United States v. Georgia Power Company Reply Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 71 - 3447 
UNITED STATES OF AMERICA,

Plaintiff-Appellant and Cross-Appellee,
- vs -

GEORGIA POWER COMPANY, et al.,
Defendanta-Appellees and Cross-Appellants

H

No. 71 - 3293
CHARLES KING, et al., and WILLIE MOREMAN,

Plaintiffs-Appellants, 
- vs -

GEORGIA POWER COMPANY, et al.,
Defendants-Appellees.

REPLY BRIEF FOR THE PRIVATE PLAINTIFFS-APPELLANTS

HOWARD MOORE, JR.
ELIZABETH RINDSKOPF

75 Piedmont Avenue, N.B, 
Atlanta, Georgia 30303

ISABEL GATES WEBSTER
75 Piedmont Avenue, N.E.

- Suite 1154

- Suite 1170
albert J. ROSENTHAL Atlanta, Georgia 30303
GEORGE COOPER JACK GREENBERGV HARRIETT RABB WILLIAM L. ROBINSON435 West 116th Street MORRIS J. BALLER

V
New York, N.Y. 

Of Counsel
10027 10 Columbus Circle - Suite 2030 New York, New York 10019



TABLE OF CONTENTS

Page

Introduction
ARGUMENT

THE DISTRICT COURT WAS CORRECT IN RULING THAT 
THE COMPANY'S HIGH SCHOOL EDUCATION REQUIREMENT 
WAS NEITHER VALID AS A PREDICTOR OF JOB 
SUCCESS NOR JUSTIFIABLE AS A BUSINESS NECESSITY

4

II. THE COMPANY'S ARGUMENTS IN SUPPORT OF ITS
TESTING PROGRAM IGNORE THE MAJOR POINTS RAISED 
BY PLAINTIFFS AND OFFER NO ADEQUATE JUSTIFICATION FOR CONTINUATION OF THE PROGRAM ..................

A. The Company's Argument Regarding the
Guidelines................................

B. The Company's Argument Regarding the Relation­
ship of Its Tests to Job Performance 
Proves Nothing............................

III. DEFENDANT'S ARGUMENTS SUGGEST NO VALID REASON TO
DENY CLASS-WIDE BACK PAY OR TO LIMIT THE INDIVIDUAL 
AWARDS OF BACK P A Y ................................

A. The Company's Procedural Smokescreens . . . .
B. The Facts of This Case Demand Recognition of

the Class Members' Entitlement to Back Pay, 
Notwithstanding Possible Difficulties in 
Computing the Exact Amounts Due............

11

11

13

18
18

20

C. The Company's Opp>osition to IncreasedInvididual Awards Is Premised on Purely 
Hypothetical and Erroneous Factual 
Assumptions........................... 25

IV. THE APPLICABLE STATE STATUTE OF LIMITATIONS IS NOT 
THE PROVISION ADVANCED BY DEFENDANT .............. 27

-  1 -



CONT'D Page

V. THE DISTRICT COURT FAILED TO GRANT ADEQUATE
SENIORITY RELIEF TO DISCRIMINATEES ..................  29

A. As to Pre-July 1963 Hirees......................  29
B. As to Post-July 1963 H i r e e s ....................  29
C. As to Post-July 2, 1965 Victims of Discriminatory

Refusals to Hire..............................  30
VI, THE COMPANY'S BRIEF OFFERS NO REASONS OR FACTS 

SUFFICIENT TO DISPEL THE INFERENCE OF DIS­
CRIMINATION IN INITIAL ASSIGNMENTS..................  32

VII. THE GEORGIA POWER RECRUITMENT SYSTEM HAS AN
UNLAWFUL CHANNELLING EFFECT..........................  35

VIII. THE COMPANY'S COUNSEL FEES ARGUMENT ASSUMES FACTS
WHICH ARE UNTRUE....................................  35

CONCLUSION........................................................37
CERTIFICATE OF SERVICE ........................................

-  11 -



TABLE OF AUTHORITIES

CASES Page

A & Z Rental, Inc. v. Wilson, 413 F.2d 899
(10th Cir. 1969)............................  22

Boudreaux v. Baton Rouge Marine Contracting Corp.,
437 F.2d 1011 (5th Cir. 1971).................. 27

Burns Bros. Plumbers, Inc. v. Groves Ventures Co.,
412 F.2d 202 (6th Cir. 1969).................... 23

Eisen v. Carlisle & Jacquelin, 52 F.R.D. 253
(S.D.N.Y. 1971).................................. 23

Griggs v. Duke Power Co., 401 U.S. 424 (1971)............ 9
International Union v. Hoosier Cardinal Corp., 383

U.S. 696 (1966)..................................  28
Jenkins v. United Gas Corp., 400 F.2d 28 (5th

Cir. 1968).....................................  22
Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047(5th Cir. 1969).................................  23
Local 189, United Papermakers & Paperworkers v.

United States, 416 F.2d 980 (5th Cir. 1969),
cert, denied 397 U.S. 919 (1970).............  30,31

Long V .  Georgia Kraft Co., 450 F.2d 557 (5th Cir. 1971) .  23
Mason-Rust v. Laborers Int'1 Union, Local 42, 435

F.2d 939 (8th Cir. 1970).......................  23
N.L.R.B. V .  Carpenters Union, Local 180, 433 F.2d 934(9th Cir. 1970).................................  24
N.L.R.B. V .  Miami Coca-Cola Bottling Co., 360 F.2d 569

(5th Cir. 1966)   24
N.L.R.B. V .  Reynolds, 399 F.2d 668 (6th Cir. 1970) . . . .  24
N.L.R.B. V .  Robert Haws Company, 403 F.2d 979 (6th

Cir. 1970).....................................  24

- loi



Pa;4fe
Rental Development Corporation of America v. Lavery,

304 F.2d 839 (9th Cir. 1962).................  19
Robinson v. Lorillard Corp., 319 F.Supp. 835

(W.D.N.C. 1970)..............................  25
Robinson v. Lorillard Corp., 444 F.2d 791

(4th Cir. 1971)..............................  14,18,19,20
Rosen v. Public Service Electric and Gas Co., 409F.2d 774 (3rd Cir. 1969)..................... 19
Rowe V. General Motors Corp., ___ F.2d ___, 4 EPD17689 (5th Cir. March 2, 1971).......... 21,33,36
Sheet Metal Workers Int'l Ass'n, Local 223 v. Atlas 

Sheet Metal Co., 384 F.2d 101 (5thCir. 1967)..................................  22
Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th 

Cir. 1971), cert, denied 4 EPD 13588(1971)......................................  19,23
Story Parchment Co. v. Patterson Co., 282 U.S. 555(1931)....................................... 22
Syres v. Oil Workers International Union, 257 F.2d 479 

(5th Cir. 1958), cert, denied 358 U.S.929 (1958)..................................  23
Trinity Valley Iron & Steel Co., v. N.L.R.B., 410F.2d 1161 (5th Cir. 1969).....................  24
United States v. Bethlehem Steel Corporation, 446F.2d 652 (2nd Cir. 1971)......................  10,14
United States v. Hayes International Corp.,____F.2d___,4 EPD 17690 (5th Cir. Feb. 22, 1972)........... 18,25,34, 35
United States v. Jacksonville Terminal Company,

451 F.2d 418 (5th Cir. 1971)..................  10,14,34
Utley V. Marks, ___ F.Supp. ___, 4 EPD 17552 (S.D.

Ga. 1971)....................................  28
Vogler v. McCarty, ____F.2d ___, 4 EPD 18781

(5th Cir. 1971) ............................. 23



Statutes and Regulations Page

EEOC Guidelines on Employee Selection Procedure, ‘29 C.F.R. §1607.1 (c)........................
29 C.F.R. §1607.5(a) ........................  13
29 C.F.R. §1607.5(b)........................ 12
29 C.F.R. §1607.5(b) (1)...................... 12
29 C.F.R. §1607.5(b) (5)...................... 11
29 C.F.R. §1607.6 ........................  16

Georgia Code Annotated, Title 3§3-704 ......................................  27,28
§3-706 ......................................  28
§3-711....................................... 28
§ 3 - 1 0 0 1 ....................................  28

Georgia Code Annotated, Title 109A ....................  27
National Labor Relations Act, 29 U.S.C. §187 ..........  22
National Labor Relations Act, 29 U.S.C. §160 (c)........ 24
Rule 54(c), Federal Rules of Civil Procedure ........  19
Uniform Commercial Code...............................  27

Other Authorities
Cooper and Sobol, Seniority and Testing Under Fair 

Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 
82 Harv. L. Rev. 1598 (1969) ............ 31

V -



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 71 - 3447
UNITED STATES OF AMERICA,

Plaintif f-Appellant 
and Cross-Appellee,

- vs -
GEORGIA POWER COMPANY, et al.,

Defendants-Appellees 
and Cross-Appellants,

No. 71 - 3293
CHARLES KING, et al. , and WILLIE 
MOREMAN,

Plaintiffs-Appellants,
- vs -

GEORGIA POWER COMPANY, et al . ,
Defendants-Appellees.

REPLY BRIEF FOR THE PRIVATE PLAINTIFFS-APPELLANTS

INTRODUCTION
The brief filed by the defendant Georgia Power Company 

on March 17, 1972 responds to the issues presented by these
private plaintiffs and the United States, and raises two new



issues on cross-appeal. One of those issues, involving defend­
ant's high school education requirement, was a crucial issue in 
the private plaintiffs' cases below. Although Georgia Power has 
formally cross-appealed only in the Attorney General's action, 
we also deal in this reply brief with the high school education 
requirement issue presented by Georgia Power's cross-appeal.

ARGUMENT 
I .

THE DISTRICT COURT WAS CORRECT IN 
RULING THAT THE COMPANY'S HIGH SCHOOL 
EDUCATION REQUIREMENT WAS NEI’iHER 
VALID AS A PREDICTOR OF JOB SUCCESS 
NOR JUSTIFIABLE AS A BUSINESS NECESSITY

In 1960, the Georgia Power Company imposed a require­
ment that all new hirees be high school graduates. This require­
ment was applicable only prospectively; it was inapplicable to 
incumbent employees. In 1964, however, the Company altered the 
policy regarding incumbents and required that most employees 
seeking to transfer out of the all-black Laborer, Janitor, Porter 
and Maid classifications had to possess a hioh school diploma. At 
approximately the same time, in 1964, the Company determined that 
the high school diploma requirement would be waived for persons 
hired into the Laborer classifications. These persons are re­
quired to sign "waiver of employment standard" forms acknowledg­
ing their understanding that they could not promote out of the 
Laborer's classifications unless they acquireya high school



diploma.(Opinion at 17) The District Court properly struck 
down this educational requirement, and Georgia Power has cross- 
appealed that ruling.

The Georgia Power Company argues that so long as there 
is a significant correlation between those qualities possessed 
by a high school graduate and successful work performance, then 
a high-school diploma requirement is a permissible hiring pre­
requisite . (Company ' s brief, p. 27) This argument is deficient 
as support for the high school diploma requirement in this case 
in two respects. First, it confounds the necessity for pertinent 
reading ability - which nobody contests - with a mere paper re­
quirement which is at best clumsily and inexactly related to the 
relevant reading skills. Second, as a matter of law, it fails 
to recognize that there are other less discriminatory measures 
than a diploma requirement for determining the requisite reading 
ability. As the Court below properly concluded.

At best, the only justification for this re­
quirement is the obvious eventual need for above- 
average ability to read and comprehend the in­
creasingly technical maintenance manuals, the 
training bulletins, operating instructions, forms and the like demanded by the sophisticated in­
dustry. . . In such a context, the nigh school
education requirement cannot be said to be rea­
sonably related to job performance. This is not 
to say that such qualifies are noc desirable -- 
the need is here in this Company's business; it sim.ply means that the "diploma test" cannot be 
used to measure the qualities. Many high school 
courses needed for a diploma (history, literature, 
physical education, etc.) are not necessary for 
these abilities. A new reading and comprehension 
test . . . might legitimately be used for this
job need. However, for the reasons stated, the 
high school education requirement cannot stand 
and constitutes a practice used to discriminate 
in violation of Title VII . (Opinion at 53-54)



The evidence submitted by all parties at trial demon­
strates that some persons with high school diplomas are not 
competent to perform all jobs in their line of progression and, 
conversely, that many persons without diplomas are capable of 
performing all jobs in their line. As noted above, the district 
court found that the need to read a mass of highly technical 
data was one which eventually arose in the higher job ranks. 
(Opinion at 39) Thus starting from the assumption that many 
jobs, particularly in the higher classifications, require 
sophisticated reading skills, there is no evidence that only 
high-school graduates are capable of mastering those skills.

Indeed, the Court below credited substantial evidence 
that " . . .  countless employees without the diploma have mastered 
the need [to read] through self-study, through adult education 
courses, and through perseverance and have advanced to the 
highest technical levels in the Company." (Opinion at 53) The 
Company's attempt to make light of the accomplishments of non- 
high school graduates in the Atlanta and Macon operating divisions 
ironically reveals the high achievements of those employees. As 
Georgia Power acknowledges, the district court found that 28.4% 
of white journeymen in those divisions do not have high school 
diplomas. (Opinion at 37) Of the 788 employees, Negro and 
white, in journeymen classifications in those operating divisions 
plus the steam plants, 208 or 26.4% lack high school educations. 
(Gov. Ex. 17 B and C) Additionfilly, in those same Atlanta and

- 4



Macon operating divisions evidence submitted at trial established 
that 47 out of 100 foremen, supervisors and chief division 
operators do not have high school diplomas. (Gov. Ex. 17 B and C) 
Finally, six white Georgia Power employees testified that they had 
held and advanced through a wide variety of ]obs, including 
positions at the journeyman and supervisory levels, despite hav­
ing only five to eight years of formal education. Each testified 
that he was able to read and use the necessary manuals, and had 
learned to do so in part through on-the-]ob experience and 
personal study. (7 Tr. 52-79)

In the face of this undisputed evidence, the Company 
argues blithely that it is ''irrelevant that some employees have 
successfully performed without meeting the [high school] require­
ment." (Company's brief, p. 45) We strongly demur: surely it 
cannot be "irrelevant" that roughly one quarter to one half of the 
highest jobs in the division chosen by the Company for scrutiny 
here are held by persons who, were they now seeking jobs, could 
not be hired at the helper level because they do not possess a 
high school diploma.

Georgia Power relies heavily on data showing that non­
graduates have recently obtained fewer promotions than graduates. 
This purported proof is, of course, quite circular, since in light 
of the Company's faith in the paper qualification, a diploma was 
in all probability one of the passports to promotion. This would 
seem to be the understanding of Georgia Power's head of Personnel 
Relations, Mr. Joiner. (4 Tr. 217, 227-228) And in fact, the



district court found that possession of a high school diploma 
did have a significant bearing on promotabi1ity at the Company, 
but not for the reason stated by Mr. Joiner. Rather, the court 
noted that several black non-diploma holders testified that they 
were qualified for the type of work the Company required in higher 
job classifications, but that the Company policy against promoting 
non-graduates had prevented these employees from progressing out 
of the laborer classification. (Opinion at 38)

Georgia Power has collected no data and made no study on 
the relationship between possession of a high school education and 
job performance. (Opinion at 38) At trial, however, the Company 
introduced evidence purporting to demonstrate that a high school 
graduate reading level was required to read certain Company 
manuals, understanding of which was described as necessary to 
successful job performance. The evidence consisted of testimony 
by Dr. Harry Cowart, an expert in reading, who described his 
application of the S.M.O.G. and Dale-Chall formulas to determine 
the readability levels of the manuals. That evidence shows the 
flaw in defendant's whole argument.

The S.M.O.G. readability level is derived from examining 
any three pages of a given manual. The procedure used was des­
cribed by Dr. Cowart as follows:

A: You count -- when you select the three 
pages that you will use, select or take ten 
sentences. . . On the basis of this, out of the
ten sentences, you simply count the number of 
polysyllabic words that have more than three 
syllables. Then you do the same thing for the 
second and third sample, which would give you, 
really, three sentences.

- b -



Then from that you would come up with a number of polysyllabic words in excess -- 
three or more. Then you take the nearest 
perfect square of the number of polysyllabic 
words and then you add to it 3 and you come 
out with this figure here. (6 Tr. 183)

After adjustment of this raw score, the number arrived at sig­
nifies what grade level reading skill on the S.M.O.G. scale is 
required to read and understand the text sample.

The Dale-Chall formula is based, not on polysyllabic 
words, but on unfamiliar words. It was explained as follows:

A: Tn 'the Dale-Chall Formula you take
into consideration two factors. First of all, 
the number of unfamiliar words which is 
established by taking a set of 3,000 words that 
is printed on a familiar word list, and you 
take the 100-word sample or over that, and you 
check each word to determine whether it is on 
the Dale-Chall familiar word list or not. If 
it is not, it counts as an unfamiliar word. You come up with a number of unfamiliar words in 
the selection chosen.

So working with . . . the number of un­
familiar words, percent of the number of un­known words, and the sentence length, average 
sentence length for the selection, you mul­tiply average word length by the constant that is predetermined by the formula and average 
sentence length by a constant, then you add to 
that 3.6365 which is a constant which they came 
to by using a regression equation, and you come 
out with three scores like 9.0. You would take 
the three of these sub-scores, add them to­
gether and divide by 3, and you would come up 
with an average readability for the book.(6 Tr. 187-188)

The two tests, therefore, do not measure literacy in 
any general sense, but only knowledge of a specific unfamiliar 
or polysyllabic vocabulary.

- 7 -



Georgia Power's reliance on these tests to justify its 
educational requirement raises serious doubts as to the require­
ment's rationality. By application of these formulas to the 29 
manuals used in the Company, Dr. Cowart testified that l9 or 20 
of them required college level reading skills. (Company's brief. 
Appendix A) The implication is either that these manuals are 
useful only in the most highly skilled ]obs in the Company or 
that only persons with college level reading skills, not simply 
high school graduates, are competent to handle the manuals.
Either explanation strains our belief. Furthermore, Dr. Cowart's 
testimony makes it clear that in fact the S.M.O.G. and Dale-Chall 
scores are only mean reading scores, so that only 50% of all 
high school graduates could read at the high school graduate level 
(which is the supposedly necessary level). (6 Tr. 191)

Dr. Cowart unwittingly put his finger on the heart of the 
question during cross-examination. There, he conceded that per­
sons working with special equipment and learning the vocabulary 
of their jobs might score well above more highly educated persons 
who were unfamiliar with the content of the job. (6 Tr. 196) 
Similarly, when asked to explain how someone with a seventh grade 
education could work for several years on a boiler-turbine using 
a manual labelled as having college level readability. Dr.
Cowart noted that such an employee

Was highly motivated, he had a self-drive and 
he was interested in doing it. I don't know who 
you are talking about, but I realize that any 
time there can be one exception to a general rule.
I talk in generalities; you talk in specifics.

- d



Q: Would the fact that someone might
be in a ]ob for eight years as an underling 
or helper using the book or seeing the book 
used every day make any difference in his 
ability to comprehend its contents?

A: Surely. (6 Tr. 200)
It is obvious here that employees lacking extensive 

schooling can nevertheless "pick up" the specific vocabulary 
and reading skills necessary for higher level jobs in the Company 
through diligence and job experience in the lower jobs of the 
line. In these circumstances, Georgia Power's practice of shutting 
out non-graduates at the entry level amounts to the erection of 
a wholly artificial and unnecessary barrier to employment 
opportunities.

Our complaint with the education requirement is not, of 
course, that it is simply a crude and unnecessary criterion.
Rather, it is a racially-flawed criterion. The district court 
found that "[s]ignificantly greater numbers of blacks than whites 
do not have high school educations." (Opinion at 36) In Atlanta, 
where a large part of the Company's hiring is done, white high 
school graduates outnumber blacks at the rate of about 2 to 1. (Id.)

Where an employment screening device has a racial impact 
as dramatic as Georgia Power's high school education requirement, 
the business necessity test comes into play. Griggs v. Duke 
Power Co., 401 U.S. 424, 4 U  (1971). In that light, the Company's 
failure to offer any serious evidence of business necessity for 
the requirement is telling. The district court in fact held that 
there was no such necessity for the requirement. (Opinion at 53)

- 9 -



In its correct decision on this point, the court's reason­
ing closely followed that later adopted by this Court in United 
States V .  Jacksonville Terminal Company, 451 F.2d 418 (1971).
Under that decision's principles, it is not enough that the high 
school diploma requirement might serve some legitimate manage­
ment functions; it must be "essential."

"If the legitimate ends of safety and 
efficiency can be served by the reasonably 
available alternative system with less dis­
criminatory effects, then the present policies 
may not be continued."

(451 F.2d at 451, quoting United States v. Bethlehem Steel Corp­
oration, 446 F.2d 652, 662 (2nd Cir. 1971). Consequently, the 
burden of business necessity can only be met here by showing the 
absence of any reasonable alternative. (Id.) In the instant case, 
the court recognized that, if the desired skills can be discerned 
without incorporating the discriminatory impact of the high 
school graduation requirement, alternative means must be developed 
for discovering employee capability. (Opinion at 54) The court 
below suggested that reading te?sts be administered. Perhaps 
other means will be suggested by the Company. As the district 
court ruled, some alternative m<?asure must be found.

Inasmuch as the diploma requirement acts as a "built- 
in headwind" against minority equal employment opportunity and 
is not necessary to the safe and efficient operation of the 
Company's business, the requirement was properly ruled imper­
missible by the court below.

-  10 -



I r.
THE COMPANY’S ARGUMENTS IN SUPPORT OF ITS 
TESTING PROGRAM IGNORE THE MAJOR POINTS 
RAISED BY PLAINTIFFS AND OFFER NO ADEQUATEJUSTIFICATION FOR CONTINUATION OF THE PROGRAM1

The plaintiffs' main brief raised two rriajor points re­
garding the Company's tests: (A) that the tests have not been 
validated in conformity with EEOC guidelines, which should be 
the applicable standard, and ( B ) that, in any event, the tests 
bear no relationship to job performance as measured by any reason­
able standard. On both points, the Company's brief simply avoids 
the real issues.

A. The Company's Argument Regarding the Guidelines.
As to the EEOC guidelines, the Company apparently concedes 

that it is not in conformity. Rather than claim conformity, the 
Company attacks the guidelines with unwarranted accusations that 
they are unreasonable. In every instance the claim of unreason­
ableness is based on an assertion that the guidelines demand cer­
tain specific standards of validation which in fact the guidelines 
do not require.

First, the Company cla ins that "the E.EOC requires an em­
ployer to make a study to determine whether differential validity 
[separate validity for blacks and whites] e.xists". (Company's 
brief, pp. 31-32) Georgia Power apparently believes this unrea­
sonable because it will sometimes be practically impossible for an 
employer to make such a determination. However, the fact is that 
the guidelines contain no such absolute requirement. They require 
differential validity data only "wherever technically feasible".
29 C.F.R. §1607.5 (b) (S) .

IL -



Second, the Company asserts that "the EEOC guidelines are 
too strict and restrictive in that they " . . .  are strongly 
oriented toward the use of correlation coefficients as a technique 
for establishing test validity." (Company's brief, p. 32) Georgia 
Power apparently deems this unsound insofar as it would preclude 
use of the discriminant function analysis preferred by the Company 
as a validation technique. But in fact, "correlation coefficients" 
are never even mentioned in the guidelines. Moreover, the guide­
lines expressly state that "any appropriate validation strategy 
may be used" provided it meets very general minimum standards.
29 C.F.R. §1607.5(b) Nothing in the guidelines precludes an 
appropriate use of the discriminant function analysis relied upon 
by the Company's expert, or any other reasonable technique.

Third, the Company asserts that the guidelines require an 
employer to show "that persons who were hired on the basis of tests 
do better on the job than persons who were rejected." (Company's 
brief, p. 33) This, the Company says, is unreasonable because 
it requires an employer to hire people ho would otherwise reject. 
However, the fact is that the guidelines expressly permit an 
employer to conduct the type of validity study "in which tests 
are administered to present employees," 29 C.F.R. § 1607.5 (b) (1) .
Since such a study (a "concurrent validity study") is based on a 
sample group of present employees, the employer is obviously not 
required to hire any new persons for it.

The Company's attack on the guidelines is based on a 
fundamental and erroneous legal premise, stated on p. 30 of its brief;

12  -



"It is submitted that the appellants and 
the EEOC have the burden of proving that the 
standards vdiich they would use in judging 
these criteria [tests] are reasonable."
[3mphasis added]

This notion that an administrative agency has the burden of 
justifying its guidelines is a perversion of the law. Well- 
established legal principle entitles the agency's interpretations 
to deference, and requires the attacker to carry the burden of 
showing unreasonableness. (See Plaintiff's main brief, pp. 29-34J

The truth of the matter is that the EEOC guidelines pro­
vide "a workable set of standards" 29 C.F.R. §1607.5 (a). The 
Company's arguments are simply an attempt to create a nonexistent 
monster by misstating the real requirements. The guidelines are 
clearly reasonable on their face, and they are clearly reasonable 
as applied to the Company's testing program. Admittedly, any 
administrative rule or regulation could conceivably be applied un­
reasonably if some parade of hypothetical horribles came to pass. 
When that happens a court should step in to check the agency; but 
it lias plainly not happened here and the Court should sustain the 
guidelines as applied to defendant Georgia Power Company.

B. The Company's Argument Regarding the Relation
ship of Its Tests to Job Performance Proves Nothing.

As explained in plaintiffs' main brief (pp. 34-44), the 
Company's validation effort proves nothing because it involves a 
weighted formula use of tests which differs dramatically from the 
Company's actual usage. The formula actually involves negative 
weightings for many tests which would effectively give preference 
io persons who score low on the test, exactly the opposite of the

- 1 t



actual practice. Moreover, even when weighted by these formulae 
to produce maximum validity, the tests have no significant rela­
tionship to job performance. The Company does not deny these 
points, because they cannot be denied; rather the Company claims 
that it should nonetheless be permitted to use its tests because

I  I
there is "a den.onstrable relationship between rest scores and job 
performance." (Company's brief, p. 58)

Georgia Power offers not a shred of explanation or just­
ification for refusing to adopt the weighted formula approach used 
and recommended by its own expert. The plaintiffs are not, con­
trary to the Company's claim, critical of their expert for using 
weighted formulae. Rather we are critical of Georgia Power for 
persistently ignoring these formulae. The formula alternative 
could be more favorable to blacks (although still largely dis­
criminatory) , and in some cases could prefer them to whites.
Moreover, since it was recommended by the Company's own expert, it 
is presumably superior front a professional testing viewpoint. (See 
Plaintiffs' main brief, pp. 38-39) At the very minimum, the 
Company's failure to adopt this alternative is naked violation of the 
law because it is a rejection of a superior and less discriminatory 
alternative. United States v. Jacksonville Terminal Co., supra, at 
451; United States v. Bethlehem Steel Corp., supra, at 662; Robinson 
V .  Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971).

However, this Court should not be misled into thinking that 
the use of these weighted formulae would be acceptable. Even though 
the formula approach is superior to present practices and maximizes

- 14



the predictive value of these tests, it still evidences no sig­
nificant relationship between tests and job performance. The 
Company claim,s that a "demonstrable relationship" exists (Company's 
brief, p. 34), but a close examination shows how hollow that claim is, 

A statistical evaluation of the relationships between test 
scores and job performance, even when made pursuant to the Company's 
preferred discriminant function technique, demonstrates that the 
relationships are statistically insignificant. This statistical 
point is documented in the exhibit at p. 42 of Plaintiffs' main brief, 
The final column in that exhibit shows the actual level of con­
fidence for the relationships between test scores and job per­
formance obtained from the sample groups i.e . , the degree of con­
fidence that the same relationships would result when the tests 
were put into general use. Unless there is a. sufficient level of 
confidence, no person can reasonably conclude that the original re­
sults are more than chance. In the case of six jobs (apprentice 
mechanics, appliance servicemen, storekeepers, metermen, helpers, 
meter readers) it is approximately an even money bet that com­
pletely different relationships would result, since there is be­
tween a .40 and a .60 possibility of this. in the case of three 
other jobs (lineman, miechanics, and clerical) there is a .25 (one 
in four) possibility of different results. Good statistical 
practice calls for at least the .05 level of confidence. (See 
Plaintiffs' main brief, pp. 39-41.) This level of confidence is 
achieved only for two ]obs, garage mechanics and winch truck 
operators, and for one of those ]obs (garage mechanics) the tests 
were rejected by the Company for other reasons. Whether judged

- 15



by the traditional .05 statistical standard, or even by a much
lower standard, the results shown in the Company's study are not
generally significant enough for any reasonable reliance to be

1 /
placed upon them.

Georgia Power attempts to excuse its insignificant results 
on the ground that it had a small sample group with restricted 
range. (Company's brief, pp. 35-36) However, acceptable statistical 
practices are available to deal with these problems of limited 
sample groups and such practices are acknowledged in the EEOC guide­
lines, see 29 C.F.R. §1607.6. The Company's expert said he opted 
for discriminant function analysis for the precise purpose of cop­
ing with these problems. (See Opinion at 32; 6 Tr. 54-55, 128-129,
167-68.) Yet even after using mathematically weighted formulae 
which artfully maximized the tests' predictive ability (see Co. Ex. 
75, pp. 1, 4; 6 Tr. 82-83, 168; Plaintiffs' main brief, p. 37), and
applying discriminant function inalysis, the meager results dis­
cussed above were the end product. The true significance of the

î/ The Company also asserts in its statement of facts that there 
is a "positive correlation" between test scores and job performance 
indicated by the data in Appendix C of its brief. (Company's brief, pp. 11-12) It is not clear whether or not this "positive corre­
lation" is the "demonstrable relationship" referred to in the 
Company's argument. In any event, these so-called positive corre­
lations are meaningless.

The first point to note is that Appendix C was derived from the 
Company's validity study (Co. Ex. 75) and is thus based on a com­
parison of groups created by the weighted formulae which the Company steadfastly refused to adopt. But even ignoring that defect, a 
casual examination of Appendix C. reveals, even to the nonstatis- 
tically-minded observer, that test score differences between high 
and low performance groups are insignificant. The differences are

-  16



'ir̂

Company's actual tost use is even more moaqo;r, since that usage 
does not gain the maximizing effects of formula weighting. When 
one also considers that the "validation" results are based on a 
study that was technically deficient and took no account of possi­
ble black-white differences in test performance (see Plaintiffs' 
main brief, pp. 43-44), the value of the Georgia Power testing pro­
gram pales into less than insignificance.

The facts show that the Company is not really interested 
in a "demonstrable relationship" between test scores and job per­
formance. For example, there is no explanation why, if any demon­
strable relationship between test scores and job performance is 

sufficient to justify test use, the tests should be rejected for 
switchboard operator and garage mechanics. As to those jobs there 
was a relationship between tests and jobs. However, that rela-

(Cont'd)1/ frequently negligible (e.g., for meter readers the average SET-V 
score of low performers is 24.16 and for high performers it is 
24.80), and in one instance there is a negative relationship rather 
than a positive one (The average PTI-Verbal score of low rated 
storekeepers is 33.31 and for high rated storekeepers it is 31.56). 
Only in two instances (PTI-V scores for winch truck operators and 
SET scores for clerical employees) is there any noticeable difference 
in scores.

When score differences are so generally modest, a reasonable 
person inquires how significant these differences are, particularly 
when the differences are based on very small sample groups. But 
even if those score differences were substantial the differences 
would not be important unless they were meaningfully correlated with differences in job performance. These correlations, made under the 
Company's preferred discriminant function technique, are insig­
nificant, as discussed in the text above.
2/ Indeed in the case of garage mechanics it was among the most 
Significant relationship of all because it bettered the .05 level 
of confidence. (See Plaintiffs' main brief, p. 42).

- 17 -



tionship was largely negative -- poor test scorers, who happen to be 
predominately black, seem to do better on the jobs. (See Co. Ex. 75, 
unnumbered appendices.) This negative relationship was just as po­
tentially useful to the Company as were test scores for other jobs, 
yet it was rejected by the Company's expert. In other words when a 
demonstrable relationship can be argued to support the Company's 
practice -- and help whites -- it is advanced as a justification; 
but when such a relationship suggests a different practice -- which 
would help blacks -- it is ignored. In truth, none of these "demon­
strable relationships" are worth the paper they are printed on as a 
justification for the Georgia Power Company's test program. That 
program should be enjoined

I I I .

DEFENDANT'S ARGUMENTS SUGGEST NO VALID REASON 
TO DENY CLASS-WIDE BACK PAY OR TO LIMIT THE 
INDIVIDUAL AWARDS OF BACK PAY

A. The Company's Procedural Smokescreens.
Georgia Power's brief (at p. 55) insinuates that the pri­

vate plaintiffs made no claim for class back pay until after trial. 
As a matter of fact, the plaintiffs' class-action complaints rather 
clearly announce the back pay claim. Moreover, under any interpre­
tation of the complaints, the defendant's position must be rejected 
as a matter of law, as it has been both in this circuit. United 
States V .  Hayes International Corp. , F.2d , 4 EPD 117690 (5th

J7
Cir., Feb. 22, 1971); and elsewhere, Robinson v. Loriallard Corp.,

V  This Court there held, "We think that the broad aims of Title 
VII require that this issue [back pay] be developed and determined. 
It should be fully considered on remand." In the case at bar, of 
course, the issue has already been developed, determined and fully considered by the District Court, and that determination is before this Court now.

- IH



4/'supra, at 802; Rosen -v. Public Service Electric and Gas Co., 409 
F.2d 774, 780 n.20 {3rc3 Clr. 196 9)- Sprogis v. United Air Lines.
Inc., 444 F.2d 1194, 1201 (7th Cir. 1971), cert, denied 4 EPD 
f7588 (1971). Defendant argues, somewhat imaginatively, that the 
alleged lateness of the private plaintiffs' class baclc pay claim 
has prejudiced its defense. This contention is specious. As the 
Fourth Circuit has held in rejecting an identical defense to 
class back pay.

In our case, because the obligation to provide 
back pay stems from the same source as the ob­
ligation to reform the seniority system [here,
Georgia Power's testing and educational require­
ment as well], any general defenses relevant to 
the suit for injunctive relief. Any specific 
defenses related only to the computation of back 
pay may be raised during the process of assess­
ing individual back pay claims, possibly before 
a special master. The defendants have in no 
way been' prejudiced by the belated claim.

Robinson v. Lorillard Corp., supra, at 80,3. The "prejudice" argu­
ment is further undercut by the fact that defendant was confronted 
with the Attorney General's cla.ss back pay claim, which includes 
plaintiffs', in the consolidated pattern and practice action.

^  The Robinson decision even overcame an express "waiver" 
of back pay. The Court relied principally on Rule 54(c), Fed.
R. Civ. P., which provides:

. . . every final jud<jment shall grant therelief to which the party in whose favor it 
is rendered is entitled, even if the party has not demanded such relief in his pleadings.

The Fourth Circuit explicitly rejected defendants' reliance 
on Rental Development Corporation of America v. Lavery, 304 F.2d 
839 (9th Cir. 1962), which is Georgia Power's chief authority on this same point, 444 F.2d at 803.

- 19 -



Georgia Power also attempts to parry these plaintiffs' 
thrust for class back pay on the ground that Rule 2 3(b) (2) actions 
are not suitable vehicles for such a claim. The Fourth Circuit has 
squarely refuted this reasoning in Robinson, and we can state the 
matter no better than that Court:

There is nothing in Moore, in the 
Advisory Committee's Note, or in any 
case cited to us which supports the pro­
position that no monetary relief may be 
ordered in a class action under Rule 2 3(b) (2)

This is a case in which final injunc­
tive relief is appropriate and the defend­
ants' liability for back pay is rooted in 
grounds applicable to all members of the 
defined class. Under these circumstances, 
the award of back pay, as one element of the 
equitable remedy, conflicts in no way with 
the limitations of Rule 23(b)(2).

444 F.2d at 802. This Court should so hold.

B. The Facts of This Case Demand Recognition of 
the Class Members' Entitlement to Back Pay, 
Notwithstanding Possible Difficulties in Computing the Exact Amounts Due.

The principal argument advanced by Georgia Power in oppo­
sition to the class back pay claim is that allowance of the claim 
would entail "impractical" judicial tasks. Proof of the claim 
would in defendant's view become "unmanageable"; therefore the 
claim cannot even be considered. This view is fundamentally mis­
directed. It confuses the subordinate issues as to computation of 
damages with the overriding issue of the availability of class 
back pay in an appropriate Title VII action. The latter issue 
alone is before this Court here. While this Court may obviously

-  20  -



be concerned here with questions surroundinq the methodology of 
back pay computations, its specific duty is to decide the larger 
question of the class members' entitlement to back pay, however 
computed.

Defendant premises its argument on the assertion that no 
proof of financial loss to class members as a result of racial dis­
crimination was placed before the court below. This assertion is 
contrary to the obvious facts, which were explicitly found by the 
district court, showing that virtually all black employees earned 
less than virtually all white employees because of their race. (See 
pp. 12, 71-72 of plaintiffs' main brief.! This proof of damages 
was anything but "speculative." In this light, defendant's argu­
ment reduces to the proposition that, for any class member to be 
entitled to any back pay, every element of that individual's em­
ployment qualifications and history must be fully presented at 
the initial trial.

The defendant's proposition holds no water as a matter of 
logic or of law. Its adoption would utterly frustrate the purposes 
of Rule 23 of the Federal Rules of Civil Procedure and would en­
courage (or even compel) Title VII plaintiffs to adopt truly bur­
densome and unmanageable trial strategies. And no less import­
antly, that approach is at war with the strong policy favoring 
effective Title VII renedies which will eradicate em.ployment dis­
crimination from this land, and which this Court has repeatedly 
endorsed.

6/ See, most recently, Rowe v. General Motors Corp.. 4 EPD^7715 (5th Cir., March 2, 1971). F.2d

1 -



(Georgia Power's position also contravenes a widely- 
‘̂f^cepted principle of the law of clarnages. This Court has recognized 
that principle and applied it in a context closely analogous to 
that of the case at bar - a stcitutory damages action under the 
NIjRA, 29 U.S.C. §187, where it held:

I The statute is compensatory in nature [citations 
omitted], and damages may only be recovered for actual losses sustained as a result of the un­
lawful secondary acti^^ity. While the employer 
must prove that he has sustained some injury to 
business or property, he need not detail the 
exact amount of damages suffered. it is suffi­
cient that the evidence supports a just and reasonable determination.

Sheet Metal Workers Int'1 Ass'n, Local 223 v. Atlas Sheet Metal Co
384 F 2d 101, 109 (5th Cir . 1967) . This holding is merely an
application of the established rule that.

The rule which precludes the recovery of un­
certain damages applies to such as are not the 
certain result of the wrong, not to those 
damages which are definitely attributable to 
the wrong and only uncertain in respect of their amount, [citation omotted]

Story Parchment Co. v. Paterson Co., 282 U.s. 555, 562 (1931). The
rationale for this rule has been clearly enunciated by the Supreme 
Court:

Where the tort itself is of such a 
nature as to preclude the ascertainment of the amount of damages with certainty, 
it would be a perversion of fundamental 
principles of justice to deny all relief 
to the injured person, and thereby re­
lieve the wrongdoer from making any amend for his acts. Î . at 563.

This rationale is of course particularly applicable to the David- 
and-Goliath situation presented by the typical Title VII class 
action, cf. Jenkins v. United Gas Corp., 400 F.2d 28, 33 (5th Cir.
1969), such as the instant matter. See, also, A & Z Rental, Inc, v .

-  22 -



y

Wilson, 413 F.2d 889, 908 (10th Cir. 1969): Burns Bros. Plumbers. 
Inc. V .  Groves Ventures Co.. 412 F.2d 202, 209 (6th Cir. 1969); 
Mason-Rust v. Laborer's Int'1 Union, Local 42, 435 F.2d 939,
945-946 (8th Cir. 1970).

The question of methods is therefore legitimate but not dis­
positive. Relying on Syres v. Oil Workers International Union.
257 F.2d 479 (5th Cir. 1958), cert, denied 358 U.S. 929 (1958), 
defendant strongly attacks the averaging method proposed by the 
private plaintiffs below. We submit that some form of "averaging" 
might indeed be appropriate in the present matter, cf. Eisen v. 
Carlisle & Jacquelin. 52 F.R.D. 253, 261-262 (S.D.N.Y. 1971) But
in any event, the district court could not deny the underlying en­
titlement of the class to back pay solely because it rejected the

y"averaging" method. Rather, it was the court's duty to fashion an 
appropriate method for determining the precise remedy required by 
Title VII; the complexity or difficulty of that determination can­
not excuse the court from exercising its proper remedial function.
Long V .  Georgia Kraft Co., 450 F.2d 557, 561-562 (5th Cir. 1971). 9/

IJ Wo would question the cont inuinq vitality of Syres, a pre-Title 
Vll case, in the present context.. That case involved the propriety 
of a 3ury c:harge in a jury-tried damages action under the duty of 
fair representation. The equitable class action aspects of the suit 
had been dismissed, and plaintiffs had not appealed this ruling.
8̂ / In fact, the court below gave no indication that it rejected the averaging method. Its denial of back pay was founded on the holding 
that, as a matter of law. Title VII did not allow an awai'd of damages 
to persons who were not named plaintiffs and EEOC charging parties. (Opinion at 56)

See also, Voqler v. McCarty, F .2d , 4 EPD f 7581 (5thCir. 1971); Local 53, Asbestos Workers v. Voqler, 407 F.2d 1047, 
1052-1053 (5th Cir. 1969); Rule 54(c), Fc'deral Rules of Civil Pro­
cedure; Sproqis v. United Air Lines, Inc, supra, at 1201.

- 23



Plaintiff o'/erwhe In'1 na proof of cltiss-wide discrimina­
tion anci class-wide f inaru'ial Lcs:-; h.c-; ;;hift.i'i| t.hr- burdtm of qoing 
forward with respect to the computation of individual back pay- 
entitlements. The proper proce^dure for the district court would be 
to allow class members an amount calculated on the basis of the 
class-wide consequences of the class-wid'c d i scr imina t ion , subject 
to any evidence the defendant might introduce to justify a lesser 
award in any particular instance. This procedure would be in 
keeping with the methods routinely applied by chis and other appellate 
courts in determining back pay awards under the National Labor 
Relations Act, 29 U.S.C. §160 (c) . In that setting,

The Board, in a backpay proceeding, has 
the sole burden of proving employer liability 
for unlawful discrimination, with the Employer 
ha ving the burden of coming forward with facts 
in mitigation. . . .

Trinity Valley Iron & Steel Co. N.L.R.B., 410 F.2d 1161, 1168
(5th Cir. 1969). Accord, N.L.R.B v. Miami Coca-Cola Bottling Co.,
360 F.2d 569, 575-576 (5th Cir. 1966): N.L.R.B. v. Robert Haws
Company, 403 F.2d 979, 981 (6th Cir. 1970): N.L.R.B. v. Reynolds,

1^'399 F.2d 668, 669 (6th Cirl 1970': N.L.R.B. v. Carpenters Union,
Local 180, 433 F.2d 9<4, 935 '9th Cir. 1970).

The district court's allowance of back pay should be in 
accordance with standards and methods formulated by the court, or 
by the parties and approved by the court. Or.ce these standards have

10/ The Sixth Circuit there wrcjte, "It is the rule that where the 
issue before the Board is the amount of an employer's liability 
arising out of its unfair labor practices, the burden is upon the 
employer to show that there is no liability, or that such liability 
should be mitigated. The finding of an unfair labor practice is 
presumptive proof that some back pay is owed."

- 24



been established, their application is clearly feasible in 
individual cases. If the court envisions an excessive burden in 
such matters, the appointment of a special master under Rule 53(a), 
Fed. R. Civ. P., may conserve judicial time and provide technical 
expertise. See United States v. Hayes International Corp., supra; 
Robinson v. Lorillard Corp., 319 F.Supp. 835, 843 (W.D.N.C. 1970), 
aff'd on this point 444 F.2d at 802 n.l4 i4th Cir. 1971).

This Court has recognized that, upon appropriate proof, 
class back pay is a suitable Title VII remedy. United States v. 
Hayes International Corp., supra. On the extensive record already 
compiled below, and in light of the overwhelming proof of discrim­
ination and resultant economic injury, class back pay is required 
here .

C. The Conlpariy's Opposition to Increased Individual 
Awards Is Premised on Purely Hypothetical and 
Erroneous Factual Assemptions.

Plaintiffs also seek increased individual back pay awards 
which more adequately reflect their actual economic loss due to 
discrimination. Georgia Power's arguments against such awards are 
unconvincing. Its emphasis on the requirement of individual proof 
based on individual qualifications is misplaced at this stage. 
Georgia Power's denial of promotion to the recovering plaintiffs 
was not based on any assessment of their individual qualifications.

11/ For example, the district court set forth standards to be used 
in computing the back pay entitlement of fiv'e of the named plaintiffs 
(Private decree at 3-4). On this basis, the parties were able to 
compute and agree on the specific amounts involved with dispatch - 
subject, of course, to plaintiffs' appeal contesting the adequacy 
of the court's standards.

- 25



buL only on their race. Therefore, at this stage of declaring 
entitlement (as opposed to computing the actual loss), the relief 
should be plenary, subject only to such evidence in mitigation of 
the claims as Georgia Power may be able to produce at a later 
proceeding. See, e.g., pp. 22 - 24 , infra, and cases there cited.

The comparisons drawn by Georgia Power (Brief at pp. 58-60)
are irrelevant and misleading. The juxtaposition of plaintiffs'

12_/
"prior work experience" with that of whites, dating from the 1940s 
and 1950s, proves little more than the blatantly discriminatory 
structure of job opportunities existing at that time. The fact 
that certain white employees took a number of years to obtain sub­
sequent promotions is not necessarily attributaole to any lack of 
aptitude or qualifications. Rather, as the defendant elsewhere 
points out (Company's brief, p. 7), job progression went much more 
slowly in those days than n',w, due to the expanding workforce of 
the present time.

Most fundamentally, Georgia Power's argument, based on the 
assunption that plaintiffs would only have advanced one notch anyway, 
flies in the face of the Court's finding indicating the contrary. 
"Employees hired by the Georgia Power Company normally progress 
within a reasonable time to the journeyman level classification." 
(Opinion at 34; see also Opinion at 53.) Absent discrimination,that 
time would have long ago arrived for the recovering plaintiffs.
Unless Georgia Power can show by affirmative proof - and not merely.

12/ Much of those whites' "experience" would seem to us to be 
wholly irrelevant to work in the electric power industry.

26



on its part, rank speculation" - that plaintiffs would not have
risen beyond the first non-laborer level, the Company should com-

, . 13/pensate plaintiffs to the full extent of their injury.—

IV.
THE APPLICABLE STATE STATOTE OF LIMITATIONS IS NOT THE PROVISION ADVANCED BY DEFENDANT

The private plaintiffs and Georqia Power are in agreement
in principle in defining the statute of limitations issue. Both of
these parties urge that Title VII requires reference over to the
applicable state law. Moreover, we agree that in reviewing the
District Court's decision, "the question which must be decided is
whether a suit for back pay pursuant to Title VII is one accruing
under a law respecting the payment of wages" (Company's brief d

14/ '
69, cf. Ga. Code Ann. §3-704). We differ from Georgia Power in 
answering that question in the negative, and urging this Court to 
look elsewhere for the proper statutory analogue. The language

Boudreaux v._Baton Rouge Marine Contracting Corp.. 437 F.2d 1011,
1017 n. 16 (5th Cir. 1971), on which Georgia Power relies heavily.

i_3/ If plaintiffs had suffered purely commercial injury on a 
contract, their claim would of course benefit from the liberal 
remedial thrust of Uniform Commercial Code provisions. See e.q. U.C.C. Section 1-106(1) and Comment 1 thereto, and Section

■ (The U.C.C. has been adopted in Georgia Ga code Ann. Title 109A,) It would be ironic if their far more' 
odious racially caused injury were remedied under any less liberal standards. ^
j^/ In rejecting the district -ourt's suggestion that Title VII's ninety-day filing period might apply here, Georgia Power's 
position in Its brief (p. 71) would appear to be in accord with 
plaintiffs . We welcome the defendant's sub silentio concurrence with our argument that such a result would be indefensible.

- 27 -



is not persuasive here. That language was of course only dictum
11/in a footnote, and is directed only to a §1981 claim.

16/Because the language of the twenty-year clause of §3-704 
most nearly describes the nature of the back pay claim, and be­
cause the liberal purposes of the Civil Rights Act command selec­
tion of a statute which will provide an effective Title VII remedy,
we propose adoption here of the twenty-year period prescribed in

11/§3-704. (See main brief, pp. 86-89.) Of course, as a practical
matter recovery in the present case is cut off as of July 2, 1965,
Title VII's effective date.

15/ International Union v. Hoosier Cardinal Corp., 383 U.S. 696
(1966), on which Georgia Power relies, is also not on point. That 
case's attentiveness to the statutory purpose of expediting the 
disposition of labor disputes was expressed in the context of a 
determination that an action filed seven years after the disputed 
event was untimely. (A six years' delay would apparently have 
been permissible.) The limitations issue here refers not to the 
timeliness of filing, but only to the extent of the available relief,
16/ " . . .  All suits for the enforcement of rights accruing toindividuals under statutes. . . or by operation of law. . . "
1 7/ In the interests of completeness, we would also call the
Court's attention to other pertinent Georgia Statutes. These 
include Ga. Code Ann. §3-706 for breach of a contract not in writing (four years; text at Company's brief, p. 70); §3-711 for 
contract actions not otherwise provided for (four years; the text 
reads: "All other actions upon contracts, expressed or implied, 
not hereinbefore provided for, shall be brought within four years 
from the accrual of the right of action"); and §3-1003 for re­
covery of personal property (four years; the text reads: "All suits for the recovery of personal property, or for damages for the 
conversion or destruction of the same, shall be brought within 
four years after the right of action accrues and not after.") This 
latter provision was followed by one district court in Georgia in 
ruling on the applicable limitations period for a §1981 claim,
Utley V. Marks, 4 EPD f7552 (S.D. Ga. 1971).

t I
28 -



V .
THE DISTRICT COURT FAILED TO GRANT ADEQUATE SENIORITY RELIEF TO DISCRIMINATEES

A. As to Pre-July 1063 Hirees
We welcome the apparent acquiscence of Georgia Power in our

contentions as to the proper seniority remedies for these classes
1of victims of discrimination. (See Company's brief, pp. 42-44.)

All parties agree that the terms of the district court's 
decree govern over inconsistent statements in its opinion. Since 
the opinion will, however, presumably be published, its effect may 
be misunderstood by other courts or attorneys who might rely upon 
it in believint^ that clear I y inadequate remedies were held to be 
aifficient. We therefore urge this Court to include in its opinion 
appropriate language to prevent any such misunderstanding.

The same considerations apply to those aspects of the decree 
of the court below wl.ich appear ambiguous, as specified at p. 60 of 
our main brief. We are pleased that Georgia Power has construed 
these provisions in such fashion as to remove any lingering uncer­
tainties as to the scope of relief (see Company's brief, pp. 43-44, 
A14-A16), but here again we respectfully request that this Court make 
clear in its opinion the breadth of the relief accorded.

B. As to Post-July 106̂ ' Hirees
Here again, Georgia Power has made no reply to our conten­

tions as to the several respects in which the court below failed to 
provide these employees with an adequate remedy. For the reasons 
set forth in pp. 61-64 of our main brief, we respectfully urge that 
appropriate company seniority be awarded to these employees as well.

-  , J 9  -



RofuLrrto^^Hiro"' Victims of Discriminatory

As pointed out on pp. of our mam brief, the court be­
low found that after the effective date of Title VII (July 2, 1965) 
Georgia Power continued to discriminate against a large number of 
black applicants for employment. while the court provided a proce­
dure for permitting them to reapply, it did not accord them the 
seniority they would have had absent the discrimination.

Georgia Power contends (p. 24 of its brief) that such 
seniority

would appear to be in direct conflict with the deci- 
sion of this Court in Local 189, United Panf̂ rm;,Vo>-o 
and Paperwqrkers v. U.S., 4l^F.2d 980 (5th Cir 1969)

It argues that such relief "could be ordered only by adoption of the 
■freedom now’ theory which was rejected by this Court in Local 189."

Georgia Power misreads what this Court said in Local 189. 
in two respects.

First of all, the "freedom now" theory would require firing of 
white employees to make places for black victims of discriminatory 
refusals to hire. 416 F.2d at 988. But we are not asking that any 
whites be displaced, or contending that their continued employment 
is illegal; we only seek on behalf of those victims of unlawful dis­
crimination in hiring who are now permitted to re-apply and are em­
ployed, the seniority they would have had if they had not been dis­
criminated against in the first place. This is consistent with the 
"rightful place" theory sustained by this Court in Local 189.

Secondly, the limitations on seniority relief for victims 
of refusals to hire, found in the legislative history of Title VII

-  3 0 -



and in the Local 189 opinion, refer to cases in which the dis­
crimination occurred before July 2, 196S. As stated at 416 F.2d
994, "A Negro who had been rejected by an employer on racial grounds 
before passage of the Act could not, after being hired, claim to 
outranh whites who had been hired before him but after his original 
rejection . . . (emphasis supplied). See also the Court's ob­
jections to "requiring employers to correct their pre-Act discrim­
ination by creating fictional seniority for nev/ Negro employees" 
(emphasis supplied), at 416 F.2d 995. What we are concerned with 
here however, is discrimination in hirimj that occurred after July 
2, 1965 and was unlawful when it was inflicted. The victims of this 
form of illegal conduct cannot be accorded their "rightful place" 
unless they are given company seniority dating back to the dates on 

which they applied. As stated in Cooper and Sobol, Seniority and 
Testing under Fair Employment Laws: A General Approach to Objective 
Criteria of Hiring and Promotion, 82 Harv. L. Rev. 1598, 1604 (1969)

[Ijf a black worker wlio applied for a job and was 
turned down for racial reasons finally gest a job at such a plant, a seniority system which puts him at the bottom perpetuates the effects of his prior 
exclusion.

The same comment applies to a seniority "remedy" which leaves the
18/

discriminatee at the bottom. See also Id. at 1633-1635.

18/ Interestingly, in the case of George Jones v. Georgia Power 
Company, Civil No. 14182, tried together with the instant cases 
but not appealed, the plaintiff, who the court below found had 
been the victim of a discriminatory refusal to hire, was 
specifically awarded company seniority. (Opinion at 61-63)

31 -



Appropriate remedies must be fashioned to alleviate the 
consequences of past discrimination. This principle applies with 
special strength where the past discrimination was itself illegal. 
Failure to accord its victims the seniority they would have had 
if Georgia Power had treated them in accordance with its legal 
duty would be to renew and perpetuate in the future the conse­
quences of that illegal conduct.

VI .
THE COMPANY'S BRIEF OFFERS NO RFĴ SONS OR FACTS SUFFICIENT TO DISPEL THE INFERENCE 
OF DISCRIMINATION IN INITIAL ASSIGNMENTS

Georgia Power's brief on assignment practices since 1953 
attempts to bury the stark facts of discrimination in a deluge of 
artfully phrased statistics. (Company's brief at pp. 14-17) No­
where in this mass of assertions does Georgia Power deny the truth 
of the cardinal fact which plaintiffs documented in their principal 
breif: until June 9, 1969, (’.eorgia Power had never made an initial
assignment of a black hiree to a non-laborer job. At the same time, 
the large majority - over 80%-of whites hirees were assigned 
to the better jobs.

In an attempt to rebut the inference of this stark racial 
dichotomy, Georgia Power advances several asserted facts and argu­
ments. Each of them misses the point and fails to dispel the in­
ference. First, Georgia Power indicates that, by January 16, 1970 - 
nearly two years after suit was filed - a number of blacks had 
(finally) been non-discriminatorLly assigned. It goes on to discuss 
initial assignemnts in 1970. The Company's very first efforts to 
moderate its discriminatory assignment policies therefore occurred

-  3 2 ’ -



only in the latter half of 1969 and in 1970, with trial impending. 
This Court has recognized that such tardy and dubiously "voluntary" 
efforts are no substitute for a finding of discrimination and in­
junctive relief. Rowe v. General Motors Corp., supra, at p. 5709.

Second, Georgia Power asserts that by January, 1971 all black 
employees who qualified under its standards held non-laborer jobs. 
This argument suffers from the same infirmity dealt with in Rowe, 
supra. Furthermore, it attempts to elevate the Company's belated
promotion of qualified laborers into a defense to claims regarding
their initial assignment to ]obs beneath their qualification, on a 
strictly racial basis. If anything, the fact of some blacks' subse­
quent promotion only fortifies the plaintiffs' arguments; by promot­
ing these laborers prior to trial, Georgia Power in effect admits 
that they were qualified to hold non-laborer jobs.

Finally, Georgia Power tries to iustify these strongly sus­
pect assignment patterns by reference to the racial patterns of 
applicant flow to operating and production divisions. These patterns, 
we submit, are both the product and proof of defendant's discrim­
inatory recruitm.ent system fsee p. 55, in fra 1 . It would be ironic
indeed if one form of iiscrirunation wore allowed to justify yet 
another.

To sustain Georgia Power's position., this Court would have 
to accept its premise that assignments "have been dictated by appli­
cants' qualifications and lob '.-acancies at the time of application" 
(Company's brief, p. 39). On the facts in this record, this is 
tantamount to finding that, until Juno 9, 1969, no qualified black
person ever applied for a non-laborer job when a vacancy was avail­
able, while in the same period literally hundreds of whites applied



who were qualified and who found vacancies available. This in­
ference, advanced by Georgia Power, cannot be upheld on the record, 
and indeed is scarcely credible in light of the history and per­
vasiveness of Georgia Power’s racially discriminatory practices.
The Company has simply not met its burden of specifically explain­
ing the apparent discrimination. Cf. United States v. Hayes 
International Corp., supra, at p. 5716.

Georgia Power relies, of course, upon this Court's dispo­
sition of the initial assignment issue in United States v. Jackson­
ville Terminal Co., supra. That case is inapposite here. This 
Court there noted.

In this respect [assignments] it is important 
to recognize that ]ob opportunities in the 
railroad industry, and at this facility, have 
not been abundant in recent years. Indeed, 
total employment has declined. Consequently 
workers furloughed or laid off from jobs at 
one railroad-oriented facility would naturally 
apply for identical or similar jobs at other facilities. . . Thus, at any given time, theremay be more experienced railroad workers search­
ing for ;]obs in the industry than there are job openings.

451 F.2d at 444. After finding that the Company's hiring officers 
had in fact been hiring such incustry-experienced applicants for 
traditionally white jobs, the Court continued with a comment part­
icularly apt in the present situation:

All of the persons so hired were white. In a 
stable or expanding industry, this fact would 
be damning, especially in regard to unskilled 
or semi-skilled positions. Nevertheless, in 
the railroad industry, therê  is a plausible racially neutral explanation. . . [emphasis
supplied]

451 F.2d at 445. Georgia Power Company is the antithesis of the 
Jacksonville Terminal in terms cf its expandinc^ workforce and the

4̂



changing nature of its jobs. {Sc'c, e.(j.. Company's brief, pp. 5, 7 ) 
perfectly the hypothot i.cal situation described as "damning" 

by thxs Court in the last-quoted passage. Indeed, the foregoing 
dicta would, if adopted hero as the Court's holding, seem to 
dispose of defendant's argument.s upon the very authority on 
which it relies.

VII.
THE GEORGIA POWER RECRUITMENT SYSTEM 
HAS AN UNLAWFUL CHANNELLING EFFECT

Georgia Power's argument on recruitment attempts to press 
the instant case into the mold of United States v. Hayes Interna­
tional Corp., supra. This effort mistakes the thrust of our con­
tentions. We do not contend that Georgia Power's recruitment system 
produces an inadequate overall flow of black applicants. Rather, 
our point is that the nature of the Company's recruitment system 
channels black applicants into black jobs, and diverts black 
applicants from "white" opportunities.

The statistics put forward in Georgia Power's brief on 
initial assignments strongly but tres.ses our position on recruitment. 
There, Georgia Power admits that the vast majority of black appli­
cations were for the traditionally black production plant jobs, while 
most whites applied to the operating divisions (Company's brief, pp. 
14-17). This is precisely the point plaintiffs wi?h to make. The 
racial difference in applicant flow at the various divisions, which 
is a function of the Company's recruiting method, mirrors and per­
petuates the racial differences in work force composition resulting



from Georgia Power's past practices of overt discrimination. In 
carrying out its duty to extirpate the effects of past discrimina­
tion, Rowe V .  General Motors Corp., supra, at pp. 5705-5706, this 
Court should order modification of the Company's present recruit- 
ment system.

VIII.
THE COMPANY’S COUNSEL FEES ARGUMENT ASSUMES 
FACTS WHICH ARE UNTRUE

Georgia Power's brief on the counsel fees issue inserts 
several erroneous or misleading "factual" considerations into the 
question. As a matter of plain arithmetic, its calculation (at 
p. 73) that Mr. Rindskopf was entitled to only $3,350 at the 
minimum fee schedule is incorrect by a matter of $2,000. Defendant 
also emphasizes that the government shouldered the principal bur­
den below, which is obviously true. But we reiterate that 
plaintiffs seek compensation only for the work they actually did 
and for time actually spent, not for the Attorney General's more 
considerable efforts. For a period of nearly a year, moreover, the 
private plaintiffs were alone in the field against Georgia Power, 
and for many months following the Attorney General's intervention, 
prior to consolidation, were on their own in their separate cases. 
Contrary to the implications of Georgia Power's brief, the plain­
tiffs are not asking to be paid for taking a free ride on the 
Attorney General's back.

-  36  -



CONCLUSION

WHEREFORE, the private plaintiffs pray that this Court 
affirm the district court's decision enjoining Georgia Power's 
use of a high school education requirement, and in all other 
respects sustain the plaintiffs' positions as set forth in the

rconclusion to their principal brief.
Respectfully submitted.

ALBERT J. ROSENTHAL 
GEORGE COOPER 
HARRIETT RABB

435 West 116th Street 
New York, N.Y. 10027

Of Counsel

HOWARD MOORE 
ELIZABETH R. RINDSKOPF

75 Piedmont Avenue, N.E. Suite 1154
Atlanta, Georgia 3030i

ISABEL GATES WEBSTER
75 Piedmont Avenue, N.E. Suite 1170
Atlanta, Georgia 30303

JACK GREENBERG WILLIAM L. ROBINSON 
MORRIS J. BALLER

10 Columbus Circle Suite 2030
New York, New York 10019

Attorneys for the Private Plaintiffs- Appellants



CERTIFICATE OF SERVICE
The undersigned counsel for plaintiffs-appellants King, 

Moreman, et al. hereby certifies that on the 10 day of April, 1972, 
]ie served copies of the foregoing Reply Brief for Private Plaintiffs- 
Appellants upon counsel of record for the other parties as listed 
helow, by placing said copies in the United States mail, airmail

i

l^ostage prepaid.
J. Lewis Sapp., Esq.
1900 Peachtree Center Building 230 Peachtree Street, N.W.
Atlanta, Georgia 30303
Robert L. Mitchell, Esq.
1841 First National Bank Building Atlanta, Georgia 30303
Stephen Glassman, Esq.
United States Department of Justice Civil Rights Division 
Washington, D.C. 20530
David Blasband, Esq.,
Linden & Deutsch 
110 East 59th Street New York, New York
Lutz A. Prager
General Counsel's Office
EEOC1800 G St reet, N.W.
Washington, D.C. 20506