants who are unable

to pass the tests to lower paid though closely related jobs

such as employment agent,for which no written test is re- 
106}/

quited. Even if the adverse impact of the Department's 

tests had not been conceded, the existence of such an impact 

on minority group members was otherwise established by the 

record. At least in the absence of records of the race and 
scores of the applicants who took the tests, adverse impact

104/ Transcript of Hearing of March 20, 1974, p. 126, 145a.

IQS7' Id., p. 141a. The Director took a similar position in
his deposition.

"Q. Has it been your observation, generally that 
you do have a greater majority of minority 
applicants . . . falling below the top three 
or top five on any particular list?

A. That is definitely true that that does occur, 
and that is going to be true anywhere where a 
group of people have had a poor education and a 
poor opportunity for education that others have."

Exhibit 92, p. 37, 678a.

10y Id., p. 38, 679a.

-58-



must be inferred if the proportion of minority employees
hired on the basis of the test was significantly smaller

than the proportion of minority employees in agency jobs
below those in question or than the proportion of minority

employees in the area. Afro-American Patrolmen's League
v. Davis, 503 F.2d 296, 300 (6th Cir. 1974); Bridgeport

Guardians v. Members of Bridgeport Civil Service Commission,

482 F.2d 1333, 1335-36 (2d Cir. 1973); United States v.

Georgia Power Co. ., 474 F.2d 906, 910 (5th Cir. 1973);

League of United Latin American Citizens v . City of Santa

Ana. 11 EPD 1 10,818, p. 7419 (C.D. Cal. 1976). In the

instant case only 8.3% of the applicants selected since

1970 for jobs as managers, interviewers, or employer

relations representatives were non-white. Blacks constituted

34.0% of the Memphis TDES employees, 55% of the TDES employees
107/

outside these three categories, approximately 30% of the
108/

labor force in the Memphis Area, and over 69% of the job109/
seekers whom TDES was supposed to serve.

The undisputed evidence revealed that the tests 

at issue were fashioned and used in a manner entirely con­

trary to the applicable legal requirements.

107/ Exhibit 3.
108/ Exhibit 39, 517a.

109/ Id.

-59-



(1) The written tests were, to a large degree, general

intelligence tests used, with slight modification, for a 

variety of positions. The interviewer test was described 

by the WIN counselor as "comprehensive," covering "every­
thing from psychology, through, it seemed, math, through

11 y
logic, any type of reasoning." The content of the inter­

viewer written examination was essentially the same as
u ythat for employment counselor I, and, apparently, for jobs

11 y
in other state agencies. Because of the content of the
examinations, a white applicant with neither experience

nor training in either interviewing or counseling was able

to score above the cut off on written examinations for both113/
interviewer and counselor I, while a black applicant who

11 0/ Exhibit 86, Deposition of Mary Beth Wallace, p. 7 , 694a.

113/ Id., 695a; Exhibit 80, Appendices 2 and 3, 574a-586a.

112/ Exhibit 92, Deposition of Robert Chaffin, 660a, "[W]e
would have one test that is know[n] among the people in state 
government as the Big Five Test . . . .  If the test is passed 
by an applicant, it would qualify that applicant for five 
different jobs within state government that are jobs, for 
example, and I'm not sure these are included in the Big Five, 
like welfare worker, interviewer in Employment Security, coun­
selors in Welfare and Employment Security, and this sort of 
thing." See also Exhibit 80, Validation Studies for Job Classes 
in the Department of Employment Security, pp. 3-4, 585a-586a.

113/ • Exhibit 86, Deposition of Mary Beth Wallace, pp. 2-8,
Miss Wallace's training was in elementary education; prior 
to passing the tests she had taught school for a year and 
worked as a sales manager for Welcome Wagon, International. 
689a-695a.

-60-



had several years of experience assisting with referrals

at TDES, and had taken 24 weeks of specialized training
114/

sponsored by TDES, was unable to do so. Test scores of 

successful applicants bore no comprehensible relationship
u y

to their education. Such a use of a generalized test 

for a variety of different positions was precisely the 

defect condemned in Griggs v. Duke Power Co., 401 U.S.

424 (1971) and Albemarle Paper Co. v. Moody, 422 U.S.

405 (1975) .

(2) The Department of Personnel fixed the passing

score on these tests at 70, or, for the 4 digit score in

Exhibit 2B, 7000, which it viewed as corresponding to the

level sufficient to enable the applicant to completely

perform the job at issue. The Department of Personnel

believed that all applicants with such a score should, as
116/

a practical matter, be considered for each vacancy.

11/ Testimony of Emma Batchlor, March 22, 1974, pp. 12-23. 
The term "pass" is used in the sense of scoring high enough 
to be considered for the job (in the top 3 or 5), not merely 
above 70. See pp. 61-66, infra.

11/ The average testscores of successful applicants for 
interviewer jobs, by education, was as follows:

Years of Education Average Score
Less than High School Degree 7287
High School degree 7969
High School and some college 8102
College degree 7981
College degree and graduate work 7939

Exhibit 2-B, 427a-429a.

11/ Transcript of Hearing of March 20, 1974, p. 120, 139a. 
Exhibit 92, Deposition of Robert Chaffin, pp. 36-37, 677a-678a.

-61-



Tennessee statutes, however, require the use of a different 
cut-off. To be eligible for consideration for a promotion
an employee's score must be among, or equal to, the top

3 scores of other employees seeking a promotion. If the

position is to be filled by either promotion or hiring a

new employee, the applicant's score must be among, or equal
117/

to, the top 5 scores. Thus the operative passing score

varies in three independent ways. First, it depends on the

scores of whatever other individuals happen to be seeking

the job at the same time. Thus between December, 1969, and

June, 1972, the "passing" score on the interviewer test varied

from a high of 9000 to a low of 7799. The employees at the

top of the eligible list one month might be ineligible for

the same job a few weeks later. Second, the passing score
depends on what other individuals happen to be seeking the

job in the same geographical area. Thus applicants who might
be at the top of the eligible list if they lived in Memphis

could be ineligible for the same job because they lived in
n  fi/

Nashville. Third, when an agency such as TDES wishes to

117/ Tenn. Code Anno. §§ 8-3208, 8-3209. The different rules 
for promotions and hires apparently derives from the whim of 
an irate Tennessee legislator. See Transcript of Hearing of 
March 20, 1974, p. 121, 140a.
118/ The Manual for Test Administrators and Monitors prepared 
by the Tennessee State Department of Personnel, notes, "The 
score required to be among the top 5 applicants on a register 
varies considerably, depending upon the number of vacancies 
which are filled from the register and the number of applicants 
for the position. In some cases, there are so many applicants 
relative to the number of vacancies that scores in excess of 80 
are required in many locations before an individual is likely 
to be considered. In other cases, particularly outside urban 
areas of the State, individuals obtaining scores as low as 70 may have a good opportunity for employment." P. 15, Exhibit 80 
The higher standard for urban areas has an adverse impact on 
blacks. Blacks are over 37% of the population in the Memphis 
area, but on]y!5.8% of the state population. Exhibit 39, p. 1,

-62-
517a



fill a vacancy, it can ask for and use either a "promotion" 

list, consisting solely of present employees, and choose 

among the top 3, or an "area" list including non-employees 
and choose among the top 5. Thus a current employee might 
be eligible if the first list is used but, because there 

were higher scoring non-employees, ineligible on the second. 

TDES is free to ask for and use either a promotion or an
n y '

area list.

Even if the content of the examinations is related 
to job performance, the cut-off score used to determine 
eligibility must correspond to the skill level necessary to 
"perform adequately" the job at issue. Watkins v. Scott

12<y
Paper Co., 530 F.2d 1159, 1180 (5th Cir. 1976). The courts 

have repeatedly struck down hiring or promotion procedures 

where the minimum standard was unjustifiably high. Thus, 

though height and weight are relevant to the work of police­
men or firemen, in the sense that a midget could not handle 

the job, the courts have repeatedly invalidated height and 

weight requirements which went beyond a level of adequacy 
and thus eliminated disproportionate numbers of women or 

Mexican-Americans. See League of United Latin American 

Citizens v. City of Santa Ana, 11 EPD K 10.818, pp. 7425-27

11^ Transcript of Hearing of March 20, 1974, pp. 116-119, 135a-138a, 
Exhibit 85, p. 15, 656a. In December, 1968, Mary Ann Richardson 
ranked 7th on the area list and 1st on the promotion list.
There is also a variation in the geographic region covered by 
the area lists, some being denoted (Memphis) "Area," District 
and State. The reason for this variation is unknown. See Exhibit 
45, 528a-533a; Exhibit 92 Deposition of Robert Chaffin, pp. 24-25, 
665a-666a.
12C/ See also American Psychological Association, Standards 
for Educational and Psychological Tests, p. 66.

-63-



(C.D. Cal. 1976), and cases cited. Similarly, while both 

experience and intelligence may bear on an applicant's 

ability, an employer cannot require greater experience or 

intelligence than is actually necessary to do the job. 

Afro-American Patrolmen's League v. Davis, 503 F.2d 294, 302 

(6th Cir. 1974) (experience requirement excessive); E.E.O.C. 

v. Detroit Edison Co.. 515 F.2d 306 313 (6th 1975) (test 

scores cut off unnecessarily high). In Walston v. County 

School Board of Nansemond County, 492 F.2d 919, (4th Cir.

1974), Mr. Justice Clark condemned as arbitrary a cut-off 

score of 500 on the National Teacher Examination which had 

been established, not because it corresponded to the needed 
skill level, but to avoid attracting teachers who had not 

met a similar cut-off in other school districts. 492 F .2d 

at 925. A fortiori a cut off score that varies cannot meet 

the statutory requirement. Sims v. Sheet Metal Workers,
489 F .2d 1023, 1026 (6th Cir. 1973).

In the instant case there is no claim that the 

test is used to eliminate only those applicants who are 

unqualified to perform the given job. On the contrary, though 

the defendants maintain that any applicant scoring over 70 

(7000) is in fact qualified, applicants are ineligible for 

consideration unless they score far higher. The use of a 

widely varying cut-off score that can change according to 

a variety of factors, none of them related to the skill of 

the applicant or the demands of the job, is nothing less 

than arbitrary and capricious. If Tennessee had established a

-64-



height or weight requirement for state troopers, fixing 

the minimum standard at whatever the 3 tallest and 5 heaviest 

applicants happened to stand and weigh from day to day, this 

Court would not hesitate to strike down such a rule. The 
instant variable cut-off is equally unlawful.

The use of even a fixed cut-off score that purports 

to eliminate all but the "best qualified" has been widely 

condemned. Watkins v. Scott Paper Co.,530 F 2d 1159, 1180-81, 
n. 29 (5th Cir. 1976). Such a use of an examination to exclude 
all but one, or a handful, of the qualified applicants, in­

volves an excessive reliance on the test expressly disapproved 

by the United States Civil Service Commission, see p. 72 , 

infra,and the American Psychological Association. Standards 
for Educational and Psychological Testing, p. 61. The best 

professionally validated test or standard can indicate no more 

than whether or not a single skill is present at a level suf­

ficient for adequate job performance,and the fashioning of even 

such a test is invariably difficult and often impossible. A 

test or other mechanical procedure which purported to select 

the "best" individual or individuals from a group of eligibles 

would have to take into consideration all relevant factors and 
accord to each a numerical score and weight. A truly exhaustive 

list of relevant considerationswould often be virtually endless.
Most relevant human traits, unlike typing speed, cannot be

122/
assigned a numerical value in any meaningful manner. And no

121/ This problem is well illustrated by the defendant's method 
of quantifying education for certain scores. Each year of high 
school is worth 10 points, each year of college 36 points, a 
bachelor's degree is worth 2 points and a master's 3. No con­
sideration is given to the applicant's grades or major or the

- 65-



scientific method now or ever likely to be known to man

would provide a basis for assigning relative numerical

weights to education,experience, dedication or compassion.
Relative rankings on a test of a specific skill may well

provide assistance to the employer in making an employment
decision, but a test which purported to make that decision

122/
for him would be inherently incapable of validation.

(3) A strong presumption against validity
arises under Title VII if a test or other

standard of eligibility was not in fact applied to
123/

and met by all white applicants in the past. Section 1607.11

of the E.E.O.C. Guidelines on Employment Selection Procedures
12 4/

expressly condemn the use of such new standards in certain cases.

121/ continued

school attended. Thus an applicant who attended junior college 
for 5 years and never graduated would outrank one who graduated 
at the top of his class at the University of Michigan after 4 
years. See Exhibit 80.

122/ In Commonwealth of Pennsylvania v. Flaherty, 11 EPD f 10,624 
(ty.D. Pa. 1975), the court noted that " [Wjhile the content of the 
test has been shown to be job related, there is no evidence that 
a higher score on the test is any better measure of successful 
performance of the duties of a police officer than a lower score."
P . 6602.

123/ Watkins v. Scott Paper Co.. 530 F.2d 1159, 1178 (5th Cir.
1976); Pettway v. American Cast Iron Pipe Co., 444 F.2d 211, 245 (5th 
Cir. 1974); Johnson v. Goodyear Tire and Rubber Co.. 491 F.2d 1364 
1370 (5th Cir. 1974). ~

124/ "A test or other employee selection standard —  even though 
validated against job performance in accordance with the guidelines 
in this part —  cannot be imposed upon any individual or class 
protected by Title VII where other employees, applicants or members 
have not been subjected to that standard."

- 66-



This Court disapproved the application to blacks of standards 

more stringent than met by existing white employees in Sims 

v. Sheet Metal Workers. 489 F.2d 1023, 1026 (6th Cir. 1973). 

Such an increase in standards is inherently discriminatory 
and, since whites who do not meet the new

standard are already performing satisfactorily the job at
issue, demonstrates that the test is nor required

by business necessity. Stamps v. Detroit Edison Co., 365
F.Supp. 87, 118 (S.D. Mich. 1973).

The cut-off score now required for applicants for

appointment as a TDES interviewer is substantially higher

than that in the past. During the most recent six month

period for which lists of eligibles were provided, the minimum
125/

score for an interviewer was 8700; among the more than 40 white

interviewers now employed by TDES in Memphis only 4
126/

could have met this standard. Among the 14 white

interviewers promoted prior to 1964 the average test score 

was 7867; none of them could have met the standard being 
applied in 1972.

Moreover, the test for interviewers has changed 
significantly in recent years. Prior to 1964, and for an 
undetermined number of years thereafter, the "test" for 

interviewers was a combination of a written test and a score 

based on education and experience. The written test accounted

•} 25/ Exhibit 45, Requests Nos. 7907, 8203, 7828, 8377. These 
cover the period from June to December, 1972. 528a-533a.
12Q/ Exhibit 2-B, 42 7a-429a.

-67-



for half of the score and education and experience for the

rest. At some later date, not revealed by the record, the
121/

interview test was made entirely written. Virtually all

other jobs at TDES are based, at least in part, on ex-
128/

perience and education. Prior to 1964 a substantial

majority of all interviewers were drawn from lower ranking

jobs at TDES, a pattern readily attributable to the nature 
129/

of the test. Since TDES at that point was segregated, the

pool of employees at the Poplar Avenue office from which most
130/

promotions were made was all white. But by 1970 the pool

of employees at TDES below the rank of interviewer was

over 50% black. At that point TDES altered its previous

practice and began to hire virtually all its interviewers
131/

from outside the agency. This was accomplished both by 

excluding experience as part of the interviewer test and
U 2/by using area rather than promotion lists. In jobs above

12 7/ See Exhibit 80, Appendix 2, 579a.

12Sy See Exhibit 6.
129/ Exhibit 2-B. Among the 18 TDES interviewers originally 
appointed as interviewers prior to 1964, 13 had held lower 
jobs at the agency. 427a-429a.

130/ See p. 54, supra.

13V  Among the 18 TDES interviewers named to that position 
since 1970, only 3 had previously held any position with 
the agency. Exhibit 2-B.

132/ See Exhibit 45.

- 68-



interviewer experience continues to be a , and often the 

critical, factor in selection, but the use of area lists 

based on a purely written test prevents blacks from ac­

quiring the needed experience at the entry level interviewer 
position. This change in the nature and use of the test 

effectively cut off to lower ranking black employees the 

opportunity to promote to interviewer and above which had 
long been enjoyed by whites.

(4) Even if the written tests employed by TDES were
job related, their use would still be unlawful if other

"selection devices, without a similarly undesirable racial

effect, would also serve the employer's legitimate interest

in 'efficient and trustworthy workmanship'". Albemarle

Paper Co. v. Moody, 422 U.S. 405, 425 , 436 (1975); Officers

for Justice v. Civil Service Commission, 11 EPD 5 10,618,

pp. 6576-78 (N.D. Cal. 1975). In the instant case such an

alternative selection procedure was both familiar and of

proven effectiveness —  promotion of experienced lower level

personnel into positions as interviewers and up the line of

progression to higher paying jobs. This alternative was

well known to the management at TDES; of the 20 supervisory
personnel, 10 had begun at TDES below the rank of interviewer,

133/
working as clerks, typists, or interviewing clerks.

The jobs of lower ranking, and largely black, 
personnel clearly provide experience and skills in the day- 
to-day operations of TDES which no outside applicant could

133/ Exhibit 2-B, pp. 6-8, 432a-434a.

-69-



possess. Interviewing clerks work with and under the

supervision of interviewers,assisting applicants, helping

to conduct aptitude tests, and, when necessary, "taking

orders for job placements from employers, interviewing,

coding, and referral of applicants, and supervising other 
134/

personnel." Employment agents assist interviewers and
other professional staff in a variety of ways, advising

applicants on the nature of the TDES programs and collect-
135/

ing information on applicant training and needs. The
employment agent positions were established with a federal

grant for the express purpose of providing on-the-job and

other training to individuals who could not meet the usual

testing reauirements, so that they could be promoted into
136/

higher skill jobs. Since 1970, however, only 2 interview­

ing clerks have been promoted into interviewer jobs; although 

interviewer clerk is now a predominantly minority job with 
only 1 white to^^blacks, both the promoted interviewing 

clerks were white. No employment agent has ever been pro­

moted to a position as an interviewer, counselor, employer
133/

relations representative, or supervisor.

134/ Exhibit 6(a).

115/ Id.
136/ Transcript of March 20, 1974, p. 93, 112a.
137/ Exhibit 2-B, 429a.

138/ The only job into which employment agents have been 
promoted is typist. Id, 435a-436a.

-70-



This unexplained abandonment of the past practice 
of internal promotion was clearly unlawful.

The sole defense suggested by the defendants to
these discriminatory practices was an assertion that Tennessee
officials, although wishing to authorize consideration of any

applicant with a score over 70, had been advised by unnamed

officials of the United States Civil Service Commission that
139/

they must continue to use the variable top 3-5 cut-off rule.

The District Court properly attached no significance to this 

purported defense. The alleged direction from the Civil 

Service Commission officials was inadequate to explain the 

use of unvalidated tests, the alteration of the interviewer 

test, or the abandonment of in-office promotions. Moreover 

any such direction by a Civil Service official clearly was 

neither authorized nor binding.
The Intergovernmental Personnel Act of 1970, 42

U.S.C. § 4700, which gives the United States Civil
Service Commission limited authority over federally funded 

state agencies, authorizes the Commission to "issue such 

standards and regulations" as are necessary to carry out 
the statutory purposes of the Act. Those purposes include 

selecting and advancing employees on the basis of their 

ability and "assuring fair treatment of applicants and 
employees in all aspects of personnel administration without 

regard to political affiliation, race, color, national origin, 

sex, or religious creed." 42 U.S.C. 4701(5). Neither the

139yr Transcript of Hearing of March 20, 1974, pp. 120-121, 139a-140a. 
Exhibit 92, Deposition of Robert Chaffin, pp. 9-10, 650a-651a.

-71-



statute nor the regulations issued thereunder, 5 C.F.R.

§§ 900, et seq., require a state agency to refuse to con­

sider for promotion qualified applicants who do not fall 

in the top 3 or 5 or any other group on a test. The Com­

mission's Guidelines for Evaluation of Employment Prac­

tices (1974), expressly warns against such excessive 

reliance on tests.

Tests, like any other measure, should 
be used as only one indicator of com- 
petance . . . .  In the final analysis, 
selection from a number of job applicants 
is a matter of judgment based upon all 
the information about the applicant's 
qualifications relative to the job re­
quirements . You must remember to look 
at the whole individual, not just one 
specific characteristic. 5 5(b)(1).

The Guidelines enunciate a strong preference for promotion
on the basis of on the job performance. The Commission's
Guide for Affirmative Action (1972) urges that,

Career ladders be established whenever 
possible to permit movement of capable 
lower level employees to positions of 
greater responsibility as the employees 
develop. The system should be designed 
so that unnecessary barriers do not 
impede the progress of clerical or other 
nonprofessional employees who are capable 
of performing at a higher nonprofessional 
level or at the technical or professional 
level. P. 3.

This is precisely the sort of promotional opportunity that 

has been eliminated at TDES over the last decade.

Although the defendants urged that the 70 cut-off 

was appropriate to distinguish between applicants who were 

and were not qualified to perform a given job, they made no

claim that differences in test scores above 70 bore any re­
lation whatever to the comparative abilities of qualified

-72-



applicants to perform that job. Under such circumstances 

the Civil Service Commission regards the use of relative 

rankings as improper. The Commission's Memorandum on 

Federal Policy on Remedies Concerning Equal Employment 
Opportunity in State and Local Government Personnel Systems 
states:

140/

The terms "less qualified" and "better 
qualified" as used in this memorandum 
are not intended to distinguish among 
persons who are substantially equally 
well qualified in terms of being able 
to perform the job successfully . . . .
In some job classifications . . . many 
applicants will possess the necessary 
basic qualifications to perform the 
job . . . .  The selection procedure 
should be as objective and job related 
as possible, but until it has been shown 
to be valid for that specific purpose, 
it must be recognized that rank ordering 
does not necessarily indicate who will 
in fact do better on the job. Exhibit 
19, pp. 4-5, 471a.

Under the undisputed facts of this case the use of the vary-
141/

ing cut-off rule was clearly contrary to Commission policy.

140/ Indeed, the desire of the Department of Personnel 
officials to use only the 70 figure as a cut-off suggests 
they held the contrary view. See p. 61, n. 116, supra.

141/ Admittedly policies stated in such memorandums and 
publications are of less force than formal regulations.
The informal advice of Commission officials is of no 
legal significance. Of course, in the event of a conflict 
between Commission policy or regulations and the strictures 
of Title VII, the latter must prevail.

-73-



Since the adverse impact of the defendants' test 
142/

was not disputed, the burden was on the defendants to 

establish that the tests had "a manifest relation to the 

employment in question." Griggs v. Duke Power Co., 401 

U.S. 424, 432 (1971); Albemarle Paper Co. v. Moody, 422
U.S. 405, 425 (1975). "The Equal Employment Opportunity
Act of 1964 is concerned with the consequences of employment 

practices, and a test which is designed and intended as a 

neutral measure of job—related skills and knowledge may 

violate the Act if its actual use furthers racial discrimina­

tion." Sims v. Sheet Metal Workers, 489 F.2d 1023, 1026 

(6th Cir. 1973). The defendants thus were required to show 

that their tests were "demonstrably a reasonable measure 

of job performance." Griggs v. Duke Power Co., 401 U.S-.

424, 436 (1971) ; Douglas v. Hampton, 512 F.2d 976, 984-85 

(D.C. Cir. 1975).
The defendants, however, offered no evidence whatever

143/
to establish that their tests were in any way job-related.

142/ The Defendants' Proposed Findings of Fact and Conclusions 
of Law was silent on this issue.
143/ This appears to be a regrettably common problem among 
state and local governments. In 1975 the United States 
Commission on Civil Rights noted that "A 1970 National Civil 
Service League survey of the state of the art of civil service 
showed that almost no civil services had ever validated any_ 
selection process to determine if, in fact, there was a direct 
relationship between test results and job performance." The 
Federal Civil Rights Enforcement Effort —  1974, V.5, To Eliminate 
Employment Discrimination, p. 179, n. 552.

-74-



their defense after the March,1974, hearing at which the

plaintiffs 1 case-in-chief was presented, the evidence adduced

by the defendants at the April, 1974, hearing dealt solely

with the question of discrimination in referrals. A report

prepared by the defendants in 1973 indicated a study was

being prepared of the validity of some of the tests for the 
144/

jobs in question, but no validation studies were ever sub- 
141/

mitted. In a 1973 deposition the Director of Intergovernmental

and Employee Relations for the Department of Personnel stated
that "we have not been completely satisfied with the validity

of some of our tests," and that the Department had hired a
testing expert to head a group of 17 to inquire into the

146/
validity of the Department's tests, but no evidence was 

ever offered as to the progress or results of this inquiry.

Although the defendants had a full thirteen months to prepare

144/ Exhibit 80, portion entitled "Validation Studies for 
Job Classes in the Department of Employment Security." Re­
garding the tests for interviewer and employment counselor I 
positions, the report stated that the design for the study 
was "not complete" and that there was no target date for 
completion of the study itself. P. 3. The design for a 
study of the tests for supervisory positions was still in­
complete, and no target date established for the study 
itself. P. 4. No validation study was apparently contem­
plated for the positions of employer relations representa­
tive or employment counselor II and III. Id., 583a-586a.

145/ The District Court, in its opinion of September 25, 1975, 
noted that "Validation studies in connection with these tests 
were being made at time of trial." P. 10, 1003a.
146/ Exhibit 92, Deposition of Robert Chaffin, pp. 20-22, 661a-
663 a .

-75-



Since the defendants had not in fact validated the 

tests whose adverse impact on minorities was acknowledged, 

Griggs and Moody required that the further use of those 

tests be enjoined.

The failure of the District Court to enjoin the 

disputed tests in compliance with Griggs and Moody was 

neither excusable nor intelligible. Judge Welford acknow­

ledged the adverse impact of those tests, the failure of 

the defendants to validate the tests, and "[n]eed for 

improvement . . .  in the positions of manager, interviewer 

and ERR." The District Court's refusal to act appears to

have rested in large measure on its belief that the tests
148/

had not been deliberately designed to exclude blacks; the

Supreme Court in Griggs, however, expressly rejected the

contention that the use of a test was only unlawful if the

test were devised or employed with an intent to discriminate. 
149/

401 U.S. 424, 432. The District Court also expressed a hope

147/ Memorandum Opinion, September 25, 1975, pp. 4, 15, 997a, 1008a.
148/ Id., pp. 15 ("There was no bad faith indicated by TDES 
with regard to black employment opportunities following a 
seasonable opportunity to comply with the provisions of Title 
VII enacted in 1964."), 17 ("It has not in any event been 
demonstrated that blacks have been, for racial reasons, de­
liberately or by design omitted or eliminated from qualified 
eligibility lists by any of the defendants.") 1008a-1009a.

149/ "[G]ood intent or the absence of discriminatory intent 
does not redeem employment procedures or testing mechanisms 
that operate as 'built-in headwinds' for minority groups and 
are unrelated to measuring job capability. . . . Congress
directed the thrust of the Act to the consequences of employment 
practices, not simply the motivation."

-76-



modify the test procedure as to give blacks an opportunity
to advance into positions from which they had previously 

150/ 151/
been excluded; such a hope, no matter how well founded,
cannot relieve a federal court of its responsibility to enjoin 
unlawful conduct. On the admitted facts, the use of the tests 
for the positions of interviewer, manager and employer rela­
tions representative, was in clear violation of Title VII; 
the District Court should be directed on remand to prohibit 
the use of those tests and to fashion an appropriate non- 
discriminatory procedure for filling vacancies in those 
positions.

that the defendants would take voluntarily action to so

15/ Id., pp. 16-17 ("The court would hope and expect that 
state civil service procedures might be liberalized so as 
to afford still greater opportunities to qualified state 
employees of TDES to advance and to be hired in the first 
instance"). 1005a-1006a.

15/ in this case it was entirely without foundation. 
Although this action had been pending for six years when 
it was finally decided by Judge Welford, the defendants 
had not modified in any manner the disputed selection 
process. The proportion of blacks hired since 1970 as 
managers, interviewers, and employer relations representa­
tives (8.3%) was lower than the proportion of blacks in 
those jobs prior to 1970 (9.7%).

- 77-



III. THE DISTRICT COURT ERRED IN FAILING TO DIRECT 
THE DEFENDANTS TO TAKE EFFECTIVE ACTION TO 
DISCOVER, AND WITHHOLD SERVICE FROM, EMPLOYERS 
WHICH ENGAGE IN UNLAWFUL DISCRIMINATION

Title VI of the 1964 Civil Rights Act prohibits
any form of racial discrimination in federally assisted 

152/
programs. The Department of Labor specifically prohibits 

any discrimination on the part of federally assisted em­

ployment services. 29 C.F.R. part 31. The Department's 

implementing instructions absolutely forbid a state employ­

ment service to make referrals to or assist any employer 

which engages in discrimination. The Analysis of the 
Solicitor provides:

Making selections and referrals, even on 
a non-discriminatory basis, on any orders 
placed by employers who discriminate is a 
violation. No referrals of any kind can, 
therefore, be made to an employer who wont 
hire minorities in any particular jobs, or to 
employers who discriminate in any of their 
employment practices. Exhibit 18 H 7, 462a.

Section 1294 of the Federal Employment Security Manual

similarly admonishes:

It is a violation of title VI of the 
Civil Rights Act and its implementing Regula­
tions (29 C.F.R. part 31) for the State 
employment security agency to refer an 
applicant to an employer who the State 
knows or has reasonable grounds to believe 
is engaged in discriminatory employment 
practices. . . .  It does not matter that

152/ "No person in the United States shall, on the ground 
of race, color, or national origin, be excluded from par- 
tocipation in, be denied the benefits of, or be subjected 
to discrimination under any program or activity receiving 
federal financial assistance."

-78-



the local office makes the referrals on 
a non-discriminatory basis to such employers, 
nor does it matter that the employer may only 
have discriminatory employment practices in 
certain jobs. Local offices are prohibited 
from serving such employers in any manner.
Exhibit 16, p. 1294, 442a.

The Complaint alleged that the defendants had continued to

provide services to discriminatory employers and had failed
153/

to comply with the procedures mandated by section 1294.

The undisputed evidence in the court below revealed 

that the TDES enforcement program consisted of little more 

than soliciting an unsubstantiated promise of nondiscrimina­

tion from employers who had expressly asked for referrals 

of a particular race or sex. Section 1294 provides that an

interviewer must refuse to accept a job order which contains
154/

such a discriminatory specification. At TDES, however, 

interviewers will accept such orders, but are instructed to 
bring them to the attention of the Director of the Employer 

Services Unit. This procedure is preferred by TDES because
155/

it is "tactful" and keeps down "misunderstanding and irritation." 
If such a report were made to the Director, the employer would 

be placed temporarily on a controlled list and further handling 

of its job orders would be temporarily suspended. Thereafter 

certain employer relations representatives, all of them 
white, would confer with the employer about the problem caused

153/ Complaint, f V(h) and (i) , 8a.
154/ Exhibit 16, p. 1294 (2) , 443a.

155/ Transcript of Hearing of March 20, 1974, pp. 181-200,159a-178a; 
Exhibit 89, Deposition of George Murphy, pp. 25 et seq.

-79-



by the request. To remove his name from the control list
and assure renewed processing of his job orders the employer
need only withdraw the discriminatory order and promise

156/
orally not to discriminate. Although the Federal Employment
Security Manual requires a vigorous and detailed scrutiny of
the subsequent behavior of employers who have filed discrimina- 

157/
tory orders, the Director of the Employment Services Unit 
conceded there were "only one or two cases where we have done

156/ "Q: Then Mr. Murphy or someone might go out and the
employer says 'Well, I won't do that any more,' 
or something, and, then, he gets put back on or 
gets taken off the controlled list, in other words?

"A: Yes."

Exhibit 91, Deposition of Charles Radford, p. 79, 732a.

"A: . . .  The employer calls back further on and tells
our visiting man 'I didn't understand, and I know 
it is a violation of the law, and so forth,' and 
then we re-instate him."

Exhibit 81, Deposition of Leland Dow, p. 14, 597a.

"A: Well, we ask them for their stand on the matter 
. . . and we explain the attitude he should have 
so far as the law is concerned. In most cases, 
certainly the larger companies, they say, oh, yes, 
that is quite right. We are sorry for that. This 
was not meant to be, and we'll straighten the 
matter out . . . .

"Q: Okay. So, after you reserve the statement, quote,
'We'll straighten the matter out,' does that close 
the case?

"A: Yes."

Transcript of Hearing of March 20, 1974, pp. 189-190, 167a-168a
also id. 195, 173a; Exhibit 89, Deposition of George Murphy, p.

15 7/ Exhibit 16, pp. 1294(2), (3), (6)-(8), 443a-450a.

See
44.

-80-



15 8/
intense investigation.” An employer would only be permanently
refused service if it obstinantly refused to withdraw its dis-

159/
criminatory job order; not surprisingly agency officials
were able to recall no more than two or three instances in

160/
which that had ever occurred.

The attitude of TDES officials towards complaints
by applicants of employer discrimination was at best equivocal.
A typical white counselor testified that such grievances would
be disregarded.

q : . . .  Do you ever have people who come and say
"I have been trying to get any kind of job, and 
I can't because of my race?" Have you ever had 
any of those kind of situations?

A: I guess they want some specific thing, and they
may complain some employer won't hire them because 
of it.

Q: Because of their race. What do you do in those
situations?

A: There isn't anything I could do about it.

158/ Transcript of Hearing of March 20, 1974, p. 192, 170a.

159/ Id., p. 187, 165a.
160/ Exhibit 89, Deposition of George Murphy, pp. 30, 34,
42, 49, 60, 63, 712a-716a, 719a.

-81-



Q: You don't make any contact with the employer?

A: It depends on whether —  I don't investigate

these things. That would be something for the
161/

N.A.C.C.P. [sic] or some other organization."

The TDES Equal Employment Opportunity representative stated 

that, although there were signs in the Memphis office announcing 

that discrimination was unlawful, he had directed that neither 

his name nor that of other local officials be placed on the 

posters as the appropriate persons to contact about a complaint 

of discrimination, explaining that he "was getting complaints
i6y

sufficiently enough". The Director of the Employer Services 
Unit, who is responsible for assuring no service is provided

iey
to discriminatory employers, stated he was unaware of any 

procedures to advise applicants that they can or should
ley

report instances of employer discrimination to TDES.
Section 1294 expressly contemplates that information 

regarding discrimination by employers served by a state employ­

ment service can and should be obtained from public and private

161/ Exhibit 83, pp. 33-34. See also id., pp. 36-37. The 
witness explained that she would report only discriminatory 
job orders, but not a complaint by a mere applicant. 635a-638a.

162/ Exhibit 88, Deposition of Raymond Neal, p. 26, 704a.

163/ Transcript of Hearing of March 20, 1974, p. 183/ 161a.

164/ id., p. 194/ 172a.

-82-



organizations or individuals, State and local fair employment

practice agencies, or reports of agencies responsible for

enforcing non-discrimination, such as the DHEW Status of
165/

Title VI Compliance Interrogatory Report." Although E.E.O.C. 

officials contact TDES at least once a week to obtain informa­

tion on employers under investigation by the Commission, such 

an investigation does not result in a similar inquiry by TDES, 

and TDES does not solicit from the local E.E.O.C. office the

identity of employers the Commission believes guilty of dis- 166/
crimination.

It is the clear policy of TDES to take no action 

if an employer uses a test or other selection procedure which 

violates Title VII. The Director of the Employer Service Unit 
explained that employer testing "is not our province and we 

don't make any particular study of what they do before accepting
i6y

the applicant." The Assistant Manager of the Memphis office

stated that it was not the policy of his office to determine
I6j/

the validity of tests used by employers served by TDES. He

16§/ Exhibit 16, p. 1294(2), 443a.

166/ Exhibit 88, Deposition of Raymond Neal, pp. 65-66, 708a-709a; Exhibit 
89, Deposition of George Murphy, p. 28, 711a; Exhibit 91, Deposition 
of Charles Radford, pp. 123-24, 735a-736a. It is the policy of TDES not 
to notify E.E.O.C. if it learns that an employer is engaging in 
discrimination. Hearing of March 20, 1974, p. 197, 175a; Exhibit 89, 
Deposition of George Murphy, pp. 42, 62-63, 714a, 718a-719a. This 
is clearly contrary to § 1294. See Exhibit 16, p. 1294(5), 446a.

167/ Exhibit 89, Deposition of George Murphy, p. 65, 721a.

168/ Exhibit 91, Deposition of Charles Radford, p. 26, 728a.

-83-



noted that employer relations representatives would inform 

a company that "if they did use their own tests, they were 

leaving themselves wide open for possible suit in the future," 

but explained that the representatives would conduct no in­

vestigation of those tests because "we are not a police 
169/

agency at all." When a TDES investigation of an employer

who apparently rejected disproportionate numbers of females

revealed that this was due to the use of a test, the inquiry 
170/

was ended. In the early 1970's, at the direction of the

Department of Labor, TDES discontinued its practice of using

tests to screen applicants for certain positions because the

Department had found the tests were not job related. Shortly

thereafter the employers instituted their own tests to screen

applicants for those jobs; although this was well known to

TDES officials, no inquiry was ever conducted into the validity
171/

of these new tests. This acknowledged policy of serving em­

ployers regardless of whether they used illegal tests was clearly

169/ Id., p. 25, 727a.
170/ "[W]e found that they were, they were following their 
own rules and testing procedures, and this accounted for what 
appeared to us to be some sort of discrimination, and they 
convinced us that it was not discrimination because of sex, 
but, that people were being eliminated because of the test 
they had, which we had no control over." Hearing of March 20,
1974, p. 192, 170a.
17]/ Ehibit 89, Deposition of George Murphy, pp. 64 etseq. 72C& et seq. 
Exhibit 91, Deposition of Charles Radford, pp. 5-28.

-84-



unlawful. Section 1294 prohibits service to an employer who

discriminates in any manner, and the Solicitor's Memorandum

expressly disapproves service to an employer which sets job

specifications "which are not necessary to performance" and
172/

which have an adverse impact.

Although the District Court was well aware that
TDES' alleged failure was one of the primary issues at the

173/
class action hearings, the court inexplicably failed to
decide that issue. The court's September 25 opinion notes
the existence of several of the problems noted above, including

the failure to scrutinize employer tests or to notify E.E.O.C.
1JA/of instances of discrimination. Aside from these brief des­

criptions, however, the opinion is entirely silent on this 

issue. Since the record demonstrates a systematic and in­

excusable failure on the part of TDES to comply with Title 

VI, this aspect of the case should be remanded to the District 

Court with instructions to fashion appropriate injunctive relief. 

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973).

172/ Exhibit 18, p. 12, § 6# 462a.

173/ See Memorandum Opinion, September 25, 1975, p. 2, 995a.
174/ Id., pp. 7, 8, 1000a, 1001a.

-85-



IV. THE DISTRICT COURT ERRED IN DISMISSING 
PLAINTIFF'S INDIVIDUAL CLAIM

( I) The Absence of Specific Findings
Certain basic facts regarding plaintiffs individual 

claim are not in dispute. On February 18, 1969, Mildred 

Ewing, then a counsellor at TDES, received by telephone a 

job order from R.C.A. for a position entitled "Traffic Analyst 

The job requirements, as related to Mrs. Ewing by Mr. Robert 

Phillips of R.C.A., included a minimum of two years of college 

and an age limit of 27-35 years. These requirements were 

duly recorded on the TDES order form, Exhibit 33. The job 

was given the DOT code 184 x 168, the "x" indicating that a 

trainee was acceptable. Id.
At a later time in February Mrs. Ewing, after reviewing 

her files, selected Mr. Robert G. Smith, a white male, for 
possible referral. Mr. Smith was then living in Indiannapoli 
and had never filled out a TDES referral application, but had 
submitted a resume. Smith had never been given a DOT code. 
Mr. Smith's previous experience was as a supervisor in a food 
company and, earlier, as a warehouse manager. Mr. Smith had 
never indicated any specific interest in shipping or traffic 
jobs, and there was no evidence that he had ever attended 
college. Mrs. Ewing nonetheless believed Mr. Smith was 
qualified and called Phillips to suggest he be interviewed. 
Phillips stated he was not interested in interviewing Smith.

On or about February 20, 1969, Mrs. Ewing mailed to R.C.A 

the resume of Marvin Avent also a white male. Mr. Avent

- 86-



was then 44 years old, 9 years over the R.C.A. limit, and was

coded for a different position, DOT 184.118. Mr. Avent had

never attended college, thus failing to meet another R.C.A.

requirement. Mr. Avent was then employed as an office

manager at a firm not connected with shipping. His last
experience in shipping was from 1958 to 1961 at Kelly Air

Force Base in Texas. Mr. Phillips subsequently indicated he
175/

was not interested in interviewing Avent.

On March 7, 1969, after hearing a radio advertisement about 

this job placed by TDES, plaintiff called TDES and asked to be 

referred. Because the college plaintiff had attended was well 

known to be an all-black institution, and because plaintiff 

reported having heard about the job on a radio station catering 
primarily to black listeners, Mrs. Ewing could not have failed 

to know plaintiff's race. After inquiring about plaintiff's 

education and background, Mrs. Ewing refused to refer him on 

the ground that he was unqualified. Mrs. Ewing advised that 

plaintiff lacked sufficient experience in shipping. Plaintiff 

asked that he be referred anyway so that he could try to convince 

the employer, whose name Ewing declined to disclose, that he could 

do the job. Ewing persisted in her refusal but agreed to meet 
with plaintiff at the TDES office on March 11.

121/ See Exhibits 32-36; Hearing of March 22, 1974, pp. 
10-38, 341a-352a.

-87-



On March 8, 1969, plaintiff went to the TDES and obtained 
a referral application, which he took home and filled out. On 

March 10, 1969, plaintiff went to the TDES office to meet with 

Mrs. Ewing. Mrs. Ewing was apparently out to lunch, and 

plaintiff was referred instead to Mrs. Sarah Askew, Mrs Ewing's 

supervisor. Mrs. Askew examined plaintiff's application and 

the job order and refused to refer plaintiff to the job on the 

ground that he was unqualified. She refused to disclose the 

identity of the prospective employer on the ground it was the 
policy of TDES not to reveal the names of employers to un­

qualified applicants. Plaintiff persisted in asking for a 

referral, and asked whether Mrs. Askew was refusing to refer 

him because of his race. Thereafter Mrs. Askew purported to 

make a telephone call to Mr. Phillips, who allegedly advised 
her the job had already been filled. Plaintiff believed this
telephone call was a sham and asked Mrs. Ewing, who had by then

176/
-returned from lunch, to call the employer. Mrs. Ewing refused.

The disputed job at R.C.A. was eventually filled by Bert 

Fletcher, a white male who learned of the opening through a 

newspaper advertisement placed by R.C.A. itself. The actual 

responsibilities of Mr. Fletcher were those of a trace clerk, 

keeping track of shipments in transit, expediting shipments,

176/ See Exhibits 35,36; Transcript of Hearing of March 
20, 1974, pp. 35-132, 75a-151a; Transcript of Hearing of March 
22, 1974, pp. 10-80, 357a-381a.

- 88-



and locating shipments which had gone astray. His work 

"didn't really have anything to do with rates," although 

this was apparently part of a program of on-the-job train­

ing for work as a traffic assistant. The R.C.A. plant

closed in 1970, and Fletcher never did any work other than
177/

tracing. Fletcher's previous experience had been calculating
178./

rail rates for a grain company; plaintiff's TDES application

revealed his prior experience including management of a major
air freight terminal, with 20 subordinates, supervising the
shipment of cargo worldwide via both military and civilian 

179/
shippers. No claim was made below that plaintiff was unqualified,

or less qualified than Fletcher, for the job which Fletcher 

actually performed.

The defense asserted by Ewing and Askew was that they, as well 

as Phillips, had misunderstood the position involved to be 

primarily concerned with analysing traffic rates, and to require 

substantial and recent experience with and knowledge of the air, 
rail and truck rates in the Memphis area. This, they asserted, 

was why they believed plaintiff was unqualified. Although neither 

Smith nor Avent were qualified by this standard, Ewing insisted 

she only learned of this requirement after she had attempted to 

refer them. Plaintiff asserts that this defense is a mere

177/ Exhibit 78, Deposition of Bert Fletcher, pp.15-18, 566a-569a.

1 78/ Id., p. 6, 557a.
179/ Exhibit 31.

-89-



pretext, and that defendants refused to refer him to the R.C.A.180/
job because of his race.

The evidence in the District Court thus presented three 
critical factual questions:

(1) Did Mrs. Ewing refuse to refer plaintiff because 

of his race, or because she believed that he was 

unqualified?

.(2) Did Mrs. Askew refuse to refer plaintiff because 

of his race, or because she believed that he was 

unqualified?

(3) Was the R.C.A. position filled prior to either 

March 7, 1969, when plaintiff first inquired 

about it, or on March 10, 1969, when the defendants 

allegedly learned it was filled.

The District Court's opinion is devoted largely to a summary 
of the facts not in dispute. While the District Court 

apparently concluded that the job was filled on March 4, 1969,
181/

it made no specific findings of fact on the first two questions.

A resolution of these issues by the District Court is 

especially necessary in light of the inconsistences in the defense 

testimony. Mrs. Askew testified she believed plaintiff un­

qualified because the words "heavy experience in rates" allegedly 

appeared on the job order, "which, from working with R.C.A., we

180/ Exhibits 35 and 36; Hearing of March 22, 1976, pp.26-35, 46-65,
360a-369a, 375a-379a.

181/ Order of December 20, 1974, 740a-744a.

- 90-



knew they meant local rates." But Mrs. Ewing, who claimed
to have written those words, understood them otherwise, since183/
she referred a white whose shipping experience was in Texas.

There were substantial differences in the statements which Askew and

Phillips gave the E.E.O.C. in 1969 and their testimony in 1974.

In 1969 Askew said that when she called R.C.A. Phillips told her
184/

the job was still open; in 1974 she testified Phillips told
185/

her the opposite. In 1969 Phillips said he could not remember
any call from Mrs. Askew about Mr. Shipp, and believed Shipp

186/
would have been qualified for the job. In 1971 Phillips told
counsel for defendants he believed Shipp was unqualified, but said no-

187/
thing about the job being filled prior to the Askew call; in

1974 Phillips recalled the Askew conversation in great detail, was

certain the job had already been filled, and was ambiguous about
188/

plaintiff's qualifications.

182/

182/ Hearing of March 22, 1974,pp.46, 65-66, 375a-380a. 

18V Id.

184/ Exhibit 35, 508a-509a.

185/ Hearing of March 22, 1974.
186/ Stipulation of Rebuttal Testimony, pp. 1-2.

187/ Exhibit 38, 514a-516a.
188/ Hearing of March 22, 1975 pp. 80-114, 381a-385a.

-91-



The District Court's failure to make findings of fact

on the central disputed facts of the case, as required by
Rule 52(a), is reversible error. "Where the trial court

fails to make findings, or to find on a material issue, and

an appeal is taken, the appellate court will normally vacate

the judgment and remand the action for appropriate findings

to be made." 5A Moore's Federal Practice, 552.06 [2]; see

United States v. Claycraft Co. 408 F.2d 366 (6th Cir. 1969);

McClanahan v, Mathews,440 F.2d 320 (6th Cir. 1971). The

conclusory statement that plaintiff had "failed to demonstrate
189/

prejudice or discrimination" is inadequate, for it discloses 
neither the factual nor legal bases of the conclusion and is too 

general to permit meaningful appellate review. It is of 

course possible that the District Court reached this conclusion 

because it believed the job had been filled by March 4 and that 

plaintiff could not have gotten the job regardless of the intent of 

Ewing and Askew. The District Court apparently believed that 

specific findings as to the intent of Askew and Ewing was un­

necessary because, even if their actions were racially motivated, 
plaintiff would not be entitled to back pay under Title VII since, 

unknown to the defendants, the job in question was already filled 

on the dates when they refused to refer him because he was 

allegedly unqualified. While these circumstances 

might preclude an award of back pay, they would not preclude an 

award of punitive damages under 42 U.S.C. §1981. Johnson v.

Railway Express Agency, 421 U.S. 454, 460, (1975)

189/ Order of December 20, 1974, p.4» 743a.

-92-



In a case where an employment service, unaware that a job 

has already been filled, refuses to refer an applicant on 

account of race, such punitive damages would seem the appro­

priate remedy. Since the complaint alleges that this is,, 
at the least, such a case, and the District Court failed to 

make findings of fact on the disputed facts, the order of 
dismissal should be reversed.

(2) The Class-wide Discrimination

After the conclusion of the March, 1974 hearing 

the District Judge indicated his intention to resolve plain- 

tifffe individual claim only in the light of his ultimate

conclusions as to the claim that the defendants had system-
19^

atically discriminated against blacks. In December, 1974, 

however, the District Court, without affording counsel any 

prior notice or an opportunity to propose findings of fact 

and conclusions of law, entered sua sponte an order dismissing 

the individual claim. Had no further action been taken on the 

individual claim, the December 20, 1974, decision would re­
quire reversal because it expressly and necessarily disregarded 
the evidence of systematic discrimination, and because the pro­

cedures followed were inherently unfair. In its September 25, 
1975, order, however, the District Court summarily reaffirmed
its previous decision in the light, inter alia, of its con-

191/
elusion that there had been no systematic discrimination.

19Q/ Hearing of March 22, 1975, pp. 129-130, 387a-130a.

19y  Memorandum Opinion, September 25, 1975, p. 17, 1010a.

-93-



While the defects of the 1975 decision may have rendered moot the 

defects of the 1974 order, the later decision suffered from an 

equally serious defect, for it rested on an erroneous view 

of the discriminatory nature of the defendants 1 general 

practices.

The central issue underlying the events of 1969 

was whether the defendants had refused to refer plaintiff 

to the position at R.C.A. because of his qualifications or 
because the job was filled, or whether these reasons were 

merely a pretext used to cloak a decision based on plain- 

tiffb race. Whether the reasons advanced by an employer 

to justify his conduct were in fact the basis for that con­
duct, or were a pretext to hide more sinister motives, can 

rarely be assessed without reference to the company's "general 

policy and practice with respect to minority employment". 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973). 

That is particularly so in a case such as this where there 

is a dispute as to both the qualifications for the job and 

the qualifications of the applicant, and the assessment of 

both is necessarily subjective and flexible. In Franklin v. 

Troxel Manufacturing Co., 501 F.2d 1013 (6th Cir. 1974), 

the District Court, examining the disputed employment decision 

in isolation, had dismissed the action of the individual 

plaintiff. This Court reversed for a new trial in light 

of the company's history of discrimination and McDonnell 

Douglas. 501 F.2d at 1015-16. The same result is required
in this case.

-94-



TABLES

S r
4

' .



Table 1

Average Rates By Occupation Group 
(Number of Referrals)

Occupa­
tion
Group Description White Male

0-1 Professional, 
technical and 
managerial $3.42 (774)

2 Clerical & Sales 2.74 (736)

3 Service 2.20 (230)

4 Farming, 
Fishery and 
Forestry 2.61 (7)

5 Processing 2.60 (88)
6 Machine Trades 2.84 (501)
7 Bench Work 2.62 (134)
8 Structural

Work 2.92 (917)
9 Miscellaneous 2.43(1338)

Total $2.77(4725)

Black Male White Female Black Female

$2.86 (450) $3.01 (73) $2.25 (164)
2.42(1228) 2.39 (962) 1.99(1498)
2.00 (1650) 1.51 (166) 1.53 (4021)

2.14 (11) - 2.88 (1)
2.42 (308) 2.00 (14) 1.95 (68)
2.40 (864) 2.30 (19) 2.30 (171)
2.37 (441) 1.95 (104) 1.92 (697)

2.51(1071) 2.08 (8) 1.75 (29)
2.24 (5151) 1.95 (61) 2.37 (332)

$2.32(11174) $2.26(1407) $1.74 (6981)

Source: Exhibit 67



Table 2

Average Rate Differential 
Between White and Black Workers

Occupation
Group Description

Male
Differential

Female
Differential

Total
Differential

0-1 Professional, technical 
and management $0.56 $0.76 $0.69

2 Clerical & Sales 0.32 0.41 0.36
3 Service 0.20 -0.2 0.24
4 Farming, Fishery and 

Forestry 0.47 - 0.40

5 Processing 0.18 0.05 0.17

6 Machine trades 0.44 0.43

7 Bench Work 0.25 0.03 0.23

8 Structural Work 0.41 0.33 0.43

9 Miscellaneous 0.24 -0.42 0.11

Total $0.45 $ 0.52 $0.54

Source: Table 1



Table 3

Allocation of Work Force1/

D.O.T. First Diqit White Males Black Males White Females Black Females

Highest paid
category 16.3% 4.0% 5.1% 4.7%

Second highest 19.4% 9.5% 68.3%
2/

2.3%

Second lowest 28.3% 46.1% 5.9% 0.4%

Lowest paid
category 4.8% 14.7% 11.7% 57.5%

1/ Category 4 is excluded because of the insignificant number of 
referrals involved.
2/ This is an average of categories 7 and 9.

Source: Table 1



Table 4

Allocation of Work Force

Occupation Group White Male Black Male White Male Black Female

0-1 16.4% 4.1% 5.1% 2.3%

2 15.6% 10.2% 68.5% 21.5%

3 4.8% 14.9% 11.8% 57.6%

4 0.2% 0.1% 0 0

5 1.9% 2.9% 1.0% 1.0%

6 10.7% 7.8% 1.3% 2.4%

7 2.3% 4.0% 7.4% 10.0%

8 19.5% 9.7% 0.6% 0.4%

9 28.5% 46.3% 4.3% 4.8%

100.0% 100.0% 100.0% 100.0%

Source: Table 1



Table 5

Allocation of Trainees
Distribution of Trainees

DOT Description
Average Wage 
All Referrals

White
Male

Black
Male

White
Female

Black
Female

Group
0-1 Professional, etc. $3.09 8.3% 3.6% 5.2% 2.4%
2 Clerical & Sales 2.32 32.7% 14.2% 77.9% 40.7%
3 Service 1.68 7.8% 14.9% 7.4% 29.6%
4 Farming, etc. 2.34 0.1% 0.02% 0 0.2%
5 Processing 2.37 3.0% 6.4% 0.4% 9.7%
6 Machine Trades 2.52 6.0% 6.9% 2.0% 3.1%
7 Bench Work 2.13 6.4% 7.5% 3.0% 7.2%
8 Structural Work 2.68 11.5% 11.9% 0.1% 0.8%
9 Miscellaneous 2.28 23.8% 34.2% 3.7% 6.2%

Total 2.23 100% 100% 100% 100%

Source: Exhibit 63(a)



Table 6

Major Male Occupations
White Males Black Males

D.O.T. Code Description

189.168 Junior Executive

222.387 Shipping & Re­
ceiving Clerk

223.387 Stock Clerk

289.358 Commodities sales­
man

311.875 Waiter

355.878 Hospital attendant

372.868 Guard

381.887 Porter

382.884 Janitor

620.281 Auto mechanic

810.884 Welder - arc

812.884 Welder - arc and gas

828.281 Electronics mechanic

860.381 Carpenter

860.887 Carpenter's helper

904.883 Tractor trailer 
truck driver

905.803 Truck driver - heavy

906.883 Truck driver - light

915.867 Gas station attendant

922.883 Industrial truck 
operator

922.887 Loader

929.887 Trash collector
Total

Average Rate 
(Number of 
Referrals)

Average Rate 
(Number of 
Referrals) Differential

$3.15 (232) $2.85 (149) $0.30

2.53 (106) 2.36 (329) . 17

2.41 (106) 2.30 (291) . 11

3.06 (78) 2.61 (22) .45

1.82 (30) 1.73 (182) .09

2.26 (35) 2.22 (80) .04

2.22 (44) 2.37 (156) (.15)

1.86 (12) 1.93 (410) (.07)

1.63 (10) 1.98 (206) (.35)

2.50 (84) 2.42 (98) .08

3.37 (37) 3.06 (77) .31

3.19 (36) 3.12 (76) .07

3.04 (89) 2.51 (29) .53

3.21 (83) 2.79 (35) .42

2.27 (97) 2.23 (115) .04

3.02 (114) 3.40 (216) (.38)

2.58 (102) 2.43 (281) .15

2.16 (170) 2.18 (516) (.02)
1.92 (144) 1.93 (195) (.01)

2.56 (114) 2.36 (566) .20
2.41 (287) 2.26(1,630) .15

2.44 (229) 2.25 (1,063) .19
$2.57(2,239) $2.29(6,722) $0.28

Source: Exhibit 67



Table 7

Major Male Occupations: 

Distribution of Males By Wage Rate

Hourly Wage 

$3.00 and over 

$2.50-$2.49 

$ 2.00-$ 2.99 

$1.50-$1.99

Portion of White Males 

29.88%

18.13%

43.23%
8.76%

Portion of Black Males 

5.49%

3.49%

76.24%
14.78%

Source : Table 6



Table 8

Major Female Occupations

White Females Black Females

D.O.T. Code Description

Average Rate 
(Number of 
referrals)

Average Rate 
(Number of 
referrals) Differential

201.368 Secretary $2.62 (162) $2.25 (68) $0.37

204.588 Clerk typist 2.06 (75) 1.98 (165) .08

211.468 Cashier II 1.82 (29) 1.70 (147) .12
213.582 Key Punch 

operator 2.42 (44) 2.23 (76) .19
219.388 Record Clerk 2.17 (157) 2.02 (182) .15
299.468 Cashier checker 1.95 (14) 1.87 (104) .08

301.887 Day worker - 
servant - 1.39 (676) -

306.887 Laundress - 
servant 1.55 (2) 1.43 (754) .12

311.878 Waitress 1.42 (88) 1.53 (819) (.11)
313.381 Cook - general 1.86 (3) 1.50 (156) .36

314.381 Cook - short 
order 1.58 (6) 1.60 (327) (.02)

318.887 Kitchen helper, 
dishwasher 1.56 (6) 1.42 (220) .14

323.887 Hotel Maid 1.42 (4) 1.59 (177) (.17)

355.878 Hospital attendant 1.79 (9) 2.46 (133) (.67)

381.887 Charwoman 1.96 (8) 1.56 (165) .40

729.884 Electrical unit 
assembler 2.42 (15) 2.10 (171) .32

920.887 Hand packer 2.05 (24) 1.81 (133) .14

Total $2.13 (646) $1.62 (4■ A H ) $0.51

Source: Exhibit 67



Table 9

Major Female Occupations 

Distribution of Females Bv Waqe Rate

Hourly Waqe Portion of White Females Portion of Black Females

Over $2.25 34.21% 0

Over $2.00 73.83% 14.07%

$1.50 and under 14.24% 40.33%

Source: Table 8



Table 10

Comparative Wages 
Major Female Occupations

Black Average Wage as Percent of White

Job TDES Referrals National

Secretary &LO00 106.3%

Typist 96.1% 102.6%

Record Clerk 93.0% 101.2%

Keypunch Operator 92.1% 101.2%

Cashier 93.4% 101.2%

Cook 80.6% 89.5%

Waitress 107.7% 111.6%

Private Servant 103.6% 102.7%

Source: Table 8 ; 1970 Census of the 
Table 228.

Population, v.



Table 11

Jobs With Average Wage 
Rates, By Race, Differ By Over 50 cents

An Hour_________________

D.O.T. Code Description

Average White 
Wage (Number 
of Referrals)

Average Black 
Wage (Number 
of Referrals) Difference

091.228 Secondary school teacher $3.30 (21) $2.34 (32) $0.96

160.188 Accountant 4.64 (46) 3.32 (13) 1.32

195.108 Social worker, etc. 3.76 (14) 2.56 (29) 1.20

205.368 Personnel clerk 3.31 (18) 2.27 (27) 1.04

210.388 Book-keeper 2.60 (87) 2.06 (30) .54

289.358 Commodities salesman 3.05 (79) 2.38 (31) .69

289.458 Salesperson, general 2.66 (30) 1.99 (59) .67

600.280 Machinist - general 3.66 (22) 2.87 (20) .79

616.380 Machine set-up man 2.87 (25) 2.33 (94) .54

637.281 Air conditioning, etc., 
mechanic 3.01 (35) 2.35 (5) . 66

638. 281 Maintenance mechinic 3.87 (59) 2.99 (17) .88

729.381 Electrical systems 
tester 3.38 (3) 2.34 (52) 1.04

741.884 Painter 3.20 (3) 2.57 (60) .63

824.281 Electrician 3.93 (44) 2.67 (12) 1.26

828.281 Electronic mechanics 3.04 (89) 2.51 (29) .53

869.887 Miscellaneous construc­
tion worker 2.58 (21) 2.01 (45) .57

Source: Exhibit 67



Table 12

Male and Female Average Wages 
Major Clerical and Service Jobs

D.O.T. Code Description
Average Male 

Waqe
Average Female 

Waqe Difference
160.188 Accountant $4.57 $3.26 $1.31
195.108 Social worker, parole 

officer 3.03 2.81 .22

201.368 Secretary 3.08 2.50 .58
203.588 Typist 2.77 2.11 .66
206.388 File Clerk 2.90 2.52 .38
209.588 Clerk typist 2.47 2.00 .47
210.388 Book-keeper 2.71 2.37 .34
213.582 Key Punch Operator 2.41 2.29 .12
219.388 Record clerk 2.66 2.08 .56
219.488 Accounting clerk 2.71 2.44 .27

223.387 Stock clerk 2.32 1.84 .48

289.458 Salesperson - general 2.86 1.89 .97

299.468 Cashier-Checker 2.80 1.87 .93

311.878 Waiter-Waitress 1.74 1.51 .23

313.381 Cook - general 2.18 1.59 .59

314.381 Cook - short order 1.89 1.50 .39

235.862 Switchboard operator 2.43 2.05 .38

Total $2.45 $1.82 $0.63

Source: Exhibit 67



Table 13

Male and Female Average Wages:
Major Industrial Occupations With Greater Number Of 
_________________ Female Referrals

D.O.T. Code Description
616.380 Machine set-up worker
706.887 Metal Unit Assembler
729.381 Electrical system 

tester
729.884 Electrical unit 

assembler
787.782 Sewing machine operator
920.885 Machine packager
920.887 Hand packager

Average Male 
Waqe

Average Female 
Wage Difference

$2.71 $1.77 $0.94
2.16 1.86 0.30

3.17 2.21 0.96

2.79 2.12 0.67
2.22 1.71 0.51
2.29 1.85 0.44
2.04 1.84 0.20

Source: Exhibit 67



Table 14

Referrals To Major Jobs 

____Over 90% Black_____

Number Number
D.O.T. Code Description

of Whites 
(Average Rate)

of Blacks 
(Average Rate)

Portion
Black

301.887 Day worker - 
servant 0 680 ($1.38) 100%

306.878 Laundress and 
Laundryman 2 ($1.55) 758 ($1.42) 99.73%

313.381 Cook - general 15 ($2.19) 207 ($1.73) 93.24%
314.381 Cook - short order 11 ($1.66) 401 ($1.57) 97.33%
318.887 Kitchen helper, 

dishwasher 18 ($1.64) 348 ($1.54) 95.08%
323.887 Hotel maid 4 ($1.42) 183 ($1.59) 97.86%
303.782 Clothes presser 1 ($2.00) 57 ($1.71) 98.27%
381.887 Charwoman & porter 20 ($1.90) 575 ($1.82) 96.63%
382.884 Janitor 10 ($1.63) 208 ($1.98) 95.41%
619.885 Misc. Machine 

operator 4 ($2.43) 50 ($2.53) 92.59%
729.381 Electrical systems 

tester 3 ($3.38) 52 ($2.34) 97.54%
741.884 Painter 3 ($3.20) 60 ($2.57) 95.23%
919.887 Car washer attendant 3 ($2.02) 40 ($1.67) 93.02%

Total 94 ($1.92) 3,619 ($1.60) 97.46%

Source: Exhibit 67



Table 15

Referrals To Closely Related Jobs

Average White Black
D.O.T. Code Description Rate Referrals Referrals
184.118 Manager - Transportation, etc. $3.08 0 24
184.168 Manager - Transportation, etc. 3.75 13 0

262.358 Salesperson - Food 3.29 11 2

263.458 Salesperson - Clothes 2.11 9 22

289.358 Salesperson - Commodities 2.85 79 31

289.458 Salesperson - General 2.21 30 59

804.281 Sheet Metal Worker 3.31 24 9
804.886 Sheet Metal Worker - Helper 2.49 9 0

860.381 Carpenter 3.08 83 35
860.887 Carpenter-Helper 2.24 97 115

899.281 Maintenance Man - Factory 3.27 39 8
899.381 Maintenance Man - Building 2.55 45 24

950.782 Sanitary Engineer 3.13 14 9
950.885 Sanitary Engineer 2.02 0 12

Source: Exhibit 67



Table 16

Wage Rates

Referrals To Trainee Jobs 
_________ Exhibit 65

Applicant Education White Male Black Male White Female Black Female
0-8 years $2.07 $2.09 $1.68 $1.83
9-11 years 2.20 1.98 1.77 1.79

High School 2.40 2.30 2.08 1.91
Above High School 2.40 2.51 2.09 2.07

Total 2.38 2.26 2.06 1.91
Number of Referrals 6,819 11,599 2,218 6,075

All Whites $2.30 (Women are 24.5%)
All Blacks $2.03 (Women are 34.3%)

All Males $2.30

All Females $1.95

Source: Exhibit 65



Table 17

Exhibit 62 Referrals 
Of Applicants With More 

Education Than Requested 
_______ By Employer______

Years Requested
Race Sex 0-8 9-11 Hiqh School

White Male 2,313 (19.5%)* 559 (5.3%) 1,242 (22.7%)

Black Male 4,971 (23.4%) 1,515 (10.5%) 1,237 (37.2%)

White Female 175 (4.0%) 86 (2.1%) 670 (36.0%)

Black Female 3,545 (34.2%) 568 (8.2%) 5 99 (39.4%)

* Percent is portion of pool with more than the needed education 
(e.g. 9 plus years for a 0-8 job) who were referred to a job for 
which overqualified. Table 18

Exhibit 62 Referrals 
Of Applicants With Less 

Education Than Requested 
_______ By Employer_______

Years Requested
Race Sex 9-11 Hiqh School 12 plus

White Male 30 (7.1%) * 279 (14.8%) 50 (0.7%)

Black Male 71 (2.6%) 613 (6.4%) 16 (0.07%)

White Female 5 (6.5%) 75 (16.6%) 12 (0.46%)

Black Female 37 (2.8%) 287 (5.9%) 8 (0.07%)

♦Percent is portion of pool with less than the needed education who 
were referred to a job for which unqualified.

Source: Exhibit 62



Table 19

Over Qualified Trainees Referrals To Trainee Jobs Requesting 0-8 
Years of Education of Applicants 

With More Than 8 Years of Education (Exhibit 65)

Applicants With Over
Race/Sex Number of Referrals 8 Years Education Ratio

White Male 1,341 7,237 18.5%

Black Male 5,168 11,806 43.7%

White Female 179 2,385 7.5%

Black Female 2,199 6,138 35.8%

Source: Exhibit 65



Table 20

Overqualified Referrals
Portion of Applicants 

Referred To Job Requiring Less 
Education Than Thev Had*

Race/Sex 9-11 Years or
Education of Applicant 

Hiqh School
Beyond 

Hiqh School

White Male 59.8% 54.1% 77.0%

Black Male 67.7% 63.7% 90.0%

White Female 50.2% 13.1% 90.4%

Black Female 72.2% 51.9% 91.5%
Table 21

Underqualified Referrals
Portion of Applicants 

Referred to Job Requiring More 
Education Than They Had 

(Exhibit 62)*

Education of Applicant
Race/Sex 0-8 Years 9-11 Years High School
White Male 27.3% 24.0% 1.5%
Black Male 17.6% 14.2% 0.15%

White Female 14.8% 30.8% 0.71%

Black Female 12.8% 11.8% 0.18%

* Both charts disregard jobs for which employer requirements
were unknown.

Source: Exhibit 62



Table 22

Wage Rate of Referrals 
_____ By Education_____

Wage Rate

Education
White
Male

Black
Male Difference

White
Female

Black
Female Difference

0-8 $2.25 $2.02 $0.23 $1.59 $1.49 $0.10

9-11 2.41 2.07 .34 1.87 1.62 .15
High School 2.57 2.32 .25 2.37 1.85 .52

Above High School 2.60 2.57 .03 2.20 2.07 .13

Total 2.55 2.25 .30 2.24 1.77 .47

Source: Exhibit 62



Table 23

Referral Rates 
Whites and Blacks With 
Different Education

SIC Code Description (sex)
Whites: 
0-8 years

Blacks:
Hiqh School

01 Agriculture - crops (males) 2.05 1.89
15 Building Construc­

tion (males) 2.73 2.36

16 General Construc­
tion (males) 3.09 2.53

17 Construction - 
Special Trades (males) 2.39 2.37

23 Apparel Manufactur­
ing (males) 2.50 1.98

24 Lumber Manufactur­
ing (males) 1.87 1.84

26 Paper Manufacturing (males) 2.86 2.80

28 Chemical Manufac­
turing (males) 2.45 2.33

32 Store Processing (males) 2.73 2.32

33 Primary Metal Manu­
facturing (males) 3.10 2.97

36 Electrical Machinery 
Manufacturing (males) 2.50 2.43

37 Transportation Equi- 
ment Manufactur­
ing (males) 3.32 2.89

38 Precision Instrument 
Manufacturing (females) 2.34 1.90

39 Miscellaneous Manu­
facturing (males) 1.98 1.96

59 Miscellaneous Retail (males) 2.37 2.01

65 Real Estate (males) 2.16 2.05

65 Real Estate (females) 1.85 1.75

70 Hotel Services (males) 1.72 1.69

76 Miscellaneous Repair
services (males) 2.35 2.12



SIC Code Description (sex)
Whites: 
0-8 years

Blacks:
Hiah School Graduates

79 Recreation Services (females) 2.07 1.74

86 Club Services (males) 2.00 1.95

88 Private Household 
Services (males) 2.00 1.90

Source: Exhibit 68

i

-2-



Table 24

Referral Rates:
SIC Groups With Over 

1000 Referrals 
High School Graduates

Average Rate - Males Average Rate - Females
SIC
Code Description White Black Difference White Black Difference
15 Building Con­

struction 2.69 2.36 .33 2.51 2.03 .48
17 Construction - 

special trades 2.52 2.37 .15 2.17 1.79 .38
20 Food Manufactur­

ing 3.28 2.97 .31 2.59 2.61 1.02
28 Chemical Manufac­

turing 2.81 2.33 .48 2.33 2.11 .22

35 Machinery Manu­
facturing 3.44 3.24 .20 2.35 2.13 .22

42 Motor freight 2.53 2.31 .22 2.24 2.36 (.12)
50 Wholesale Trade 2.34 2.17 .17 2.20 1.92 .28
53 Retail - General 2.00 1.99 .01 1.92 1.76 .16

55 Retail - Cars & 
Ga s 1.91 1.87 .04 2.03 1.81 .22

58 Retail - Restau­
rants 1.83 1.67 .16 1.37 1.33 .04

73 Business Services 2.50 2.08 .42 2.09 1.89 .20
88 Private Household 

Services 1.93 1.90 .03 1.30 1.42 (.12)
91 Government 2.80 2.58 .22 2.47 2.36 .11



15
17

20

28

35

42
50
53
55
58
73
88

91

TABLE 25

Referral Rates: 
SIC Group; With Over 

1000 Referrals

Average Rate - Males Average Ratei - Females

White Black White Black

Description
(Number of 
Referrals) 
$

(Number of 
Referrals) 
$

Dif­
ference

$

(Number of 
ReferraIs) 
$

(Number of 
Referrals) 
$

Building Construction 2.59 (482) 2.32 (834) .27 2.46 (26) 2.08 (16)
Construction - Special 

Trades 2.49 (438) 2.29 (1,077) .20 2.24 (60) 1.75 (33)
Food Manufacturing 3.10 (727) 2.88 (1,035) .24 2.56 (118) 2.54 (166)
Chemical Manufactur­

ing 2.79 (281) 2.33 (469) .46 2.33 (145) 2.11 (155)
Machinery Manufac­

turing 3.44 (422) 3.10 (649) .34 2.47 (79) 2.14 (62)
Motor Freight 2.49 (492) 2.26 (1,457) .23 2.20 (67) 2.43 (66)
Wholesale Trade 2.45 (1,447) 2.11 (3,963) .34 2.21 (429) 1.92 (534)
Retail - General 1.99 (472) 1.98 (813) .01 1.88 (175) 1.75 (440)
Retail - Cars & Gas 1.94 (456) 1.87 (917) .07 1.97 (92) 1.80 (126)

Retail - Restaurants 1.85 (168) 1.66 (688) .19 1.38 (197) 1.31 (2,438)
Business Services 2.52 (571) 2.05 (891) .47 2.10 (275) 1.89 (429)
Private Household 

Services 1.96 (85) 1.95 (596) .01 2.25 (46) 1.39 (1,742)

Government 3.05 (287) 2.44 (463 .61 2.48 (220) 2.31 (614)

Source: Exhibits 40, 68



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T a b l e  2 6



Table 27

Ratio of Referrals to Placements 
Year ending January 31, 1972

Type of Applicant Referral Ratio
White 2.542
Black 2.372
Walk in clients 2.471
Welfare referrals 1.637
Male 2.408
Female 2.444
Education: 0-7 1.327

8-11 2.180
12 2.614
12 2.944

Source: Tables



CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 
7th day of March, 1977, he served three copies of the 

Brief for Appellants by United States mail, postage 

prepaid, on the attorney for defendants-appellees,

Bart Durham, Esq., Moon & Durham, 1104 Parkway Towers, 

Nashville, Tennessee 37219.



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