Pettway v. American Cast Iron Pipe Company Brief Amicus Curiae

    In the United States Court of Appeals 
for the Fifth Circuit

No. 734163

Rush Pettway, et al., plaintiffs-appellants,
v.

American Cast Iron Pipe Company, 
A Corporation, defendant-appellee.

On Appeal from the United States District Court for the 
Northern District of Alabama, Southern Division

BRIEF FOR THE UNITED STATES EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICUS CURIAE

W illiam A. Carey,
General Counsel,

Julia P. Cooper,
s Associate General Counsel.

Beatrice Rosenberg,
Joseph T. Eddins,
Gerald D. Letw in ,

Attorneys,

Equal Employment Opportunity 
Commission 
1800 G Street, N.W. 
Washington, D. C. 20506



TABLE OF CONTENTS
Page

Statement of Interest______________________  1

Question Presented_________________________  2

Statement of Facts_________________________  2

Argument:
I. In light of the findings that the testing 

policies, which were in effect for seven 
years, had an adverse impact on black 
employees, the Court below erred in 
concluding that there were no present 
effects of such past discrimination___  14

II. Injunctive relief should be granted to 
eliminate discrimination at the plant
and to allow the affected class of black 
employees to assume their “ rightful 
place” _______________________________  21
A. An injunction against testing and

the requirement of a high school 
education _______________________  22

B. Restructuring the bid and senior­
ity system______________________  23

C. Red circling and advanced entry_ 25
D. Changes in apprentice and on the

job training program___________  27
E. Changes in selection of supervisory

employees_______________________  32
III. Since the Court below concluded that 

the promotion tests had an adverse im­
pact on blacks, it erred as a matter of 
law in refusing to award back pay to 
the affected class of black employees__  36



II

Table of Contents— Continued Page

A. Back pay must be awarded to
make victims of discrimination 
whole unless there are special cir­
cumstances making such an award 
unjust__________________________  37

B. Title VII authorizes back pay for 
members of the affected class of 
black employees whether or not
they filed individual charges ____  40

C. Since the Company’s unlawful em­
ployment practices caused financial 
injury, any uncertainties in award­
ing damages to members of the af­
fected class of black employees 
must be resolved against the wrong­
doing Company__________________ 42

Conclusion_________________________________  48

TABLE OF AUTHORITIES

Cases:
Bethlehem Steel Cory., Decision of the 

Secretary of Labor, CCH Employment 
Practices Guide, 5128 (Jan. 15,
1973) _______________________________  26, 33

Bigelow v. R.K.O. Radio Pictures, 327
U.S. 251, 66 S.Ct. 574 (1946) ______  46

Bing v. Roadway Express, Inc., 444 F.2d
687 (5th Cir. 1971)________________  16

Bowe v. Colgate-Palmolive Co., 416 F.2d
711 (7th Cir. 1969)______________  37,41



Ill

Clark v. American Marine Corp., 304 F.
Supp. 603 (E.D. La. 1969) ___________ 25

Cooper v. Allen, 467 F.2d 836 (5th Cir.
1972) ___________________ ...___________  47

East Texas Steel Casting Co. Inc., 116 
NLRB 1336 (1956), enforced NLRB v.
East Texas Steel Casting Co., 255 F.2d
284 (5th Cir. 1968) _________________ 45

Evans v. Sheraton Park Hotel, ------  F.
Supp. ------ , 5 EPD 8079 (D.D.C.
1972)_____ ________ ____________________ 47

Griggs v. Duke Power Co., 401 U.S. 424
(1971) ______ ____________ f ___ _ 9, 14

Henderson v. First National Bank, 344 F.
Supp. 1373 (M.D. Ala. 1972) ________  43

Hodgson v. J. M. Fields, Inc., 335 F.
Supp. 731 (M.D. Fla. 1971)_________  47

Household Goods Carriers Bureau v. Ter­
rell, 417 F.2d 47 (5th Cir. 1969)_____ 46

Jenkins v. United Gas Corp., 400 F.2d 28
(5th Cir. 1968)______________  42

LeBlanc v. Southern Bell Tel. & Tel. Co.,
333 F.Supp. 602 (E.D. La. 1971), a fd  
per curiam, 460 F.2d 1228 (5th Cir.
1972).------------------------------------ 40

Local 53, Asbestos Workers v. Vogler,
407 F.2d 1047 (5th Cir. 1969) _______ 24, 32

Miller v. International Paper Co., 408 F.
2d 283 (5th Cir. 1969)____________ 40, 41, 44

Moody v. Albemarle Paper Co., ------  F.
2 d ------ , 5 EPD 8470, 5 FEP Cases
613 (4th Cir. 1973) _______ 21,30,33,37,40

Nathanson v. NLRB, 344 U.S. 25 (1952)__ 39

Cases— Continued Page



IV

NLRB v. Biscayne Television Cory., 337
F.2d 267 (5th Cir. 1964) ______ .,____  47

NLRB v. Brown & Root, Inc., 311 F.2d
447 (8th Cir. 1963)_________________  47

NLRB v. Charley Toppino and Sons, Inc.,
358 F.2d 94 (5th Cir. 1966) _________ 46

NLRB v. International Operating Engi­
neers, Local 925, 460 F.2d 589 (5th
Cir. 1972)__________________________ 45

NLRB v. Miami Coca-Cola Bottling Co.,
360 F.2d 569 (5th Cir. 1966) _______  45

NLRB v. Mooney Aircraft, Inc., 375 F.
2d 402 (5th Cir. 1967) __________________45

Oatis v. Crown Zellerbach Corp., 398 F.
2d 496 (5th Cir. 1968)______________  40

Phelps Dodge Corp. v. NLRB, 313 U.S.
177 (1944) __________________________  39

Quarles v. Philip Morris, Inc., 279 F.Supp.
505 (E.D. Va. 1968) ____ ___________  26

Robey v. Sun Record Co., 242 F.2d 684 
(5th Cir. 1957), cert, denied, 355 U.S.
816 (1957)_________ ...________________  46

Robinson v. Lorillard Corp., 319 F.Supp.
835 (M.D.N.C. 1970), aff’d, 444 F.2d
791 (4th Cir. 1971) __________ 16,24,25,26,

33, 38, 41
Rosen v. Public Service and Gas C o.,------

F .2d------ , 5 EPD U 8499, 5 FEP Cases
------  (3rd Cir. 1973) ________________ 21, 37

Rowe v. General Motors, 457 F.2d 348
(5th Cir. 1972) _____________________  28

Shultz v. Parke, 413 F.2d 1364 (5th Cir.
1969) ____________________________ _ 23, 40

Storey Parchment Co. v. Paterson Co.,
282 U.S. 555, 51 S.Ct. 248 (1931)..

Cases— Continued Page

46



V

U.S. v. Bethlehem Steel Corp., 446 F.2d
652 (2nd Cir. 1971)____ 16, 24, 25, 33, 35, 44

United States v. Board of Education, 372 
F.2d 836 (5th Cir. 1966), aff’d on re­
hearing en banc, 380 F.2d 385, cert, 
denied, 389 U.S. 840, 88 S.Ct. 77
(1967) ---------------------------------------------  44

U.S. v. Central Motor Lines, Inc., 338 F.
Supp. 532 (W.D. N.C. 1971) ________  44

U.S. v. Electrical Workers, Local 212,
------ F .2d--------, 5 EPD 8428, 5 FEP
Cases------  (6th Cir. 1972)_____ _____  29

U.S. v. Georgia Power Co., ------  F.2d
------ , 5 EPD 1f 8460, 5 FEP Cases 587
(5th Cir. 1973) ___________16, 21, 37, 39,

40, 41, 42, 47
U.S. y. Hayes International Corp., 456 

F.2d 112 (5th Cir. 1972)..16, 20, 24, 25, 33, 35 
U.S. v. Jacksonville Terminal Co., 451 

F.2d 418 (5th Cir. 1971), cert, denied,
406 U.S. 906 (1972)___________ 16, 22, 24, 33

U.S. v. Local 189, 301 F.Supp. 906 (E.D.
La. 1969), aff’d sub nom., Local 189 v.
U.S., 416 F.2d 980 (5th Cir. 1969), 
cert, denied, 397 U.S. 919 (1970)____16, 23, 25,

26, 33, 35
United States v. National Lead Indus­

tries, decided March 28, 1973, C.A. 8,
No. 72-1143 ._________ ..._______________ 32

U.S. v. Operating Engineers, Local 3,
------  F.Supp. ------ , 4 EPD 7944
(N.D. Cal. 1972)____________________  31

U.S. v. Wood Lathers International Un­
ion, Local Union No. 46, 328 F.Supp.
429 (S.D. N.Y. 1971) .

Cases— Continued Page

47



VI

Wirtz v. B. B. Saxon Co., 365 F.2d 457
(5th Cir. 1966) _____________________  23, 40

Cases— Continued Page

Statutes:
Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq., as amended 
by the Equal Employment Opportunity 
Act of 1972, P.L. 92-261, 86 Stat. 103
(1972) ____ —- ______|________________ passim

National Labor Relations Act, 29 U.S.C.
§§ 151 et seq., 29 U.S.C.A. § 160(c)____ 39

OTHER AUTHORITIES
Cooper and Sobol, Seniority and Testing 

under Fair Employment Laws: A Gen­
eral Approach to Objective Criteria of 
Hiring and Promotion, 82 Harv. L.
Rev. 1598 (1969) ________ ______ ____  44

Yeager, Litigation under Title VII of the 
Civil Rights Act of 196k, The Con­
struction Industry and the Problem of 
the “ Unqualified” Minority Worker, 59
Geo. L.J. 1265 (1971) _______________  29

Note, Title VII, Seniority Discrimination, 
and the Incumbent Negro, 80 Harv. L.
Rev. 1260 (1967)____________________ 26

118 Cong. Rec. 2300 (Feb. 22, 1972)____._ 42



lit the United States Court of Appeals 
for the Fifth Circuit

No. 73-1163

Rush Pettway, et al., plaintiffs-appellants,
v.

A merican Cast Iron Pipe Company,
A Corporation, defendant-appellee.

On Appeal from the United States District Court for the 
Northern District of Alabama, Southern Division

BRIEF FOR THE UNITED STATES EQUAL  
EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICUS CURIAE

STATEM ENT OF INTEREST

This is an appeal from the judgment of the United 
States District Court for the Northern District of 
Alabama entered, with Findings of Fact and Con­
clusions of Law, on November 21, 1972. The Court 
denied the plaintiffs all relief sought except for an 
award of attorneys’ fees. The Equal Employment 
Opportunity Commission is filing a brief amicus 
curiae in support of the appellants directed to the 
issues which seem to us to have general importance 
in the interpretation and implementation of Title VII

(1)



2

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e 
et seq. In general, these issues concern the failure of 
the Court to grant relief for employment policies 
which the Court itself found to have had an adverse 
impact upon black employees.

QUESTION PRESENTED

Whether the Court below erred as a matter of law 
in failing to grant injunctive relief and back pay re­
lief in light of its conclusion that the Company’s 
tests had an adverse impact on black employees and 
were unlawful?

STATEM ENT OF FACTS

In view of the detailed statement of facts set forth 
in the brief of the appellants, the Equal Employment 
Opportunity Commission is setting forth here only 
the salient facts concerning the employment practices 
of the Company.

A. Company Policies

1. Organization of the Company

This case involves the Company’s Birmingham, 
Alabama plant which produces primarily cast iron 
and ductile iron pipe and pipe fittings. On August 
12, 1971, the plant employed 2,551 persons, 927 of 
whom were black (80a).1

1 References are to the appendix of appellant.



3

There are five primary production departments at 
the plant.2 3 These are the Mono Cast, Fittings Foun­
dry, Melting, Steel Foundry and Steel Pipe Foundry. 
Blacks have traditionally been and continue to be 
concentrated in the Mono Cast and Fittings Foun­
dry.®

There are also numerous service and maintenance 
departments (1208a). Four of these— Machine Shop, 
Maintenance, Construction, Electrical— contain a large 
majority of all of the craft jobs which are among 
the highest paying at the plant (319a). Very few 
blacks are in these departments even at the present 
time.4

The Shipping and General Yards Departments con­
tain more general labor and physical jobs. They are 
nearly 50% black (95a).

2 Finding 12 (83a-84a) gives a detailed description of the 
organization of the Company into departments.

3 As late as 1971, nearly 66% of the blacks worked in those 
departments while only about 33% of the whites worked 
there (95a).

4 Up until 1969, none of these departments had any blacks 
in the craft jobs with the exception of the Electrical Depart­
ment which had 1 such black out of 49 employees (1167a- 
1169a, 1172a-1174a). As of August, 1971, only 49 of 379 
employees in the Maintenance Department were black and 
only 3 held craft jobs (95a, 1172a-1175a); 27 of the 83 em­
ployees in the Construction Department were black and 7 held 
the lowest level craft jobs (95a, 1167a-1168a); 4 of the em­
ployees in the Electrical Department were black, and 2 held 
craft jobs (95a, 1169a).



4

All jobs in the plant are grouped into 15 pay 
groups in ascending order of pay (85a, 300a-302a).5 * 
Each department contains some jobs in almost all of 
the pay groups, although more higher paying jobs 
are concentrated in craft departments. Pay groups 
1-8 include the unskilled and semi-skilled jobs; pay 
groups 9 and 10 include other semi-skilled jobs; pay 
group 11 includes skilled and technical jobs, which 
are non-craft, and clerical jobs; pay groups 12 and 
13 include craft and technical jobs; pay group 14 in­
cludes secondary supervisory jobs (leadmen), and pay 
group 15 includes primary supervisory jobs (fore­
men) (96a). In addition to the pay groups, there 
is a Rate Progression Schedule which fixes the time 
interval between the date an employee receives a pro­
motion and the date he receives the pay rate for the 
new job. The time period allegedly provides the em­
ployee with an opportunity to learn the job before he 
receives the rate of pay for the job (302a-305a, 
1304a, 86a).

2. Hiring Policies

Until 1963 all jobs in every department were re­
stricted by race (292a-293a, 97a, 99a).* Black jobs 
were the more physical and menial and were at the

5 The Company maintained 23 pay groups from December 
28, 1964, until February 19, 1968, when they were consoli­
dated into 15 (89a-90a, 91a). In part, the consolidation re­
sulted from the fact that only a few pennies separated jobs 
in neighboring pay groups (91a).

« This was formal policy until 1961. It concededly remained 
in effect at least until 1963.



5

bottom of the pay scale in all of the departments. 
Most departments had both black and white em­
ployees (97a, 1152a-1179a).7

By 1960, all white applicants were required to have 
a high school education and to pass a screen test bat­
tery as well as a physical examination (276a, 657a, 
1366a-1367a). Black applicants were required only 
to pass a physical examination (657a, 89a).

In 1964, after a compliance review of employment 
practices by the Department of the Army, the Com­
pany was informed that to be eligible for federal 
contracts it could no longer maintain different stand­
ards for hiring black and white applicants (89a). The 
Company “elected” (1342a) to extend the high school 
education and screen test requirements to black ap­
plicants (713a).8 This remained in effect until July, 
1969 (92a). During the period from 1964-1969 when

7 For example, in 1965, in the Mono Cast Department, 
where there were 311 black and 138 white workers (95a) only 
2 blacks earned over $2.78/hour (1965 rate for equivalent of 
pay group 8), while about 101 whites earned over this 
amount (1152a-1156a); in the Foundry Department, where 
there were 242 black and 234 white workers (95a), only 4 
blacks earned above $2.79/hour, while only 1 white earned be­
low that amount (1157a-1161a); in the Melting Department, 
where there were 67 black and 70 white workers (95a), only 
1 black earned more than $2.79/hour while all of the whites 
earned over that amount (1172a-1174a), and in the Construc­
tion Department where there were 19 black and 33 white 
workers (95a), none of the blacks and all of the whites earned 
$2.79/hour or above (1167a-1168a).

8 The President of the Company at the time estimated that 
75% of the black applicants would not pass these require­
ments (568a, 755a-756a).



6

the requirements were in effect, black employment 
was almost completely halted (139a-140a, 247a), 
while the number of whites hired increased (96a).9 
After the requirements were dropped in 1969, the 
number of black applicants hired substantially in­
creased (174a, 282a).

3. Testing Policy With Respect to Promotion And 
Training Before 1971.

a. In December, 1964, the Company instituted a 
test program for promotions. Five “ achievement 
levels”  (test cut-off scores) were established.10 To be 
eligible for a job in a particular pay group, an em­
ployee had to attain a test score corresponding to the 
established achievement level (90a, 1524a-1580a). 
The requirement applied to both promotions and 
transfers.

In 1968 the Company consolidated the 23 pay 
groups into 15 (666a) and eliminated any test re­
quirements for promotions into pay groups 1-8. The 
Company felt that it successfully could put an em­
ployee on any job in those pay groups and see whether 
he could perform the work (91a-92a, 1347a, 1343a).

The tests enabled new whites, better able than

9 Between 1965 and 1969 the number of blacks in the plant 
decreased from 869 to 781 while the number of whites in­
creased by over 1,000 from 923 to 2,162 (96a). The Company 
conceded that the hiring requirements caused this result 
(173a-174a, 281a-282a, 328a, 677a, 678a, 96a, 772a).

10 The plaintiff’s testing expert, Richard S. Barrett, testi­
fied that the procedure by which the achievement levels were 
established was a “haphazard really worthless” one (206a).



7

blacks to pass the tests, to transfer into the higher 
paying departments and higher paying jobs within 
their initial departments shortly after hire ahead of 
more senior blacks (927a-928a, 360a, 475a, 535a, 
450a-452a). The promotion tests barred similar 
black advancement (287a-288a, 702a). Discouraged 
by the low scores made by most blacks, other blacks 
refused to take the tests; they thought it was a use­
less act (see 565a).

b. The testing procedure also affected the ability 
of blacks to participate in the apprenticeship and on- 
the-job training program.

It was the Company’s policy to hire persons for 
craft jobs from inside the Company (348a). Appren­
ticeship and on the job training programs were, there­
fore, extensively used to train incumbent employees 
to fill the Company’s growing requirements for crafts­
man (343a, 1432a-1433a).

In filling vacancies, the Company gave preference 
to employees already in the particular craft depart­
ment's (285a, 322a). Where vacancies remained, a 
qualified employee was transferred from a production 
department.

To be considered for the apprenticeship program, 
the employee had to have a high school education,11 
attain the achievement level for the pay group in 
which the highest craft job was (1207a), and pass 
all aptitude tests given for the particular craft de­

11 This was required even though the Company conceded 
that it really wasn’t necessary (806a-807a).



8

partment (1299a-1300a).12 An applicant meeting 
these requirements was then given a 6 month trial 
period on the job to determine whether he had the 
ability to learn to perform the work and was inter­
ested in work of that type (342a-343a, 696a, 89a). 
After this trial period, an applicant was accepted or 
rejected.13 The program usually took about 3%  or 
4 years during which time the employee progressed 
upward from a rate of pay group 2 or 3 to the craft 
rate of pay group 11 or 12 (1288a-1289a). Although 
208 candidates have been accepted into the apprentice­
ship program since it was established in 1911, only 1 
has been black (303a).

In addition to the apprentice program the Com­
pany had an on-the-job training program (303a). 
An employee who had 3 years experience in a de­
partment where a craft job opened was given first 
opportunity to bid on that job (343a-344a). He then 
was trained for another 3 or 4 years until he was 
awarded the craft job (344a-345a). Where an em­
ployee within the department was not available, the

12 In addition, the applicant has to be 25 years of age or 
under, or, if in military service, be no older than 29 (343a). 
The plaintiffs’ industrial and engineering management expert 
testified that the age limitation for entry into the apprentice­
ship program was unnecessarily restrictive in comparison 
with many other companies (612a-613a).

13 The Apprenticeship Committee, which makes this de­
cision, consisted of the departmental superintendent, appren­
ticeship supervisor, training director, personnel director, em­
ployment manager, chairman of a management board and 
employee committee, works manager and his assistant 
(1289a). All of these positions were filled by whites.



9

superintendent requested the Employment Manager 
to transfer an employee from elsewhere in the plant. 
In either case, the necessary achievement level for 
the craft position was a prerequisite for this pro­
gram as well (1306a-1307a, 288a-290a, 308a).

c. On March 25, 1971, after the Supreme Court 
decision of Griggs v. Duke Power Co., 401 U.S. 424 
(1971), the Company, on advice of counsel, officially 
ceased all testing (668a, 829a).14

4. Seniority System

The Company has a departmental seniority system. 
Under this arrangement, upon transferring, an em­
ployee does not retain, in the new department, his ac­
cumulated seniority for promotional purposes (326a). 
The date of transfer becomes the new department 
seniority date (328a). He retains the seniority which 
he accumulated in his old department for placement 
in that department in the event of a reduction in 
force (86a, 324a-328a). However, he can use neither 
that seniority nor company seniority to protect his 
job in the new department against an employee with 
more departmental seniority (326a).

An employee who had no previous experience or 
training related to the craft function in the new de-

11 Mr. Coupland, the Company Vice President, stated that 
although the high school education requirement in and of 
itself was no longer a prerequisite for the apprenticeship 
program, a candidate was required to have sufficient educa­
tion to be able to do the classroom work associated with the 
program, which might in fact require a high school education 
(1293a-1294a).



10

partment (325a-326a) receives one year’s credit for 
wage purposes (85a, 325a). This means that he re­
ceives the same wage as a man with one year’s plant 
experience (pay group 2 or 3 ) ; he is like a new em­
ployee, however, for promotional purposes in the de­
partment (325a-326a). A transferee with relevant 
training and experience is given “ appropriate credit” 
for wage purposes (85a-86a, 307a).

An employee who transfers to a craft department 
to enter an apprecticeship is first required to pass 
a six month training period in that department. Such 
an employee gets 1,000 hours credit for wage rate 
purposes, equivalent to the 6 months work experience, 
when accepted (1289a).

There was substantial testimony at trial that many 
of the jobs in the production departments were the 
same as or similar to some of the jobs, at least up 
through pay group 8, in the craft departments. This 
testimony was provided by Mr. Rigassio, the plain­
tiffs’ expert in industrial and management engineer­
ing (621a-622a, 625a-629a, 1039a) and confirmed, at 
least in part, by the Company’s witnesses (790a, 
792a, 1015a-1016a, 1103a-1104a). Since the Com­
pany’s lines of progression did not provide skill ac­
quisition or training (624a, 625a) and many skills 
were transferrable between jobs (1323a), Mr. Rigas­
sio was of the opinion that company seniority could 
be used successfully at the plant for purposes of 
transfer (624a, 632a). Mr. Rigassio recognized that 
some of the higher level jobs (above pay group 8) 
did require, in varying degrees, some training for



11

craft jobs. This experience, however, could be ob­
tained on the job (611a). He testified that the resi­
dency required in the training jobs was far too long 
(603a, 605a, 638a, 639a). This conclusion was sup­
ported by studies of the Company (605a-606a) and 
opinions of its management (797a-799a, 988a-989a). 
Although a few of the department superintendents 
testified that at least the higher rated jobs in their 
departments were functionally related to each other 
(1029a, 1039a, 1058a), there was, with only one ex­
ception,1'5 no other testimony regarding the functional 
relatedness of the jobs.

Mr. Rigassio also testified that the apprenticeship 
program was unnecessarily long (614a-615a). This 
he stated was proven by experience during national 
emergencies like WWII and the Korean War where 
the training periods for apprenticeships were shorter 
(Id.).

In January, 1971, the Company instituted a new 
bid procedure whereby all vacancies in the plant were 
posted for bid. Where a job vacancy above pay group 
3 15 16 occurred in a department, notice of vacancy was

15 At trial, the following exchange occurred between the 
Court and Mr. Coupland, the Company Vice President and 
Works Manager (827a-828a):

THE COURT: Mr. Coupland, is it your opinion that
the lines of progression which have been followed by 
ACIPCO in the past and which are represented by . . . the 
diagrams . . . are functionally related to the performance 
of the plant as a whole?

A. Yes sir, we think so.

16 Vacancies in pay groups 1-3 were bid initially plantwide.



12

posted in only that department for a period of three 
days, thereby giving employees in that department 
absolute preference in filling the job.17 If there were 
no bids from inside the department within 3 days, 
the notice would be posted plantwide. In this situa­
tion, the most senior employee on the basis of plant­
wide seniority who bid and was qualified was offered 
the job (Id., 314a-317a, 1328a-1332a). The depart­
mental seniority system described above was not af­
fected by the bidding procedure (1333a).

5. Supervisory Personnel

For the positions of foreman and leadman, the 
superintendent selected a qualified employee18 whom 
he considered best suited for the position. The su­
perintendents have always been white. There were 
no fixed standards upon which they made their deci­
sions. In 1971, there were about 50 foremen (354a), 
none of whom were black, and there were about 50 
leadmen only one of whom was black (299a, 353a).

In the opinion of a department superintendent, 
there are several blacks qualified to be leadmen or 
foremen (897a-898a).

B. The Findings of the District Court.

The Court concluded that the Company’s tests 
had a clear adverse effect on blacks’ employment op­

17 In all of the craft departments, blacks were in a small 
minority (95a).

18 Until 1971, “qualified” meant having the requisite test 
scores.



13

portunities and were unlawful (98a). However, in­
asmuch as the Company had ceased using the test's 
on March 25, 1971, it concluded that there was no 
reasonable expectation that the unlawful activity 
would be repeated and refused to grant any injunc­
tive relief.

The Court concluded that the Company’s promo­
tional and seniority system did not perpetuate the 
effects caused by the use of the discriminatory tests. 
It stated that black employees cannot be heard to 
complain that they were locked in a particular job 
when they were not qualified to perform a job in a 
higher pay group and some had refused transfers and 
promotions (100a).

Alternatively, the Court concluded that even if 
the seniority system did perpetuate the unlawful ef­
fects of the testing, the system was required by busi­
ness necessity (100a).

Lastly,18 the Court concluded that in view of the 
Company’s demonstrated good faith compliance with 
Title VII, and because a back pay award would not 
be necessary to insure future compliance with the 
Act, back pay would not be awarded in the exercise of 
the court’s discretion (101a). 19

19 The Court made other conclusions among which were 
the following:

[SJince 1963 jobs in defendant’s plant have not been 
restricted according to race . . . (99a).

Defendant has practiced no invidious discrimination in 
the administration of its apprenticeship and journeymen 
programs (101a).



14

ARGUMENT

I

IN LIGHT OF ITS FINDINGS TH AT THE TESTING  
POLICIES, W HICH W ERE IN EFFECT FOR SEVEN  
YEARS, HAD AN ADVERSE IMPACT ON BLACK  
EMPLOYEES, THE COURT BELOW ERRED IN  
CONCLUDING TH AT THERE W ERE NO PRESENT  
EFFECTS OF SUCH PAST DISCRIMINATION.

1. For seven years20 the Company required for 
promotion a passing mark on tests recognized by the 
District Court to be invalid under Griggs v. Duke 
Power Co., 401 U.S. 424, 436 (1971). These require­
ments barred blacks not only from better jobs in the 
departments in which they were working, but also 
from transferring to better jobs in the craft depart­
ments— the higher paying departments. The tests 
similarly excluded blacks from consideration for ap­
prenticeships and for the on-the-job training pro­
gram.

The tests froze blacks into the low paying menial 
jobs to which they had been initially assigned. The

20 The test promotion program was first instituted on De­
cember 28, 1964. On February 14, 1968, the requirements 
for promotions or transfers into jobs in pay groups 1-8 were 
eliminated. The test requirements for pay groups 9-15 offi­
cially ceased March 25, 1971. Since most transfers to the 
craft departments were for the apprenticeship or on the job 
training programs which ultimately led to a craft position, the 
test requirements which had to be met were for the craft 
job usually in pay group 13. Therefore, even after the test 
requirements were dropped for pay groups 1-8, blacks re­
mained barred from transfer to the craft departments because 
of the test requirements which remained in effect for pay 
groups 9-15.



15

effects were clearly stated at trial during the follow­
ing exchange between the Court and Mr. Coupland, 
the Company Vice-President:

T he Court : Have any employees been frozen
in that rate progression as a result of those 
scores on the tests?
A. Yes . . .
T he Court : Well, now, since the testing has
been abolished what happens in moving up?

A. We simply try the man on the job and see 
if he can perform.

In light of this testimony and the Court’s own 
finding as to the adverse impact of the tests on blacks, 
the conclusion is inevitable that the plaintiffs are now 
suffering from the effects of the illegal testing policy. 
For seven years, the tests kept the blacks from moving 
up above pay group 8 even in the department in which 
they were hired. The fact that they can now move one 
step at a time hardly serves to compensate them for 
the seven years in which they were held back. More­
over, the tests kept the plaintiffs from moving from 
a low paying department to one with a better chance 
of advancement' into a high paying craft job. Had 
they been able to do so freely within a short time 
after they were hired, as the whites did, the de­
partmental seniority system and the requirement for 
accepting entry level pay in apprentice and on the 
job training programs might not have been a barrier 
to transfer. Seven years later, it is obviously diffi­
cult, without some restructuring of the system, for an 
employee to give up this seniority, or to accept low



16

rates for training for craft positions. The Vice- 
president of the Company testified (1317a):

Well, there is another thing that enters into it. 
The man that starts apprenticeship that’s been 
working at another job would have to start back 
down on the pay scale also to learn that job . . . 
and that would mean that he would take a pay 
cut.21 (Emphasis supplied.)

This Court and others have recognized that where 
there have been discriminatory conditions for trans­
fer and promotion, such policies as departmental 
seniority systems and provisions for loss of pay to 
enter training programs and better jobs do perpetuate 
the effect of past discrimination. U.S. v. Georgia
Power Co., ------  F.2d ------ , 5 EPD 8460, 5 FEP
Cases, 587, 602-603 (5th Cir. 1973); U.S. v. Jack­
sonville Terminal Co., 451 F.2d 418, 449 (5th Cir. 
1971); U.S. v. Hayes International Corp., 456 F. 
2d 112, 117 (5th Cir. 1972); Bing v. Roadway Ex­
press, Inc., 444 F.2d 687, 689-690 (5th Cir. 1971); 
Local 1S9 v. U.S., 416 F.2d 980, 990 (5th Cir. 1969), 
cert, denied, 397 U.S. 919 (1970); U.S. v. Bethlehem 
Steel Corp., 446 F. 2d 652, 658 (2nd Cir. 1971);

21 The testimony of a black employee shows how this worked 
(4 27 a ):

[H ]e told me that I had got— gone as high as I could in 
Number 1 mono cast cleaning shed . . . [H ]e was also 
giving me a chance to go to the Machine Shop and he said 
you can learn a skill and the job— the top pay on that job 
is only $3.49 and at the time I was making $3.36 but 
in order to move to the Machine Shop I had to go back to 
$2.78, start at $2.78 which meant a 58 cent an hour cut 
in pay.



17

Robinson v. Lorillard Corp., 444 F.2d 791, 795-796 
(4th Cir. 1971).

2. The district court’s conclusion that the discrim­
ination that had existed at the plant had no effect on 
the black employees against whom it was directed 
was based on the following reasoning (100a):

[b]lack employees cannot' be heard to complain 
that they were locked in a particular job when 
they were not qualified22 to perform a job in a 
higher pay group. The record is replete with evi­
dence of black employees who have refused pro­
motions, requested demotions, declined training 
opportunities, and failed or refused to bid on 
higher paying jobs, thus voluntarily freezing 
themselves in the lower paying jobs.

This conclusion is based on Finding 30 23 which in

22 It should be noted that during the relevant period of time 
the principal measure of a “qualified” employee was one who 
attained an appropriate test score.

23 Finding 30 states:

During the period between July 5, 1965, and October 1, 
1971, a substantial number of blacks were offered higher­
paying jobs, but turned them down. During this period 
554 blacks were offered and accepted promotions, while 
573 blacks were offered promotions and declined them, 
and 76 blacks were demoted for inability to satisfactorily 
perform the jobs. A  substantial number of black em­
ployees has also refused to bid on higher-paying jobs that 
were posted for bidding. Some black employees who 
failed to score well on the test exercised initiative to take 
further training with the defendant’s assistance, and 
subsequently improved their test scores and advanced 
into higher paying jobs. The defendant, through utili­
zation of its bidding system, has been trying to place 
blacks in higher-paying jobs, although the effort has re­



18

turn is based on three tables admitted into evidence 
as DX7, “ Summary of Analysis of Promotion and De­
motions 7-5-65 through 10-1-71” (1650a-1652a). The 
first (1650a) purported to show the combined num­
ber of promotions accepted by and demotions made 
of black and white employees, by department, during 
the above period. The second (1651a) purported to 
show the number of promotion offers made to black 
employees which were accepted and rejected and the 
number of demotions of black employees, by depart­
ment, during the above period (1651a). The third 
(1652a) purported to show the number of promo­
tions accepted by whites and the number of demo­
tions of whites, by department, during the above 
period. There was no information regarding the 
number of whites who rejected offers of promotion.24 
The Company used as its definition of “promotion” 
any job which had a rate that paid more than the rate 
at which the employee was then working (1054a, 
1073a).

The tables showed the total numbers of acceptances 
and rejections made, not the number of persons who 
accepted or rejected the jobs. Several jobs were re­

sulted in increased costs, increased damage to equipment, 
and higher demotion rates for inability to perform the 
work.

24 However, the Superintendent of the Melting Department, 
where during this period blacks were almost exclusively in 
low paying jobs (1162a-1164a), testified that 139 jobs were 
accepted while 39 jobs were rejected by whites, whereas 
121 jobs were accepted while 113 were rejected by blacks 
(1651a-1652a). Roughly 70 of the promotions rejected by 
blacks were of jobs paying less than $3.00/hour (1073a).



19

jected by the same individual (1000a, 1081a). The 
pay groups in which there were promotions were not 
indicated, nor were the amount of physical exertion 
required or the heat and dirt associated with the job.25 
The reasons given for the rejection of the offers by 
blacks were not specified.

There was, however, evidence in the record that 
most of the jobs offered were in the lowest pay groups 
in the production departments where turnover was 
highest (1073a). There was substantial evidence that 
many jobs were rejected since they paid but a few 
pennies more (369a, 445a), but required much greater 
physical exertion (365a, 368a, 444a, 471a) and were 
in hotter and dirtier areas of the plant (511a). There 
was evidence that in several cases blacks rejected 
jobs because they were not first offered to more sen­
ior blacks (445a, 907a) and because junior whites 
had been offered jobs better than those being of­
fered to them (366a, 369a, 540a). In addition, sev­
eral blacks, who had been working at the plant before 
blacks were allowed to work in certain jobs, refused 
promotions to departments which because of the Com­
pany’s policy required a transferee without previous 
experience in the work of the department to start at 
the entry level rate and work up to the job rate of the 
promotion (307a, 414a-415a, 427a-428a, 865, 909a- 
910a).

To the extent that demotions can be said to be in­
dicative of the lack of blacks’ qualifications or ambi­

25 Some blacks rejected offers because they were too old 
or were not mentally fit (556a, 524a).



20

tion to advance,26 the rate of demotions (demotions/ 
promotions accepted) for whites was greater than or 
equal to the rate for blacks in almost every de­
partment (1651a-1652a).

Under the circumstances, the statistics given in 
Finding 30, supra, do not serve to refute the showing 
that illegal testing, which continued for seven years, 
was bound to have a continuing effect so long as de­
partmental seniority and failure to provide adequate 
payment for training periods (known as red-circling) 
continued. The evidence on which the Court below re­
lied was thoroughly infected by the discriminatory 
milieu which existed during the time the promotions 
were offered. The failure to red circle and the exist­
ence of the department seniority system may have pre­
vented blacks from fully exercising their rights. That 
demands that another opportunity be given to blacks 
under nondiscriminatory conditions. U.S. v. Hayes 
International Corp., 456 F.2d 112, 119 (5th Cir. 
1972).27

26 The Company presented evidence that demotions were 
due primarily to cut backs in the work of a department 
(1063a).

27 In the Hayes case, even after a transfer plan was estab­
lished by the Company under which 95 of the 141 eligible em­
ployees sought transfer, the Court remanded the case to the 
district court to ensure that a broader transfer plan be estab­
lished. It said:

The court must determine not only whether the seniority 
and ability entitle them to existing vacancies but must 
also insure that potential vacancies are not foreclosed 
by criteria that puts the negro at a disadvantage due to 
past discriminatory practices. 456 F.2d at 117.



21

The particular situation of some blacks does not 
provide a defense as a matter of law to the racial dis­
crimination which has been perpetuated against the 
class. Such evidence at most would be appropriate, 
if developed, in determining which of the black class 
members would be entitled to the class relief. The 
general policies of the Company do operate against 
blacks as a class. The Court therefore was required 
to grant relief which would make whole the class 
which had been discriminated against. U.S. v. Geor­
gia Power Co., supra, 5 FEP Cases at pp. 602-603.

II

INJUNCTIVE RELIEF SHOULD BE GRANTED TO 
ELIMINATE DISCRIMINATION AT THE PLANT  
AND TO ALLOW THE AFFECTED CLASS OF 
BLACK EMPLOYEES TO ASSUME THEIR “RIGHT­
FUL PLACE.”

As the recent decision of this Court in U.S. v.
Georgia Power C o.,------ F .2d--------, 5 EPD 8460, 5
FEP Cases 587, 598, 602 (5th Cir. 1973), makes 
clear, it is the duty of the district court, once dis­
crimination had been found, to endeavor to eliminate 
the effects of past discrimination and compensate em­
ployees for their loss. See also, Moody v. Albemarle
Paper Co., ------  F.2d ------ , 5 EPD If 8470, 5 FEP
Cases 613, 616, 617 (4th Cir. 1973); Rosen v. Pub­
lic Service Electric and Gas Co., ------  F.2d ------ ,
5 EPD If 8499 at 7390-7391, 5 FEP Cases------  (3rd
Cir. 1973).

This case has been in the courts since the original 
complaint was filed on May 13, 1966. Over 1200



22

charges have been filed with the EEOC regarding al­
leged discriminatory employment practices of the 
Company. The number of members in the affected 
class appears to be considerably over 600.28 While the 
district court “bears the ultimate responsibility for 
fashioning relief,”  ( U.S. v. Jacksonville Terminal 
Co., supra, 451 F.2d at p. 458), given the circum­
stances above enumerated, we request that this Court 
include in its opinion guidelines upon which the Court 
below may exercise its duty in eliminating discrimi­
nation.

With respect to injunctive relief,29 30 what follows is 
intended to provide a checklist of the remedies which 
at a minimum 80 we believe are required in this case.

A. An Injunction Against Testing and The Require­
ment of a High School Education.

The Court below recognized that the requirement 
of a high school education and the testing procedure 
had an adverse impact on blacks as a class. It de­
nied an injunction against the use of tests and high 
school education because the Company officially elimi­

28 About 620 employees were identified as members of the 
class as of June 17, 1969. Since the alleged unlawful employ­
ment practices continued after that date, the number of em­
ployees in the class is probably larger.

29 The back pay issue is discussed in part III.

30 The Commission’s focus in this case is narrower than that 
of the appellants. Our comments in this part are not intended 
to disapprove of additional relief requested by the appellants 
in their brief. Rather, these comments reflect the relief which 
the Commission considers necessary on the basis of the issues 
discussed herein.



23

nated all tests in March, 1971 (98a). The high 
school education, however, apparently remains in use, 
as a requirement for the apprenticeship program. 
There is also evidence in the record that some man­
agement at the plant would like to continue testing.31

In these circumstances, an injunction is appropri­
ate. Schultz v. Parke, 413 F.2d 1364, 1370 (5th Cir. 
1969); Wirtz v. B. B. Saxon Co., 365 F.2d 457, 463 
(5th Cir. 1966).

B. Restructuring the Bid and Seniority System.

This Court and others have recognized that where 
a system of departmental preference and seniority 
has the effect of perpetuating the effect of past dis­
crimination, a change in the system is appropriate 
to remedy the effects of such past discrimination. 
Local 189 v. United States, 416 F.2d 980, 991 (5th 
Cir. 1969), cert, denied, 397 U.S. 919 (1970); United

31 Mr. Hariston, Superintendent of the Mono Cast Depart­
ment, testified that as far as he was concerned, the test battery 
was still in use for any supervisory position (leadman or fore­
man) and would influence his judgment in selecting a candi­
date (841a-843a).

Mr. Finch, the Superintendent of the Fitting Foundry, 
testified that he only “assumed” Company policy was against 
using tests for leadmen although he wanted to use them. 
(991a).

Mr. Coupland, the Company Vice President, stated that al­
though the high school education requirement in and of itself 
was no longer a prerequisite for the apprenticeship program 
(discussed below), a candidate was required to have sufficient 
education to be able to do the classroom work associated with 
the program, which might in fact require a high school educa­
tion (1293a-1294a).



24

States v. Jacksonville Terminal, 451 F.2d 418, 437, 
453 (5th Cir. 1971), cert, denied, 406 U.S. 906 
(1972); United States v. Hayes International Cory., 
456 F.2d 112, 117 (5th Cir. 1972); Local 53, As­
bestos Workers v. Vogler, 407 F.2d 1047, 1052 (5th 
Cir. 1969); United States v. Bethlehem Steel Cory., 
446 F.2d 652, 660-661, 665-666 (2nd Cir. 1971); 
Robinson v. Lorillard Cory., 444 F.2d 791, 795 (4th 
Cir. 1971).

In this case, the bid procedure established January 
1, 1971, gives first preference for a 3 day period to 
employees within the department where the vacancy 
occurs. Since there have been and continue to be few 
blacks in the higher paying departments, this pro­
cedure perpetuates the effects of past discrimination 
and must be eliminated. The Commission therefore 
suggests that the district court should be directed to 
require that vacancies be posted initially plant-wide 
and open for bids throughout the plant and filled by 
the qualified employee with the greatest plant-wide 
seniority. A qualified employee is one who has ful­
filled all necessary training prerequisites for the par­
ticular job. Such a procedure will not compromise 
the safe and efficient operation of the plant because 
the Company need not award the job to unqualified 
employees. See U.S. v. Jacksonville Terminal Co., 
supra, 451 F.2d at pp. 433, 458; U.S. v. Bethlehem 
Steel Cory., suyra, 446 F.2d at pp. 986-987.

The district court should further direct that the 
black employee who transfers shall retain his accum­
ulated seniority in the new department for all pur­



25

poses including promotion, layoff, reduction in force, 
and recall. This type of relief has been recognized 
by the courts as appropriate in circumstances similar 
to that presented here. United States v. Hayes Inter­
national Cory., supra, 456 F.2d at p. 117; Local 189 
v. United States, supra, 416 F.2d at p. 980, 991; 
United States v. Bethlehem Steel Corp., supra, 446 
F.2d at p. 666.

C. Red Circling and Advanced Entry.

Where the job from which the employee transfers 
pays more than the new job, where the new job is in 
a department where the top wage rate is greater 
than the rate of the old job, the employee shall be 
paid the wage rate of the old job until he advances 
to a job paying more than that rate or until he vol­
untarily freezes himself in at the new job. This is 
commonly known as “ red circling” . It is a standard 
remedy for eliminating past discrimination which 
prevented employees from reaching higher jobs and 
is recognized as necessary since otherwise employees 
could not afford to take training jobs paying lower 
wages. (See supra, p. 16). United States v. Local 
189, 301 F.Supp. 906, 917, 923 (E.D. La. 1969), 
aff’d sub nom., Local 189 v. Unted States, supra; 
U.S. v. Bethlehem Steel Corp., supra, 446 F.2d at p. 
661; Robinson v. Lorillard, supra, 444 F.2d at p. 
795; Clark v. American Marine Corp., 304 F.Supp. 
603, 608 (E.D. La. 1969). As the Secretary of Labor 
recently said with regard to a much more compli­
cated wage rate system:



26

The practice of requiring affected class members, 
who wish to transfer to traditionally white jobs 
from which they were previously excluded on 
account of their race, to suffer a reduction in 
pay as a condition of transfer constitutes a con­
dition or term of employment which discrimi­
nates against those affected class members on 
account of their race.

Bethlehem Steel Corp., Decision of Secretary of Labor, 
CCH Employment Practices Guide 5128, at p. 3255 
(Jan. 15, 1973).

As to jobs which do not require special training, 
employees with plant seniority should be allowed upon 
transfer to a new department to enter a job above 
the entry level position (advanced entry). A senior 
employee who has sufficient training to qualify for 
the position should similarly be permitted advanced 
entry. This is obviously a fair way to make him 
whole. U.S. v. Local 189, 301 F.Supp. 906, 921 (E.D. 
La. 1969), affirmed, supra, 416 F.2d 980, 990; see, 
Robinson v. Lorillard Corp., 319 F.Supp. 835, 838, 
839, 840, affirmed, 444 F.2d 791 (4th Cir. 1971); 
Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D. 
Ya. 1968). See also, Note, Title VII, Seniority Dis­
crimination, and the Incumbent Negro, 80 Harv. L. 
Rev. 1260, 1277 (1967).

The time periods provided in the Rate Progression 
Schedule which determine how quickly an employee 
will receive the rate for a job to which he has been 
promoted should be amended to provide that an em­
ployee shall receive the job rate by the end of a period 
wherein he will have learned the job.



27

D. Changes in the Apprentice and On-the-Job Training 
Program.

Plant-wide posting of jobs and selection on the 
basis of plant seniority together with red circling 
would tend to eliminate some of the discrimination 
in the apprenticeship and on-the-job training for the 
higher paid craft positions by eliminating the first 
preference now given to persons already in the craft 
departments where there are few blacks.32 The pro­
grams, however, require other changes as well if the 
victims of discrimination are to be made whole.

The Company requires candidates for apprentice­
ship to be no older than 25 or, if they have served 
in the military, 29 years of age. The length of the 
program from start to finish is approximately 8,000 
hours or 3 ^  or 4 years. Both these requirements 
perpetuate past discriminatory exclusion of blacks 
from the program since blacks were not able to enter 
into any craft jobs at least until 1963 and were kept 
out thereafter by the high school education and test­
ing requirements. Of the blacks that did qualify 
under the tests only 1 was given consideration.33 
Since there has been only 1 black candidate for ap­

32 Presently, there is no set procedure for the selection of 
candidates to be considered for the apprenticeship program. 
An interested employee may make a formal application or the 
department superintendent or Employment Manager may 
select an employee who has not previously applied to be con­
sidered.

33 The Company has admitted that there are several blacks 
who are qualified. The Company recently has made some eifort 
to consider such blacks (758a-760a).



28

prenticeship as compared to 208 white apprentices 
in the 50 years of the program, there is a prima 
facie case that discrimination has occurred. See 
Rowe v. General Motors, 457 F.2d 348 (5th Cir. 
1972) (303a). Under the circumstances the contin­
ued application of the age restriction perpetuates the 
discrimination which occurred during the period the 
employees became too old for subsequent considera­
tion. The age limitation is, therefore, unlawful, un­
less justified by business necessity.

The Company admitted that the age requirement 
was not necessary for safe and efficient operation of 
the business. Sam Phelps, the Employment Manager, 
testified that:

I am not saying that a man couldn’t learn an 
apprenticeship at any age, but we have a train­
ing program where a man can come up. . . .

(802a). Mr. Coupland, the Work Manager, testified 
similarly34 (1317a). In fact, men over the age of 25 
or 29 were selected for the training programs.

Mr. Rigassio, the plaintiffs’ expert witness in in­
dustrial and management engineering testified that

34 Mr. Coupland added (1317a-1318a):
We feel, too, that a man to do the classroom work needs 
to be young enough where he could do the classroom work 
without much difficulty and we found that younger men 
could do that.

Compare contrary testimony of Mr. Rigassio, plaintiffs’ in­
dustrial engineering expert, at 614a. The ability of young 
men to do unvalidated classroom work better than older men 
is not supported by the record and is insufficient to show 
business necessity.



29

the Company’s age limitation was unnecessarily re­
strictive 35 (612a-613a). He suggested that age 35 
might be a practical alternative. (Id.). This change 
would allow at least some of those blacks who con­
tinue to be victims of the past discrimination with 
respect to the apprenticeship program to receive an 
opportunity for consideration. See, U.S. v. Electrical
Workers, Local 212, ------  F.2d ------ , 5 EPD ff 8428
at 7091-7093, 5 FEP Cases------  (6th Cir. 1972).

The apprenticeship program is also unnecessarily 
long as is the on-the-job training for craft jobs. It 
thereby continues to perpetuate the exclusion of 
blacks from working the craft jobs at full rate. There 
is no business necessity justifying the length of this 
program.

Mr. Riggasio, the plaintiff’s expert, testified that 
the length of the apprenticeship programs could be 
shortened (614a-615a). He based his conclusion on 
the fact that during national emergencies, like World 
War II and the Korean War, apprenticeship periods 
were compressed (Id.) In disagreeing with Mr. Ri- 
gassio, Sam Phelps, the Employment Manager, con­
ceded that the length of the apprenticeship was not 
justified by business necessity.

35 A  commentator has stated that:

But no adequate business necessity is served by age 
restrictions.

Yeager, Litigation under Title VII of the Civil Rights Act of 
1964, The Construction Industry and the Problem of the “ Un­
qualified” Minority Worker, 59 Geo. L.J. 1265, 1284 (1971).



30

Q. All right, now, what I wanted to know, have 
you considered or do you think it would be 
possible to reduce the number of hours?

A. I don’t think so. Mr. Rigassio said back 
during the national emergency they found 
they could train men faster. I agree with 
that. We were in a training program at 
that time also. You can train a man to do 
a specific job, say in the Machine Shop to 
operate one machine and he can become 
proficient in that but in our work as a job­
bing machine shop making all types of 
things we have to have a well rounded ma­
chinist. . . .  We have to be able to walk out 
and hand a man a work order with a blue­
print and tell him to make this and it may 
change every day. (Emphasis supplied.).

(805a-806a).
From this it is clear that there exists an alterna­

tive system requiring a shorter training period which 
would have less discriminatory impact. That alter­
native is to train an employee to operate a particu­
lar machine.

This conclusion is supported by the recent Fourth
Circuit case, Moody v. Albemarle Paper C o .,------ F.
2d ------ , 5 EPD 8470, 5 FEP Cases 613 at 616.
In that case, the Company hired all employees into 
a pool. From the pool employees were moved into 
lines of progression as vacancies occurred. Since the 
Company did not know in advance in which line a 
vacancy would occur, it required all employees in the 
pool to be qualified for all the lines. The Court held 
that:



31

Albemarle has not shown that hiring all em­
ployees into a pool is necessary for the safe and 
efficient operation of the business nor has it 
shown that hiring employees for specific lines 
of progression is not an acceptable alternative. 
This they were required to prove to justify their 
policies under the business necessity test.

5 FEP Cases at 616. Similarly, on the record in this 
case there is no showing that the Machine Shop could 
not work as safely or efficiently if employees were 
trained to work one of the machines.

Furthermore, the Company made no showing that 
3y2 or 4 years was in fact required for training an 
apprentice. Since there are about 10 crafts for 
which the programs train, it is unlikely that all the 
crafts require the same training period. See, U.S. v.
Operating Engineers, Local 3, ------  F.Supp. ------ , 4
EPD 1J7944, at 6502, 6508-6509 (N.D. Cal. 1972).

The Commission therefore suggests the following 
relief as to these programs, in addition to company 
wide posting, company wide seniority and red-cir­
cling :

1. The Company’s age restriction of 25, or 29, if 
an employee served in military service, should be 
extended to at least 35, as suggested by Mr. Kigassio, 
the plaintiffs’ industrial engineering expert.

2. The length of the apprenticeship program 
should be shortened from 8,000 hours to a figure 
agreed to by the parties or ordered by the Court, after 
a hearing if necessary. A time period for each of the 
crafts included should be established if in fact the re­
quired training periods for each is different.



32

3. The present length of 7 years for the on-the-job 
training program shall be reduced by agreement of 
the parties or by order of the Court, after hearing 
if necessary. The necessary period of experience on 
a particular craft related job, which is presently 3 
years, shall be reduced or eliminated by agreement 
of the parties or order of the Court below, after 
hearing if necessary. Additionally, the definition of 
“ relevant experience required” should be broadened 
to include useful experience on jobs outside the craft 
departments.

E. Changes in Selection of Supervisory Employees.

There are no blacks among the fifty foremen in 
the plant and only one black among the forty to fifty 
leadmen although company management witnesses 
testified that there were blacks qualified at least to 
be leadmen (1073a). That there has been discrimi­
nation is thus self evident.

The Commission suggests that vacancies in these 
positions be posted plant-wide; that criteria for filling 
such positions be standardized; and that the district 
court be directed to develop some method of filling 
such vacancies, by committee or otherwise, which will 
tend to eliminate purely subjective factors.

This would appropriately include a direction to re­
quire the hiring of a certain number of blacks to these 
supervisory positions. See United States v. National 
Lead Industries, decided March 28, 1973, C.A. 8, No. 
72-1143; see also, Local 53, Asbestos Workers v. 
Vogler, 407 F.2d 1047, 1055 (5th Cir. 1969).



33

A comment should be made on the district court’s 
conclusion that company policies, particularly the 
seniority system and failure to red circle, even if 
they perpetuated the effects of past discrimination, 
were within the discretion of management and justi­
fied by business necessity. In so holding, the district 
court failed to apply the proper standard laid down 
by this Court in United States v. Jacksonville Ter­
minal Co., 451 F.2d 418. The Court there said (451 
F.2d at p. 451):

We have no doubt that the seniority systems 
and restrictions currently in force at the Ter­
minal contribute to its safe and efficient opera­
tion. Nevertheless, as the Second Circuit most 
recently explained,

. . . * * *  Necessity connotes as irresistible 
demand. To be preserved, the seniority and 
transfer system must not only directly fos­
ter safety and efficiency of a plant, but also 
be essential to those goals. * * * If the 
legitimate ends of safety and efficiency can 
be served by a reasonably available alterna­
tive system with less discriminatory effects, 
then the present policies may not be con­
tinued.

United States v. Bethlehem Steel Corp., 2 Cir. 
1971, 446 F.2d 652, 662 [1971] . . . Thus the 
Terminal was required to prove not only that 
the seniority system and restrictions promote 
safe and efficient operation but also that they 
are essential to these goals.

See also U.S. v. Hayes International Corp., supra, 
415 F.2d at p. 118; Local 189 v. U.S., supra, 416 F.



34

2d at p. 989; Moody v. Albemarle Payer Co,, supra, 5 
FEP Cases at p. 616-617; Robinson v. Lorillard Cory., 
444 F.2d at p. 789; Bethlehem Steel Corporation, De­
cision of the Secretary of Labor, supra, CCH Employ­
ment Practices Guide 5128.

The Company offered very little justification for 
continuing to maintain the departmental seniority 
system and failing to red circle. The Company con­
ceded, and the Court found, that there were no for­
mal lines of progression at the plant (1458a-1459a, 
1310a, 95a). Furthermore, the charts, which the 
Company developed shortly before trial, which showed 
what the Company called “normal lines of progres­
sion” where admitted to be just guides (787a). They 
had often not been followed (1077a).

Mr. Rigassio, the plaintiffs’ expert in industrial 
and engineering management, testified that there 
were many jobs in different departments which were 
similar or identical (632a, 627a). This the Company 
conceded.36 These jobs, he stated, provided training 
and experience for other jobs in different depart­
ments (638a-639a). They also would allow employ­
ees to transfer between departments without any 
compromise of the efficiency of the operation (623a- 
624a, 625a-636a, 632a). Further, Mr. Rigassio stated 
that even the craft and craft type jobs at the plant 
were particularly suited for on the job training

36 Mr. Coupland, the Company’s Works Manager stated 
(790a):

I admit there are certain jobs in every department that 
would be the same for others.



35

(609a, 611a). While training might be required for 
craft jobs, the period required could, as discussed 
above, be considerably shortened.

This Court has recognized that departmental sen­
iority systems, even where jobs are functionally re­
lated, cannot be justified by business necessity where 
they perpetuate prior discrimination. There is al­
most always an alternative system which has a lesser 
discriminatory impact which could be implemented. 
As noted above plant seniority is such an alternative 
since under this system only a competent black em­
ployee need be promoted or transferred into a par­
ticular job and the safe and efficient operation of the 
business would not be adversely affected. U.S. v. 
Hayes International Cory., supra, 456 F.2d at 119; 
Local 189 v. U.S., supra, 416 F.2d at 990; U.S. v. 
Bethlehem Steel Corp., supra, 446 F.2d at 660.

As for red-circling, the Court below was clearly 
wrong in ruling that there was no need to grant such 
relief since the system operated the same way as to 
whites and blacks. The record shows that whites 
could transfer into craft departments shortly after 
hire. Hence the lower pay for entry jobs would not 
seriously affect them and would be more than offset 
by the chances of advancement. Since blacks were 
for years prevented from making that choice, red- 
circling is necessary to give them a fair opportunity 
to train for craft jobs. Furthermore, there is no 
showing that the Company cannot meet the expense 
of such training. It has always maintained the rate 
of some employees without experiencing any difficulty



36

in administration. For example, when employees be­
come physically disabled and are moved to easier 
and usually lower paying jobs, their rates are main­
tained (86a-87a). It, therefore, is clear that red- 
circling would not impose an unjustifiable burden 
upon the Company.

In short the relief which we suggest— standard re­
lief for discrimination under the decisions of this 
Court— is entirely feasible and should not have been 
denied on the ground of business necessity.

I l l

SINCE THE COURT BELOW CONCLUDED THAT  
THE PROMOTION TESTS HAD AN ADVERSE IM­
PACT ON BLACKS, IT ERRED AS A MATTER OF 
LAW  IN REFUSING TO AW ARD BACK PAY TO 
THE AFFECTED CLASS OF BLACK EMPLOYEES.

The Court below based its refusal to award back 
pay on the grounds that (1) the Company had demon­
strated good faith compliance with Title VII and (2) 
an award of back pay would not be necessary to en­
sure future compliance with the Act (101a).3'7 Under 37

37 In addition, the Court made several specific findings as 
to the Company’s good faith (Findings 29 and 32) and the 
“inequity” of awarding back pay. As to the latter point, the 
Court stated that back pay would penalize blacks and whites, 
who strove to improve themselves and their job performance, 
reduce the amount of profit available for profit sharing under 
the “extra compensation plan” ; exclude white employees who 
were not promoted for failing promotion tests and improperly 
include blacks who were passed over for having deficient test 
scores, where the job was ultimately awarded to a black with 
an appropriate score.



37

Title VII and the law of this Circuit these reasons 
are improper bases for denying back pay where, as 
the Court itself concluded, the illegal tests had an 
adverse impact on the employment opportunities of 
blacks.

A. Back Pay Must Be Awarded to Make the Victims 
of Discrimination Whole Unless There Are Special 
Circumstances Making Such an Award Unjust.

In U.S. v. Georgia Power Co., ------  F.2d ------ , 5
EPD 8460, 5 FEP Cases 587, at p. 598 (5th Cir. 
1973), the Court enunciated the principle that back 
pay

may not properly be viewed as a mere adjunct 
of some more basic equity. It is properly viewed 
as an integral part of the whole of relief which 
seeks not to punish the respondent but to com­
pensate the victim of discrimination.38

The purpose of back pay has been stated by the 
Seventh Circuit in Bowe v. Colgate-Palmolive Co., 
416 F.2d 711, at p. 720 (7th Cir. 1969):

The clear purpose of Title VII is to bring an 
end to the proscribed discriminatory practices 
and to make whole in a pecuniary fashion, those 
who have suffered by it. (Emphasis supplied).

One of the reasons the district court gave for re­
fusing to award back pay was the “good faith” com­
pliance of the Company with Title VII. Whatever

88 See also Moody v. Albemarle Payer C o .,------- F .2 d ---------,
5 EDP TJ 8470, 5 FEP Cases 613, 618 (4th Cir. 1973); Rosen
V. Public Service Electric & Gas C o .,------- F .2 d ---------, 5 FEP
Cases 709, 712-713; (3rd Cir. 1973); Bowe v. Colgate-Palm­
olive Co., 416 F.2d 711, 721 (7th Cir. 1969).



38

the factual basis for that determination may have 
been,39 it is an improper legal basis. In Robinson v. 
Lorillard, 444 F.2d 791 (4th Cir. 1971), the court 
dealt specifically with this contention. It stated (444 
F.2d at p. 804):

Next it is argued that back pay should not be 
awarded in the absence of a specific intent to 
discriminate. A corollary argument is that the 
award was improper in light of the unsettled 
state of the law. The principal answer to both 
points is that back pay is not a penalty imposed 
as a sanction for moral turpitude; it is compen­
sation for the tangible economic loss resulting 
from an unlawful employment practice. Under 
Title VII the plaintiff class is entitled to com­
pensation for that loss, however benevolent the 
motives for its imposition. (Emphasis supplied).

This Court in Georgia Power, supra, specifically 
approved this rationale. It declared that back pay 
relief seeks “not to punish the respondent but to 
compensate the victim of discrimination.” 5 FEP 
Cases at p. 598. The “good faith” of the respondent is 
not at issue; compensation of the Company’s black

39 It should be pointed out that as early as February, 1966, 
the EEOC made a determination that there was reasonable 
cause to believe that the Company’s tests were unlawful 
(1572a).

Additionally the Company chose to extend its entrance re­
quirements of a high school education and screen test even 
though its President thought most blacks would be screened 
out thereby (1730a).

And finally, at least at some time after the Act, the Com­
pany, having legal counsel, was aware it was subject to the 
Act.



39

employees who were economically injured by unlaw­
ful discrimination is. This the Court below failed 
to consider.

The other reason the Court gave for denying back 
pay was that such an award was not necessary to 
ensure future compliance with the Act1. Again, the 
purpose of back pay—to compensate victims of dis­
crimination—was not considered." As set forth 
above, discrimination remains at the plant; future 
compliance has not yet been achieved. More im­
portantly, in Title VII, as in labor cases, as a general 
matter, “ [a] back pay order is a reparation order 
designed to vindicate the public policy of the statute 
by making the employees whole for losses suffered 
on account of an unfair labor practice.”  40 41 Nathanson 
v. NLRB, 344 U.S. 25, 27 (1952). The necessity of 
an award is not to assure future compliance but to 
compensate for past unlawful practices.

That the Court below refused to award back pay 
in the exercise of its discretion does not show lack

40 As noted above, the Court made other findings regarding 
the propriety of an award. These, too, fail to consider the 
basic purpose of the award— to make whole the aggrieved 
employees.

The Court cited Phelps Dodge Corp. v. NLRB, 313 U.S. 177 
(1944) to support that proposition. That case, however, deals 
only with proper formulae to be used by the board in award­
ing back pay. 313 U.S. at 200.

41 The relief provisions in Title VII were modeled after a 
similar provision in the National Labor Relations Act, 29 
U.S.C.A. TI 160(c) and should be interpreted similarly. See
U.S. V. Georgia, Power Co., -------  F.2d ------- , 5 EPD If 8460,
5 FEP Cases at p. 598, n. 19.



40

of legal error. It has always been the law that dis­
cretion must be exercised with an eye to the pur­
pose of an Act under consideration. Wirtz v. B. B. 
Saxon Co., 365 F.2d 457, 463 (5th Cir. 1966); Shultz 
v. Parke, 413 F.2d 1364, 1368 (5th Cir. 1969). Re­
cently the Fourth Circuit in Moody v. Albemarle 
Paper Co., supra, 5 FEP Cases at pp. 617-618, held 
that the Court had no discretion completely to deny 
an award unless special circumstances would make an 
award unjust.42

Under the principles enunciated in these cases and 
by this Court in Georgia Power, supra, the Court 
below committed clear legal error in refusing to 
award back pay.

B. Title VII Authorizes Back Pay for Members of the 
Affected Class of Black Employees Whether or Not 
They Filed Individual Charges.

It' is established law in this Circuit that member­
ship in a Title VII class action cannot be limited to 
individuals who filed charges with the EEOC prior 
to the institution of suit. Miller v. International 
Paper Co., 408 F.2d 283, 284-285 (5th Cir. 1969); 
Oatis v. Croton Zellerbacli Corp., 398 F.2d 496, 499 
(5th Cir. 1968). While this Court has not yet' ex­
pressly held that class members who have not filed

42 As an example of special circumstances, the court re­
ferred to LeBlanc V. Southern Bell Tel. & Tel. Co., 333 F. 
Supp. 602, 610-611 (E.D. La. 1971), aff’d per curiam, 460
F.2d 1228 (5th Cir. 1972) where the employment practices 
of the Company were compelled by the state protective laws 
and the Company relied on those laws in good faith.



41

charges are entitled to relief,43 the same policy rea­
sons 44 apply to the award for back pay as to in­
junctive relief for class members. Other circuits con­
fronted with this question have so held. See, Robinson 
v. Lorillard Corp., supra, 444 F.2d at p. 801-802 and 
Bowe v. Colgate-Palmolive Co., supra, 416 F.2d at 
p. 719.

As the Court said in Bowe (416 F.2d at p. 720):

We are unable to perceive any justification for 
treating such a suit as a class action for injunc­
tive purposes, but not treat it so for purposes of 
other relief. The clear purpose of Title VII is to 
bring an end to the proscribed discriminatory 
practices and to make whole, in a pecuniary 
fashion, those who have suffered by it. To per­
mit only injunctive relief in the class action 
would frustrate the implementation of the strong 
Congressional purpose expressed in the Civil 
Rights Act of 1964.

In U.S. v. Georgia Power Co., supra, 5 FEP Cases 
at p. 596 n. 16, the Court found it unnecessary to 
reach the question of the availability of back pay for

43 This question was reserved in U.S. V. Georgia Power Co., 
supra, 5 FEP Cases at p. 596 n. 16, discussed in text infra.

44 After at least one charge is filed against a respondent 
alleging unlawful employment practices that respondent has 
notice of the complaints and an opportunity to correct the 
unlawful practices. “ [N]o procedural purpose could be served 
by requiring scores of substantially identical grievances to be 
processed through the EEOC when a single charge would be 
sufficient to effectuate both the letter and the spirit of Title 
VII.” Miller V. International Paper Co., 408 F.2d 283, at 
p. 285 (5th Cir. 1969).



42

non-named class members. That was because there 
was an Attorney General “pattern and practice” suit 
and the Court held that the Attorney General could 
sue for back pay on behalf of all discriminatees, 
named and not named, in the private suits that were 
also involved there. In Georgia Power, 5 FEP Cases 
at p. 599, the Court characterized the Attorney 
General’s action, to the extent that it constitutes “ a 
proper legal conduit for the recovery of sums due 
individual citizens rather than the treasury” , as a 
private and not a public action. Inasmuch as this 
Court has recognized the central importance of the 
private right to sue in the total scheme of Title VII 
enforcement,45 the plaintiffs in such a suit similarly 
should be able to secure back pay relief for the 
affected class. This Court should instruct the Court 
below that back pay is available to all class members 
whether or not they are named or have filed a charge.

C. Since the Company’s Unlawful Employment Prac­
tices Caused Financial Injury, Any Uncertainties 
in Awarding Damages to Members of the Affected 
Class of Black Employees Must Be Resolved 
Against the Wrongdoing Company.

At trial, the Court granted the plaintiffs’ oral mo­
tion to refer the entire matter of damages to a Spe­

45 See Jenkins V. United Gas Corp., 400 F.2d 28, 33 (5th 
Cir. 1968), where the Court described the individual filing 
suit as a “private Attorney General.”

The continued importance of the private suit was recently 
reiterated by Congress in the legislative history surrounding 
the 1972 Amendments to the Act which authorized the EEOC 
to file suit. 118 Cong. Rec. 2300 (Feb. 22, 1972).



43

cial Master, were back pay to be awarded (653a). 
Since, as we have shown, back pay should have been 
awarded it would, we suggest, be appropriate for this 
Court to instruct the Master on the proper method by 
which back pay should be awarded to the black em­
ployees in the affected class who have suffered finan­
cial harm.

Several points are clear. The charges on which 
this law suit are based wrere filed on November 22, 
1965. Under Title VII, back pay should commence 
from July 2, 1965, the effective date of the Act, in­
asmuch as the applicable Alabama statute of limita­
tions appears to be one year. See Henderson v. First 
National Bank, 344 F. Supp. 1373 (M.D. Ala. 1972). 
Moreover, since the Company maintained illegal tests 
for seven years— from 1964 until 1971— which were 
imposed on top of a discriminatory pattern of assign­
ing blacks to the lowest paying jobs in the lowest 
paying departments, all blacks who were hired be­
fore the tests ceased in March of 1971 were affected 
by the Company’s unlawful practices. Inasmuch as 
the period from 1964 to 1971 was one of major 
expansion no problems of loss of positions arise in 
this case.

In ascertaining the amount of damages the Master 
should have some guidance as to general principles. 
As is generally the case, the longer the period after 
a wrong has been committed the more difficult it is 
to establish who suffered how much. The Company’s 
years of discrimination, however, clearly have pre­
vented employees from advancing as far as their



44

talents and their merits otherwise would have carried 
them. See Miller v. International Paper Co., 408 
F.2d 283, 294 (5th Cir. 1969). The fact that it 
cannot be determined with precision where members 
of the affected class would have been in the hier­
archy of positions at the Company because of the 
unlawful discrimination does not prevent the grant­
ing of relief. With respect to this point, the Second 
Circuit recently stated in U.S. v. Bethlehem Steel 
Corp., supra, 446 F.2d at p. 660 that:

As to the other five [predominantly black] de­
partments, it is true that black employees might 
have been assigned there even under the best of 
systems. But there is no apparent way of know­
ing that, or determining now who they would be 
and appellees offer none. The discrimination 
found illegal here was to a group; group remedy 
is therefore appropriate. Cf. United States v. 
Board of Education, 372 F.2d 836, 866 (5th 
Cir. 1966), aff’d on rehearing en banc, 380 F.2d 
385, cert, denied, 389 U.S. 840, 88 S. Ct. 77, 19 
L.Ed. 2d 104 (1967).

Accord: U.S. v. Central Motor Lines, Inc., 338 F. 
Supp. 532, 560 (W.D. N.C. 1971).'“ 46

46 See, Cooper and Sobol, Seniority and Testing under Fair 
Employment Laws: A General Approach to Objective Criteria 
of Hiring and Promotion, 82 Harv. L. Rev. 1598 at pp. 1634- 
1635 (1969), where the authors noted:

And in the Quarles and Local 189 cases, no effort was 
made to determine which of the incumbent black em­
ployees, absent the segregated system, would have been 
assigned to departments that were restricted to whites; 
all incumbent blacks were eligible for relief. In a word,



45

This Court has repeatedly held that where “ an em­
ployer’s discrimination makes it impossible to deter­
mine whether a discharged employee would have 
earned back pay in the absence of discrimination, 
the uncertainty should be resolved against the em­
ployer.”  NLRB v. Miami Coca-Cola Bottling Co., 360 
F.2d 569, 572-573 (5th Cir. 1966). In NLRB v. Inter­
national Operating Eng., Local 925, 460 F.2d 589, 
599 (5th Cir. 1972), this Court recently stated with 
regard to a situation wherein an employee may have 
been promoted to a higher paying job but for dis­
crimination that:

We will never know for certain [whether the 
plaintiff, Ross, would have been promoted], but 
we think this uncertainty should be resolved 
against respondents and not against Ross . . . 
NLRB v. Miami Coca-Cola Bottling Co., 5 Cir., 
360 F.2d 569 at 572-573. See also East Texas 
Steel Casting Co., Inc., 116 NLRB 1336, 1339- 
1340 (1956), enforced NLRB v. East Texas Steel 
Casting Co., 5th Cir., 255 F.2d 284 (5th Cir. 
1968).

See also, NLRB v. Mooney Aircraft, Inc., 375 F.2d 
402, 403 (5th Cir. 1967), where the Court held that 
an employee who was discriminatorily discharged 
should be awarded back pay including that for a pro­

the courts have seen the wisdom of treating racial dis­
crimination as the class phenomenon that it is, and 
applying the remedy to the entire class, without requir­
ing detailed and often impossible case by case inquiries 
such as would threaten administrative breakdown of 
the remedial program.



46

motion which under collective bargaining seniority 
contract he would in all probability been promoted to.

This is in accord with general principles. In the 
leading case of Story Parchment Co. v. Paterson Co., 
282 U.S. 555, 565-566, 51 S.Ct. 248 (1931), the 
Supreme Court stated that:

The constant tendency of the courts is to find 
some way in which damages can be awarded 
where a wrong has been done. Difficulty of as­
certainment is no longer confused with the right 
of recovery.

Accord: Robey v. Sun Record Co., 242 F.2d 684 (5th 
Cir. 1957), cert, denied, 355 U.S. 816, 78 S.Ct. 20 
(1957); Household Goods Carriers Bureau v. Ter­
rell, 417 F.2d 47, 53 (5th Cir. 1969).

In this case, the black employees have been 
wronged. Since “ the risk of uncertainty should be 
thrown upon the wrongdoer, instead of the injured 
party,”  (Storey Parchment v. Paterson Co., supra, 
282 U.S. at p. 563; Bigelow v. R.K.O. Radio Pictures, 
321 U.S. 251, 265, 66 S.Ct. 574, 580 (1946)), the 
award should be a “ just and reasonable estimate of 
the damage based on relevant data.”  Bigelow v. 
R.K.O. Pictures, Inc., 327 U.S. 251, 275, 66 S.Ct. 
574, 580 (1946). In cases under the NLRA, this 
Court has approved the “ representative employee 
earnings formula” whereby the earnings of dis­
charged employees were taken to be the same 
as those of the employees replacing them. NLRB 
v. Charley Toppino and Sons, Inc., 358 F.2d



47

94, 97 (5th Cir. 1966). Similarly, in this case a 
formula should be used which would give the best 
estimate of back pay for the affected class. While 
the appropriate formula should be decided by the 
Master after a hearing, this Court should instruct 
the Master that such formula should be based upon 
a class of whites which would be comparable to the 
members of the affected class but for the discrimina­
tion.47 By such a formula a determination of the 
gross award can be established without prohibitive 
expense within the physical and fiscal limitations of 
the Court. See, U. S. v. Georgia Power Co., supra, 5 
FEP Cases at p. 598.48

47 Formulas of comparability have been used in Title VII 
cases and Equal Pay Act cases in circumstances similar to 
this case. U.S. V. Wood Lathers International Union, Local 
Union No. 46, 328 F. Supp. 429, 442 (S.D. N.Y. 1971) (actual 
earnings of each member in affected class compared with aver­
age earnings of union members); Evans v. Sheraton Park
H otel,------- F. Supp.-------- , 5 EPD If 8079 at 6922, 6923 (D.D.C.
1972) (actual earnings of waitress compared with average 
earnings of waiters); Hodgson v. J. M. Fields, Inc., 335 F. 
Supp. 731 (M.D. Fla. 1971) (Equal Pay Act) (actual earn­
ings of each woman compared with average earnings of men); 
see NLRB  v. Brown & Root, Inc., 311 F.2d 447, 453 (8th Cir. 
1963) (back pay computed on basis of average hours worked 
by employees not discriminated against).

48 To the extent that the Company may wish to claim that 
particular black employees are not entitled to back pay, it has 
the burden of making that showing by clear and convincing 
evidence. Cooper v. Allen, 467 F.2d 836, 840 (5th Cir. 1972). 
See NLRB  v. Biscayne Television Corporation, 337 F.2d 267 
(5th Cir. 1964).



48

CONCLUSION

For the reasons given above, the Commission re­
spectfully submits that this case be reversed and 
remanded to the district court to grant injunctive 
relief and award back pay to the affected class of 
black workers in accordance with the instructions of 
this Court.

Respectfully submitted,

W illiam A. Carey,
General Counsel,

Julia P. Cooper,
Associate General Counsel, 

Beatrice Rosenberg,
Joseph T. Eddins,

/ s /  Gerald D. Letwin 
Gerald D. Letw in ,

Attorneys,

Equal Employment Opportunity 
Commission 
1800 G Street, N W . 
W ashington, D. C. 20506

A pril 9, 1973



Ce r t if ic a t e  of Ser vice

I hereby certify that copies of the foregoing Brief 
Amicus Curiae of the Equal Employment Oppor­
tunity Commission have been mailed this day to the 
following counsel of record:

James R. Forman, Jr.
Samuel H. Burr
Thomas, Taliaferro, Burr & Murray 
1130 Bank for Savings Bldg.
Birmingham, Alabama
Oscar W. Adams, Jr.
Adams, Baker & demon 
1630 Fourth Avenue North 
Birmingham, Alabama 35203
Robert Belton
237 "West Trade Street
Charlotte, North Carolina
Jack Greenberg 
William L. Robinson 
Morris J. Bailer 
Barry L. Goldstein 
10 Columbus Circle 
Suite 2030
New York, New York 10019
Jonathan K. Harkavy 
Two Wall Street 
New York, New York

/ s /  Gerald D. Letwin 
Gerald D. Letwin

April 1973 Attorney

Equal Employment Opportunity 
Commission 
1800 G Street, N.W. 
Washington, D. C. 20506

☆  O . S . GOVERNMENT PRINTING OFFICE; 1 9 7 3  4 9 9 8 5 4  6 1 9

49