Albemarle Paper Company v. Moody Petition for Writ of Certiorari Filed October 7, 1974 and Certiorari Granted December 16, 1974
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February 13, 1975

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Brief Collection, LDF Court Filings. Albemarle Paper Company v. Moody Petition for Writ of Certiorari Filed October 7, 1974 and Certiorari Granted December 16, 1974, 1975. dc9a6461-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8751c668-5842-40b5-9252-22e6e24f9b0f/albemarle-paper-company-v-moody-petition-for-writ-of-certiorari-filed-october-7-1974-and-certiorari-granted-december-16-1974. Accessed May 13, 2025.
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ISRIKr O r 'l :A M ^LO^j^_jj- r r i? o y j .R S ■ V't r* —v > U C l j j r '~ * ] r. ? r T. * A p f • l ? ;- * * ^ Q -:• ^ .'• ^_ o t -„„ k v i t u S L i.;,» *6;.: b t c i ,-G 3 O ctober T erm . 1970 No. 74-389 A l b e r m a r u P a p e r C o m p a n y , k t a l „ Petitioners, v. JosEDi P. M oody, e t ai.., Respondents. Oa u m C l- CERl i o r a r i t o THE UNITED S T iTFS C'OUTT O f APPEALS FOR THE FOURTH CIRCUIT rilTiTiON FOk n u n O! CERTIOR \ju n r ri) f i r m i r p - CERTIORARI GRANTED DECEMMER 1974 * 19/4 I 'rancis V. Lowden, ]a. T hom a s j . M anley A bram W. Vandf.rM eer , Jr . H u n t o .v . V teeia m s. G ay & G ibson 700 East Main Street Richmond, Virginia 23219 J ulian R. A llserook , J r . .allser o o k . Re n to n . K.nott . Allsbrook & C ranford P. O. Box 100 200 Becker Drive Roanoke Rapids. North Caioiina G ordon G. B u s d ic k e r F aegre & B e n s o n 1300 Northwestern Bank Hleio. -Minneapolis, Minnesota 55402 C h a r l e s O ’C o n n e u P. O. Box 3260 St. Paul. Minnesota 55365 C h a r les F . B la n c h a r d B la n c h a r d , T u c k e r . T w ig g s . oC D i.NsON P. O Bom Drawer 30 Raleigh. N'ortn CanC.na 27602 l * INDEX Page. I. O p in io n s B e l o w ................. .......... .................. ................................ ........ ] II. J u r is d ic t io n ............................. ........................................................ .......... \ III. St a t u t e s A n d R e g u l a t io n s I n v o l v e d .............. ............... ........... ] IV . Q u e s t io n s P r e s e n t e d F or R e v i e w ________________ ____ .... 3 V . St a t e m e n t O f T h e C a s e .................. ....... .......................................... 4 VI. S u m m a r y O f A r g u m e n t _____________ _____ _______________ 23 VII. A r g u m e n t A. The District Court Correctly Refused To Enjoin The Use Of Albemarle’s Testing Procedures._____________27 1. Introduction__________________________________ 27 2. The Evidence In Tills Case Sliows Albemarle’s Tests Were Not Discriminatory._____________________ 28 3. Albemarle Demonstrated Its Tests To Be A Reason able Measure Of Job Performance.________________32 (a) Defendants’ Tests Were Found To Be Job Related By The District Court.________________________32 (b) The Findings Of The District Court Have Not Been Shown To Be Erroneous._______________34 (i) Job Analysis______ ___________________36 (51) Supervisors’ R atings_______________ ,__ 39 (in) Business Necessity'______________ ;______ 43 B. In Any Event The.Court Of Appeals Erred In Not Remanding The Issue To The District Court.________47 i Page C. The District Court Had Traditional Equitable Discretion To Determine Whether Back Pay Was An Appropriate Remedy.................................. .................................... 59 1. Title VII Leaves I he Award Or Denial Of Back Pay To The General Equitable Discretion Of The Dis trict Courts..................................................................... 50 2. The Discretion Of A District Court Regarding The Back Pay Remedy Should Be Guided By Traditional Equitable Principles......................................................... 55 3. Even Under A “Special Circumstances” Standard, The District Court Was Justified In Denying Back Pay..... 61 D. Back Pay Should Not Be Awarded To Class Members W ho Did i\ot Pile Charges With The Equal Employment Opportunity Commission.................. ............. .....................' g] VIII. C o n c l u s io n ........;............................................................................. _ 57 1. Affirm The District Court.............................................._ 57 2. Reverse The Court Of Appeals And Remand To The District Court For Further Proceedings........................ 67 TABLE OF c i t a t i o n s Cases' : .. _. Page Austin v. Reynolds Metals Co.. 327 F.Supp. 1145 (E.D. Va. 1970) 64 Barlow v. Collins, 397 U.S. 159 (1970) 35 Baxter v. Savannah Sugar Refining Corp., 495 F.2d 436 (5'th. Cir. " 1974), cert,denied, ...... UjS. Z : , « tJiSX.Wl 3306- (U.S., Nov. 26, 1974) 57 Boston Chapter, NAACP v. Beecher, 504 F.2d 1017 (1st Cir. 1974) 37 Rowe v. Colgate Palmolive Co., 416 F.2d 711 (7th Cir. i969) ..54, 62 Bridgeport Guardians, Inc. v. Civil 'Sen-Ice Commission, 482 F.2d 1333 (2nd Cir. 1973) .................................................•'....... 23> 24> 28 Carter v. Gallagher, 452 F.'2d '315 (8th Cir.), cert, denied, 406 u .s . 950 (1972) -28 Castro v. Beecher, 459 F.‘2d 725 (lst'Cir. 1972) 34 Chance v. Board of Examiners, 330 F.Supp. 2C3 (S.D. N.Y. 1971) .. 31 Commissioner v. Duberstein, 363 U.S. 278 (1960) .......... -.............. 50 Cojc Vf United States Gypsum, 284 F.Supp. 74 (N.D. Irid. 1968),_ afl’d., 409 F~2d 289 (7 th^ ir.'i969) Curtis v. Loether, 415 U.S. 189 (1974) ....................................... 26, 53 ^Dent v. St. Louis & S .F . Ry. Co.,^406 F!2d 399 (Sth^'Cir. 1969) ":../ 65 Duhon v. Goodyear Tire & Rubber Co., 494 K2d 81/ (5th Cir. ̂ 1974) ---- 51 England v. Louisiana Medical Examiners,' 375 "U.S. 411 (1964) b z 2 5 / 4 8 Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) ....24, 36 Fishgold v. Sullivan Dry dock and 'Repair Corp., 328 U.S. 275^ (1973) ^ IZ ^ Z Z Z Z Z ^ Z Z Z X X X X :::: :: :: :: : ::^ :: :: :: : ;: :: : . .: 35 m Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), cert, denied, ..... U.S........ , 43 U.S.L.W. 3330 (U.S. Dec. 10, 1974) ............... ................................................................ 62 Griffin v. Pacific Maritime Ass’n., 478 F.2d 1118 (9th Cir.), cert, denied, 414 U.S. 859 (1973) .......................................................... 65 Griggs v. Duke Power Co., 410 U.S. 424 (1971) ....18, 23, 27, 31, 32, 33, 34, 35, 53, 57 • Guardians Ass’n v. Civil Service Commission, 490 F.2d 400 (2nd Cir. 1973) ....................................................................................... 34 Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187 (D. Md.), modified sub noin. Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973) .......................................................... 31 Head v. Timken Roller Bearing Co., 486 F.2d S70 (6th Cir. 1973) 51, 53, 57, 62 Hecht Co. v. Bowles, 321 U.S. 321 (1944) ..................................... 53 Hester v. Southern Railway Co., 497 F.2d 1374 (5th Cir. 1974) 23, 28 Johnson v. Georgia Highway Express, 417 P’.2d 1122 (5th Cir. 1969) ..._................................................... 56 Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974) ..!......................................................................... ..... 57, 62 Kirkland v. Department of Correctional Services, 374 F.Supp. 1361 (S.D. N.Y. 1974) .............. :.................................................... 40 Kober v. Westinghouse Electric Co., 480 F.2d 240 (3rd Cir. 1973) 26, 54, 56, 61 LeBIanc v. Southern Bell Telephone and Telegraph Co., 460 F.2d 1228 (5th Cir.), cert, denied, 409 U.S. 990 (1972) ........... 54, 56 Manning v. General Motors Corp., 466 F.2d 812 (6th Cir. 1972) 54 Mayor v. Educational Equality League, 415 U.S. 605 (1974) ....23, 31 Page McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 23, 24, 25, 26, 28, 43, 48, 65 Newman v. Piggy Park Enterprises, Inc., 390 U.S. 400 (1968)..54, 63 NLRB v. Boeing Co., 412 U.S. 67 (1973) ............................... ....... 35 Norman v. Missouri Pac. Ry. Co., 497 F.2d 596 (8th Cir. 1974), cert, denied,.... U.S..... , 43 U.S.L.W. 3433 (U.S. Jan. 28, 1975) 56 Parmer v. National Cash. Register Co.. 503 F.2d 275 (6th Cir 1975) ..................................................., ...._...._................ 43 Pennsylvania v. Glickman, 370 F.Supp. 724 (W.D. Pa. 1974) .... 41 Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) ................................................ ................... ;..............51, 52, 57 Phelps Dodge v. NLRB, 313 U.S. 177 (1941) ................................. 52 Porter v. Warner Holding Co., 328 U.S. 395 (1946) ............ ......... 60 Quarles v. Phiiip Morris, 279 F.Supp. 505 (E.D. Va. 1968) __ 14, 15 Rental Development Corp. of America v. Laver)', 304 F.2d 839 9th Cir. 1962) ............ _......................... ....................................26, 59 Richardson v. Miller, 446 F.2d 1247 (3rd Cir. 1971) ............ ..... ,. 65 Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.), petition for cert, dismissed 404 U.S. 1006 (1971) .... ................................ 59 ̂ 61 Robinson v. Lorillard Corp'., 319 F.Supp. 853 (M.D. N.C. 1970).. 18 Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972) ___ 40 Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972) ...— ......... ................. ............................... .......................54, 56 Shultz v. Mistletoe Express Service, Inc., 434 F.2d 1267 (10th Cir. . Snyder v. Harris, 394 U.S. 332 (1969) ........ .......................27, 62, 66 Sperberg v. Firestone Tire & Rubber Co., 61 F.R.D. 70 (N.D. Ohio 1973) ................................ .................... ...........................27, 66 v Page Ste,;b- V- Nati0n'vide Mutual Ins- Co-> 382 F-2d 267 (4th Cir 1967), cert, denied, 390 U.S. 910 (1968) ................ ‘ g5 SteA k 01972)Internati0nal ^ C°” 352 F‘SuPP- 238 (S.D. ‘ .................... ....... ................... - ................................. 38 Untied States v. Dillon Supply Co., 429 F.2d 800 (4th Cir. 1970) .. 56 United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973) 24, 25, 26, 28, 31, 34, 48, 55 United States v. Local 189, Papermakers Union, 301 F.Sttpp. 906 S u . s l l ^ . t o , 6 K‘2d 980 (5th CIr- ,969)- ' .................................... —....................... 15 United States v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973) 53, 57, 60 United States v. St. Louis & S.F. Ry. Co., 464 F.2d 301 (8th Cir U72), cert, denied, 409 U.S. 1107............ ........ gg ^ • United States v. United States Gypsum Co., 333 U.S. 364 (1948).. 43 VUChn 1973? V‘ CiVi' SerVke Comir‘ission> 433 U2d 387 (2d ' .......................... ................................................ 24, 35, 37 Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th Cir. 1974) 57 Wai ? nS,Vo i COtt PapSr C°->..... R 2 d ..... 6 FEP Cases 511 (S D ' ...... ...................................... - ............... - ...........33, 39 '^1973? °f K'nS °f 358 F-Supp- 684 (ED- Pa- ............... ....... ....................................... ~......- ........ 27, 66 Western Addmon^Community Organization v. Alioto, 340 F.Supp. ' ------------------------------------ -------------- 40 W°c S V1973)th AmCriCan Rockwe11 CorP-> 480 F.2d 64-1 (10th ........... ............. ................................................. 23, 28 ' ' ’T f o th a r .T s S ? C°' V' P°°' Co,,s,""=do" C»-. 314 r.2d 405 . ................. ................................ 50 Zahn v. International Paper Co., 414 U.S. 291 (1973) ....26, 62, 66 VI Statutes and Regulations Page 29 U.S.C. § 160(c) ............ ....................................... .......................... 52 42 U.S.C. § 2000a................................................................................ 51 42 U.S.C. § 2000a-1 (a) ..._........... ........... .....................................5]) 55 42 U.S.C. § 2000a-2...................................................................... 51 42 U.S.C. § 2000a-3(b) .................. ........ ....................... ' ____ 55 42 U.S.C. § 2000e-3(a) .......... ................. .......................................... 51 42 U.S.C. § 2000e-5(a) ........................ ......................... .............. g3 42 U.S.C. § 2000e-5(g) ............ ................. ...............................25, 51, 55 42 U.S.C. § 2000e-5(k) .......... ................. .................... _ _ 5g Fed. R. Civ. P. 23, 54(c), 8 2 ............ ...............:.... ................J7j 27, 58 Equal Employment Opportunity Commission, “Guidelines on Em ployment lesting Procedures,” 29 C.F.R § 1607 1 et sea 197°) ........................ - ......... -----............................... :..... 34, 35; 40 Other Authorities Ainsworth, Paper, The Fifth Wonder (2d Ed. 1959) _________ ___ 4 American Psychological Ass’n., Inc., Standards for Educational and Psychological Tests and Manuals (1966) ........................ 34 37 Barrett, Gray Areas in Black and White Testing, 46 Harv Bus Rev. 92 (1968) ......... .................... ........................ ;_____ ‘ ' 3Q BNA, Daily Labor Report No. 8 (Jan. 13, 1975) .............. ............ 36 Boehm,'A'egro-White Differences in Validity of Employment and rrammg Selection Procedures, Summary of Research Evidence, 55 Journal of Applied Psychology, 33 (1972) ____ ___ ____ ’ 45 Cooper and Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring & Promotion, 82 Harv. L. Rev. 1598 (1969) ........ .... .............. 40 111 Cong. Rec. 12819 (1964) .............. ......... ........... ^ vii 4 Page E. F. Wonderlic and Assoc., Inc., Negro Norms, A Study of 38,452 Job Applicants for Affirmative Action Programs (1972) ......... 30 Equal Employment Opportunity Commission, “Guidelines on Em ployment Testing Procedures,” BNA Daily Labor Report No. 174 (Sept. 7, 1966) ....... ,.........................................................16, 35 Gael & Grant, Employment Test Validation for Minority and Non- minority - Telephone Company Service Representatives, 56 Journal of Applied Psychology 135 (1972) ........................ ...... 41 H.R. Rep. No. 914, 88th Cong. 1st Sess. (1963) ........................ .... 53 Schmidt, Berner & Hunter, Racial Differences in Validity of Em ployment Tests: Reality or Illusion, 58 Journal of Applied Psychology 5 (1973) ................................................................. 41 L’III I. OPINIONS BELOW The opinion of the United States Court of Appeals for the Fourth Circuit is reported at 474 F.2d 134 (4th Cir 1973). The decision and order of the United States District Court for the Eastern District of North Carolina is reported in ..... F.Supp ... 4 FEP Cases 561 (E.D.N.C. 1971), and earlier rulings by that Court on various motions are reported at 271 F.Supp. 27, i FEP Cases 234 (1967); 2 FEP Cases 1002, 1081 (1970). II. JURISDICTION The judgment of the Court of Appeals for the Fourth Circuit was entered on February 20, 1973. A timely petition for rehearing en banc was granted on June 25, 1973. After briefing to oral argument before the en banc court, a ques tion of appellate procedure was certified to This Court by the Court of Appeals on December 6, 1973. The opinion of This Court on the question certified was delivered on June 17, 1974. Pursuant thereto, the Court of Appeals, on July 22, 1974, vacated its earlier order granting the petition for rehearing en banc and denied Petitioner’s petition for re hearing. A petition for a writ of certiorari to the Court of Appeals for the Fourth Circuit was filed on October 7, 1974 and was granted on December 16, 1974. This Court’s jurisdiction is invoked under 28 U S C §1254(1). III. STATUTES AND REGULATIONS INVOLVED A. Section 703(h) of the Civil Rights Act of 1964, P. L 88-352, 78 Stat. 255, 42 U.S.C. §2000e-2(h): 2 Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employ ment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in dif ferent locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its ad ministration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an un lawful employment practice under this title for any employer to differentiate upon the basis of sex in deter mining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 6(d) of the Fair Labor Standards Act of 1938 as amended (29 U.S.C. 206(d) ).” B. Section 706(g) of the Civil Rights Act of 1964 P L 88-352, 78 Stat. 255, 42 U.S.C. §2000e-5(g): If the couit finds that the respondent has intentionally enSagecl >n or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in'such unlawful employment practice, and order suchaffinna- tive action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, re sponsible foi the unlawful employment practice) In terim earnings oi amounts eamable with reasonable diligence by the person or persons discriminated against 3 shall operate to reduce the back pay otherwise allow able.” * * * C. Rule 23, Federal Rules of Civil Procedure. D. The “Guidelines on Employment Selection Proced ures” 35 F.R. 12,333 (August 1, 1970); 29 CFR §§1607.1- 1607.14. This has been reprinted in the Single Appendix hereto at pages 305-320. IV. QUESTIONS PRESENTED FOR REVIEW A. Whether the District Court’s refusal to enjoin Albe marle’s use of employment tests was error as a matter of law. B. Whether the Court of Appeals usurped the powers and function of the District Court by failing to remand the issues on testing. C. Whether the District Court had traditional equitable discretion to determine whether back pay was an ap propriate remedy. D. Whether a class action for back pay under Rule 23 of the Federal Rules of Civil Procedure is inherently in consistent with the Congressional intent behind the re medial provisions of Title VII, particularly as to class members who have not filed a charge with the Equal Employment Opportunity Commission. -a'-* «-• am,I 1,1, V . STATEMENT OF THE CASE This is an action brought on August 25, 1956 bv four black employees' of Petitioner's Roanoke Rap ds No-.I v i? o tb T c -T ? r a/ a private d “ ^t" e ^ v'd ivjghts Act of 1964. ( \ 6 )2 tiom 'm tQ O 7 " T mi" , a t ROan°k t ^ P M s began opera- operations, papermaking canv thE’ Albemarle Paper Manufacturing Com L a ^ W,he , t h 3 iqUireu ‘he mUI- * * * * * l° " x x ta n iw and - echnologically sophisticated machinery And equipment necessary to bring the mill to its present i 000 •on per day capacity and to make the mill efficiru, V H t - i m a m -P T ’ ^ Lxhiblt **o. 36A, pp. 68-69) Dlrx°f V T ke Rapids mil1 is a Ktodem, highly com- P ci ity, employing approximately 650 people which operates continuously, 24 hours a dav 7 A ? P ’ , days a year. }’ 7 days a week> 3G2 A pulp and paper mill may be simply described3 a complex,aclity in which raw m a te ria l U " ,(A ........»reterence, to the record are to a d e ^ i f f i S f & £ & c t d Ainsworth, pjper, The 9 J ° i v '7 derives from Judge observed the p m c 2 as !t L S Z ? e S t r i c t during Ins view of the facility Defendant’̂ RaPids Mill Plaintiffs Exhibit No. 34A, ppy321?367 E* nblt N a 19- See also 5 chemicals and water arc combined in a cooking: or digesting operation to separate wood fiber to be made into paper from the lignin and other materials found in the raw wood, the separated fiber in the form of pulp being delivered to complex, intricate paper milling machines and the residue lignin, chemicals, water and waste being recycled through massive recovery furnaces, precipitation and filtration equipment to recover the chemicals and to prevent air and water pollution. Like ncarlyr all paper mills, the Roanoke Rapids mill is organized into functionally distinct departments. In order to provide on-the-job training for functionally related jobs and to overcome the lack of an adequate specialized labor market in the locality', each of the departments is organized into functionally related lines of progression through which employees can move into more demanding jobs as vacancies occur, on the basis of seniority', ability and experience. En try' into a line of progression is generally' from the Extra Board, a reservoir of employees available as needed to staff entry level jobs in the various lines of progression. (A 88- 89, 104) Each of the functionally distinct departments contri butes to the central purposes of paper-making. The Wood- yard Department gathers and prepares the wood for fur ther processing/ 4 The wood is delivered (by both railroad and truck) in the form of Chips, sawdust and logs. The Chip Unloader registers chips and sawdust receipts, records the condition of the particular shipment, operates a screen to take foreign matters out of the chips or sawdust, and then operates conveyor equipment to distribute the screened' material. Logs are unloaded by the Large Crane Operator and then are un loaded by the Long Log Stacker Operator. Next the logs are debarked and converted into chips by means of a conveyor system, debarking drums, and Chippers (Nos. 1 and 2). The Chain Operator controls the conveyor from the woodpile dirough the debarking drum. The Chipper 6 At the time of the trial in this case, the Woodyard De partment was organized into a line of progression for seniority and promotion, training and flexibility of the workforce as follows (A. 109): UuIlcJozcr Operator t___ WOOD YARD DEPARTMENT Crane Operator (American) t Crane Operator (Large) t Long Log Operator T Log Stacker Operator T Small Equipment Operator A Oiler T Chip Unloader Clapper Operator No. 2 T Chain Operator T Chipper Operator No. 1 o- TTractor Operator « . t Chip Bin Operator ' f Laborer (Start) — '■ ‘ S Auxiliary functions in the Woodvard are performed hr rvi who services the equipment in the Woodvardmhe Buhdozer Operator' 7 The Pulp Mill Department is concerned with the con version of wood chips into pulp,5 through a cooking opera tion in a chemical solution under high temperature and pressure to separate the wood fibers for subsequent con version into paper, with the residues in the cooking solu tions being sent to a recovery operation so that the very ex pensive chemicals can be reclaimed for subsequent recy cling.6 At the time of trial in this case, the Pulp Mill Depart ment was organized into lines of progression for seniority and promotion, training and flexibility of the workforce as follows (A. 109): 5 Soft wood is basically 50% cellulose, 30% lignin and 20% car bohydrates, etc. The cellulose is composed of innumerable fibers, finer than a human hair and 2 to 4 millimeters in length. The fibers are held together by the lignin. The pulp process separates the fibers by dissolving the lignin binder in chemical solutions, which in proper concentration does not seriously attack the fibers. The sodium chemicals used in the process are reclaimed and reused. While the basic process is simple, its accomplishment on a scale required by a modem paper mill is technologically complex. c The cooking process is the responsibility of the Digester Operator, who directs the charging of the cookers with the proper mix of pine, hardwood chips, sawdust and chemical solutions and controls the temperature and pressures at which this operation must be carried out. Following the cooking process, the cellulose fibers are washed clean and the clean fibers are then put in storage tanks for use on the paper machines. The washing operation is the responsibility of the Stock Room Operator with the assistance of the Stock Room 1st Helper and 2nd Flelper. The C. E. Recovery' Operator, with the assistance of the 1st Helper No. 6, Evaporator Operator, 1st Helper No. 5, 2nd Helper, and Utility- Helper, is responsible for the intricate process of operating the recovery- boiler for purposes of reclaiming the chemicals used in the cooking process. In that connection, the Caustic Operator, with the help of the Lime Kiln Operator, is responsible for reclaiming lime for use in the cookers. - — Digester Operator [Cooker) t Stock Room Operator T Stock Room 1st Helper Stock Room 2nd Helper A PULP MILL DEPARTMENT C. E. Recover)' O perator Caustic O perator ! f 1st H elper No. 6 Lime Kiln O perator ‘‘'E vaporator O perator t 1st H elper No. 5---------------------- T 2nd H elper t U tility H elper By Products O perator _ t hen Used , tLead loader-Blower T Loader (S tart) 1 he B Paper Mil]7 is concerned with the conversion of pulp into paper.s At the time of trial in this case, the B 7 At the time of trial, the mill also had an “A Paper Mill” which served the same functions as the B Paper Mill on a much smaller p ile with less intricate machinery. The A Paper Mill is no longer in operation. ° ® From the Storage tanks at the end of the pulp operation, the pulp goes to the Stock Room (Seater Room in old mills), where it goes through refiners which cut the fibers into the desired lengths and reject that part of the pulp not usable. After passing through the Stock Room, where the pulp is refined and subjected to chemical analysis by the Stock Room Operator helped b>,,the, St?ck Room ls* and 2nd Helpers, the pulp is introduced into a l ordrmier paper machine. The pulp is there distributed in a thin layer onto a moving wire screen and then moves continuously through a series of presses and steam-heated driers which remove water, con- tro] t.nckness and convert the pulp into a continuous sheet of paper, ihis intricate process must be under the constant control of the won; force, who must make the proper adjustments in speed of flow pressure, temperature, and other factors in order to keep the paper of acceptable weight, moisture content and configuration As the paper sheet leaves the paper machine, it is wound onto a reel. The 9 Paper Mill was organized into lines of progression for sen iority and promotion, training and flexibility of the work force as follows (A. 109): B PAPER MILL DEPARTMENT PA PER M A C H IN E ST O C K R O O M Line of Progression Line of Progression M achine T ender Stock Room O perator t T Back T ender Stock Room 1st Helper t t T hird H and Stock Room 2nd Helper T Fourtli H and t l i f th H and t Sixth H and o tSeventh H and t Sparc H and No. 4 (S tart) In 1965, the Mill began operation of a technologically complex modern Power Plant Department to generate and distribute electric energy to the mill and steam to the Pulp Mill and Paper Mills in an amount necessary to supply the needs of a small city. (Plaintiffs’ Exhibit No. 4-9, p. 139). This separate highly automated and controlled department is organized into a line of progression as follows (A. 109): POWER PLANT DEPARTMENT Power Plant Operator t 1st Helper t 2nd Helper (S tart) paper machine operates continuously. As one reel of paper is filled and removed, a new reel begins to wind without an interruption in die process. The reel is then transferred to a winder, where the paper is cut and sized. 10 The Technical Service Department is really the quality control department of the mill, controlling the quality of the raw materials used and of the products produced throughout the entire 24-hour-a-day operation. The quality control employees must have a working knowledge of phy sics and chemistry, although a college degree is not re quired. The department is organized into lines of progres sion as follows (A. 109): TECHNICAL SERVICE M IL L L A B O R A TO R Y B Mill Shift Testman General L ab Testm ant Additive M an T General Lab Assistant t A A Mill I estrnan T i ' Sam rlcm an *T . Trainee There are also several additional support-function de partments at the mill.9 With modernization of the mill in the early 1950’s10 9 T1^ Boiler Room Department operates small package boilers for pp'Ts” 365)” * The Service Department services the whole mill with general labor services, fPlaintiffs Exhibit No. 34A, pp. 330-331). There is also a Shipping Crew m the B Mill which weighs and bands the rolls of paper at the loading docks and places them in either freight can or 341-344)r0ad S °r Shipment- (Plaintiffs’ Exhibit No 34A, pp. ThP r ^ ‘ ' n time! Certain, mi11 factions have been discontinued he hamvT Department, which prepared surplus pulp for sale to othei mills, was discontinued in 1969. ''A 245) The Prnrh,ot n T ? " IS l!,FiniSlr S Cre"' « * d -o m in u e d k ? ^ 7 1 2« r Si I r Cr ,Q ^ shut oown in August of 1971, restarted in part (one machine) m 19/2, and shut down entirely again in 1974, 1 11 Albemarle found itself in need of a significantly greater number of skilled employees. (A. 346) The Company did not have such employees in its employ and there was no supply of skilled and experienced paperworkers in the local labor market. (A. 347-348) In an effort to develop and tiain its own pool of employees who could, with training, progress to higher skilled jobs in the lines of progression, Albemarle began to require that applicants for its skilled lines of progression have a high school education. (Plaintiffs’ Exhibit No. 31, p. 219) When Albemarle found that the high school education requirement by itself was not an ade quate predictor of job success, its Personnel Manager was directed to develop a better procedure for the selection of employees for successful progression in the skilled lines of progression. (A. 329, 339) The Personnel Manager, who was professionally trained in industrial psychology, selected the Revised Beta Examination (Beta)" and the Bennett Mechanical Aptitude Test (Bennett).12 In order to verify that the tests werc.,_a useful prcdirinr of joh .,n. dertook a “concurrent validation study” by comparing of the test results of a sampling of employees in the skilled lines of progression with supervisory ratings of the em ployees. (A. 99) 330) He determined that the Beta correlated positively with job performance (A. 3301 and its use at the mill continued. (A. 99)13 In 1963, as part of the continuing effort to improve the quality of its workforce, Petitioner , ” .A Professionally developed non-verbal test designed to measure the intelligence of illiterate and non-English speaking persons. skilTsA pr0feSS‘0nall>' deveIoped test for mechanical ability and verbal 13 Petitioner found that the Bennett test did not validate for its operations and use of this test was discontinued sometime in 1963 or be,ore. 1 here is no evidence that any employee or potential employee was disqualified by reason of his score on Bennett. 12 added the Wonderlic Test Forms A and B34 (A 9C?n n ^ « P < U £ M education os ifs ^ ^ off score of 100 nn the p • j r f d f achleve a cut- either the Wonderlic A ?**?, Examination and 18 on 100) CSt °r the W°nderlic B test. (A. 99, c * t ™ T Z l « L : T A">emar,C had the edu- employees’ ^ j ° bs it. fo? ^ changes in tn ill opera tion" , ™ gT o f c e rta ,t r - t r c s S iF ,-W A r a S r ?en try in to a to ta l o lfifteen i™ f ° r to “ “^%^XssiK3.ta: » A professionally developed test of mental ability and reading skills. gression; Pulp Mill Grew line of pro- Operator and Caustic Operator l £ S C' E’ Rccover>' Department Paper Machine and Beater ^ Paper Ml11 * B laper Mill Department— Paper M a c h in e !? ° Progression ; progression; Product Department—FfnUh r ‘St°,ck Rooin lines of tor, finishing Crew Siieeter Operator and^ e, few.'Rev^ ncJer Opera- progression; Power Plant Department—Pm ShlPpinff ^ rew lines of of progression; Technical Sendee Deoartm! ^ iTJu?* ° perator line lines of progression; and Boiler Room^Denan ^ ,aild laboratory line of progression. ' K°°m Department—Boiler Operator 13 certain changes in the lines of progression at the mill and, as a result, Albemarle was able to reduce the test coverage to applicants for entry into a total of twelve lines of progres sion situated in six departments.16 Thereafter, further auto mation and curtailment of certain mill operations occurred (A. 90, 231-232) and by the time of trial in 1971, applicants for entry into a total of only eight lines of progression, situ ated in four departments, were required to fulfill the testing requirements.17 Prior to the passage of the Civil Rights Act of 3 964, there were predominantly white skilled lines of progression and predominantly black unskilled lines of progression. (A. 89) The skilled lines of progression led generally to the higher paying jobs in the mill. (Plaintiffs’ Exhibit Nos. 12-15, Ap pendices A) The unskilled jobs, however, are among the highest paying jobs in the Roanoke Rapids area—jobs which paid on the average more than those of policemen, schoolteachers, and most other jobs in the area. (Defendant Albemarle’s Exhibit Nos. 11-17). At the time of passage of the Civil Rights Act of 1964, there were two Extra Boards, one feeding the skilled lines of progression and another feeding the unskilled lines of pro- 16 These were: Pulp Mill Department—Digester Operator, C. E. Recover)' Operator and Caustic Operator lines of progression; B Paper Mill—Paper Machine and Stock Room lines of progression; Product Department (B Paper Mill)—Rewinder Operator, Sheeter Operator, and Shipping Crew lines of progression; Technical Sendee Depart ment—Mill and Laboratory lines of progression; A Paper Mill Depart ment—Paper Machine line of progression; and Power Plant Depart ment—Power Plant Operator line of progression. 17 These were: Pulp Mill Department—Digester Operator, C. E. Recovery' Operator and Caustic Operator lines of progression; B Paper Mill Department—Paper Machine and Stock Room lines' of progression; Power Plant Department—Power Plant Operator line of progression; and Technical Service Department—Mill and Labora tory lines of progression. 1 di gression. Employees were placed on the respective Extra Boards either as new employees or by election to take Extra Board work rather than lay-off in cases of reduction in force. (A. 104) Prior to 1965, the Extra board for the skilled lines of progression was predominantly white, that for the unskilled lines was predominantly black. (A. 104) With the passage of Title VII on July 2, 1964, to be effective July 2, 1965, Petitioner undertook a series of steps to insure that its employment practices would be in compli ance with the law. Commencing in 1964, Petitioner began an affirmative recruiting program to obtain black graduates from high schools for its apprentice maintenance program and for its other skilled lines of progression. (Plaintiffs’ Ex hibit No. 32, pp. 531-533) While blacks had not been bar red from taking the employment tests, after passage of Title VII, Albemarle affirmatively sought to have all of its black employees who had a high school education take the tests so as to make them eligible for transfer into skilled lines of progression. (A. 105) Thereafter, in 1965, Petitioner waived the educational requirement as to all incumbent employees and again sought to have all black employees take the tests. (A. 105) In conjunction with the union, Petitioner in 1968, organized and funded a school at which its employees could acquire the verbal skills necessary to perform jobs in the skilled line of progression. (R. 1181-1186). As the law developed under Title VII it became appar ent that seniority systems or other work conditions which were racially neutral but which had the effect of perpetuat ing past discrimination could be found violative of the Act.18 In light of the judicial interpretations of the Act, Peti- 18 In Quarles v. Philip Morris, 279 F.Supp. 505, 516 (E.D. Va. 1968), tlie Court found “it is also apparent that Congress did not intend to freeze an entire generation of Negro employees into dis- 15 tioner, at the first opportunity, took further affirmative measures to ensure equal opportunities. In. 1968,..the two Extra Boards were merged into a single board. (A. 245-246) Employees who had formerly been in unskilled lines of pro gression were given temporary assignments to skilled lines even though such employees did not meet test and educa- tional requirements, if it reasonably appeared from past experience that the employees might be able to do some of the lower Jobs in the skilled lines of progression. (A. 246) The collective bargaining agreement at the Roanoke Rapids mill which ran for the term September 18, 1965 through September 15, 1968, provided a system of “job seniority” in a line of progression for advancement. (A. 286- 290) There was a provision for transfers from one line of progression to another and from one department to another, but there was no seniority . iglit to transfer and the transferee did not carry either his rate of pav of his seniority with him. It thus appeared to the Company' that under the developing law the seniority provisions of the collective bargaining agreement at Roanoke Rapids “tended to perpetuate past discrimination as had the seniority’ provisions involved in Quarles and Crown-Zellerbach. Therefore, in 1968, in the first contract negotiations fol lowing the Quarles and Crown-Zellerbach decisions, the criminatory patterns that existed before the act,” and held a seniority system which tends to perpetuate past discrimination is not bona fide under Section 703(h) of Title VII. On March 26, 1968, the United States District Court for the Eastern District of Louisiana, in the case of United States v. Local 1S9, Papermakcrs Union (Croivn-Zellcrbach), 301 F.Supp. 906 (E.D. La) 1969) aff’d., 416 F.2d 980 (5th Cir.), cert, denied, 397 U.S. 919 (1970) entered a temporary injunction ordering the Crown-Zellerbach Corporation to abolish the “job seniority” system at its paper mill in Bogalusa, Louisiana, and to replace it with a “mill seniority” system with transfer provisions including carrying seniority to a new job with red-circling of rates. 16 Company and the Unions negotiated a contract clause to provide for transfers on the basis of “mill seniority,” 19 for the carrying, of “mill seniority” with the transferee for pur poses of advancement and for the “red-circling” of the trans feree's rate of pay (i.e., if an employee transferred to a lower paying job, he would be paid his old rate of pay until his late m the new line of progression caught up to Iris old rate). (A. 98) This collective bargaining agreement was for a term beginning September 23, 1968. The relevant seniority- provisions were sections 10.2.2 and 50.2.3. (A. 292-293) In May, 1966, charges were filed with the Equal Employ ment Opportunity Commission by Joe P. Moody, Theodore Daniels, Henry Hill and Arthur Mitchell, alleging discrimi nation because of their race. (A. 273-282) These charges were served on defendants on August 11, 1966, and the EEOC investigator gave defendant, Albe marle Paper Manufacturing Company, fifteen days, i.e., until August 26, 1966, to answer. However, before the Company could respond, on August 24, 1966 the first EEOC Guide lines on Employment Testing Procedures20 were published and on August 25, 1966 the complaint in this case was filed m the United States District Court for the Eastern District of North Carolina. (A. 6-10) The Complaint simply alleged in very general terms discrimination on account of race against Plaintiffs in violation of Title VII. The prayer was for injunctive and other equitable relief on behalf of Plain tiffs and the class they claimed to represent. (A. 10) By mo tion for summary judgment, Albemarle immediately raised the question whether Plaintiffs could bring a class action 19 While the contract did not, sirictly speaking, provide for mill S(T°2r33y-234)e SyStCm nCS°tlated was tantamount to mill seniority. ” BNA> DaiIy Labor Report No. 174 (Sept. 7, 1966). 17 under Rule 2 3 . (See Motion for Summary Judgment filed October 5, 1966.) In their brief in opposition to that motion, Plaintiffs maintained the position : “It is important to understand the exact nature of the class relief being sought by Plaintiffs. No money dam ages are sought, for any member of the class not before the Court, nor is specific relief sought for any member of the class not before the Court. The only relief sought for the class as a whole is that defendants be enjoined from treating the class as a separate group and dis criminating against the class as a whole in the future.” (A. 13-14) (Emphasisadded). The District Judge, John D. Larkins, Jr., overruled the motion for summary judgment, but in the same order granted a motion to dismiss the International Union as a defendant on die ground ir had not been named in the charges filed with the Equal Employment Opportunity Commission. (A. 16-20) Following Judge Larkins’ ruling, the case proceeded to the discovery stage. While the case was in this posture, on October 31, 1968, the assets of the Mill were sold to Hoemer Waldorf Corporation, a Delaware Corporation, which in turn assigned them to a new Albemarle Paper Company, a Delaware Corporation. The proceeds of the sale were assigned to First Alpaco Corporation which later merged into Ethyl Corporation, the parent of the old Albemarle Paper Company." (Plaintiffs’ Exhibit 36B pp. 67-69) On March 12, 1970, the United States District Court for the Middle District of North Carolina, decided the case of 21 F ed . R. C iv . F . 23. 22 For convenience, the term “Albemarle” is used in referring to the employer of Respondents. 1 18 Robinson v. Lorillard Corp., 319 F.Supp. 835 (M.D.N.C. 1970) aff’d. 444 F.2d 791 (4th Cir.), petition for cert, dis missed, 404 U.S. 1006 (1971), in which District Judge Eugene A. Gordon, in a Title VII case, on motion first made after his findings on the merits of the case, in his discretion, allowed damages in the form of back pay. Thereafter, in 1970, the issue of damages was injected into this case far the first time. (A. 28-29) On June 25, 1970, Plaintiffs moved to join Iioerner Waldorf Corporation, Ethyl Corporation, First Alpaco Corporation and the new Albemarle Paper Company (Delaware) as parties defendant. The old Albe marle Paper Company (Virginia) filed a motion to dismiss on August 20, 1970. The District Judge, John D. Larkins, Jr., issued his opinion and order on these motions on Sep- tembei 29, 19/0, (A. 30-39) denying' the motion to dismiss, permitting the joinder of the parties defendant23 and stating: “Rule 54(c) of the Federal Rules of Civil Procedure provides in part: ‘except as to a party against whom a judgment is entered by default every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not de manded such relief in his pleadings.’ The'possibility of an award of money damages upon a determination of liability is still with us. It is not yet the proper time to drop the plaintiffs’ claims, which are, at least, litUable ” (A. 37-38) 5 Following This Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), the management • at the Mill promptly employed Dr. Joseph Tiffin, a professor at Purdue University, and an eminent industrial psychologist. Using the standard “concurrent” method of validation, Dr. Tiffin Process was never served on I'irst Alpaco Corporation and it has never participated in this case. conducted further validation studies on the tests in use for certain of the skilled lines of progression. (A. 165-166) As a result of his study, Dr. Tiffin concluded that the tests could reasonably be used for both hiring and promotion for most of the jobs in the Mill. (A. 438) In the meantime, this case was transferred from Judge John D. Larkins, Jr. to Judge Franklin T. Dupree, Jr., who, at a conference of attorneys on May 17, 1971, on motion of Defendant, ordered the case set for trial beginning at 10 a.m., July 26, 1971, at Raleigh, North Carolina. First on May 28, 1971 and again on June 15, 1971, the District Court ordered plaintiffs to answer Defendants sup plemental interrogatory, which read: “List the specific names of each employee or former employee whose personnel record or records in any way establishes or tends to establish any discrimination by Albemarle Paper Company in its employment prac tices and explain how such a record or records show discrimination giving the specific dates and instances.” (A. 44,46). By order dated July 8, 1971, the District Judge defined the class, provided for notice to the class, ruled that dam ages might be recovered in this action and stated his inten tion to have all such claims for individual monetary relief tried with other issues at the trial, reserving the right to refer some of such issues to a master if the claims were too numerous or complicated to be completed at trial. (A. 50-52) On July 10, 1971, the parties agreed to a Stipulation of Facts, which included most of the relevant facts in the case, (A. 86) and on July 19, 1971, the parties agreed to and executed an elaborate pretrial order. 20 I j etrial Order, Plaintiffs listed 134 witnesses of whom 128 were: “Black employees or former employees of Albemarle Paper Company who may be called to testify about their terms, conditions, privileges of employment such as jobs held, wages l'cceived and testimony going to the question of backpay.” (See Pretrial Order entered Tuly 19,1971 at pp. 78-90) The case came on for trial before the Honorable Franklin T. Dupree, Jr., promptly at 10:00 a.m., Monday, July 26, 1971. There were four major issues: (1) Whether there should be injunctive relief with respect to the seniority sys tem at the mill; (2) whether the testing and high school educational requirements were unlawful; (3) whether there should be back pay and (4) whether there should be attorney fees. In an efrort to reduce the scope of the trial, Albemarle consented to the entry of an order providing mill seniority and red-circle rates for members of the class by representing in its opening statement as follows: If tne Court please, I think there are four issues here and I will address myself to them very briefly. First the injunctive relief. The defendants believe that no injunction is warranted in this case. We believe that whatever relief they may have been entitled to some years ago we took care of in 1968, and that under the circumstances we would fight very hard not to be en- joined. However, without admitting any violation of Title VII, we have concluded to say to your Honor this morning that insofar as an injunction to provide plant seniority for these people along the lines of the system that vve set forth in the proposed consent agreement, a copy of which I have left on your desk, we would not buiden the Court today with all the evidence that we 21 think bears on that issue. I think it’s all in the deposi tions. And without admitting any guilt on our part, we can eliminate that part of the case because we would not object to an order along those lines.” (A. 114-115) The trial of the case consumed eight full trial days and one day for the Court to view the Mill. There were literally scores of members of Plaintiffs’ class in attendance at the trial. The District Judge did not limit the evidence in any way. Plaintiffs called eleven employee, or former employee, witnesses and introduced the depositions of five others. The District Judge made extensive findings of fact, found the Company’s testing program “job-related” and declined to enjoin its use. In his discretion the Judge denied back pay to plaintiffs. However, the Court ordered a mill sen iority system and, finding the tests sufficient for the purpose, proscribed the use of a high school education requirement for employment. (See A. 497, 499-502) Plaintiffs appealed to the United States Court of Ap peals for the Fourth Circuit and the case was heard by a panel, consisting of Circuit Judge J. Braxton Craven and Senior Circuit Judges, Herbert S. Boreman and Albert V. Bryan, whose decision is best explained by them: “The district court refused to order the abolition of or changes in the pre-employment testing procedures used by Albemarle. Plaintiffs appeal from the district court’s determination. Judge Boreman concurs with Judge Craven in reversing and remanding to the district court on this issue. Judge Bryan dissents. “The district court also refused to award the plaintiffs back pay. Judge Bryan concurs with Judge Craven in reversing the district court on ’this issue. Judge Bore man dissents. 22 “The effect of this division in the court is to reverse and remand the district court's determinatipn as to the testing procedures and the refusal to award back pav ” (A. 531) J Defendants asked for a rehearing and made a suggestion of rehearing en banc which was granted on June 25, 1973. Supplemental briefs were filed and argument was heard on October 2, 1973. On December 6, 1973, Chief Circuit Judge Clement F. Haynsworth certified to This Court the following- “Under 28 U.S.C. §46 and Rule 35 of the Federal Rules of Appellate Procedure, may a senior circuit judge, a member of the initial hearing panel, vote in the deter mination of the question of whether or not lire case should be reheard en banc?” (A. 540) The certification also stated: “If the en banc court reaches the merits, the tentative vote is that it will modify the panel decision with re spect to an award of back pay.” (A. 540) 17, 1974 Phis Court answered the certified ques tion in the negative and on July 22, 1974 the United States Court of Appeals for the Fourth Circuit denied Defendants’ petition for rehearing. On October 7, 1974 Defendants filed a petition for a writ of certiorari to the United States Court of Appeals for the Fourth Circuit with This Court. The writ was granted on December 16, 1974. 23 VI. SUMMARY OF ARGUMENT A. The District Court Correctly Refused To Enjoin The Use Of Albemarle’s Testing Procedures. 1. I n t r o d u c t io n This case involves the interpretation of principles laid down-in Griggs v. Duke Power Co., 401 U.S. 424 (1970), with respect to the use of employment tests. 2- T h e . E v id e n c e I n T h i s C a s e S h o w s A l b e m a r l e ’s T e s t s W e r e N o t D is c r im in a t o r y . There was no demonstration in the trial court that Albe marle’s tests, the Beta and the Wonderlic A & B, had a racially disparate effect upon a proper statistical universe i.e. otherwise qualified blacks emploved in, or candidates for employment at the Roanoke Rapids mill. Mayor v. Edu cational Equality League, 415 U.S. 605, 620 (1974). The tests not having been shown to discriminate in the first place, there was no basis to proscribe their use. McDonnell Douglas Carp. v . Green, 411 U.S. 792 ( 1973); Bridgeport Guardians, Inc. v. Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973); Hester v. Southern Railway Co., 497 F.2d 1374 (5th Cir. 1974); Woods v. North American Rockwell Corp. 480 F.2d 644 (10th Cir. 1973). 3. A l b e m a r l e D e m o n st r a t e d T h e T e s t s T o B e A R e a s o n a b l e M e a s u r e O f J ob P e r f o r m a n c e . (a ) The District Court Found That Albemarle’s Tests Were Job Related. The District Court found, based in part on a view of the mill, that certain native intelligence and reading skills were required for the safe and efficient operation of the mill. That Court also found that Albemarle’s tests had 24 undergone validation studies and had been proven to be job related. (b) The Findings Of The District Court Have Not Been Shown To Be Erroneous. Ih e attack on the tests in the Court of Appeals was not. that the tests were not job related, but that Albemarle had not proven them to be job-related in strict accordance with the EEOC Guidelines. The proper test is not compliance with the guidelines, Espinoza v. Far ah Manufacturing Co. 414 U.S. 86, 94 (1973), but whether the tests are proven job related to the satisfaction of the Court. Vulcan Society v. Civil Service Commission, 490 F.2d 387, 394 (2d Cir 1973); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); Bridgeport Guardians, Inc. v. Civil Service Commission, 482 F. 2d 1333 (2d Cir. 1973) ; United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973). Relying primarily on the guidelines and on contentions of fact raised for the first time on appeal, the Court of Appeals erroneously found fault with Albemarle’s proof of job relatedness. (i) Job Analysis Albemarle’s expert conducted an empirical validation study which correlated test scores with supervisory- ratings of actual job performance. In such a situation a written job analysis is unnecessary and its absence is irrelevant to the integrity of the correlations. (ii) Supervisor R atings Test validations do not fail as a matter of law upon an un supported presumption that supervisors’ ratings are racially' biased. McDonnell Douglas Corp. v. Green, 411 U S 792 (1973). There is no basis for a presumption of supervisors’ bias in the first place and such bias clearly could not have affected the correlations obtained in this case. 25 (iii) Business Necessity The objections raised concerning the use of a test for incs of progression m which' the test had not been speci fically shown to validate are based primarily on the Court of Appeals nnsassumption of facts and, in any event vo o the utilization of the tests, not their job-relatedness. The lawful USC thC lCStS by th e m a tic is reasonable and B' D m D r VC7 Th; C°Urt ° f Appeals Errcd ^ Not Remanding J lle Testing Issue To 1 he District Court. \Vhen new standards of proof are set forth, simple fair- ness requires the party against whom the new rule is in- VM?D ' C // n dCd; 311 °PPOrtUnity to present its evidence. MQmT p f T Corp- v- U.s. 792, 807(ty/Oy , England v. Louisiana Medical Fram^rcrs *7^ TT c 411 (1964); W J * S!ales v. £ £ 6 (5th Gir. 1973). Especially is this true where, as here the factT °f APPCalS engaged in its own determination of c - The District Court Had Traditional Equitable Discretion To Determine Whether Back Bay Was An Appropriate Remedy. 1 T it c e V I I L ea ves T h e A w a r d O r D e n ia l O f Ba c k P ay C ou rts '" “ E 2 u ita b le D i s c r e t e O f T h e D is t r ic t D; Phe Pi f m Ia^ u ag e of the Statute expressly vests the << ™ , C°Urt Wlth thc discretion to fashion remedies as nay be appropriate, which “may include reinstatement nng ° CmpI°yces, Wlth or without back pay.” Section reverfil 0f thU'SDC't .§20? ° '‘5 (g ) ' The Fourth Circuit’s e\ ersal of the District Judge’s denial was based on its adoptive special circumstances” standard. This standard whch mandates an award of b a d p a , in e v ^ O 26 sa\ c exceptional cases, contravenes the legislative intent behind the express language of the Act. Curtis v. Loctker, 415 U.S. 189 (1974) ,■ hober v. IVeslinghousc Electric Co., 480 F.2d 240 (3d Cir. 1973); 111 Cong. Rec. 12819 (1964). 2. 4 h e D is c r e t io n O f A T ria l C o u r t R egarding T h e B ack P ay R e m e d y S h o u l d B e G uid ed B y T r a d itio n a l E q u it a b l e P r in c ip l e s . Xiial courts in fashioning decrees to remedy violations of Title VII should be free to apply equitable considerations in light of all the facts and circumstances of the case. Two of those factors were cited by the District Judge below: the good faith of Albemarle, and the plaintiffs’ tardiness, amounting to laches, in presenting the back pay claims. United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973); Rental Development Corp. of America v. Lavery 304 F.2d 839, 842 (9th Cir. 1962). f 3. E v e n U n d e r A “S pe c ia l C ir c u m s t a n c e s ” S ta nd ard , T he D is t r ic t C o u r t W as J u s t if ie d I n D e n y in g B a c k P ay / Even if a “special circumstances” rule is correct, the factors cited by the District Court make this an excep tional case. D. Back Pay Should Not Be Awarded To Class Members Who Did Not File Charges With The Equal Employment Opportunity Commission. Back pay is individual redress for damages actually suf fered as distinct from class wide prospective remedial meas ures. The previous filing of a charge with the EEOC is a jurisdictional requirement for individuals seeking relief under Title VII. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The device of a class action under Rule 23 of 27 the Pederal Rules of Civil Procedure may not be manipu lated to confer jurisdiction over such individual claims where it does not otherwise exist. F ed . R. C iv . P. 82; Zahn v. Inter national Paper Co., 414 U.S. 291 (1973); Snyder v. Harris, 394 U.S. 332 (1969); JVeincr v. Bank of King of Prussia, 358 F. Supp. 684 (E.D. Pa. 1973); Sperberg v. Firestone Tire&Rubber Co., 61 F.R.D. 70 (N.D. Ohio, 1973). VII. ARGUMENT A. The District Court Correctly Refused To Enjoin The Use Of Albemarle’s Testing Procedures. 1. I n t r o d u c t io n This case presents to the Court several questions either not reached or not definitively settled in Griggs v. Duke Power Co., 401 U.S. 424 (1971). In Griggs the Court considered the use of a standardized general intelligence test as a condi tion of employment in or transfer to jobs when (a) the stan dard is not shown to be significantly related to successful job performance, (b) the requirement operates to disqualify ISegioes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by . white employees. In this case the District Court found that the jobs in Albemarle’s skilled lines of progression formerly had been filled only by white employees, made no finding with in spect to whether Albemarle’s tests had a disparate racial effect, and finally found that, in any event, Albemarle’s tests were significantly related to successful job perform ance. I 1 i 1 I 28 2. T h e E v id en c e I n T h i s C a se S h o w s A l b e m a r l e ’s T e s t s W e r e N o t D is c r im in a t o r y . In any Title VII case, plaintiff bears the burden of show ing prima facie, discrimination. McDonald Douglas Corp. v. Green, 411 U.S. 792, 802 (3973); Woods v. North Ameri can Rockwell Corp., 480 F.2d 644, 647 (10th Cir. 1973). In the testing context plaintiffs most often make this showing with statistics from tests previously administered by the de fendant employer. Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ; Bridgeport Guardians, Inc. v. Civil Service Commis sion,482 F.2d 1333 (2d Cir. 1973) ; United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973); Carter v. Gal lagher, 452 F.2d 315 (8th Cir.), cert, denied, 406 U.S. 950 (1972). But whatever the method, failure to show that a test has a disparate effect on . the minority group has been and should be fatal to a Title VII plaintiff’s case, Bridgeport, supra at 1339; Hester v. Southern Railway Co., 497 F.2d 1374, 1381 (5th Cir. 1974) ; Woods, supra, at 647. This threshold question of whether Albemarle’s tests had a disparate effect on the members of the class in this case was never specifically addressed in the District Court and the District Court made no findings of fact as to any dis criminatory effect of the tests. Indeed, plaintiffs’ proposed findings did not even include a provision bearing on this issue. The Amicus Curiae, Equal Employment Opportunity Commission (hereinafter EEOC), tried to correct this glaring deficiency in plaintiffs’ case, in its brief24 to the Court of Appeals. Purportedly utilizing plaintiffs’ Exhibit No. 10,25 24 All briefs filed in the Court of Appeals were included in the record sent to this Court. 25 Exhibit No. 10 is supposedly a composite of all of Albemarle’s per sonnel records, which plaintiffs had taken two weeks to microfilm. No 29 Amicus Curiae contended that it showed that on Wonderlic A blacks averaged 17 and whites averaged 24.9, with 96% of the whites and 64% of the blacks obtaining a passing score, and that on Wonderlic B blacks averaged 14.8 and whites averaged 21.9. Amicus Curiae did not point out that the same exhibit also showed that on the Beta, blacks averaged 104.20, whites 107.56 against a cut-off score of 100.00. But in their Supplemental Brief on Rehearing at page 36, the Amici Curiae (the EEOC now joined by the United States) conceded: . . the evidence on the Beta alone showed only a slight, and perhaps not statistically significant impact.” (Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae on Prehear ing En Banc, p. 36). Nevertheless, the majority panel of the Court of Appeals began its discussion of testing by noting: “The plaintiffs made a sufficient showing below that Albemarle's testing procedures have a racial impact.” (A. 515) In support of that conclusion the Court of Appeals Panel cited in a footnote some statistics concerning the Wonderlic tests, but never mentioned the Beta. Thus, the finding by the Court of Appeals Panel is first of all grievously and astonishingly deficient in enjoining Albe marle’s use of the Beta, as to which there was absolutely no evidence, either presented to the District Court or otherwise, to show a disparate racial effect. As Dr. Richard Barrett specific contentions based on Exhibit No. 10 were ever made in the District Court despite Albemarle's strenuous efforts to elicit them. (See R. 52-54.) 30 pointed out in his article, Barrett, Gray Areas in Black mid White Testing, 46 Harv. Bus. Rev. 92, 93 (1968): “A test that places no special obstacle in the path of Negro applicants cannot be said to be discriminatory.” 26 As a consequence of this failure of proof by plaintiffs, Albemarle is clearly entitled to a reversal of that portion of the Court of Appeals’ judgment proscribing further use of the Beta. But even as to Wonderlic, plaintiffs’ proof is deficient on the threshold question of whether the test was dis criminatory. The Court of Appeals Panel concluded that this requirement was satisfied by reference to Exhibit No. 10 and to general statistics. But, while these factors may be the basis for speculation that the Wonderlic tests exclude more blacks than whites, they are not proof of discrimina tory effect at the mill at Roanoke Rapids. The calculation and factual extrapolation from Exhibit No. 10 was never presented to the District Court; in fact, it was before the Court of Appeals that the possibility was first raised that Exhibit No. 10 could be utilized as proof of dis parate effect, and then the suggestion was made not by plain tiffs, but by the Amicus Curiae, EEOC. The District Court thus was never afforded an opportunity to consider the force of this supposed evidence.27 Further, Albemarle was never afforded the opportunity to demonstrate at trial that the conclusion drawn by the EEOC and the Court of Appeals 26 This conclusion was confirmed by plaintiffs’ other expert, Dr. Katzcll, as well. (A. 403). 27 Nor was the District Court ever given the study, E. F. Wonderlic and Assoc. Inc., Negro Norms, A Study of 38,452 job Applicants for Affirmative Action Programs (1972) because it was fiied for the first time with the Court of Appeals and served oil counsel for Albemarle along with Appellants’ Reply Brief in August, 1972. I 31 from Exhibit No. 10 was erroneous for the reason that the statistical universe included test scores of employees who could hardly read or write and whose verbal facility was no more than 1 on the Wonderlic (R. 1135-6), and who were therefore not potential candidates for the skilled lines of pro gression.28 Having failed to prove disparate effect of the tests at trial, plaintiffs may not rely on the suggestion in Griggs, 401 U.S. at 430, n. 6, that the Wonderlic has been shown to have a disparate effect in other cases. If meaningful conclusions are to be drawn a test “must be evaluated in the setting in which it is used.” Georgia Power, supra at 912.29 A rule to the contrary, aside from being illogical, would be inequitable in imposing the heavy financial burden of validation on an employer even though his tests do not discriminate against minorities. In other words, if the test does not discriminate in the first place, it should not have to be validated. 28 Since the District Court found that ability to read and write is a job and safety requirement for the skilled lines of progression, the in clusion of illiterate persons in the statistics relied on by the Court of Appeals renders its conclusions about differential impact meaningless. I This Court has recognized with respect to racial statistics that unless j “the relevant universe for comparison purposes” is limited to poten tially qualified persons, “simplistic percentage comparisons undertaken by the Court of Appeals lack real meaning.” Mayor v. Educational Equality League, 415 U.S. 605, 620 (1974). And see Harper v. Mayor and City Council of Baltimore, 359 F. Supp. 1187, 1193 (D. Md.), modified, sub nom. Harper v. Klostcr, 486 F.2d 1134 (4th Cir. 1973) ; Chance v. Board of Examiners, 330 F. Supp. 203, 214 (SD N Y 1971); aff’d., 458 F.2d 1167 (2nd Cir. 1972). 29 Even Dr. Katzell, one of plaintiffs’ experts, acknowledged that, in order to determine whether a particular test has a racially disparate impact, it would be necessary to study its impact upon the particular group involved. (A. 394-5). t 32 3. A l b e m a r l e D e m o n s t r a t e d I t s T e s t s T o B e A R e a so n a b l e M e a s u r e O f J ob P e r f o r m a n c e . 1 his Court held in Griggs at page 436: “Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress lias forbidden is giving these devices and - mechanisms controlling force unless they are demon strably a reasonable measure of job performance. Thus, the question presented here is whether, even if the unproven assumption that Albemarle’s tests had a racially disparate effect were accepted, the Court of Ap peals could hold as a matter of law that Albemarle failed to make an adequate demonstration that its tests arc a reasonable measure of j'ob performance. Albemarle sub mits that the Couit of Appeals was in error in making that determination. (a) Defendants’ Tests Were Found To Be Job Related By The District Court. The tests used by Albemarle were professionally developed to measure the very attributes found by the District Court to be required for the skilled lines of progression. The Beta measures the intelligence of the taker, even though he is illiterate, (Katzell deposition, A. 360-2) ; the District Court found that a high degree of native intelligence was a neces sary attribute for workers in the skilled lines of progression. (A. 494) The Wonderlic tests also measure general mental ability and indicate the taker’s ability to read" and to under stand what he has read. (Katzell deposition, A. 362-3); the District Court found that reading ability was also a necessary requirement for workers in the skilled lines of progression. (A. 497) Without more, therefore, it would appear that the 33 tests were reasonable measures of a prospective employee’s ability to perform the skilled jobs in the mill. But Albemarle’s case docs not rest, merely upon this basis since, through validation studies, Albemarle’s tests were found to correlate significantly with actual job performance at the mill. Before use of the Beta was instituted, in 1958, a concurrent validation study established positive correla tions.30 Further, after this Court’s decision in Griggs, Albe marle retained an unquestioned expert in industrial psychol og)7 to conduct a further validation study.31 As found by the District Court this study confirmed the validity and utility of the tests: “This court has also found as a fact that a certain level of native intelligence is required for the safe and effi cient operation of Albemarle’s often complicated and sophisticated machinery. The personnel tests adminis tered at the plant have undergone validation studies and have been proven to be job related. The defendants have carried the burden of proof in proving that these tests are “necessary for the safe and efficient operation of the business” and are, therefore, permitted by the Act. However, the high school education requirement used in conjunction with the testing requirements is un lawful in that the personnel tests alone are adequate to measure the mental ability and reading skills required for the job classifications.” (A. 497) 30 Sec, supra, p. 11. 31 The study was conducted by use of the “concurrent validation” method. Ten skill-related job groupings were selected on the basis of skill level and content of the jobs, as being typical of jobs in the skilled lines of progression. Each employee in each group was rated in com parison with each other employee in the group to obtain a ranking of job performance and statistical correlation was performed to deter mine correlation between job performance and test results. (A. 490). The same method was also expressly approved in Watkins v. Scott f .___ Efiper C o.,...F. Supp......, 6 FEP Cases 511, 537 (S.D. Ala. 1973). 34 It is clear, therefore, that the District Judge, who was the trier of fact in this case, had no doubt that Albemarle had demonstrated that its tests were related to perform ance on the job. (b) The Findings Of The District Court Have Not Been Shown To Be Erroneous. Plaintiffs’ contention in the Court of Appeals was not that Albemarle’s tests were not job related (indeed the EEOC’s Brief to the Court of Appeals as Amicus Curiae at p. 32 con ceded that “they may very' well be job related” ). Rather, plaintiffs contended that Albemarle had not proven job relatedness in the manner required by the EEOC guidelines in that (1) Dr. Tiffin's study had not been shown to have fulfilled all of the technical requirements of the guidelines, and (2) Dr. Tiffin had not been shown to have vone through all the procedures detailed in American Psychological Asso ciation, Inc., Standards for Educational and Psychological Tests and Manuals (1966) (Plaintiffs Ex. 71), and that Al bemarle had not presented evidence on extraneous issues not raised in the District Court. Other Courts of Appeals reaching the question have held that an employer may satisfy the job relatedness standard of Griggs independently of the specific requirements of the EEOC guidelines. Castro v. Beecher,*459 F.2d 725, 737-38 (1st Cir. 1972): Guardians Ass’n v. Civil Service Commis sion, 490 F.2d 400, 403 n. 1 (2nd Cir. 1973); United States v. Georgia Power Co., 474 F.2d 906, 913 (5th Cir. 1973). The error of the Court of Appeals panel below was in equat ing EEOC suggested technical methodology' with acceptable standards of judicial proof of job relatedness. “Experience teaches that the preferred method of today may be the re- 35 jected one of tomorrow.32 What is required is simply that an examination must he ‘shown to bear a demonstrable rela tionship to successful performance of the jobs for which it was used,’ Griggs v. Duke Power Co., 401 U.S. 424, 431.55 Vulcan Society v. Civil Service Commission, 490 F.2d 387, 394 (2d Cir. 1973) (Friendly, J.) (Footnote added). Previous opinions of this Court make clear that deference to agency interpretation should be limited, when, as here, the interpretation derives from a nonadversary proceed ing, Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275 (1946), and when the interpretation intrudes in to an area where a court’s expertise exceeds the agency’s.33 In the case of testing, the EEOC guidelines have not been subject to adversarial scrutiny. The 1970 guidelines them selves state: 32 The First “Guidelines cn Employment Testing Procedures” (Plain tiffs Ex. 27A) adopted by the EEOC on August 24, 1966, one day before this case was brought stated inter alia: “The Commission accordingly interprets ‘professionally developed ability to test’ to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairiy affords the employer a chance to measure the applicants ability to peiform a particular job or class or jobs.” -x -* * and advocated * * that tests be judged against job performance rather than by what they claim to measure.” The Guidelines on Employee Selection Procedures adopted on Au gust 1, 1970 by the EEOC superseded the 1966 guidelines, and added stringent and technical standards with respect to job relatedness. Further amended guidelines are presently under consideration by the Equal Employment Opportunity Coordinating Council (EEOCC). 33 Barlow v. Collins, 397 U.S. 159, 166 (1970); NLRB v. Boeing Co., 412 U.S. 67, 76-77 (1973) (dictum). Like statutory construction and principles of equity, the allocation of proof and the proper weight to be accorded evidence are matters properly within the province of the courts. 36 "Because the material herein is interpretive in nature, the provisions of the Administrative Procedure Act (5 U.S.C. §533) requiring notice of proposed rule making, opportunity for public participation, and delay in effec tive date are inapplicable.”34 Indeed, This Court, in Espinoza v. Farah Manufacturing Co:> 414 U.S. 86, 94 (1973) has held with respect to the EEOw. Guidelines on Discrimination Because of National Origin” : “ Ihe Commission’s more recent interpretation of the statute in the guideline relied on by the District Court is no doubt entitled to great deference but that deference mus) ]iave h'ttdts where, as here, application of the guiclejine would be inconsistent with an obvious con- gressional iment not io reach the employment practice in question.” (Citations omitted) i. Job Analysis The principal defect found by the Court of Appeals was that Dr. Tiffin had not conducted a detailed job analy sis in connection with his validation study in the manner required by the EEOC Guidelines. Before discussing the particular reasons for which the Court of Appeals found a job analysis necessary, it will be useful to discuss when, in geneial, a job analysis should or should not be required. 1970 F t n e e i f technical burden imposed on employers by the 1970 EEOC Guidelines on testing marked a radical departure from previous practice, without the benefit of any input by employers. \ lien the proposed amended guidelines containing similarly re- s rictne standards were opened for public comment by the EEOCC the impact oi those guidelines on industry was made clear. The people ‘W h o ' l l SCn’,1d „them as Unworkable,” “incomprehensible,” - technica,ly unsound, “too stringent,” “beyond the state of the art in psychology, • ambiguous, yet restrictive,” “unnecessary',” “punitive ” and as one person said, “just irrational, unreasonable, and impossible.” E_\A, E)aily Labor Report, No. 8 (Jan. 13, 1975). 37 A validation study may be conducted in a variety of fac tual circumstances for various purposes, and may employ various strategies such as content, construct, or criterion related, i.c., predictive or concurrent studies. Thus, when a test publisher or psychologist sets out to devise and market a test, he must conduct a “job analy sis” in order to demonstrate to potential clients the job con tent or duties for which the test has been correlated. Similarly, if an expert psychologist were employed to set up a testing program for a particular plant, he would first of all study the jobs to learn what abilities were re quired, in order to obtain an indication of what tests might be valid job predictors; he would then select a test and, by empirical stud)', would determine if it correlated with job performance. By contrast, the validation study here was intended to examine the validity of the tests already in use. The problem, therefore, was not to select among various tests to measure some unknown job cpntent, but to determine if an existing test correlated with known job performance. In this context the preliminary “job analysis” for selecting the test was superfluous.35 The fundamental point overlooked by the Court of Ap peals is that a test has almost no chance of correlating with job performance ratings unless it in fact measures critical job attributes. Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1024 (1st Cir. 1974); Vulcan Society, supra, 490 F.2d “ American Psychological Ass’n, Inc., Standards for Educational and Psychological Tests and Manuals (1966) (A. 1520-58), relied upon by Plaintiffs, expressly states at the outset (Standard A1) : “Not all the standards in this report will apply to any one par ticular test. A standard may be ignored if it is iirelevant in the light of the purpose of the test and claims made for it. . ” (A .1592) 38 at 396. In light of the high statistical significance of the cor- re ations here, the Court of Appeals Panel’s speculation that only a written job analysis could assure that the supervisors and the tests were measuring the same thing .exalts form over substance. . ,Whllc for S°od reasons Albemarle does not have written job descriptions, (A. 223-24) the job categories for wa«e purposes are the result of union-employer negotiations. I be job content is directly related to the machinery and equipment on which the job holder works, and the lines cn progression are designed to group functionally related jobs ^or training purposes, as well as seniority, especially in the skilled lines oi progression. (A. 211-212) Thus the characteristics of the jobs are clearly understood. Further, Dr. liffin was very familiar with paper mills 38 having made validation studies for International Paper Company The Mead Paper Corp., Marathon Paper Com pany and Gulf State Paper Company and having been consultant to the American Paper Institute from 1965 for the purpose of analyzing the use of the personnel tests ' being made by the member companies of that association.37 hus, to say the tests were not proven to be job related because Dr liffin did not write down in his report what ic knew about the jobs is unjustified as the dissenting oenioi Circuit Judge aptly noted: Secondly, in view of the findings by the rDistrictl Court that 'N a t io n studies had been applied to the * " . « * * * “ d P " ® ™ is quite 37 See Defendants Exhibit No. 22 (A 439-571 • a m i n t--.ce . 39 personnel tests and that the tests had been proved to be job related, I cannot join in the determination that dis crimination resulted from the absence of ‘job analysis.’ It seems to me that these findings necessarily recognize that the equivalent of ‘job analysis’ was utilized. In rat ing the employees, the jobs’ features were undeniably considered, for the supervisors were unquestionably fa miliar with these elements.” ii. Supervisors’ Ratings In his validation study, Dr. Tiffin used the “paired com parison” method of obtaining job success criterion ratings ■ from supervisors.38 Judge Dupree described the process in his findings of facts:° F “Each employee in a job grouping was individually j rated in comparison to every other individual em ployee in that grouping to obtain a ranking of job per formance. The ratings took into consideration the ele ments of work behavior and job success. This rating method was performed twice by two different super visors making independent evaluations. Neither of the raters had access to or knowledge of the sample em ployees’ performance on the aptitude tests. The results of the dual ratings were then averaged to obtain the final job rating of the employees within each specific unit.”' (A. 490) Thus, the supervisors were asked only the most ele mental question: “which of two of the employees who work for you can do the job, better?” The Court of Ap peals finds this simple question to be a “vague standard.” 38 This method was specifically approved in Watkins v. Scott Paper Co.,..... F. Supp........., 6 F.E.P. Cases 511, 537 (S.D. Ala. 1973). 1 40 K ' D^ ---- .{ 6£--»«-iyrt <ywv<t̂ H' ■■. Citing one case, not in point/* and a stray quotation from a iaw review article” and the EEO C guidelines”, the Couit of Appeals concluded: Z ^ eV hff SOme form of J°b ana]ysis resulting in crucial to a °°JecUvc cntena for supervisor}* ratings is ciuc ai to a proper concurrent validation study See I f j f r c Add\tl°n Community Organization v YAlloto 34? F*Supp. 1351, 1354-55 (N.D. Cal. 1972)' To re W H v m tlS t0 leJ T - ? erJ0b reIatedness requirement l Thr If g°°f faith ° the cmPIo),er and his super- the A c ? Plainmg daSS is entitIed 10 more under The Court of Appeals Panel’s overemphasis of “job anal yst, as crucial was apparently based on a confusion be- ween content validity” studies such as that attempted in If estern Addition Community Organization v Alioto 340 F* Supp; ? f 1 fN-D- Cab 1972), cited by the Court, and the more reliable empirical validation” successfully performed m this case. Unquestionably "[t]he cornerstone in the con- s luction °f a content valid examination is the job analysis.” F I Department of Correctional Services, 31A F.Supp. 1361, 13/3 (S.D.N.Y. 1974), since the tasks identi- volved here. y Afferent evaluation from that in- has no citation any § 1607.5(b) (4) (1970) exarrj,ned evidence of bias.” 29 C.F.R. 41 i I i I ficd in the analysis provide the only criteria against which to evaluate the test. In empirical validation studies, how ever, where the test can be measured against actual job per formance rather than a mere description of job performance, the job analysis is far less important. “In the jargon of psychometrics, predictive [empirical] validation involves comparing relative performance on a given test with subsequent job performance. * *• Content validation of a test, on the other hand, re quires that an analysis of the job involved be under taken to determine what characteristics are essential for the adequate performance of that job.” Pennsyl vania v. Giickman, 370 F.Supp. 724, 732 (W.D. Pa. 1974). The thrust of the law review quotation and that of the guidelines is based upon the premise that blacks, gen erally, perform less well on tests than whites, but perform as well on the job and therefore, if because of bias, super visors rate blacks lower, this would tend to make the test seem valid when, in fact, it would merely reflect parallel bias. Recent scientific studies find the underlying premise that blacks who do poorly on a valid test do just as well on the job unfounded.42 42 This premise is, in the jargon, called “differential validity.” In one recent study of thirteen validity studies, the author concluded that there is very little evidence of differential validity. Boelnn, Negro-White Differences in Validity of Employment and Training Selection Proce dures; Summary of Research Evidence, 56 Journal of Applied Psy chology 33 (1972). Sec also Gael & Grant, Employment Test Valida tion for Minority and Nonminority Telephone Company Service Representatives, 56 Journal of Applied Psychology 135 (1972); Schmidt, Berner & Hunter, Racial Differences in Validity of Employ ment Tests: Reality of Elusion 58 Journal of Applied Psychology 5 (1973). r If i 42 Aside from the fact that there is no scientific support for tia t idea, it clearly was not applicable in this case, and was not raised in the District Court. Qnl}Jotwbjack_employees participated in the validation study conducted by Dr. Tiffin, and those four were all in ^roupNo_8. t herefore, in fact, in nine out of the ten groupT studied, racial bias could not have been a factor. Group Ao 8 consisted of eight employees (six black and two white) in the jobs of Chipper Unloader, Chipper Operator No. 2 and Cham Operator in the Woodyard. Two of the black em- -7- A ^ v/ i- l P T 65 refused to takc the tests, so that four blacks and two whites constituted the group. Both the Beta and the Won- ' 7 = ^ 1 ( ^er,]jC £ C0ITdaicd ^ r Group No. 8. Although Dr. Tiffin ad all of his work papers available in Court, he was not asked .or the test scores or supervisory ratings of the em ployees in Group No. 8. Thus, even for Group No. 8, the Court of Appeals Panel relies on a surmise, raised for the first tune in the Court of Appeals, that the four blacks did poorly on the tests, and did as well or better on the job than the whites, but that both supervisors rating them in ependently downgraded their job performance in the precise degree necessary to achieve correlation. The possi bility that this could have occurred is obviously remote and does not provide a basis for invalidating Albemarle’s whole testing program. Further, a supervisor is in the best position to know the rdatwe job performance of his employees. As long as the District Judge, in his role as trier of fact, is satisfied that the supervisor is reporting honestly, the rating cannot be said to be unduly “vague.” ,. 'this instance, the Court of Appeals disagreed more with he District Court’s factual conclusions than with its leral standard. When the Court of Appeals criticized the lack of job analysis, it essentially found a failure by Albemarle to meet a burden of proof. The District Court’s findings clearly recognized that the burden had been earned. The Court of Appeals’ conclusion that this was not enough constitutes a re versal on factual grounds, which was unwarranted since those findings of fact are not “clearly erroneous.” F ed . R. Civ. P. 52; Parmer v. National Cash Register Co., 503 F.2d 275 (6th Cir. 1S75) ; United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948) modified, 339 U.S. 960 (1950). Thus, it is apparent that the Court of Appeals was in error in reversing the District Court on the basis that all supervisory ratings are presumptively biased." This Court has already held that subjective or individual judgments con-. cerning minority employees cannot automatically be equated with racial prejudice. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). iii. Business Necessity The Court of Appeals concluded that it was error “to approve the testing procedures for lines of progression not validated” and “to approve requiring applicants to pass two tests for positions where only one test was validated.” (A. 519) The Court of Appeals found that Albemarle had not shown that “hiring all employees into a pool is necessary to the safe and efficient operation of its business,” nor had it shown that “hiring employees for specific lines of pro gression is not an acceptable alternative.” (A. 519-520) 13 Most validation studies in the United States, including the United States Training and Employment Service General Aptitude Test Bat tery (GATB) which is in wide use throughout the United States, are based on supervisor)' ratings. Thus if the Court of Appeals was correct, tests which Congress has expressly authorized would be presumptively invalid. 44 7 - o ./c ?-p- 4 - 4 ' | • j J^—is -inanifcst that these objections of the Court of Ajjpcals go to the manner in which the tests slW lcFBe utilized_and arc irrelevant to the Question whether thetests arejob related. These objections may be grounds for modi fying the District Court’s order, but they are not grounds for enjoining the use of tests completely, as the Court of Appeals has done. furthermore, the objections basically derive from the Court of Appeals Panel's apparent belief that Albemarle was requiring tests “for 14 lines of progression” in “8 de partments.” Apparently this belief was based on a stipu lation of fact which was correct as far as it went, but did. not take into account the subsequent evidence at trial which clearly demonstrated that many of such lines of progression and departments no longer existed. (A. 244- 245) Although the District Court did not specifically note these changes in the lines of progression (A. 487), the un controverted record discloses that at the time of Dr. Tiffin’s study, Albemarle was using its tests only for .the skilled lines of progression in the Technical Service, Power Plant, B Mill Paper and Pulp Mill Departments, which were the lines Dr Tiffin was asked to study (A i8C). Dr. Tiffin’s study found that the Wonderlic A" cor related positively with job performance in all the lines of progression in those departments except the B Paper Mill Stackiapm and the Pul£ _Mili_C. E. Recovery C lines of progression. So the question r e ^ y7s wbcth77he entire testing program should be cast aside because the 30 r / rr C U n° ParatC CftcC! °n Wacks and v' hites- See PP- 29- } [ I . 45 District Court permitted the use of the Wonderlic in two lines of progression—one involving a total of twelve jobs, the other six jobs—or whether on the basis of Dr. Tiffin’s findings and the circumstances of the Mill it was reasonable to allow the testing procedure to stand. It is Albemarle’s contention that use of tests in both the C.E. Recovery Op erator and Stockroom lines was reasonable and appropriate. In the Pulp Mill Department, the lines of progression do not start with the bottom job but branch out at higher levels so that an employee can be several jobs up the ladder before he will divert into the Digester Operator, the C.E. Recovery Operator or the Caustic Operator line of progres sion. In the Pulp Mill Department, the Wonderlic A cor related significantly in Groups 9 and 1, but only the Revised Beta had significant correlation in Group 2 in the C.E. Re covery line of progression: 46 In this department, therefore, clearly Albemarle cannot pre dict m which line of progression an employee will be needed. To preserve the safe and efficient operation of its pulp mill, it is reasonable to require all employees entering this line to pass the \\ onderhc A as well as the Beta. . Consequently, it is only as to the B Paper Mill Stockroom line of progression that a specific compelling reason for using the Wonderlic may not have been shown. However, it is unreasonable to disrupt the entire hiring system at the mill for so small a group. Nor does so small an inconsistency destroy the overall conclusion of the expert that it is reason able to use the Wonderlic for the skilled lines of progression generally. Finally, the majority opinion• holds that Albemarle “has not shown that hiring all employees into a pool is necessary to the safe and efficient operation of its business, nor has it shown that hiring employees for specific lines of progression is not an acceptable alternative.” This holding misses the point because the use of a pool is no more discriminatory per SC' than hiring directly into a line of progression. How the hiring is done is what may cause the discrimination. Tnless it is assumed that Albemarle is requiring satisfactory’ test scores as a condition of employment for all applicants for the pool and thereby making the tests indirectly appli cable to lines of progression for which the tests are not vali dated, there is no discrimination by reason of the tests. There is no evidence to support that assumption and no reason to doubt that Albemarle is limiting its tests to potential candi dates for the “skilled lines” of progression. The District Court, whose job it was to fashion the remedy in this case, made specific provisions for the operation of the Extra Board or pool in its order so as to insure against the possibility of unfairness in its operation. 47 It is abundantly dear, if not precisely stated, that due to the modernization of the mill and the elimination of various Departments, the Extra Board or “pool” is a device foi sharing the available work among the many employees who would otherwise have been completely displaced. For Albemaile it has the advantage of flexibility in work force. There was no suggestion made that some other method of handling this situation might be less subject to discrimi natory effect. To require Albemarle to conjure up some other system and disprove that it would have less discrimi natory effect is unreasonable, if not unreal.45 Albemarle respectfully submits that the Court of Ap peals had no basis upon which to reverse the District Courts refusal to enjoin its testing program and, there fore, the Court of Appeals should m turn be reversed by this Court. B. In Any Evert The Court Of Appeals Erred In Not Remanding The Issue To The District Court. The Court of Appeals.panel concluded its discussion of testing by stating: “Thus we hold that the district court erred in uphold ing the validity of the pre-employment personnel tests and in refusing to enjoin their use.” The final word of the opinion is simply, “Reversed.” Such bare reversal on the testing issues is improper on several .r - , T n , ' 1 '’ °: “ ^ " “uve requirement is not clear, title VII imposes a heavy burden on defendants after a prim a facie effect on minorities is shown. Imposing impossibly strict standards on private employers collides directly with the business efficiency that is tne backbone of ths country’s economic power. 48 grounds and the Court of Appeals Panel should instead navre remanded to the ^District Court with permission, to reopen the record. Even if we were to assume that the Court of Appeals was correct on the merits, its decision has the effect of setting forth the new rule that an employer has the burden of prov ing job relatedness in strict accordance with the EEOC guidelines and the standards of proof detailed therein. Simple fairness requires that Albemarle, against which the new rule has been invoked, should be afforded an oppor tunity to present evidence with the new rule in mind. Mc Donnell Douglas Corp. v. Green, supra; England v. Louisi ana Medical Examiners, 375 U.S. 411 (1964). Under prac tically the same circumstances, the Court of Appeals for the Fifth Circuit has noted : [Sjtandards for testing validity comprise a new and complicated aica of the law. While the Hite Study did not demonstrate compliance with, the Act, we hesitate to penalize this litigant, the first to confront such a de manding burden of proof, for failing to introduce a more rigorous study. Had our standards been articu lated at the time of trial, it may be that the company could have proven its compliance. Therefore, rather than now proscribing the testing program which Geor gia Power has used, we remand this phase of the case to the trial court with directions to permit the company a reasonably prompt opportunity to validate the testing program applied to the plaintiffs, in accordance with the principles enunciated in this opinion.” Cleoreia Power supra, at 917-18. A bare reversal allowing no further consideration by the District Court is especially inappropriate in light of the further fact that the Court of Appeals Panel under- 49 took to make factual determinations on issues as to which the District Court did not, and was not requested to make findings. Thus the Court of Appeals Panel erred in its finding that tests were required at the time of trial in fourteen lines of progression in eight departments; they were in fact being utilized only in eight lines of progression in four depart ments/'0 Similarly, in applying the literal language of Section 1607.4(c) (1) of the guidelines, the Court of Appeals said it did not reach the question of whether a testing proce dure which takes into account higher-level job require ments is permissible: “. . . because of insufficient evidence below as to the time it takes an employee to progress to the higher level job.3’ No such time computation was made by the District Court because the issue was not injected into the case until the Amicus Curiae filed its brief in the Court eff Appeals. But in fact the raw data with which to make the computations was in evidence and available to the District Court/7 Even worse, the Court of Appeals Panel made a finding as to the disparate racial effect of the Wondcrlic test scores based on a document introduced in evidence in the Court of Appeals after all briefs had "been filed. Ob viously, Albemarle had no chance to probe the evidentiary value of that document, nor did the District Court have *° See supra, p. 13. 47 Plaintiffs’ Exhibit No. 10 shows how long it took each employee to promote to each and every job. Hence, to determine how long it, in fact, took to progress from job to job would be a simple matter of computation. 50 opportunity to pass upon its relevance to or impact on the issues raised in this case.4S . ^ ycr> êast’ the District Court should have been given the chance to determine the facts upon which issues not presented to the District Court were to be decided. Commis sioner v. Dubcrstein, 363 U.S. 278, 292-293 (1960). tmmen-nt °f appdJate court *> read the n t D ’Stri\A/i ^ ? Urt traditional Equitable Discretion To Determine W hether Back Pay Was An Appropriate Remedy. T ^ T V Ip LF'AVES T H E AvVAIU5 Q ii D e n ia l O f Ba c k Pay C o u r t s^ *QUITABLE D i s “ e ™ n O f T h e D is t r ic t In the instant case, the District Court declined to award bach pay to the plaintiffs based on the cumulative effect of several equitable factors.40 In what was apparently the first Title VII case to do so the Court of Appeals below reversed the trial judge’s dis a-eticmary- refusal to award back pay by.adopting, a 43 See supra, PP. 30-31. faith non-com pliancef w hh T ide V lP s 're a u h presenlf d of bad Albemarle Paper Company Sm.n l l D-K-ments on the part of at all levels of employment Finally dip ™ le.hignest wages tardy claims for mone ary relief m he L n“ 7 that Plaintiffs’ their express disclaimer of aty iment to T e l s .S ^ C° Up!e,d Wllh non-named class members at the outlet of the * )T10ne)tai''r' re 'e ̂ ^°r stantially prejudiced the Defendants. (A. 498) e instant legation sub- 51 circumstances” test under which once a violation is found, a back pay award is mandatory absent special circumstances which would render such an award unjust. (A. 523-524)50 Ii is submitted that the “special circumstances” test severely distorts Congressional intent, as evidenced by the plain lan guage of Section 706(g) of Title VII, 42 U.S.C. §2000(e)- 5(g), and operates to reduce traditional concepts of equi table discretion in the trial courts to a nullity. Section 706(g), 42 U.S.C. §2000e-5(g), provides that if the district court in a private Title VII action finds that the respondent has intentionally engaged, or is intentionally en gaging, in the unlawful employment practice alleged, “the Court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may in clude, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems a p p ro p r ia te (Em phasis added). Use of the word may in defining the enforcement or remedial powers of a court or agency normally signifies the grant of general equitable discretion to invoke, or refrain from invoking, the authority conferred. The Civil Rights Act of 1964 is replete with careful dis tinctions between use of the word shall and the word may.51 Other courts of appeals have since adopted varying versions of the special circumstances test for reviewing the District "Courts’ Title VII decrees involving back pay. See e.g., Duhon v. Goodyear Tire & Rubber Co., 494 F.2d 817, 818 (5th Cir. 1974) ; Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 252-53, (5th Cir. 1974) ; Head v. Timken Roller Bearing Co., 486 F.2d 870, 876 (6th Cir. 1973). * Compare, 42 U.S.C. §§2000a, 2000a-l(a), and 2000a-2 with 42 U.S.C. §2000e-3(a). ’ 52 Moreover, the legislative history of Section 706(g) con clusively establishes that the word may was intended to con- e- discretionary remedial powers on the District Courts. In tT e V n 'B COn,f°rmi Ti v VH rCmedies t0 lhose S^nted to l A 1C Natl°na) Labor delations Act, 29 th a t. ’ b 6° (c) ’ carI>' vei'Sions of the Title VII provided If the court finds that the respondent has engaged in the court Sing “? "n Un!aVVf,U! e,»Plo>™<™ practice . . .. fr .l ‘ ‘ • shal[ mdcr tlie respondent to take such affiimative action, including reinstatement or hiring of S^P*oyees> v’ ith or without back pay . . (H.R. 7^59 § 707(e)) (emphasis added). However the word may was substituted fo r shell in the lansfie d-Dirksen amendment adopted on the Senate floor " I his legislative ! ' ' 1history demonstrates that the— i ——u.um uu mm trie oxart cf remedial authority in Section 706(g) is inherently equitable m nature and the question of back pay, like that of other onus o, equitable relief, is left to the discretion of the trial court. 2^CU ^ c â ‘l6^fc)C latter “ “ “ ™'e- S“ 313 u l *7T T m 53 Senator Dirksen commented that: reinstatcm^dl n 7 b X a r ' been revised to read 'mav * * * order surh aft?™,*- • h 53 Indeed, there has never been any question that the above- quoted language vests the District Courts with discretion in fashioning relief.54 The question in this case is whether that discretion is properly limited by a “special circumstances” rule or whether it is governed by traditional equitable prin ciples. Albemarle recognizes that judicial review is not eliminated by the discretionary nature of the District Court’s remedial powers under Title V II; the discretion must be exercised consistently with legislative objectives.50 In Griggs v. Duke Power Co., 401 U.S. at 429-30 (1971) This Court defined the purpose of Title VII as follows: “The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and re move barriers that have operated in the past to favor an identifiable group of white employees over other employees.” This Court’s interpretation is supported not only by the plain language of Title VII, but also by its legislative history. Thus, in the sectional analysis of H.R. 7152 written by the House Judiciary Committee it is stated: “The purpose of this title is to eliminate, through the utilization of formal and informal remedial procedures discrimination in employment based on race, color, re ligion or national origin.” (H.R. Rep. No. 914, 88th Cong., 1st Sess. (Title VII (1963)). M Sec, e.g., Curlis v. Loether, 415 U.S. 189, 197 (1974); Head v. Timken Roller Bearing Co., 486 F. 2d 870, 876 (6th Cir. 1973) (“Congress evidently intended that the award of back pay should rest within the sound discretion of the trial judge” ) ; United States v. N. L. Industries, Ir.c., 479 F.2d 354 (8th Cir. 1973) (discretionary denial of back pay upheld due to unsettled state of law in Circuit). 55 Hecht Co. v. Bowles, 321 U.S. 321 (1944). 54 «T hV 1 heref°re’ an en'°neous extension to assert that The clear purpose of Title VII is . . . to make whole in a pecuniary fashion, those who have suffered by [all proscribed t0 e, f / r a c ’, i dfsr '• ' 969)' C,eari>• in g r e s s wishedend racial discumination m employment. Bui the Con Sc ~ ' » » ® <lle prospective d i m i n a t J o f X cu 7 l Z r C!,C“̂ m°" reparali0- T1“U ht battle over remedies for a Title VII violation in c uchng the substitution of the District Courts for the EEOC “ " " SUbStiU' li0" 0f foe_Section 706(g), indicate that Congress had no precon cen-ed notions .hat compensatory damages in a d d L n T o apprepriate ,,abs'mV , Ra,her> Congress .visited to leave resolution of implex tcniedial problems to the traditional .11 - ootvers of the federd courts of equity'" ’ A, ^ , I t C,al f cumstances” ru,c ad°P«d by the Court of Thfs Courfs dPePr :Catl°n V be baCt Pay rCmcd>' tfcrives front i n , , m u s 7 m V m ) W7 "' • Park * * ” >**> ________ (lyD8). Newman was an action under • m , ^ f c C r t ' T i p p t r f o V t v ^ j r F -2i‘ 240 (3dVital role of the DistrictCourts’ d ise te t^ ^ ^ !rculf recogn:zed the expressly rejected' the “sDfdal'nfre m formulating relief and court below for that reason^ ’ cunlstances rule adopted by the Scf-end,'Chtcuif ^ ,from the Fourth Circuit and trial judge may deny b a c k n l ^ ' “ C™1!5tancf . UTlder which a inclined to follow the more o e r s t i - ^ '^ °n 1 ?1S record vve are Circuit in Manning v. Genera! Motorc p eaSOniIlg of the Sixth 812] at 815,-816; the Ninth^Circuit^ ° S <? r&’ SUpra> [466 F-2d Inc., supra. [46? F 2d 10CP1 nt im e 5 | lacf e' v- Yellow Cabs, U B h t tA s k t h , £ £ , ■ ' » mg opinion of Judge Borcnian of tl,„ r r T and the Assent- . V‘ AIbcrnarIc'’ suPr a ” (Footnote omittedMSOV f d z l ^ Moody 55 Title II of the Civil Rights Act of 1954, 42 U.S.C. §2000a-l ei. seq. in which This Court held that successful plaintiffs in such cases should ordinarily be awarded attorney fees ab sent special circumstances which would render such an award unjust. This Court reasoned that private litigants in Tide II cases5, act not for themselves alone, but as pri vate attorneys general, vindicating a policy concerning public accommodations that Congress considered of highest priority. Newman, supra, at 402. ' Ih e recovery of back pay, being compensatory for past individual injury (see p. 66, infra), is vastly different from attorney fees for ‘"private attorneys general” for advancing the commonweal No compelling public purpose mandates an award of such private relief to Title VII plaintiffs. 2. T h e D is c r e t io n O f A D is t r ic t C o u r t R egarding T h e Ba c k P ay R em e d y S h o u l d B e G uid ed By T ra d itio n a l E q u it a b l e P r in c ip l e s . The real difficulty with a “special circumstances” rule is that it deprives the trier of fact (who is most familiar with the ambiance of the case and the merits of each position) of an opportunity to formulate an award in the light of tradi tional equitable principles. Complex equitable factors affect whether back pay is an appropriate remedy in a Title VII action. In Georgia Power supra at 922, for example, the Court held in relation to back l_he provisions for attorneys’ fees under Title II and Title VII U S C,omf>are, 42 U-S-c - §2000e-5(k) with 42 L.S.C. §_0j0a-3.b). Each was deemed by Congress as sufficiently significant to ne expressed m an identical subsection of each Title. Ihe authority for the grant or denial of back nay in Title VII is lound among the general equitable remedies. 42 U.S.C. S9000e-5fed ° bff °n-1V irVen,ded Separate treatment of attorneys’ fees and back pay, affording the latter no greater presumption of appropriate ness than its companion remedies. ‘ 56 pay, that equity demands that a true balance of interests be struck. The Court set forth a list of factors to be considered which, it cautioned, was illustrative and not exhaustive: (1) whether back wages are properly owing; (2) limitations and laches; (3) factors of economic reality; and (4) physical and fiscal limitations of the court to grant and supervise the relief. For other cases demonstrating complex equitable factors, see Normal] v. Missouri Pac. Ry. Cc., (497 F.2d 596 (8th Cir. 1974), cert, denied, .... U.S......, 43 U.S.L.W. 3413 (U.S. Jan. 28, 1975) ; United States v. St. Louis & S.F. Ry., 464 F.2d 301, 311 (8th Cir. 1972), cert, denied; 409 U.S. 1107 (1973); Shaeffer v. Sen Diego Yellow Cabs, Inc., 462 F.2d 1002, 1006 (9th Cir. 1972); Lc Blanc v. Southern Bell Telephone and Telegraph Co., 460 F.2d 1228, 1229 (5th Cir.) cert, denied, 409 U.S. 990 (1972); United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969). Two equitable factors present in this case were expressly cited by the District Court to support its denial of back pay. One was absence of bad faith non-compliance by Albemarle. Albemarle submits that, while it may be argued that good faith in and of itself may not be sufficient cause for a denial of back pay, good faith is, at a minimum, a relevant factor which must be considered in balancing the equities to formu late an appropriate remedy.'* A number of courts have so held in Title VII cases. See Norman v. Missouri Pac. Ry. Co., supra; Kober v. Westinghouse Elec. Corp., 480 E The District Court’s finding of Albemarle’s good faith is amply supported on the record. Albemarle engaged in affirmative recruit ment of blacks at an early point; AJbemarle merged its Extra Boards and some lines of progression to enhance the opportunities of blacks; and, as judicial gloss was put upon Title VII, Albemarle took early steps to ensure its compliance. (See pp. 14-16 supra). 57 F.2d 240 (3rd Cir. 1973); United States v. N.L. In dustries, Inc., 479 F.2d 354 (8th Cir. 1973) ; United States v. St. Louis & S.F. Ry., supra. These cases which have held that good faith is .irrelevant or that it is an inadequate defense to a back pay claim” have apparently relied cn This Court’s observation in Griggs, supra: “We do not suggest that either the District Court or the Court of Appeals erred in examining the employer’s intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that opeiate as ‘built-in head winds’ for minority groups and are unrelated to meas uring job capability.” 401 U.S. at 432. It must be remembered that This Court in Griggs was speaking of good faith as a defense to a finding of a viola tion. Clearly a fundamental distinction exists between good faith as it relates to the continued maintenance of a discrimi nator)' employment practice which must be eliminated to effectuate the purpose of the Act, and good faith as it relates to an award of money damages. Where the fundamental purpose of the Act—the prospective elimination of obstacles to equal employment opportunity—is in issue, This Court has properly found good faith irrelevant. Where the prospective elimination of discriminatory barriers to employment has been achieved and the issue is reduced to whether an em ployer should be forced, by an award of back pay, to pay again for work already performed and paid for, good faith is clearly a relevant consideration. 59 See e.g., Waters v. Wisconsin Steel Works, 502 F.2d 1309 (7th Cir. 1974); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 436 (5th Cir. 3974) cert, denied, ... U.S...... , 43 U.S.L.W. 3306 (U.S. Nov. 26, 3974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1S74) ; Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 ( 5th Cir. 1974): Head v. Timken Roller Bearing Co. 485 F 2d 870 (6th Cir. 1973). ' , 58 A second factor, of even greater importance in this case, is the conduct of the plaintiffs. Plaintiffs’ complaint, filed August 25, 1966, sought only injunctive and other equitable relief. In response to Albemarle’s Motion [to dismiss as a class action and] for Summary Judgment filed October 5, 1966, plaintiffs formally represented to the Court, “no money damages are sought for any member of the class not before the Court.’’ (A. 13-14). Plaintiffs’ purpose for disclaiming back pay was clearly to qualify their suit as a class action under Rule 23(b) (2), Federal Rules of Civil Procedure. It was not until four )cars had passed that Plaintiffs injected back pay claims into the case/'’ The long delay in adding the back pay claims satisfies all the elements of laches—a tradi tional equitable concern that the Court of Appeals found to be an insufficient “special circumstance.” Plaintiffs’ disclaimer at tire time of Albemarle’s Motion for Summary judgment created the justifiable conclusion that Plaintiffs were not pursuing their back pay claims, furthermore, Plaintiffs clearly knew their rights under the Act, and their delay is not justifiable. All defendants have been prejudiced by Plaintiffs’ tardy assertion of a claim which Plaintiffs initially disavowed. Dis covery relating to individual claims was clearly rendered much more difficult, if not impossible, by the passage of time. Moreover, the parties have changed positions. Hoerner Waldorf Corporation, at the time an innocent third party, purchased Albemarle’s assets in 1968 in the belief that in this suit plaintiffs were not seeking damages. Thus, the claim of laches is meritorious. Plaintiffs should not be permitted to excuse their laches by resort to Rule 54(c) of the Federal Rules of Civil Proce- 60 The first official indication that back pay would be in issue was in the District Court’s Memorandum Opinion and Order entered Sep tember 29, 1970. (A. 37-38). 59 dure, relied on in Robinson v. Lorillard, 444 F.2d 791 (4tli Cir. 1971), to uphold a discretionary grant of back pay de spite tire claim’s tardy assertion. This is not merely a case of a tardy assertion of the claim. Plaintiffs at the outset ex pressly disavowed any intent to seek back pay. The substan tial prejudice to Albemarle is amply demonstrated above.01 The Fourth Circuit in Robinson cited with approval the fol lowing language from Rental Development Corp. of America v. Lavcry, 304 F.2d 839, 842 (9th Cir.4 962) : “If, however, it is made to appear that the failure to ask for particular relief substantially prejudiced the op posing party, Rule 54(c) does not sanction the granting of relief not prayed for in the pleadings.” Therefore, the substantial prejudice to Albemarle caused by plaintiffs’ express disavowal of back pay claims mandated the Distitc,. Court s denial of an award or back pay in this case. The Court of Appeals’ “special circumstances” rule, is at best a vague standard. District Courts are hardly better guided by “special circumstances” than by traditional equi table principles. Moreover, the District Court was never granted the op portunity to apply the “special circumstances” rule to the facts of this case. Had it been granted such an opportunity, the District Court may well have articulated further factors present in this case in justification of its denial of back pay. Thus, the Court may have explicitly cited the speculative nature of back pay relief in Title VII cases02, the unsettled m The District Court’s finding of substantial prejudice (A. 498) to Albemarle cannot be said to be clearly erroneous. 42 Since Title VII litigation is “rightful place” litigation, back pay awards must take into consideration, on an individual basis for each alleged discriminatee, (1) selection of the presumably appropriate 60 state of Title VII law during the pendency of this action*5 the absence of unjust enrichment to Albemarle*4, and the real failure of plaintiffs to make their case for back pay*5 as equitable factors which it considered in reaching its result. . , ot only is a “special circumstances” rule hi conflict mth the plain language of the Act, it is inimical to the prompt elimination of “built-in headwinds” to equal em ployment opportunity. As a practical matter, a special circumstances rule will serve to inhibit voluntary concilia tion of Title VII claims. Thus, if the granting of any form ol injunctive relief will result in the virtually automatic trw- gam g of back pay liability, ever)' employer, however well mtentioned, will, out of fear of back pay judgments, be com p e lle d ^ oppose each item of requested injunctive relief, even if it be with respect to matters such as seniority which can benefit only employees— both black and white- -and not the employer. Such employers will surely not, as Albemarle did, voluntarily consent to entry of injunctive relief of the type sought by plaintiffs.60 Finally, the Court of Appeals reversed the District Court’s denial of back pay only after deciding that the factors cited “rightful place”, (2) whether the employee would have achieved that S S ^ “ »n„a5 W ,h' Vi0'a,i“ ’ anCi (3) W W M * . ( S th c i r A m ) . SU" “ V' N ' U « 7 F.2d 354, 380 n q 4 C w u g'’ Porier V- Warner Holding Co., 323 U.S 395 399-400 .rial 2 o t‘mS b“ k ^ W“ 'd bc «GO See supra pp. 20-21. 61 by the District Court were individually insufficient to amount to special circumstances. Clearly the Court of Appeals erred in considering the District Court’s reasons for denying back pay as isolated factors and not in their totality.07 Since the decision of the Court of Appeals, by adapting Newman’s special circumstances rule to back pay claims effectively precludes the trial court from considering tradi tional equitable principles in deciding whether or not to award back pay, it should be reversed. 3. E v e n U n d e r A “ S pec ia l C ir c u m s t a n c e s ” Sta n d a rd ,. T h e D ist r ic t C o u r t W as J u s t if ie d I n D e n y in g Ba c k P ay . The factors cited by the District Court in denying back pay—Albemarle’s good faith and Plaintiffs’ tardiness in filing the claim—arc of sufficient importance when taken together with the other factors mentioned above, to amount to special circumstances justifying the denial of back pay. D. Back Pay Should Not Be Awarded To Class Members Who Did Not File Charges With The Equal Employment Opportunity Commission. Upon the theory that back pay is merely a part of equit able relief, the Court of Appeals for the Fourth Circuit in Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), followed below, permitted the recovery of back pay by all . 67 See Kober v. Westingkouse Electric Corp., 480 F.2d 240 248 (3d . Cir. 1973) : “The statute says that the court may order such affirmative action as may be appropriate, with or without back pay. I t is our deter mination that this language clearly leaves the award or denial of back pay to the discretion of the district court to be exercised in the light of all the circumstances of each case.” (Emphasis added). 62 members of a Rule 23(b) (2) class in a Title VII action.68 V ithout specifically considering the issue, the Lorillard de cision confers on the courts by the device of nomenclature (i.c. class action ) jurisdiction to award individual nione- taiy ldief to persons who otherwise have no jurisdictional standing before the Court. The decisions of This Court are to the contrary'. Zahn v. International Paper Co., 414 U.S. 291 f 1973); Snyder v. Harris, 394 U.S. 332 (1969). It is one thing to bring a class action seeking prospective relief from policies or practices generally applicable to a class, such as a discriminatory seniority system, since the re lief will apply to the class members, whether or not repre sented in the proceeding. It is quite another matter to bring an action for monetary relief on behalf of hundreds of indi viduals who may or may not have been actually damaged by application of broad practices to them.63 Cleat ly back pay is lediess tor an individual wrong. Even the decision below in this case warned that oack pay is limited to damages which are actually suffered. (A. 524)70 e6To the same effect: Bowc v. Colgate Palmolive Co., 416 F.2d 711 (7th Cir. 1969) ; Franks v. Bowman Transportation Co., 4S5 F.2d 398 (5th Cir. 1974) cert, denied .... U.S......, 43 U.S.L.W. 3330 (U.S. Uec.. 10, 1974); Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973); and others. 63 A critical factor ignored by the Court of Appeals is the very heavy burden of suit management that class-wide back pay cases would im- pose on District Courts. I he speculative nature of the relief together with the individual proofs required would make even the administra tive task of designating subclasses very difficult. The gathering col lating, and weighing of individual claims would be an even greater burden. ° '° See also Johnson v. Goodyear Tire and Rubber Co. 491 F 2d 1364, 1375 (5th Cir. 1974) : 5 ‘‘There should be a separate determination on an individual basis as to who is entitled to recovery and the amount of such recovery.” T 63 I he administrative complaint and conciliation procedures built into XitJc \ II were an integral part of the legislative compromise which led to the enactment of the Civil Rights Act of 1964. i hereby the employer is given early notice of charges of discrimination filed against him, administrative investigation of such charges, and an opportunity to con ciliate such charges as may have merit. Section 706(a), 42 U.S.C. §2O0Oe-5 (a ). A court-made rule permitting class'Jf wide back pay permits parties who have not filed a chargaf to cn cum vent litis administrative process to the prejudice, of employers. Not only are employers thus denied the pro tections provided by the statute, but are also denied timely notice of the nature and scope of the individual claims against them and the opportunity to prepare defenses to such individual claims. Back pay claims are unique and personal to the individual, m a claim for injunctive rebel, an employer who is unwilling to eliminate an allegedly discriminatory practice (such as job testing) in conciliation with one charging party, may leasonably be expected to adhere to the same position with respect to other individuals. By the same token, con ciliation of injunctive matters with a single charging party is effectively conciliation with everyone similarly situated. In contrast, the fact that an employer is unable to reach agree ment with one individual charging party regarding back pay does not piecludc the possibility that such an agreement could be reached on other individual back pay claims. The eligibility of an individual for back pay turns upon the speci fic circumstances applicable to that individual, lhus, the suc cess or failure of conciliation of one back pay claim turns on factois unique to the individual, and the filing and concilia tion of charges by other individuals claiming back pay does not involve duplication of effort. 64- Judge Robert R. Merbige in Austin v. Reynolds Metals Co., 327 F. Supp. 1145 (E.D. Va. 1970), summed it up succinctly: “The right to individual compensation, while an ele ment of federal policy incorporated in the act, 42 CJ.S.C. §20C>0e-5(g), is not so important as injunctive relief from a policy injurious to the public as a whole. Indi viduals can consistently be required to prosecute ad ministrative charges at their own initiative in order to be eligible for damages. Possibly the court in Antonopu- los [v. Aerojet-General Corp., 295 F.Supp. 1390 (E.D. Cal. 1968) ] believed that the charging party intended ■ her submission to be a joint claim and honored it as such, or that at any rate the administrative agency had behaved accordingly. But to allow any individual to recover damages for a practice of which he has not complained administratively would frustrate the Com mission’s role in a manner which has been consistently disapproved. Johnson v. Seaboard Air Line Railroad Co., 405 F.2d 645, 1 FEP Cases 456, 69 LRRM 2916 (4th Cir. 1967). The Commission’s conciliation efforts amount essentially to negotiations over a settlement satisfactory to all concerned and consistent with the Act. Success is not always complete, as this case shows. But there will be no genuine opportunity to conciliate if all of the aggrieved individuals are not before the Commis sion and the magnitude of their claims is not apparent. Therefore this Court holds that although non-charging parties may intervene on the issue of injunctive relief, they may not now sue for damages.” Thus, while there may exist a common question of law in Title VII cases, that is the only relation between the mem bers of the class, and their back pay claims are no more than claims for individual redress, irivolving separate issues and sometimes conflicts of interests. Among the individual issues involved in computing whether damages warranting back -\̂ • '65 pay are actually suffered are: whether the individual was otherwise qualified by, for example, his experience, employ ment history and background, for the job or jobs in question; whether he actually applied for the job in question or would have applied absent a violation of the Act; whether, at the time of application a vacancy in the job existed; the pay rates of the individual and those of various jobs in question; and individual matters relating to mitigation (including in terim earnings, see §706(g), 42 U.S.C. §2000e-5 (g) ). There is no question that in order to have standing to bring an action under Title VII, an individual must have filed timely charges of discrimination with the EEOC. This is a jurisdictional requirement. McDonnell Douglas Corp., supra at 798; Dent v. St. Louis & S.F. Ry.' Co., 406 F.2d 399 (5th Cir. 1969) ; Stebbins v. Nationwide Mutual his. Co., 382 F.2d 267 (4th Cir.), cert, denied, 390 U.S. 910 (1968); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971); Griffin v. Pacific Maritime Ass’n., 478 F.2d 1118 (9th Cir.), cert, denied, 414 U.S. 859 (1973); Cox v. United States Gypsum Co., 284 F. Supp. 74, 76 (N.D. lnd. 1968), afi’d, 409 F.2d 289 (7th Cir. 1969). In Stebbins v. Nationwide Mutual Insurance Co., 382 F.2d at 268, (4th Cir. 1967) the Court held : “Having reviewed the legislative history of the Act, as well as its language, we agree with the District Judge that the Plaintiff could not bypass the federal agency and apply directly to the courts for relief. Congress established comprehensive and detailed procedures to afford the EEOC the opportunity to attempt by ad ministrative action to conciliate and mediate unlawful employment practices with a view to obtaining volun tary compliance. The plaintiff must therefore seek his administrative remedies before instituting Court action against the alleged discriminator.” . 66 Therefore, the filing of a charge is jurisdictional and serves ] a very important purpose. In Zahn v. International Paper I C°7> 414 U.S. 291 (1973), This Court upheld the refusal of a / Distjict Court to permit a case to proceed as a class action/ because the unnamed plaintiffs, having separate and dis tmct claims, did not individually satisfy the jurisdictiona amount requirement. While Zahn involved jurisdictional amount, the principle is applicable here. The decisions are unanimous that the jurisdiction of the Federal Courts is not available for the individual discrimina tion claims of persons who have not filed charges with the EEOC; and Rule 23 cannot be manipulated to confer juris diction where it does not otherwise exist. Zahn, supra. The Federal Rules themselves prohibit the use of the class action device to circumvent statutory jurisdictional require ments. Snyder v. Harris, 394 U.S. 332, 33? (1969). Rule 82 provides explicitly that: ‘These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein.” Quite apart from jurisdictional amounts therefore, Rule 82 prevents the manipulation of Rule 23 to bypass any jurisdic tional requirements. Weiner v. Bank of Kino of Prussia 358 F. Supp. 684, 694-96 (E.D. Fa. 1973); Spcrberg v. Fire- 5m l ) lre and Rubber Co'’ 65 F R D - 70>73-74 (n .d . Ohio, Therefoie, bach pay, if any is held appropriate in this case, should be limited to the named plaintiffs. 67 VIII. CONCLUSION 1. A f f ir m T h e D is t r ic t C o u r t After hearing eight days of evidence and having travelled to Roanoke Rapids and viewed the mill, the District Judge concluded that Albemarle’s tests were job related and de clined to enjoin their use. He did, however, enjoin the use of a high school education requirement and prescribed a seniority system based on “mill seniority” and a system for the non-discriminatory use of the Extra Board (or pool). In his discretion, the District Judge denied back pay. It is ap parent from the record and from his findings of facts and conclusions of law, that the District Judge had diligently familiarized himself with all the ramifications of the case. Albemarle submits that the District Judge was correct not only on the facts but also on the law. His order should be affirmed and after nearly nine years this litigation should be brought to an end. For those reasons, Albemarle requests This Court to reverse the Court of Appeals and affirm the judgment of the District Court. 2. R e v e r se T h e C o u r t O f A p p e a l s A n d R e m a n d T o T h e D is t r ic t C o u r t F or F u r t h e r P r o c e e d in g s Even if tne panel of the Court of Appeals were correct on the law, its decision still should be reversed by This Court and the case remanded to the District Court for further pro ceedings. The remand could conceivably be on a variety of issues depending upon This Court’s views on the broad test ing and back pay issues. Thus, Albemarle’s secondary re quest for relief is that to the extent the District Court’s de- : rV ■ i-O i* ■ —. / » * W . U b ■*«!<* 68 cision is not upheld that the case be remanded to the District Court for further proceedings. Respectfully submitted, F r a n c i s V. L o w d e n , J r . 700 East Main Street Richmond, Virginia 23219 G o r d o n G . B u s d i c k e r 1300 Northwestern Bank Bldg. Minneapolis, Minnesota 55402 Counsel for Petitioners February 13, 1975 ! I