Beecher v. Alabama Petition for a Writ of Certiorari to the Supreme Court of Alabama

    «

NO. 71-3447

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant and Cross-Appellee,

V.

GEORGIA POWER COMPANY, ET AL.,
Defendant-Appellee and Cross-Appellant,

On Appeal from the United States District Court 
for the Northern District of Georgia 

Atlanta Division

REPLY BRIEF FOR THE UNITED STATES AS APPELLANT
AND

BRIEF AS CROSS-APPELLEE

JOHN W. STOKES, JR.
United States Attorney,

DAVID L. NORMAN 
Assistant Attorney General.
DAVID L. ROSE 
STEVEN B. GLASSMAN 
Attorneys,
Department of Justice 
Washington, D.C. 20530

J



TABLE OF CONTENTS

REPLY BRIEF FOR THE UNITED STATES AS APPELLANT
Page

1. The District Court Has Authority To Grant
Back-Pay in a Pattern or Practice Suit--------  2

2. The Aptitude Tests Used by Georgia Power
Are Unlawful under Title VII ------------------  7

Conclusion----------------------------------------  ^2

BRIEF FOR THE UNITED STATES AS CROSS-APPELLEE

Questions Presented by Georgia Power Company 
As Cross-Appellant -------------------------------
The Basic Facts

1. Georgia Power's Post-1963 Hiring Practices -- 14
2. The High School Diploma Requirement--------  14

Summary of Argument---------- - -----------------  20
Argument

I. The District Court Finding that the Georgia 
Power Company Continued to Discriminate 
against Black Persons in Its Hiring Practices 
Is Siq>ported by the Evidence; and the Relief 
Ordered Was Appropriate---------------- - 22
A. The District Court's Findings

Were Supported by the Evidence---------  23



B. The Relief Ordered Was Appropriate, 
Insofar as it Went ---------------- 28

II. The District Court Correctly Held that
the Company's High School Diploma Requirement 
Has a Racially Discriminatory Impact and Is 
Not Required by Business Necessity and Is 
Therefore Violative of Title VII ----------

Conclusion

31
39

ii



TABLE OF CITATIONS

Case ^
Bins V. Roadway Express Co.,

444 F.2d 687 (5th Cir. 1971) ...................  26
Brooks V. Dewar,

313 U.S. 354 (1940) .......... -..... .........  »
Chaney v. City of Galveston,

368 F.2d 774 (5th Cir. 1966) ...... -....... . 20,24
Culpepper v. Reynolds Metals Co.,

421 F.2d 888 (5th Cir 1970) ..................  28
Galena Oaks Corp. v. Scofield,

218 F.2d (5th Cir. 1954) .......... -....... . 24

Griggs V. Duke Power _Co..  ̂q o oi 99 “̂9 9A
35

Ivanhoe Irrigation District v. McCracken,
357 U.S. 275 (1958) — -........................  ^

Jones V. Lee Way Motor Freight,
7^1 F.2d 245 (10th Cir. 1970) certiorari
denied, 401 U.S. 687 (1971) ................. . 26

Lentz V. Metropolitan Life Insurance Co.,
428 F.2d 36 (5th Cir. 1970) ------------ ------ 24

Local 53. Asbestos Workers v. Vogler,
407 F.2d 1047 (5th Cir. 1969)---- ------------  28

Local 189. United Papermakers and Paper Workers 
V. United States

416 F.2d 988 (5th Cir. 1969), certiorari
denied, 397 U.S. 919 (1970) ...................  6

Louisiana v. United States,
380 U.S. 148 (1965) — .... -.................... 28

Phelps Dodge v. National Labor Relations Board,
313 U.S. 177 (1940)... .......................  6

Red Lion Broadcasting v. FCC,
395 U.S. 367 (1969) ...........................  ^

U i



Case Page
Robinson v. P. Lorillard Corp.,

444 F.2d 791 (4th Cir. 1971)... ..............  5,35
Rowe V, G.M. Corp.

F.2d , 4EPD [CCH] H7715 (5th Cir.,
No. 28959, March 2, 1972) .....................  28

Sprogis V. United Airlines. Inc.,
444 F.2d 1194 (7th Cir. 1971)
Certiorari denied 4 EPD [CCH] ^7588 (1971) ----  5

United States v. City of Chicago.
400 U.S. 8 (1970) .............. -........... . 8

United States v. Hayes International Corp..
415 F.2d 1038 (5th Cir. 1969); also,

F.2d , 4 EPD [CCH] H7690 (5th Cir.,
No. 71-1392, Feb. 22, 1972) ...................  2,5,28

United States v. Ironworkers Local 86.
443 F,2d 544 (9th Cir., 1971), certiorari denied,
404 U.S. 984 (1971) — -........................  26

United States v. Jacksonville Terminal Co..
451 F.2d 418 (5th Cir. 1971), certiorari denied 
Nos. 71-1000, 71-1010, 71-1014, April 24,
1972 .... ...........................-.... ..... 12

United States v. Roadway Express.
F.2d ____(6th Cir., No. 71-1873,

April 4, 1972 — ...............................  6
United States v. West Peachtree Tenth Corp..

437 F.2d 221 (5th Cir. 1971) ............ -..... 26
Statutes
Title VII of the Civil Rights Act of 1964,

(42 U.S.C. §2000e-6)
42 U.S.C. §2000e-2 ...... ...................  8,9
42 U.S.C. S2000e-2 ....................... --- 5

The Equal Employment Opportunity Act of 1972,
Public Law 92-261, March 24, 1972 ------------  8

EEOA, Section 706 ................................ - 3,4
EEOA, Section 707 ...... ........................... 3,4

iv



117 Congressional Record ----------------------- - 4
118 Congressional Record — ------— --------- -------- - 4
EEOC, Guidelines on Etaployee Selection Procedyes 
(revised), 35 Fed. Reg. 12333, 29 C.F.R* 1607 --------- 7,8,9,10,11,38,39

EEOC, Guidelines on Employment Testing Procedures 
(August 24, 1966) ----------- -— ---- --- - 10

Senate Report,
92,415 (92d Cong., 2d Sess.) .........................  8

Miscellaneous
American Psychological Assoclationf Standards 
For Educational and Psychological Tests and 
Manuals. (1966) --------------- - - ------ 10
Note, Employment Discrimination and Title VII of 
The Civil Rights Act of 1964. 84 Harv. L. Rev.
1109 (March 1971) ....................................  ^



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 71-3447

UNITED STATES OF AMERICA,
Plaintiff-Appellant and Cross-Appellee,

V.

GEORGIA POWER COMPANY, ET AL.,
Defendant-Appellee and Cross-Appellant.

On Appeal from the United States District Court 
for the Northern District of Georgia 

Atlanta Division

REPLY BRIEF FOR THE UNITED STATES AS APPELLANT

On March 17, 1972, Georgia Power Company filed its Brief 
as Appellee and Cross-Appellant which was devoted to nvimerous issues 
raised herein, and the Psychological Corporation, the publisher of 
the majority of the tests at issue in this case, filed its Brief 
as Amicus Curiae on April 10, 1972, which was devoted solely to the 
testing issue.



Because we believe that a response would help clarify the 
back-pay and testing issues in this case, and becaxise of significant 
developments which occurred subsequent to the filing of our main 
brief as appellant, we are submitting this reply brief as appellant.

1. The District Court has Authority to Grant Back-Pay in 
a Pattern or Practice Suit.

Since the filing of our brief as appellant on January 25,
1972, this Court has passed on the issue of the Government's 
standing to seek back-pay and Congress has amended Title VII 
making clear its intent that back-pay recovery serve as an important 
enforcement tool.

On February 22, 1972, this Court ruled (per Dyer, J.)
1/in United States v. Haves International CorT>. , in a suit 

also brought under Section 707 of the Civil Rights Act of 1964, 
that the district court had erred in rejecting the Attorney General's 
claim for back-pay as being filed too late and remanded the case to 
the district court to hear and determine the issue of back-pay on 
the merits. Although the Court did not expressly state that such

F.2d ___, 4 EPD [CCH] K7690 (5th Cir., No. 71-1392,1/  ___ ___
February 22, 1972).

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relief is authorized, we submit that the Court %rould not have
remanded the case to the district court for consideration of
that claim, if it believed that as a matter of law the
district court was without jurisdiction under the statute.

Secondly, and perhaps of more significance, is the
fact that on March 24, 1972 the Equal Employment Opporttinity

2/Act of 1972 became law. Under the amended Section 706 of 
the 1972 Act, the Attorney General and the Equal Employment 
Opportunity Commission are both empowered to bring civil 
actions on behalf of individual victims of discrimination

3/
and the classes they represent. Section 706(g) retains the 
express authority for the courts to award back-pay as a 
specific type of relief that may be included in these suits. 
Moreover, under new Section 707(c) and (e), EEOC and the 
Attorney General have concurrent power (for the next two 
years) to bring "pattern or practice" suits.

2/ This Act amends Title VII of the Civil Rights Act of 1964 
(42 U.S.C. 2000e, et seq.) (Four copies of the new Act are 
supplied herewith.) The pertinent sections are effective 
immediately.
3/ The Act contemplates that EEOC will bring such suits 
gainst private employers and unions, and the Attorney 
General will do so against state and local government 
employers.

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Thus, it is clear that Congress has envisioned the awarding 
of back-pay and similar relief, when appropriate, to the victims 
of discrimination in suits brought by private plaintiffs as well 
as in suits brought by representatives of the Government. And ity
clearly contemplated that such awards be made in class actions.
Thus, if the views of the defendant Company were to prevail, a 
district court would have the authority to grant back-pay on behalf 
of individuals and classes of individuals in suits brought by the 
EEOC and the Attorney General under Section 706, but would not have 
the authority to do so where the same agencies brought suits 
involving the more severe problems under Section 707. Such an 
anomalous result has no support in reason or policy and is con­
trary to the purpose and language of the Act.

Georgia Power contends that back-pay should not be authorized 
because it is "speculative," "burdensome" and "unmanageable" to 
grant such relief to a class. This argument has been rejected by 
each of the appellate courts that has considered the question.

1

4/ The Bill which passed the House of Representatives limited 
relief under Section 706(g) to individuals named in the charge 
filed with EEOC. Sec. 706(h), H.R. 1746, 117 Cong. Rec. H 8480,
9542 (Sept. 15, 16, 1971). The Senate Bill contained no such 
provision, and the Senate view prevailed in conference. Sec. 706(g), 
Report of Managers, 118 Cong. Rec. H 1695, 1698 (March 2, 1972).

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see. RoMaSOD v. P. LprUUr^. 444 F.2d 791 (4th Clr. 1971);
Snroels V. Airlines. Inc.. 444 F.2d 1194 (7ch Clr. 1971);
See also, imfred States v. Havea International CorB-. --- F.2d

4 EPD [CCHl 17690 at 5717 (5th Clr.. No. 71-1392. February 22.

1972).
Indeed, the district covn:t In this case has already found 

that blacks have suffered significant monetary loss because of the 
Company's discriminatory employment practices (Finding of Fact 86) 
and awarded back-pay and retroactive seniority In the private 
cases which were consolidated with the Government's for the purpose 
of trial. Thus, the requested relief Is surely not speculative.

The defendant Company suggests that procedural safeguards 
exist In private class actions which cannot pertain In pattern or 
practice suits under Section 707; and rely upon Robinson v. 
T..i11ard corn.. suara. for the proposition that monetary awards 
are not to be assured to all class members, but Individual rights 
to back-pay should be determined In an ancillaryproceeding. See. 
Georgia Power's Brief, p. 46. Yet. the procedure set forth In 
Pohlnson V. Lorlllard. supra, is precisely the one which we 
sought in this case (see Brief as Appellant, p. 65. fn. 62) an 
can be followed as readily In a pattern or practice case as in a

class proceeding.

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With regard to the Government's request for retroactive 

seniority for identified victims of discrimination, Georgia 
Power suggests at page 24 of their brief that such relief 
would be in conflict with Local 189 United Papermakers and Paper- 
workers v. United States, 416 F. 2d 980 (5th Cir. 1969), 
certiorari denied 397 U.S. 919 (1970), because this Court 
there rejected a theory of relief which would require that blacks 
displace incumbent white employees (the "freedom now" theory).
See, Local 189, 416 F. 2d at 988. However, the "freedom now" 
theory rejected there called for the displacement (or bumping) 
of present employees from their current jobs.

However, the retroactive seniority for the identified 
victims of discrimination which we seek in this case can be 
utilized only to fill an existing vacancy, not to create a vacancy 
by the displacement of an incumbent employee. Such seniority 
for rejected applicants together with back-pay simply pro­
vides for "a restoration of the situation, as nearly as possible 
to that which would have obtained but for the illegal discrimina­
tion." Phelps Dodge v. National Labor Relations Board, 313 U.S. 
177, 194 (1940). Such relief is clearly authorized by Title 
VII. United States v. Roadway Express, ____ F. 2d ____ (6th Cir.,

5/No. 71-1873, April 4, 1972).^

_5/ Retroactive seniority was granted by the district court to one of 
the individuals, a rejected applicant, whose case was consolidated 
with this case for the purposes of trial. That case was not appeale 
by Georgia Power, See, George Jones v. Georgia Power Company,
Civil Action No. 14182, June 31, 1971, Decision, p. 62.

„  6 -



2. The Aptitude Tests Used by Georgia Power are Unlawful 

Under Title VII.
Ignoring the undisputed fact that Georgia Power Company’s 

aptitude tests have screened out blacks at a rate thirty (30) 
times higher than they screen out whites (Gov. Ex. 12; see Brief 
as Appellant, p. 13, fn. 12), the Company and the Psychological Cor­
poration launched a broad scale attack on the EEOC Guidelines on... 
Employment Selection Procedures as being an unduly severe standard 
by which to measure the validity of the Company's tests. We show 
here that the legal standard they urge is incorrect and that 
there is no substance to their allegations as to the unreasonableness

of the Guidelines.
a. The Company asserts that "the appellants and the EEOC 

have the burden of proving that the standards [EEOC Guidelines] . . . 
are reasonable" (Georgia Power’s Brief, p. 30). This position is 
contrary to the well-established law in this area . As pointed out 
in our Brief as Appellant (pp. 52-53), the guidelines of an agency 
whose duty it is to enforce a given law are entitled to "great 
deference" by the courts, particularly as they pertain to expertise 
in fields other than the law, unless it is shown by the party 
contesting them that there is "compelling indications" that they 
are wrong. E.g. . Griggs v. Duke Power.C^, 401 U.S. 424, 434;

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United States v. City of Chicago,^! U.S, 8, 10 (1970); Rgd LlQD 
Broadcasting v. FCC, 395 U.S. 367, 381 (1969).

The cases cited by amicus for the proposition that an 
administrative interpretation will not stand if it is contrary 
to the legislative purpose (Amicus Brief, pp. 11-16) are not of 
assistance to the Company or amicus. For it is entirely consistent 
with the purpose of Title VII "to remove barriers that have operated 
in the past to favor an identifiable group of white employees over 
other employees" (Griggs v. Duke Power Co., supra, 401 U.S. at 430) 
and to hold unlawful a test which disqualifies proportionately 
thirty (30) times as many blacks as whites.

In addition, by the Equal Employment Opportunity Act of 1972, 
Congress made substantial amendments to Title VII with respect to 
coverage and enforcement machinery. Although the Grigfts. decision 
and the EEOC Guidelines had been published for over a year, and were 
well known to the Congress,” no revision was made to Section 703(h) 
of the Act, the section on which the Guidelines were based aid Griggs 
was decided. Thus, Congress has in effect ratified the administrative 
interpretation of the Act. Ivanhoe Irrigation District, v. McCracken, 
357 U.S. 275, 293 (1958); Brooks v. Dewar. 313 U.S. 354, 361 (1940).

6/ See Senate Report 92-415 (92d Cong., 2d Sess.), p. 5.

-  8



b. The Company and the amicus argue that the iaiideliaaa 
are unduly severe (-'unreasonable, unrealistic and unworkable") 
and appear to suggest that the Ckjvemment is opposed to testing. 
We would merely refer on that score to Dr. Kirkpatrick, the 
Government's expert witness, who explained that the use of tests, 
if valid, is "the best answer to fair employment" (Tr. v. 3 p.

187).
The Company and amicus arguments that the .Quidglinas. are 

unreasonable or unworkable are based primarily upon statements 
which are unsupported by legal or scholarly authority,- and 
upon a misreading of the Gî kfeljags themselves.

The Psychological Corporation contends that requirement 
(b) of Section 1607.3 of the (Lytideljiysa is not consistent with 
Section 703(h) of the Act (pp. 18-19). This subsection (b) 
simply provides that if several job related selection methods 
are availalt, the one with the lesser discriminatory impact

7/ The authority cited most frequently „f%he^

to Che decislon^of the^upre.e
^  S f S t r l t a T s H f l E l f ’vlI bas;d'ln p « t  -  the (now) overruled 
S c l s i m  of the Fourth Circuit. See. 84 Harv. L. Rev. at p. 1118-19,
1138-40.

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must be used.^/ A company does not need to try all selection 
methods to see which has the lesser impact, but only must show 
job relatedness for any one it selects and then iiust use the 
method with the lesser impact on minorities.

Similarly, the Company argues that the Guidelines, and 
the American Psychological AssociAtion's Standards ,l/'̂ only 
allow the use of the "correlation coefficients" technique of 
validation (Georgia Power’s Brief, p. 32). The Guidelines, 
however, plainly provide that empirical evidence of a test's 
validity may be shown by any study which uses "generally accepted 
procedures." EEOC Guidelines §1607.5(a) and (b) /

8/ This provision is, in any event, not in issue, since it is the 
contention of the Government and private plaintiffs that the tests 
have not been shown to be valid; not that the Company should use 
another method of selection which has a lesser adverse impact.
9/ Standards for Educational and Psychological Tests and Manuals, 
APA,,1966 (See footnote 16, p. 16 of the Brief for the United States 
as Appellant).
10/ Georgia Power states that the Guidelines were issued after their 
^lidation study was begun (p. 29); however, the present Guideline's 
are only a revision of the previously issued Guidelines on Employment 
Testing Procedures of August 24, 1966, a full two years before they 
began their study.

-  10 -



Georgia Power also asserts that the Guidelines require 
them to prove that persons who were hired are better job per­
formers than people who were rejected by the test (Georgia 
Power's Brief, p. 33). However, the Guidelines specifically 
state that validation studies are acceptable where tests are 
"administered to present employees". Such a procedure is called 
a "concurrent" validation study, and is an accepted procedure.
EEOC Guidelines, §1607.5(b)(1).

Also, the Company argues that the Guidelines are unduly 
harsh" in the requirement of differential validation studies, jUe^, 
studies on minorities as a separate group (Georgia Power's Brief, 
pp. 31-32). This argument misstates the plain words of the 
Guidelines. Section 1607.5(b)(5) requires differential data and 
results on both minority and non-minority groups wherever "tech­
nically feasible." The term "technically feasible" is defined

elsewhere in the Guidelines as:
***having or obtaining sufficient number of 
minority individuals to achieve findings of 
statistical and practical significance***
(§1607.4(b)).

The reasons that the Company's study is insufficient on 
this point is that by its own standards enough blacks were

-  11 -



available in at least some of the job classifications so that a 
differential validation study was technically feasible (Co. Ex.
75; Gov. Exs. 5, 17; Tr. v. 6, pp. 92-94). Thus, the Company's 
validation study assumes that data for successful whites also 
reflects what the data would have showed for blacks if separate 
studies had been performed. This type of assumption was 
rejected by this Court in United States v. Jacksonville Terminal 
Co., 451 F.2d 418, 456 (5th Cir. 1971), certiorari denied.
Nos. 71-1000, 71-1010, 71-1014, April 24, 1972.

CONCLUSION
For the foregoing reasons, and those set forth in our Main 

Brief as Appellant, we respectfully request that the decision 
below be reversed with respect to the use of aptitude tests 
and the awarding of back-pay, compensatory per-diem and retroactive 
seniority, and the case remanded to the district court for the
entry of an appropriate remedial order.

Respectfully submitted.

JOHN W. STOKES, JR. 
United States Attorney

DAVID L. NORMAN 
Assistant Attoimev General

DAVID L. ROSE

STEVEN B. GLASSMAH 
Attorneys, \
Department of Justice, 
Washington. D.C. 20530
Attorneys for the United States

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IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 71-3447

UNITED STATES OF AMERICA,
Plaintiff-Appellant and Cross-Appellee,

V.

GEORGIA POWER COMPANY, ET AL.,
Defendant-Appellee and Cross-Appellant.

On Appeal from the United States District Court 
for the Northern District of Georgia 

Atlanta Division

BRIEF FOR THE UNITED STATES AS CROSS-APPELLEE

QUESTIONS PRESENTED BY GEORGIA POWER 
COMPANY AS CROSS-APPELLANT

1, Whether the requirement by Georgia Power Company 
that all employees and prospective employees must possess a 
high school diploma or the equivalent as a prerequisite for 
hire (except for traditionally black laborers'jobs),.promotion 
and transfer is illegal under Title VII of the Civil Rights 
Act of 1964 when such a requirement has a disproportionately

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adverse impact on blacks as a class and has not been shovm 
to be a valid predictor of successful job performance,

2. Whether the findings of the court below that 
Georgia Power Company has engaged in a pattern and practice 
of racial discrimination in their hiring practices is 
clearly erroneous.

THE BASIC FACTS
1. Georgia Power's Post-1963 Hiring Practices.
The basic facts with respect to the defendant Company's 

post-1963 hiring practices were found by the district court 
(Findings 14-15, 20, 23, 29-45), They acei undisputed facts 
of record pertaining to the Company's hiring practices and 
are summarized in our Main Brief, pp, 6-8,17, and will 
not be repeated here.

2. The High School Diploma Requirement.
The court below found that significantly greater

numbers of blacks than whites do not have high school
1/

educations (Finding of Fact 72). In 1969, 82 percent 
of white 20 to 21-year-olds in the United States had

W  As in our Brief as Appellant, unless otherwise indicated, 
all "Finding of Fact" citations refer to the district court's 
June 30, 1971 Decision,

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completed high school, but only 58 percent of the blacks 
in this age group had done so« In the southern states, in 
the 25 to 44-year-old age group, 64,7 percent of the white 
males had graduated from high school, while only 35,0 
percent of the blacks had done so. Sixty-three percent 
of the white females in this age group graduated as opposed 
to 34,7 percent of the black females (Finding of Fact 72),

In the Atlanta area, where a large part of Georgia 
Power's hiring is done, the most current figures show that 
this dispartity in educational achievement is also present. 
Of whites over 17, 70,7 percent had completed high school 
as compared to 46,2 percent of blacks (Finding of Fact 72), 

In 1960, Georgia Power Company imposed a mandatory 
requirement that all new employees have a high school 
education or the equivalent for employment. This require­
ment was not imposed on incumbent employees (Finding of 
Fact 16). Sometime in 1964, Georgia Power imposed the 
high school education requirement on Incumbent employees 
seeking to transfer from the traditionally black job classi­
fications of laborer, janitor, porter and maid to higher- 
paying jobs (Finding of Xact 18),

Georgia Power Company employs large numbers of non- 
high school graduates, hired prior to 1960, who have 
progressed to journeyman or higher classifications. For

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exanxple, in the Production Department and in the Atlanta
and Macon Operating Divisions, there were 339 white
employees, or 28.47. of the total number of white employees,
working at journeyman levels, who did not have high school
educations as of January 16, 1970 (Finding of Fact 23; Gov.

2/
Ex. 17).

The evidence shows that at least 45 or 43% of the 106
foremen in the Atlanta and Macon Operating Divisions and
the General Repair Shop, as of January 16, 1970, did not3/
have high school educations (Gov. Elx. 17, Co. Ex. 9).
Moreover, of the total 788 employees in journeyman classifica­
tions in the Company's Steam Plants and the Atlanta and Macon 
Operating Divisions, 208 or 26% do not have high school 

educations.

2/ As in the Brief for the United States as Appellant,
Tiled January 25, 1972, all references to Government 
Exhibits 14, 15 and 17 are to their supplemental editions.
3,/ Government Exhibit 17, as up-dated by Company Exhibit 9, 
affirmatively shows 45 individuals who are in the foreman 
classification without high school educationa For the 
remaining 61, the exhibits either indicate no high school 
education or no record (application).

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Several of these white jouimeymen whose edueational 
level averaged 7th grade testified that they were able to 
perform their jobs despite their limited education, and that 
prior experience and outside study had aided them significantly 
in performing their duties (Finding of Pact 75; Tr. v, 7 
pp. 54, 58, 63, 65, 69-70, 72-73),

Moreover, several black employees without high school 
educations testified that they had taken home study 
courses, or that they had prior experience doing the type 
of work Georgia Power Company required in higher classifica­
tions. However, they hawe been prevented from progressing 
from laborer to those higher classifications because of 
their lack of a high school diploma (Finding of Fact 76), 

Georgia Power Company collected no data nor made any 
statistical study on whether or not the possession of a 
high school education is necessary for the performance of 
any or all jobs within the Company, or whether or not 
there is a statistically significant correlation between 
possession of a high school education and job performance 

(Finding of Fact 77),
Georgia Power's Assistant Vice-President for Employee 

Relations, Mr. Hubert Joiner, testified on direct examina­
tion that he knew of employees who had been demoted due 
to their lack of education, i,e., they "were not able to
read and comprehend the requirement of the job . .

-  1̂  -



(Tr. V. 4 p. 160). Upon further questioning, Mr. Joiner 
stated he could not cite specific instances of employees 
being demoted and that the real reason they were demoted 
is because they could not perform the job in question 
(Tr. V. 4 p. 221). Additionally, Mr. Joiner testified, 
many employees without high school educations have been 
able to perform these jobs (Tr. v. 4 p. 221).

In support of their use of a high school education 
requirement, Georgia Power Company introduced the testi­
mony of two expert witnesses. The first such witness.
Dr. William Hale, testified on direct examination that 
even though he had not performed any studies relating 
to the validity of a high school education requirement as 
a predictor of job success, he had generally observed that 
people who "drop-out" of high school lack such character­
istics as self-discipline, perseverance, and a sense of 
purpose (Tr. v. 6 pp. 8-14).

On cross-examination. Dr. Hale admitted that most of 
his personal experience had been with white "drop-outs" 
and that he had not counselled many blacks (Tr. v. 6 p. 
28-29). Also, Dr. Hale admitted that he knew of no 
research studies which have attempted to identify the number

18 -



of high school "drop-outs” who exhibit the characteristics 
that he attributed to "drop-outs" on direct examination 
or would support his theory (Tr. v, 6 pp» 23-24), Moreover, 
Dr. Hale admitted that financial difficulty in the home 
can cause any individual to leave school prior to his 
graduation (Tr, v. 6 pp. 20).

The second expert witness for the Company on the high 
school education requirement was Dr. Harry Cowart, an 
expert in reading. Dr. Cowart testified that he was con­
tacted by Georgia Power and asked to determine readability
levels of various manuals in use at the Company for presenta-4/
tion at the trial of this cause (Tr. v. 6 pp. 180-181).
Dr. Cowart stated on direct examination that these manuals 
had a readability level of at least high school (Co. Ex.
103; Tr. V. 6 p. 190).

On cross-examination. Dr, Cowart stated that the 
formulas for readibility level only purport to show that 
in any given sample of the general population, one-half 
of the sample should read above the specified level and

4 / The results of Dr. Cowart's work were not completed 
until the morning that he testified, the next to last day 
of trial (Tr. v. 6 p. 183).

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one-half would read below It (Tr, v. 6 p. 191-192). Dr, 
Cowart also testified that the formilas are designed for 
the general population and would not take into account an 
individtaal' s specific field of endeavor, his acquired 
femiliarity with certain tenh*ical words or his previous 
experience (Tr. v. 6 p. 194-200). Also, Dr. Cowart said 
that the readibility formulas do not account for an 
individual's motivation, self-drive,or interest in what 
he is doing (Tr. v. 6 p. 200).

SUMMARY OF ARGUMENT 
I

The findings of the district court that Georgia 
Power Company continued to engage in a pattern of racially 
discriminatory hiring practices were based on both the 
testimony of many witnesses, and clear statistical 
evidence. They have not been shown by the Company to be 
"clearly erroneous". See, Chaney v. City of Galveston,
368 F.2d 774 (5th Cir. 1966). The Company does not (and 
could not) dispute the existence of a formal system of 
segregation at its facilities until July 29, 1963, which 
consisted of hiring blacks only for the lowest paying

-  20 -



laborers' jobs, with no whites being assigned to such jobs.
The undisputed facts also show that the workforce at 
Georgia Power is only 7% black, whereas the black popula­
tion of the State is about 28% and about 33% of the job 
applicants at the Company are black. Moreover, every 
black hired for a job within the collective bargaining 
agreement was hired for a traditionally black, low-paying 
laborers job until after this lawsuit was filed in January,
1969, while a majority of white applicants were hired for 
the higher-paying, traditionally white jobs. This evidence, 
plus the testimony of numerous black applicants who met the 
Company's stated requirements and who applied when there 
were vacancies but were not hired, overwhelmingly confirm the 
continued racial pattern of the Company's hiring practices.

II
The use of a high school education requirement for 

hire, promotion and transfer which has an adverse discriminatory 
impact and has not been shown to be a valid predictor of 
job success is unlawful under Title VII of the Civil Rights 
Act of 1964. Griggs v. Duke Power Company, 401 U.S. 424 
(1971). In the area where the Company operates, approximately

21 -



707o of the whites but only about 40% of the blacks have 
high school diplomas. Almost one-half of the foremen at 
Georgia Power successfully perform their jobs without high 
school diplomas and about one-fourth of the employees in 
skilled journeyman positions also are successful job per­
formers without high school diplomas. The Company has 
failed to show that the high school education requirement 
is needed as a "business necessity" or as a predictor of 
ultimate job success; and the holding of the Supreme Court 
in Griggs v. Duke Power Co., supra. is dispositive on 
this point.

ARGUMENT
I

THE DISTRICT COURT FINDING THAT THE GEORGIA 
POWER COMPANY CONTINUED TO DISCRIMINATE 
AGAINST BLACK PERSONS IN ITS HIRING PRACTICES 
IS SUPPORTED BY THE EVIDENCE; AND THE RELIEF 
ORDERED WAS A P P R O P R I A T E . ______________
The district court found that Georgia Power had

perpetuated a pattern and practice of racial discrimination
in its hiring policies and in the processing of black
applicants (June 30, 1971, Decision, pp. 46-47, 65).
Georgia Power Company asserts in its Brief that the court's

-  22 -



finding in this regard was clearly erroneous and that the 
remedy fashioned by the trial court was unwarranted and 
unsupported by the evidence (Georgia Power's Brief, p. 18).

A. The District Court's Findings Were 
Supported by the Evidence ________

The District Court's Pre-trial Order of December 22, 
1970, limited the maximum number of rejected applicant 
witnesses that the Government could present to 20. (Pre­
trial Order p. 4), Without such a limitation, the Govern­
ment would have presented the testimony of approximately 100 
witnesses to establish Georgia Power's pattern and practice 
of discriminatory hiring (Tr. v. 7 p. 95-96). Government 
Exhibit 19 is a sunmary, in chart form, setting forth the 
names of the identified rejected black applicants, both 
those who testified and those who would have been called, 
the dates on which they applied, their qualifications and 
the name and date of subsequently hired individuals at the 
locations where the witness applied.

In addition to the 20 Government witnesses, one
of the private plaintiffs, whose case had been consolidated

5/
with this one for trial purposes, testified that he also

George Jones v. Georgia Power Company. Civil Action 
No. 14182.

-  23 -



had been rejected. The district court found Georgia Power 
had discriminated against him by "failing to grant him the 
opportunity to qualify for a position for which he applied, 
while allowing whites to do so," and the court ordered 
suitable relief, (June 30, 1971, Decision, p, 67), The 
Company did not appeal the lower court's ruling in the Jones 
case.

It is well-settled that in order for a reviewing court
to terra the findings of a trial court sitting without a
jury "clearly erroneous,"

". . . it must be clearly demonstrated that such 
findings are without adequate evidentiary support 
in the record, or were induced by an erroneous view 
of the law, and the burden . . .  is on the one 
attacking them"
The burden of showing that a finding of the trial 

court was erroneous is a particularly difficult one, where, 
as here, the lower court has had the opportunity to ". . , 
see and hear witnesses, observe their demeanor on the 
stand, and thereby . . . judge , . . their credibility,"
Galena Oaks Corp. v. Scofield. 218 F.2d 217, 219 (5th Cir. 1954)

Chaney v. City of Galveston. 368 F.2d 774, 776 (5th Cir, 
1966); Lentz v. Metropolitan Life Insurance Co.. 428 F,2d 
36, 39 (5th Cir. 1970).

- 24 -



As previously stated, the trial court heard the 
oral testinjony of 21 Individuals on this issue, each of 
whom met the Company's stated qualifications and applied 
to Georgia Power for a job when there were jobs available.

Even apart from the testimony of the live witnesses, 
the undisputed facts, taken from the Company's own records, 
confirm the continued pattern of hiring discrimination, 
after the formal end of segregation in 1963. Although 
the Company's applicant flow is 33Z black, and the State 
is 28% black, only 7% of the Company's eo^loyees were
black as of January 16, 1970 (Findings of Fact 3, 38 and 
46).

Of the 89 blacks hired between July 2, 1965, and 
September 6, 1968, 88 or 99% were placed in jobs which 
paid a monthly salary of less than $400.00. In comparison, 
of the 788 whites hired during this period, only 20 or 25% 
were assigned to such low paying jobs (Finding of Fact 24).

- 25 -



Even more startling, perhaps, is the uncontroverted 
fact that the Company had never, at any location, hired a 
black for any collective bargaining job except for the 
traditionally black "laborer" Jobs until after the institu­
tion of this lawsuit, while the great majority of the white 
employees were intially assigned to higher paying, higher 
opportunity white jobs (Gov, Ex, 15; Co, Ex, 9; see Main 
Brief, pp, 6-9),

Such facts "tell much" and may well be sufficient 
to compel a finding of continuing discrimination. United 
States V, Hayes International, 415 F,2d 1038, 1043 (5th 
Cir, 1969); Bing v. Roadway Express Co,, 444 F,2d 687 
(5th Cir, 1971); Jones v, Lee Way Motor Freight, 431 F,2d 
246 (10th Cir, 1970), certiorari denied, 401 U,S. 687,
They are particularly persuasive in the context here of 
a shown pre-act pattern of discrimination. United States 
V, West Peachtree Tenth Con),. 437 F,2d 221, 227 (5th 
Cir. 1971). Clearly, they are sufficient to sustain a 
finding of continuing discrimination which is also supported 
by live testimony of qualified, but rejected black applicants. 
United States v. Ironworkers, Local 86, 443 F.2d 544, 549- 
552 (9th Cir. 1971), certiorari denied, 404 U,S, 984 (1971),

- 26



The Company contends that the trial court ignored the 
charts presented by the Company which compared the qualifi­
cations of each rejected applicant with other unsuccessful 
applicants and persons hired. However, the district court 
properly declined to give weight to charts which compare the 
qualifications of the rejected applicants who testified with 
other unsuccessful applicants. Those charts do not show the 
race of the other unsuccessful applicants and the district 
court found generally that the application rate of blacks 
at Georgia Power is approximately one out of every three 
(Finding of Fact 38). Thus, approximately 33% of these other 
rejected applicants were probably blacks who might also have 
been rejected for discriminatory reasons. Moreover, the 
charts do not show that the other unsuccessful applicants 
were not offered a job with the Company and decJ-ded to accept 
employment elsewhere or not to work at all.

Georgia Power Company's Brief states that no one was 
hired on the same date that nineteen of the black witnesses 
applied (Georgia Power's Brief, p. 21). However, Government 
Exhibit 19 shows the whites who were hired shortly after the 
rejected applicants applied. Z./

l_l Georgia Power contends that the 90 day application period is 
too long (Georgia Power's Brief, p. 22). In the district court 
however, the 90 day period had been accepted by both parties as 
a reasonable rule of thumb time period for all the parties to use 
(See, for example, Co. Exs. 12 and 13, Gov. Ex. 19).

- 27 -



B. The Relief Ordered Was Appropriate,
Insofar as it Went._______________

In cases of this type courts have the duty to correct,
insofar as possible, the effects of past discrimination.
Louisiana v. United States. 380 U.S, 148, 154 (1965); see also.
Local 53. Asbestos Workers v. Vogler. 407 F.2d 1047, 1053
(5th Cir. 1969); United States v. Hayes International Corp..
415 F.2d 1038, 1045 (5th Cir. 1969).

Also the courts have a duty to redress the denial of the
equal employment opportunity rights, which are Congressionally
secured by exercising its remedial powers to the fullest extent.
See, Culpepper v. Reynolds Metals. 421 F.2d 888, 891 (5th Cir.
1970).

Recently, this Court explained its position on remedy in 
these cases by stating:

This Court has continuously given a wide scope 
to the Act [Civil Rights Act of 1964] in order to 
remedy, as much as possible, the plight of persons 
who have suffered from discrimination in employment
opportunities. Rowe v. G. M. Corp.. ___ F. 2d ___,
4 EPD [CCH] t7715 at 5705 (5th Cir., No. 28959,
March 2, 1972) (fn. omitted).
Section IV of the district court's Order of September 27, 

1971, sets forth the relief with respect to hiring discrimination.

28



It simply provides a procedure whereby the Company must 
offer the individual named victims of discrimination who 
testified at trial the next available jobs for which they 
are qualified on a first-in, first-out basis. In addition, 
the court set up a procedure whereby additional qualified 
rejected applicants may be given relief (September 27, 1971, 
Order, Section IV (A)(2) p. 8). Under this procedure the 
Government first is allowed access to the Company’s records 
in order to ascertain the names of other qualified individuals 
who may have been denied employment by reason of race. Next 
the United States and Georgia Power are instructed to attempt 
agreement on which of the identified persons are entitled to 
relief. If no agreement can be reached between the parties, the 
matter will again be submitted to the district court for resolu­
tion (September 27, 1971, Order, Section IV (A)(2), p. 8).

Nowhere in the trial court's order does it suggest 
that the Company must hire any individual who has not been 
found qualified for en^loyment either by the agreement of the 
parties or by the court's resolution. Obviously, race is not 
the only qualification for employment under this formula, as 
is suggested by the Compeiny's brief (Georgia Power's Brief, p. 
23). The Government has never suggested that the Company

- 29 -



should be directed to hire any individual who does not have 
the basic ability and qualifications actually needed for 
employment at Georgia Power.

Georgia Power contends that the laborer's job is the 
traditional entry-level job for both black and white 
employees and argues that the court erred in permitting 
blacks to decline such positions (Georgia Power's Brief, pp, 16- 
17, 23). This allegation is refuted by the statistics. Of 
the 6GDwhite employees hired between July 2, 1965 and 
January 16, 1970 in the steam plants, the General Repair 
Shop and the Atlanta and Macon Operating Divisions in 
collective bargaining unit jobs, 542 or 90%, were initially 
assigned to entry level jobs higher than laborer jobs (Finding 
of Fact 23).

- 30



II
THE DISTRICT COURT CORRECTLY HELD THAT 
THE COMPANY'S HIGH SCHOOL DIPLOMA REQUIRE­
MENT HAS A RACIALLY DISCRIMINATORY IMPACT 
AND IS NOT REQUIRED BY BUSINESS NECESSITY 
AND IS THEREFORE VIOLATIVE OF TITLE VII.
In 1960, Georgia Power Company imposed a mandatory 

requirement that all new employees have a high school 
education or the equivalent. This requirement was not 
imposed on incumbent employees (Finding of Fact 16), 
Sometime in 1964, Georgia Power imposed this high school 
education requirement on incumbent employees seeking to 
transfer from the job classifications of laborer, janitor, 
porter and maid (traditionally black jobs) into the higher­
paying (traditionally white) jobs (Finding of Fact 18).

This high school education reqid.rement, it was 
found by the district court, has a substantial and dis­
proportionate impact on black employees and job applicants 
(Finding of Fact 72). In fact, in the Atlanta area, the 
statistics show that for males over 18 years of age, 70,7 
percent of the whites had finished high school while only 
46,2 percent of the blacks had (Finding of Fact 72),

- 31 -



The Supreme Court in Griggs v. Duke Power Company,
401 U.S. 424 (1971) was faced with a virtually identical 
requirement. Ruling upon the facts present at IXike Power 
Company, the Supreme Court, in an unanimous opinion by 
the Chief Justice, held that the use of a high school require­
ment which has a disproportionate racial impact and has not 
been shown to be a predictor of ultimate job success con­
troverted the Congressional mandate of Title VII. The 
Court explained (401 U.S. at 431):

Vlhat is required by Congress is the removal 
of artificial, arbitrary, and xmnecessary 
barriers to employment when the barriers operate 
invidiously to discriminate on the basis of 
racial or other impermissible classification.

The Act proscribes not only overt discrimina­
tion but also practices that are fair in form, 
but discriminatory in operation. The touchstone 
is business necessity. If an employment practice 
which operates to exclude Negroes cannot be shown 
to be related to job performance, the practice is 
prohibited, (emphasis supplied)
With respect to the specific issue of the high

school education requirement the Court ruled (401 U.S,
at 433):

History is filled with examples of men and 
women who rendered highly effective performance 
without the conventional badges of accomplishment 
in terms of certificates, diplomas, or degrees. 
Diplomas and tests are useful servants, but 
Congress has mandated the comoionsense proposition 
that they are not to become masters of reality.

- 32 -



Georgia Power's use of the high school education
requirement is generally similar to Duke Power s except
for two factual differences. First, at Duke Power, the
lack of a high school education was never an absolute bar
to the employment of all applicants as it was at Georgia

_8/Power from 1960 to 1964. New hires at Duke Power could 
be continuously employed in the Labor Department without a 
high school education or tests. The second difference is 
that at Duke Power, since September, 1965, employees who 
were assigned to the Labor Department and lacked a high 
school education could qualify for transfer to better jobs 
upon the passage of the required tests. Georgia Power, 
after 1964, required that employees who wished to transfer 
from a laborer's job, and new employees for all jobs except 
laborer-type jobs, have both a high school education and 
pass the tests. Thus, the requirements at Georgia Power 
are more stringent than they were at Duke Power.

8/ After 1964 at Georgia Power, individuals could be 
employed in the labor-type jobs without meeting this 
prerequis ite.

- 33 -



In ruling that the high school education requirement 
was not shown to be a business necessity, the district 
court in this case, in following the Griggs decision, 
reasoned:

Here, covtntless employees without the diploma 
have mastered the need through self-study, through 
adult education courses, and through perseverance 
and have advanced to the highest technical levels 
in the company. In such context, the high school 
education requirement cannot be said to be reason­
ably related to job performance. This is not to 
say that such qualities are not desirable —  the 
need is there in this company's businwss; it simply 
means that the "diploma test" cannot be used to 
measure the qualities. Many high school courses 
needed for a diploma (history, literature, physical 
education, etc.) are not necessary for these 
abilities. 9/
Georgia Power suggests that the district court 

imposed a standard that would require the Company to prove 
that "it was Impossible for any person to successfully per­
form without a high school education" (Georgia Power's 
Brief, p. 24) (emphasis in original). However, the court 
never stated that such a standard was required and the facts do 
not support this theory of the court's reasoning. Approximately 
one-half of Georgia Power's foremen do not possess high 
school diplomas and approximately one-fourth of its employees

9 / June 30, 1971, Decision, p. 53-54

- 34 -



in the skilled journeyman positions also do not have
W/

high school diplomas.
The Supreme Court in Griggs has ruled that business 

necessity is the test upon which educational requirements 
rise or fall. Griggs, supra 401 U.S. at 431. The Fourth 
Circuit, citing the Supreme Court in Griggs. has further 
defined the "business necessity" test, the passage of which 
is required to support a business practice which has a 
disproportionate racial impact. In Robinson v. P. Lorillard. 
Corp.. 444 F,2d 791 (4th Cir. 1971), the Court set forth the 
following test (at 798):

The test is whether there exists an overriding 
legitimate business purpose such that the practice 
is necessary to the safe and efficient operation 
of the business. Thus, the business purpose must be 
sufficiently compelling to override any racial 
impact; the challenged practice must effectively 
carry out the business purpose it is alleged to serve; 
and there must be available no acceptable alternative 
policies or practices which would better accomplish it 
equally well with a lesser differential racial impact.
The high school educational requirement in use at

Georgia Power has not been shown to meet any part of this
test. The "business purpose" which is put forward

See, p. 1 6 supra.

> 35 -



by Georgia Power for the use of the educational require­
ment relates to the ability of employees to read and com­
prehend manuals in use at the Coups^y. However, the 
evidence, both testimonial and statistical, shows that 
a large percentage of the Company's workforce is able to 
function satisfactorily without high school diplomas.

Georgia Power states that the district court should 
have concluded that employees without high school diplomas 
were not promoted at the same rate as employees with high 
school educations (Georgia Power's Brief, p. 26). In 
support of this contention, Georgia Po%rer cites the 
following statistics:

Since 1960, only 22 of the 106 non-high 
school graduates in the Production Departments 
have received promotions. Those 22 men have 
received a total of 23 promotions, while high 
school graduates in the Production Department 
have received a total of 688 promotions (Find­
ing of Fact 74). 11/
It would be difficult to draw any conclusions from 

these statistics. First, the 688 promotions shown for 
the high school graduates were shared

11/ Georgia Power's Brief, p. 26.

- 36 -



by 727 employees (Finding of Fact 74). Next, the other
statistical evidence indicates that most of the non-high
school graduates did not receive promotions because they
were already at the top of their lines of progression by

12/
1960. Also, it has not been shown that these individuals 
were not promoted because of their lack of a high school 
education.

One of the Company's expert witnesses who was called 
to testify on this issue. Dr. William Hale, testified 
that he had generally observed white high school "drop­
outs" lacked such characteristics as self-discipline and 
preseverance, but he knew of no research that would sub­
stantiate his theory and he had not performed any such 
studies himself (Tr. v. 6 pp. 8-14, 23-24).

The other expert witness offered by the Company,
Dr. Cowart, testified that the average reading level of 
the Company's manuals was high school level or higher. 
However, Dr. Cowart further testified that these were 
average levels and that one-half of the population could

12/ Finding of Fact 74 states that 80% of the employees in skilled 
jobs were hired prior to 1950. Thus, logically speaking, most of 
these would have been near the top jobs in their lines of progression 
prior to 1960.

- 37 -



read above the specified level and one-half below. Also, 
he said that the formulas he used to determine reading 
level do not account for a particular Individual's 
familiarity with technical words, his past experience or 
his motivation or self-drive.

Thus, it is clear that the readability level for 
the Georgia Power manuals do not predict Job success for 
a large part of the general population and at least one- 
half of the population could perform the jobs at the 
Company without a high school diploma.

Finally, the EEOC Guidelines on Employee Selection
Procedinres define the word "test" to include " . . .  specific

11 /I f  tZ L feducational. . . requirements. . . The Guidelines
permit the use of a "test" only if it is supported by 
"empirical data" demonstrating that the test is predictive 
of or significantly correlated with important elements of 
work behavior which comprise or are relevant to the job...." 
EEOC Guidelines. supra. at 51607.4(c).

_n/ See 51607.2, EEOC Guidelines. 33 Fed. Reg. 12333, 29 
C.FoR. 1607 (Aug. 1, 1970) (A copy is reproduced in Appendix 
B of the Brief for the United States as Appellant, filed 
with the Court on January 25, 1972).

- 38 -



Since no such empirical data was presented by Georgia Power, 
the use of its educational requirement is inconsistent with 

any ueading of the Guidelines.

CONCLUSION
For the foregoing reasons, we respectfully urge 

that the decision below be affirmed insofar as it granted 

relief.
Respectfully submitted.

JOHN W. STOKES, JR. 
United States Attorney

DAVID L. NORMAN 
Assistant Attorney General

DAVID L. ROSE

STEVEN B. CLASSMAN 
Attorneys 
Department of Justice, 
Washington. D. C. 20530.

Attorneys for the United States



CERTIFICATE OF SERVICE
I hereby certify that I have served two copies of the 

foregoing Reply Brief for the United States as Appellant and 
Brief as Cross-Appellee on counsel of record for the other 
parties at the addresses shown below, by depositing said 
copies, postage pre-paid, in the United States mail on this 
17th day of April, 1972:

J. Lewis Sapp, Esquire 
Constangy & Prowell 
1900 Peachtree Center Building 
230 Peachtree Street 
Atlanta, Georgia 30303
Robert L. Mitchell, Esquire 
Bullock, Young, Mitchell and Fink 
18A1 First National Bank Building 
Atlanta, Georgia 30303
Morris J. Bailer, Esquire 
10 Columbus Circle 
Suite 2030
New York, New York 10019
David Blasband, Esquire 
Linden and Deutsch 
110 East 59th Street 
New York, New York 10022

Department of Justice 
Washington, D. C. 20530

Attorney for Plaintiff-Appellant